Confere v. Mackey

Filing 4

Opinion and Order dismissing the petition for a Writ of Habeas Corpus under 28 U.S.C. 2254 pursuant to Rule 4 of the Rules Governing Section 2254 Cases. This dismissal is without prejudice to Petitioner's re-filing a petition in a new case demonstrating he has fully exhausted his state court remedies. Further, the Court certifies, pursuant to 28 U.S.C. 1915(a)(3), that an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. Judge John R. Adams on 8/27/24. (K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Dana Confere III
Petitioner,
v.
Warden Misty Mackey
Respondent.

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CASE NO: 1:24CV1169
JUDGE JOHN ADAMS
OPINION AND ORDER

Pro se petitioner Dana Confere III, presently incarcerated at Lake Erie
Correctional Institution, filed a Petition for a Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 challenging his 2022 conviction in the Summit County Court of Common
Pleas. (See Doc. No. 1).
Petitioner challenged his sentence on direct appeal, and the Ohio Court of
Appeals affirmed the trial court. See State v. Confere, No. 30560, 2023 Ohio App. LEXIS
3176, 2023 WL 5949443 (Ohio App. 9th Dist. Sept. 13, 2023). On March 22, 2024,
Petitioner filed a motion for modification of his sentence in the Summit County Court of
Common Pleas, which the trial court denied. (See Doc. No. 1 at 3). According to the
petition, Petitioner did not appeal this decision to the highest state court. (Id. at 5).
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” in the district court. Rule 4 of the Rules Governing Habeas Corpus Cases Under

Section 2254. If so, the petition must be summarily dismissed. See Allen v. Perini, 424
F.2d 134, 141 (6th Cir. 1970) (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).
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
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.

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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. See Nali v. Phillips, 681 F.3d 837, 852 (6th
Cir. 2012) (citing Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994)).
Here, Petitioner indicates on the face of the petition that he pursued an appeal in
the Ohio Court of Appeals. However, Petitioner states that he did not seek review of
either his direct appeal or the trial court’s denial of his postconviction motion for
sentence modification in the Ohio Supreme Court, the highest court in Ohio. (See Doc.
No. 1 at 2, 5). Petitioner has therefore not demonstrated that he has properly and fully
exhausted his available state court remedies. And because Petitioner has not given the
state courts a fair opportunity to consider the merits of the claims he has presented in this
petition, the Court must dismiss the petition.
Accordingly, the Court DISMISSES the Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2254 pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
This dismissal is without prejudice to Petitioner’s re-filing a petition in a new case
demonstrating he has fully exhausted his state court remedies. Further, the Court certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken
in good faith, and there is no basis upon which to issue a certificate of appealability. Fed.
R. App. P. 22(b); 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.

August 27, 2024

/s/ John R. Adams
JUDGE JOHN R. ADAMS
UNITED STATES DISTRICT COURT

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