Boone v. State of Ohio et al

Filing 7

Memorandum Opinion and Order: The Court DISMISSES the #1 Petition for a Writ of Habeas Corpus under 28 U.S.C. 2254 WITHOUT PREJUDICE pursuant to Rule 4 of the Rules Governing Section 2254 cases. Further, the Court finds, pursuant to 28 U.S.C. 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Charles Esque Fleming on 9/16/2022. (S,SR)

Case: 1:22-cv-01363-CEF Doc #: 7 Filed: 09/16/22 1 of 3. PageID #: 25

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICHARD P. BOONE,

CASE NO. 1:22 CV 1363

Petitioner,
v.

JUDGE CHARLES E. FLEMING

STATE OF OHIO, et al.,
Respondents.

MEMORANDUM OPINION
AND ORDER

Pro se petitioner Richard P. Boone is presently incarcerated at Lake Erie Correctional
Institution. On August 2, 2022, Boone filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254
(ECF Nos. 1, 5) concerning his conviction in the Lorain County Court of Common Pleas (Case No.
15CR091434).
Promptly after the filing of a petition for a writ of habeas corpus, a federal district court must
undertake a preliminary review of the petition to determine “[i]f it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to relief.” Rule 4 of the Rules Governing
Habeas Corpus Cases Under Section 2254 in the United States District Court. If so, the petition must
be summarily dismissed. See Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (holding that the
district court has a duty to “screen out” habeas corpus petitions that lack merit on their face). No
response is necessary where a petition is frivolous, obviously lacks merit, or where the necessary
facts can be determined from the petition itself without consideration of a response. Id. The principle
of liberal construction generally afforded pro se pleadings applies to habeas petitions. See Urbina v.
Thoms, 270 F.3d 292, 295 (6th Cir. 2001).

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A federal district court may entertain a habeas petition filed by a person in State custody only
on the ground that he is in custody in violation of the Constitution, laws, or treaties of the United
States. 28 U.S.C. § 2254(a). But before a federal court will review the merits of a petition for a writ
of habeas corpus, a person must exhaust his state-court remedies. Manning v. Alexander, 912 F.2d
878, 880–81 (6th Cir. 1990) (citing 28 U.S.C. § 2254(b), (c)); see also Rose v. Lundy, 455 U.S. 509,
522, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982)).
Exhaustion is fulfilled once a State supreme court provides a convicted person a full and fair
opportunity to review his claims on the merits. Id. (citing, among other authorities, Justices of Boston
Mun. Court v. Lydon, 466 U.S. 294, 302–03, 104 S. Ct. 1805, 80 L. Ed. 2d 311 (1984)). Exhaustion
requires “fair presentation” of the federal claim “to the state courts, including the state court of appeals
and the state supreme court.” Bray v. Andrews, 640 F.3d 731, 734–35 (6th Cir.2011); see O’Sullivan
v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). To fairly present a federal
claim, a petitioner must present the state courts with “both the legal and factual basis” for the claim.
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Williams v. Mitchell, 792 F.3d 606, 613
(6th Cir. 2015). The petitioner bears the burden of establishing that he has properly and fully
exhausted his available State court remedies with respect to his habeas claims for relief. Nali v.
Phillips, 681 F.3d 837, 852 (6th Cir. 2012) (citing Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994)).
Here, there is no suggestion in the petition that Boone appealed from the judgment of
conviction, sought review by a higher state court, or filed any other petitions, applications, or motions
concerning this judgment of conviction in any state court. Upon the Court’s review of the Lorain
County Court of Common Pleas docket, however, the Court finds that Boone appealed the judgment
to the Ninth District Court of Appeals on March 25, 2022, and that appeal is still pending. Because
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Case: 1:22-cv-01363-CEF Doc #: 7 Filed: 09/16/22 3 of 3. PageID #: 27