Phillips v. Smith

Filing 6

Memorandum of Opinion and Order signed by Judge James S. Gwin on 9/21/11. The petition is denied as Petitioner Phillips has failed to exhaust all available state remedies. (Related Doc. 1 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

JAMES R. PHILLIPS, JR.,
Petitioner,
v.
KEITH SMITH,
Respondent.

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CASE NO. 3:11 CV 1205
JUDGE JAMES S. GWIN
MEMORANDUM OF OPINION
AND ORDER

On June 10, 2011, petitioner pro se James R. Phillips, Jr., filed the above-captioned petition
for writ of habeas corpus under 28 U.S.C. § 2254. Phillips seeks to challenge his 2009 conviction,
pursuant to a jury verdict, for rape. For the reasons stated below, the petition is denied and this
action dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
A federal 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). In addition, a petitioner must have exhausted all available state remedies. 28
U.S.C. § 2254(b).
Phillips seeks to raise five grounds in support of the petition. It appears evident on the face
of the petition, however, that he has not yet sought review of his conviction in the Ohio Supreme
Court. Such review may be available, see Ohio Sup.Ct.R.P. II, sec. 2(A)(4)(a), and must be sought
in order to exhaust state court remedies. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
Accordingly, the petition is denied and this action is dismissed pursuant to Rule 4 of the
Rules Governing Section 2254 Cases, without prejudice to refiling upon exhaustion of 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 that there is no basis on which to issue a certificate
of appealability. Fed. R.App.P. 22(b); 28 U.S.C. § 2253.
IT IS SO ORDERED.

Dated: September 21, 2011

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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