Scarberry v. Turner

Filing 12

Order: The Magistrate Judge's Report and Recommendation (Doc. [6)] be, and the same hereby is, adopted as the order of this Court, and the petition for relief under 28 U.S.C. § 2254 be, and the same hereby is, dismissed with prejudi ce. I decline to issue a certificate of appealability, as jurists of reasons could find no basis in the record or the Magistrate Judge's Report and Recommendation to reach a conclusion other than that which the Magistrate Judge has recommended and that I have found well taken in all respects. Judge James G. Carr on 1/20/17. (Attachments: # 1 R&R)(C,D)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

DARBY SCARBERRY,
Petitioner,
v.
NEIL TURNER, Warden,
Respondent.

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Case No. 3:15CV0500

JUDGE JAMES G. CARR
Magistrate Judge George J. Limbert

REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE

This matter is before the undersigned on a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, filed, pro se, by Petitioner Darby Scarberry (“Petitioner”) on March 9, 2015.
ECF Dkt. #1. Petitioner seeks relief from his parole revocation stemming from convictions for
petty theft and prior convictions for burglary, rape, and robbery entered by the Allen County,
Ohio, Court of Common Pleas Id. On December 14, 2015, Respondent, Neil Turner
(“Respondent”), Warden of the North Central Correctional Complex in Marion, Ohio, filed a
return of writ. ECF Dkt. #4. On January 8, 2016, Petitioner filed a traverse. ECF Dkt. #5.
For the following reasons, the undersigned RECOMMENDS that the Court DISMISS
Petitioner's federal habeas corpus petition in its entirety with prejudice.
I.

FACTUAL AND PROCEDURAL BACKGROUND
A.

Factual History

The Supreme Court of Ohio set forth the following facts of this case in state habeas
proceedings. These binding factual findings “shall be presumed to be correct,” and Petitioner
has “the burden of rebutting the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d 358, 360–361 (6th Cir. 1998), cert. denied,

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119 S. Ct. 2403 (1999).
{¶ 3} On June 13, 1984, Scarberry was convicted of rape and sentenced to a term
of 10 to 25 years. The rape in question occurred on December 18, 1983.
{¶ 4} On December 1 and 2, 2009, Scarberry, while out of prison on parole,
committed two theft offenses at the same gas station in Lima, Ohio.
{¶ 5} On January 11, 2010, Parole Officer Philip Rader prepared a violation
report recommending revocation of Scarberry's parole. According to Scarberry,
the Rader report falsely accused him of raping a gas-station attendant at
knifepoint during one of the December 2009 petty thefts.
{¶ 6} On January 7, 2010, Scarberry pled guilty to two misdemeanor counts of
petty theft for the 2009 offenses. On February 2, 2010, the [Ohio Adult Parole
Authority (“OAPA”)] found that Scarberry had violated the conditions of his
parole. The report containing the OAPA's findings made no mention of a knife
being used or a rape being committed during the December 2009 offenses.
{¶ 7} Scarberry alleges that he first became aware of the Rader violation report
on May 16, 2011. Scarberry filed an administrative grievance with the OAPA
seeking to have his parole revocation readdressed, but an OAPA regional
administrator rejected the complaint, in part on the grounds that the issues
complained of were not grievable.
{¶ 8} On January 25, 2013, upon completion of Scarberry's 36–month
reincarceration, the OAPA conducted a parole hearing and denied Scarberry's
request for early release.
Scarberry v. Turner, 139 Ohio St. 3d 111, 112, 9 N.E.3d 1022, 1023, 2014-Ohio-1587.
B.

Procedural History regarding Convictions and Sentences

On February 8, 1983, the Allen County Court of Common Pleas sentenced Petitioner to a
term of 3-15 years for a burglary conviction. ECF Dkt. #4-1 at 8. Records indicated that
Petitioner was released on parole on October 5, 1983 although his maximum sentence expiration
was January 1, 1998. Id. at 6. However, while on parole, Petitioner committed a new crime for
which he was returned to prison. On June 19, 1984, the Allen County Court of Common Pleas
sentenced Petitioner to a term of 10 to 25 years for rape with specifications with that sentence to
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run consecutively to any parole violation sentence imposed. ECF Dkt. #4-1 at 9. Records
indicate that this therefore made his total sentence 13-40 years of imprisonment with a maximum
sentence expiration of June 23, 2022. Id. at 6. Records indicate that Petitioner was released on
July 17, 2001. Id.
While on parole, Petitioner again committed new offenses and on July 31, 2002, the
Allen County Court of Common Pleas sentenced Petitioner to two, 2-year terms of imprisonment
on two counts of robbery, said terms to be served consecutively to one another, with a period of
post-release control to follow. ECF Dkt. #4-1 at 6, 11-13. Petitioner’s parole was revoked
again, his cases were aggregated, and his 2002 conviction term was to run consecutive to the
remainder left on his burglary and rape sentences, with a remaining maximum sentence
expiration of June 23, 2022. ECF Dkt. #4 at 2; ECF Dkt. #4-1 at 6.
Petitioner was again released on parole on September 28, 2006, but returned to prison
after committing a theft offense, for which he was ordered to serve ninety days in jail with time
served. ECF Dkt. #4 at 2; ECF Dkt. #4-1 at 12-13, 40. The violation report indicated that
Petitioner had some difficulty with alcohol and ingesting prescription medications that were not
his and an allegation that he broke into his mother’s house. No charges were filed and he was
placed on GPS monitoring, but apparently he cut off his monitoring system and absconded in
January 2007. ECF Dkt. #4-1 at 41. He was then arrested on the theft charge. Id.
Petitioner was paroled again and committed two theft offenses on December 1 and 2,
2009, for which he was sentenced by the Allen County Court of Common Pleas on January 10,
2010, to two consecutive 180-day terms in the county jail. ECF Dkt. #4-1 at 3.
Petitioner did not file an appeal of any of his convictions or sentences.

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C.

Procedural History regarding Parole Board

On January 8, 2010, Petitioner was sent notice of his release violation hearing, which was
scheduled for February 2, 2010. ECF Dkt. #4-1 at 21. On February 2, 2010, a hearing was held
with Petitioner and counsel present and the Ohio Parole Board revoked Petitioner’s parole. ECF
Dkt. #4-1 at 17. The Ohio Parole Board accepted the hearing officer’s recommendation that
Petitioner receive a 26-month prison sanction for a technical parole violation. Id. at 75.
On October 11, 2011, Petitioner sent a letter to the Ohio Parole Board alleging that all of
the evidence used in approving his sanction was not presented at his parole revocation hearing.
ECF Dkt. #4-1 at 75. Petitioner explained that he had just become aware of this lack of evidence
on May 16, 2011 when he had received a copy of his parole officer’s violation report as he had
not been given this report before so that he could defend against its allegations. Id. Petitioner
indicated that he had filed a grievance contesting the facts in the violation report as he did not
have a chance to defend or investigate these facts prior to the hearing and some of the things in
the report never happened. Id. He explained that he had grieved the alleged inaccuracies in the
report to his Unit Administrator as per the written Offender Grievance Procedure but he was told
that he had filed an untimely grievance. Id. Petitioner indicated that he then filed an appeal of
the response he received to the Regional Administrator as per policy but he had not received a
response as required within the fifteen day response period. Id. at 76. Petitioner included all of
the relevant attachments, including copies of his filed grievance and response, a copy of the
violation report, and a copy of his appeal of the grievance. Id. at 77-98.
On January 25, 2013, the Ohio Parole Board conducted a central office board review
hearing and held that Petitioner was not suitable for release and had 24 months remaining until

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his next hearing. ECF Dkt. #4-1 at 102. On June 7, 2013, Petitioner submitted a request that the
Ohio Parole Board reconsider its decision and he indicated that two conduct reports from 2011
that were in the record were removed from his prison disciplinary record and he indicated that he
was convicted of one and not two counts of rape, contrary to that which was reported. Id. at 169.
In denying reconsideration, the Ohio Parole Board denied his request for a new hearing,
indicating that upon reviewing the case, its decision was not based upon the number of counts of
rape, but on Petitioner’s repeated failures on community supervision. Id. at 168.
On November 26, 2014, the Ohio Parole Board held another release hearing and found
that Petitioner was not suitable for release. ECF Dkt. #4-1 at 178. The Ohio Parole Board found
that Petitioner was a high risk to engage in further criminal conduct or that he would not
conform to conditions of release and he would create undue risk to public safety due to the
serious nature of the crime. Id. He was continued for another 24 months, with his next hearing
scheduled for November 1, 2016. Id.
D.

State Actions Challenging Parole

On April 16, 2013 between parole board hearings, Petitioner filed a pro se petition for a
writ of habeas corpus in the Third District Court of Appeals. ECF Dkt. #4-1 at 200-08. His
single ground for relief asserted:
Where a prisoner has a protected liberty interest in a parole release decision, and
the board or governmental decision threatens his prospective freedom from
confinement, due process requires that the decision be supported by some reliable
evidence in the record in order to satisfy the minimum requirements of procedural
due process to help prevent arbitrary deprivation.
Id. at 202. Petitioner requested the appellate court issue a writ compelling the parole board to
expunge a statement in Parole Officer Rader’s 2010 violation report that Petitioner used a knife

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in a robbery and raped the victim, which he alleged was false, and he requested that the appellate
court order the parole board to conduct a new release hearing without reference to the inaccurate
information. See id. at 205, 207.
Respondent moved to dismiss the petition on May 22, 2013. Scarberry, 139 Ohio St. 3d
at 112, 9 N.E.2d at 1023. Petitioner opposed that motion and moved for leave to amend his
complaint to attach his commitment papers, which were omitted from the original petition. Id.
On July 10, 2013, the Third District Court of Appeals granted Respondent’s motion to
dismiss on the grounds that the petition was procedurally defective, Petitioner had no
constitutional right to early release, and the issue of early release on parole was an
administrative, not judicial, matter. ECF Dkt. #4-1 at 240-42.
Petitioner, pro se, filed a timely notice of appeal with the Ohio Supreme Court.
Scarberry, 139 Ohio St. 3d at 113, 9 N.E.2d at 1023. In his merit brief, Petition asserted the
following proposition of law:
Parole revocation implicates a liberty interest which cannot be denied without
certain procedural due process protections. Habeas [c]orpus will lie to challenge
decisions of the adult parole revocation; and, a governmental or administrative
decision that threatens a prisoners [sic] prospective release from confinement by
extending the length of his imprisonment requires that the decision be supported
by some evidence in the record from which the conclusion of the administrative
tribunal was deduced in order to comport with minium requirements of procedural
due process where an important liberty interest is being denied.1
On April 16, 2014, the Ohio Supreme Court affirmed the appellate court’s judgment. Id. The
Ohio Supreme Court ruled that a writ of habeas corpus was not the proper remedy to address

1

Respondent did not include Petitioner’s merit brief to the Ohio Supreme Court in his
appendix to the return of writ. The Court was able to access it, however, through the Ohio
Supreme Court’s online docket.
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Petitioner’s issue as the remedy requested by Petitioner for a due process violation is a new
hearing and not release from prison, which is the purpose of filing a habeas corpus action. Id.
The Supreme Court of Ohio also ruled that Petitioner was not entitled to a new early-release
hearing because there is no legal basis for the court to order a new hearing to consider early
release as the decision to grant or deny early release is wholly discretionary. Id. Finally, the
Ohio Supreme Court held that the violation report that Petitioner complained of did not accuse
Petitioner of committing rape in 2009 as he alleged. Id.
II.

FEDERAL HABEAS CORPUS PETITION
Petitioner, pro se, filed the instant § 2254 federal habeas corpus petition on March 9,

2015. ECF Dkt. #1. He asserts the following sole ground for relief:
Fourteenth Amendment [d]ue [p]rocess violation of the minimum requirements at
a [p]arole [r]evocation [h]earing to wit: (a) written notice of the claimed
violations of parole; (b) disclosure of the evidence used against him; (c)
opportunity to present witnessess [sic] and documentary evidence; (d) the right to
confront and cross examine any adverse witnesses; and (f) a written statement by
the fact-finders as to the evidence relied on as the reason for revoking his parole.
Id. at 5.
Respondent filed an answer/return of writ on December 14, 2015. ECF Dkt. #4.
Petitioner filed a traverse on January 8, 2016. ECF Dkt. #5.
III.

PROCEDURAL BARRIERS TO REVIEW
A petitioner must overcome several procedural barriers before a court will review the

merits of a petition for a writ of federal habeas corpus. As Justice O'Connor noted in Daniels v.
United States, “Procedural barriers, such as statutes of limitations and rules concerning
procedural default and exhaustion of remedies, operate to limit access to review on the merits of
a constitutional claim.” 532 U.S. 374, 381 (2001); see also United States v. Olano, 507 U.S.
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725, 731 (1993).
A.

Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) statute of
limitations period for filing a petition for a writ of federal habeas corpus is one year, and it
begins to run on the date judgment became final. 28 U.S.C. § 2244(d)(1). Respondent does not
challenge the timeliness of Petitioner’s habeas petition.
B.

Exhaustion of State Remedies

As a general rule, a state prisoner must exhaust all possible state remedies or have no
remaining state remedies before a federal court will review a petition for a writ of habeas corpus.
28 U.S.C. § 2254(b) and (c); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004). The exhaustion
requirement is satisfied “once the federal claim has been fairly presented to the state courts.”
Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987). To exhaust a claim, a petitioner must
present it “to the state courts under the same theory in which it is later presented in federal
court.” Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); see also McMeans v. Brigano, 228
F.3d 674, 681 (6th Cir. 2000). General allegations of the denial of rights to a “fair trial” and
“due process” do not “fairly present” claims that specific constitutional rights were violated.
McMeans, 228 F.3d at 681 (citing Petrucelli v. Coombe, 735 F.2d 684, 688–89 (2nd Cir. 1984)).
In order to have fairly presented the substance of each of his federal constitutional claims
to the state courts, the petitioner must have given the highest court in the state in which he was
convicted a full and fair opportunity to rule on his claims. Manning v. Alexander, 912 F.2d 878,
881 (6th Cir. 1990). A petitioner fairly presents the substance of his federal constitutional claim
to the state courts by: (1) relying upon federal cases that use a constitutional analysis; (2) relying

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upon state cases using a federal constitutional analysis; (3) phrasing his claim in terms of
constitutional law or in terms sufficiently particular to allege the denial of a specific
constitutional right; or (4) alleging facts that are obviously within the mainstream of
constitutional law. Clinkscale v. Carter, 375 F.3d 430, 437 (6th Cir. 2004) (quoting Newton v.
Million, 349 F.3d 873, 877 (6th Cir. 2003)); see also Levine v. Torvik, 986 F.2d 1506, 1516 (6th
Cir. 1993), cert. denied, 509 U.S. 907 (1993). In Harris v. Lafler, the Sixth Circuit laid out the
options that a district court may pursue in dealing with a petition that contains unexhausted
claims:
When faced with this predicament in the past, we have vacated the order granting
the writ and remanded the case to the district court so that it could do one of four
things: (1) dismiss the mixed petition in its entirety, Rhines, 544 U.S. at 274, 125
S.Ct. 1528; (2) stay the petition and hold it in abeyance while the petitioner
returns to state court to raise his unexhausted claims, id. at 275, 125 S.Ct. 1528;
(3) permit the petitioner to dismiss the unexhausted claims and proceed with the
exhausted claims, id. at 278, 125 S.Ct. 1528; or (4) ignore the exhaustion
requirement altogether and deny the petition on the merits if none of the
petitioner's claims has any merit, 28 U.S.C. § 2254(b)(2).
553 F.3d 1028, 1031–32 (6th Cir. 2009). The Supreme Court has held that “the petitioner has
the burden ... of showing that other available remedies have been exhausted or that
circumstances of peculiar urgency exist.” Darr v. Burford, 339 U.S. 200, 218–19 (1950),
overruled in part on other grounds, Fay v. Noia, 372 U.S. 391 (1963). A petitioner will not be
allowed to present claims never before presented in the state courts unless he can show cause to
excuse his failure to present the claims in the state courts and actual prejudice to his defense at
trial or on appeal, or that he is actually innocent of the crime for which he was convicted.
Coleman v. Thompson, 501 U.S. 722, 748 (1991).

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C.

Procedural Default

The procedural default doctrine serves to bar review of federal claims that a state court
has declined to address when a petitioner does not comply with a state procedural requirement.
Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In these cases, “the state judgment rests on
independent and adequate state procedural grounds.” Coleman, 501 U.S. at 730. For purposes
of procedural default, the state ruling with which the federal court is concerned is the “last
explained state court judgment.” Munson v. Kapture, 384 F.3d 310, 314 (6th Cir. 2004) (citing
Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991)) (emphasis removed). When the last explained
state court decision rests upon procedural default as an “alternative ground,” a federal district
court is not required to reach the merits of a habeas petition. McBee v. Abramajtys, 929 F.2d
264, 265 (6th Cir. 1991). In determining whether a state court has addressed the merits of a
petitioner's claim, federal courts must rely upon the presumption that there are no independent
and adequate state grounds for a state court decision absent a clear statement to the contrary.
Coleman, 501 U.S. at 735.
Applying this presumption, the Sixth Circuit established a four-pronged analysis to
determine whether a claim has been procedurally defaulted under Maupin v. Smith, 785 F.2d
135, 138 (6th Cir. 1986). Under the first prong of Maupin, there must be a firmly established
state procedural rule applicable to the petitioner's claim and the petitioner must not have
complied with the rule. Ford v. Georgia, 498 U.S. 411, 423–24 (1991). Under the second
prong, the last state court to which the petitioner sought review must have invoked the
procedural rule as a basis for its decision to reject review of the prisoner's federal claims.

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Coleman, 501 U.S. at 729–30; Richey v. Mitchell, 395 F.3d 660 at 678 (2005) (holding that “a
lapsed claim survives if the state court overlooked the default and decided the claim anyway”);
Baze v. Parker, 371 F.3d 310, 320 (6th Cir. 2004) (holding that if a state court does not expressly
rely on a procedural deficiency, then a federal court may conduct habeas review); Gall v. Parker,
231 F.3d 265, 310 (6th Cir. 2000) (holding that even if the issue is not raised below, where state
supreme court clearly addresses the claim, no procedural bar arises). Under the third prong, a
state judgment invoking the procedural bar must rest on a state law ground that is both
independent of the merits of the federal claim and is an adequate basis for the state court's
decision. Munson v. Kapture, 384 F.3d at 313–14. Under the fourth prong, a claim that is
procedurally defaulted in state court will not be reviewable in federal habeas corpus unless the
petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or that failure to consider the claim will result in a fundamental
miscarriage of justice. Coleman, 501 U.S. at 751. “Cause” is a legitimate excuse for the default,
and “prejudice” is actual harm resulting from the alleged constitutional violation. Magby v.
Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984), cert. denied, 490 U.S. 1068 (1985). If a
petitioner fails to show cause for his procedural default, the reviewing court need not address the
issue of prejudice. Smith v. Murray, 477 U.S. 527 (1986).
Simply stated, a federal court may review federal claims:
that were evaluated on the merits by a state court. Claims that were not so
evaluated, either because they were never presented to the state courts (i.e.,
exhausted) or because they were not properly presented to the state courts (i.e.,
were procedurally defaulted), are generally not cognizable on federal habeas
review.
Bonnell v. Mitchel, 301 F. Supp. 2d 698, 722 (N.D. Ohio 2004).

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IV.

STANDARD OF REVIEW
If Petitioner's claims overcome the procedural barriers of time limitation, exhaustion, and

procedural default, the AEDPA governs this Court's review of the instant case because Petitioner
filed the instant § 2254 federal habeas corpus petition well after the AEDPA's effective date of
April 26, 1996. Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997), cert. denied, 522 U.S. 1112
(1998). Under § 2254, a state prisoner is entitled to relief if he is held in custody in violation of
the United States Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(d).
The AEDPA sets forth the standard of review for the merits of a petition for the writ of
habeas corpus. The AEDPA provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d) (emphasis added). In Williams v. Taylor, the Supreme Court clarified the
language of 28 U.S.C. § 2254(d) and stated:
Under the “contrary to” clause, a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case differently than this Court has
on a set of materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the prisoner's case.
529 U.S. 362, 412–13 (2000). Furthermore, the Supreme Court declared that “a federal habeas
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court making the ‘unreasonable application’ inquiry should ask whether the state court's
application of clearly established federal law was objectively unreasonable.” Id. Elaborating on
the term “objectively unreasonable,” the Court stated that “a federal habeas court may not issue
the writ simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or incorrectly. Rather,
that application must also be unreasonable.” Id.; see also Bailey v. Mitchell, 271 F.3d 652,
655–56 (6th Cir. 2001).
The Sixth Circuit offers the following guidelines for applying the AEDPA limitations:
A.

Decisions of lower federal courts may not be considered.

B.

Only the holdings of the Supreme Court, rather than its dicta, may be
considered.

C.

The state court decision may be overturned only if:
1.

2.

the state-court decision ‘confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a result different from [Supreme Court]
precedent’; or

3.

‘the state court identifies the correct governing legal rule from
[the Supreme] Court's cases but unreasonably applies it to the facts
of the particular state prisoner's case’; or

4.

D.

It ‘[applies] a rule that contradicts the governing law set forth in
[Supreme Court of the United States] cases,’ [the Supreme Court
precedent must exist at the time of petitioner's direct appeal]; or

the state court ‘either unreasonably extends a legal principle from
[a Supreme Court] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new
context where it should apply.’

Throughout this analysis the federal court may not merely apply its own
views of what the law should be. Rather, to be overturned, a state court's
application of Supreme Court of the United States precedent must also be
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objectively unreasonable. That is to say, that ‘a federal habeas court may
not issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.’ ‘An unreasonable application of
federal law is different from an incorrect or erroneous application of
federal law.’
E.

Findings of fact of the state courts are presumed to be correct. ‘The
applicant shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.’

Bailey, 271 F.3d at 655–56 (6th Cir. 2001) (internal citations omitted).
Finally, a reviewing federal court is bound by the presumption of correctness, under
which the federal court is obligated to “accept a state court's interpretation of the state's statutes
and rules of practice.” Hutchinson v. Marshall, 744 F.2d 44, 46 (6th Cir. 1984), cert. denied,
469 U.S. 1221 (1985); see also Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986). The
presumption of correctness is set forth in 28 U.S.C. § 2254(e), which provides:
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed to be correct.
28 U.S.C. § 2254(e). The presumption of correctness applies to basic primary facts, and not to
mixed questions of law and fact. Levine, 986 F.2d at 1514. The presumption also applies to
“implicit findings of fact, logically deduced because of the trial court's ability to adjudge the
witnesses' demeanor and credibility.” McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996),
cert. denied, 520 U.S. 1257 (1997). Furthermore, a reviewing federal court is not free to ignore
the pronouncement of a state appellate court on matters of law. See Central States, Southeast &
Southwest Areas Pension Fund v. Howell, 227 F.3d 672, 676, n.4 (6th Cir. 2000). Petitioner has
the burden of rebutting the presumption of correctness by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).
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V.

LAW AND ANALYSIS
In Petitioner’s sole ground for relief, he argues that the OAPA violated his due process

rights by considering false information in both revoking his parole in 2010 and in denying his
request for early release in 2013. See, e.g., ECF Dkt. #1-2 at 5-7. Specifically, he complains
that the OAPA relied on the following statement contained in Parole Officer Rader’s 2010
violation report, which he alleges is false: “Due to the nature of the offender’s underlying
offense, in which he went into a gas station and robbed it at Knife[sic] point, and then proceeded
to Rape[sic] the cashier, his parole was revoked.” Id. at 7 (quoting ECF Dkt. #4-1 at 221).
Respondent contends that Petitioner’s claim is unexhausted because he did not pursue his
claim through the proper remedy in Ohio, a declaratory judgment action. ECF Dkt. #4 at 7-8.
He acknowledges that under O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999), “state prisoners
do not have to invoke extraordinary remedies when those remedies are alternatives to the
standard review process and where the state courts have not provided relief through those
remedies in the past.” Id. at 8. But he claims that a declaratory judgment is the “sole remedy” in
Ohio to timely challenge the revocation of parole, and Ohio courts have granted declaratory
judgment to inmates challenging the results of parole hearings. Id. at 7-9 (citing Helton v. Ohio
Adult Parole Auth., No. 00AP-1108, 2001 WL 709946 (Ohio Ct. App. June 26, 2001); Layne v.
Ohio Adult Parole Auth., 97 Ohio St. 3d 456, 780 N.E.2d 548, 2002-Ohio-6719).
Petitioner responds that his claim is properly exhausted because he satisfied the Boerckel
Court’s dictate that federal habeas petitioners give state courts “one full opportunity to resolve
any constitutional issues by invoking one complete round of the State’s established appellate
review process.” ECF Dkt. #5 at 1-2 (citing Boerckel, 526 U.S. at 845). A declaratory judgment

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action, he argues, is not clearly required under Ohio law and would be an “extraordinary
remed[y]” that is “alternative to the standard review process.” Id. at 2-3 (quoting Boerckel, 526
U.S. at 844).
A.

Exhaustion and/or Procedural Default

The undersigned agrees – in part – with both Respondent and Petitioner. In his
“Memorandum of Law and Argument” submitted with his petition, Petitioner states in
conclusion that he “asks the court to grant his petition for [h]abeas relief and order the Ohio
Adult Parole Authority to conduct another revocation hearing based on verifiable evidence, and
reinstate his parole.” ECF Dkt. #1-2 at 12. But Petitioner did not fairly present this claim
challenging the parole revocation in state court. In the state appellate court, Petitioner
challenged only the “parole release decision, and the board or governmental decision” that
“threaten[ed] his prospective freedom from confinement . . . .” ECF Dkt. #4-1 at 202. In the
Ohio Supreme Court, he broadened his claim to include the decision of the OAPA in revoking
his parole.2 As that court acknowledged, “Scarberry's complaint concern[ed] two distinct actions
by the OAPA. In February 2010, the board revoked his parole. And on January 25, 2013, the
board denied him early release.” Scarberry, 139 Ohio St. 3d at 113, 9 N.E.3d at 1024. But, it
explained, “Scarberry is not asking the court to order a new revocation hearing. Scarberry's
prayer for relief asked the court ‘to order an evidentiary hearing and then issue a writ of habeas
corpus ordering the Defendants to * * * hold another Release Hearing before the Parole Board to
determine his suitability for release.’” Id. The court noted that, in any event, “[a]ny request for a

2

As noted above, Respondent did not include Petitioner’s merit brief to the Ohio
Supreme Court in his return of writ’s appendix. But the Court was able to access it through the
Ohio Supreme Court’s online docket.
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new revocation hearing would be moot. The revocation order required Scarberry to serve 36
months before becoming eligible again for parole in January 2013. Scarberry concedes that he
has completed that 36–month term.” Id. at 113 n.1, 9 N.E.3d at 1024 n.1. Petitioner, therefore,
raised this claim only to the Ohio Supreme Court, and did not fairly present it to “each
appropriate state court” as required to properly exhaust a claim for federal habeas review.
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (emphasis added).
Petitioner’s parole-revocation claim is not unexhausted, however, as Respondent argues.
It is procedurally defaulted. “Because the exhaustion requirement ‘refers only to remedies

still available at the time of the federal petition,’ . . ., it is satisfied ‘if it is clear that [the
habeas petitioner's] claims are now procedurally barred under [state] law’ . . . .” Gray v.
Netherland, 518 U.S. 152, 161–62 (1996) (internal citations omitted)). Here, Petitioner can
no longer assert his parole-revocation claim. As the Ohio Supreme Court found, Petitioner
already has served the period of time covered by the revocation order and is no longer eligible
for a new revocation hearing.3 The claim, therefore, is procedurally defaulted and moot. See
U.S. Const. art. III, § 2 (a federal court has jurisdiction only over actual “cases or
controversies”); Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Cont’l Bank Corp.,
494 U.S. 472, 477-78 (1990)) (“This case-or-controversy requirement subsists through all stages

3

As state courts are the final authority on state law, this Court must defer to, and is
bound by, the state court’s interpretation of Ohio law on this issue. See, e.g., Estelle v. McGuire,
502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.”); Warner v. Zent, 997 F.2d 116, 133 (6th Cir.
1993) (Absent a showing of “extreme circumstances where it appears that the [state court's]
interpretation of [state law] is an obvious subterfuge to evade consideration of a federal issue,” a
federal habeas court is bound by the state court's determination of state law.) (quoting Mullaney
v. Wilbur, 421 U.S. 684, 690–91 (1975)).
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of federal judicial proceedings, trial and appellate. . . . The parties must continue to have a
‘personal stake in the outcome’ of the lawsuit.”); Carras v. Williams, 807 F.2d 1286, 1289 (6th
Cir. 1986) (A case is moot and outside the court’s jurisdiction if “events occur during the
pendency of a litigation which render the court unable to grant the requested relief.”); North
Carolina v. Rice, 404 U.S. 244, 246 (1971) (Mootness is a jurisdictional issue, which may be
raised by a court sua sponte.).
Moreover, Petitioner does not offer any argument regarding either the cause for, or
prejudice resulting from, his procedural default of the claim. Nor does he contend that he is
actually innocent in order to excuse his procedural default.
Petitioner did, however, assert his claim regarding his parole release request to both the
state court of appeals and the Ohio Supreme Court. The Ohio high court explained, as
Respondent now argues, that habeas is not the proper remedy for that claim, stating:
{¶ 13} [A] writ of habeas corpus is not the appropriate remedy to address
Scarberry's complaint. The revocation of parole implicates constitutional liberty
interests, such that the parolee is entitled to certain due-process protections,
among them the right to a hearing. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct.
2593, 33 L.Ed.2d 484 (1972). The remedy for an alleged Morrissey due-process
violation is a new hearing, not immediate release from confinement. State ex rel.
Jackson v. McFaul, 73 Ohio St.3d 185, 188, 652 N.E.2d 746 (1995).
{¶ 14} Consistent with these cases, Scarberry makes clear that the relief he seeks
is a new parole hearing, not immediate release from incarceration. However,
habeas corpus lies only if the petitioner is entitled to immediate release from
confinement. Keith v. Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d
1067, ¶ 12; Pewitt v. Lorain Corr. Inst., 64 Ohio St.3d 470, 472, 597 N.E.2d 92
Except in extreme circumstances involving unreasonable delay, which Scarberry
has not alleged, habeas is the wrong remedy to challenge alleged due-process
violations at a parole hearing. Jackson at 188, 652 N.E.2d 746.

Scarberry, 139 Ohio St. 3d at 113, 9 N.E.2d at 1023-24. The court then proceeded to address the

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merits of Petitioner’s parole release claim. Id. at 113-15, 9 N.E.3d 1024-25. The undersigned
recommends that the Court find that Petitioner has therefore fairly presented this claim to Ohio
courts, even if a more suitable remedy existed at the time, and the undersigned thus recommends
that the Court agree with Petitioner that it is exhausted.
In sum, the undersigned recommends that the Court dismiss Petitioner’s claim relating to
his parole revocation because it is procedurally defaulted and moot. The undersigned further
recommends that the Court find that Petitioner’s claim relating to the denial of his early release
is exhausted and not otherwise procedurally barred from federal habeas review. The
undersigned therefore addresses that claim in the next section.
B. Cognizability of Petitioner’s Claim Regarding Parole Release
While the undersigned recommends that the Court find that Petitioner parole-release
claim is exhausted and not otherwise procedurally defaulted, the undersigned recommends that
the Court find that this claim is not cognizable on federal habeas review.
Petitioner is correct that in Morrissey v. Brewer, 408 U.S. 471, 489 (1972), the Supreme
Court set forth minimum due process requirements for the revocation of parole. It is clear,
however, that “[t]here is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb.
Penal and Corr. Complex, 442 U.S. 1, 7 (1979). Simply put, there is no federal constitutional
right to parole. See, e.g., Kentucky Dep't. of Corr. v. Thompson, 490 U.S. 454, 460 (1989);
Michael v. Ghee, 498 F.3d 372, 377–78 (6th Cir. 2007); Gavin v. Wells, 914 F.2d 97, 98 (6th Cir.
1990). “[A] mere unilateral hope or expectation of release on parole is not enough to constitute a
protected liberty interest . . . .” Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth.,

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929 F.2d 233, 235 (1991) (citing Greenholtz, 442 U.S. at 7).
Even so, a convicted person may have a liberty interest in parole created by a state’s
laws, which is subject to constitutional protection. Thompson, 490 U.S. at 460 (citing Hewitt v.
Helms, 459 U.S. 460, 466 (1983)). But a state does not have a constitutional duty to establish a
parole system, and the presence of a parole system by itself does not give rise to a
constitutionally protected liberty interest in parole release. Greenholtz, 442 U.S. at 7, 11; see
also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). A protected liberty interest exists
only if state law entitles a prisoner to release on parole. E.g., Inmates of Orient Corr. Inst., 929
F.2d at 235 (citing Greenholtz, 442 U.S. at 7). And the Sixth Circuit expressly has held that
Ohio law does not entitle inmates to parole before the expiration of a valid sentence of
imprisonment and, consequently, does not create a liberty interest in parole. Id. (citing Jago v.
Van Curen, 454 U.S. 14 (1981) (holding that the OAPA’s rescission of a decision to grant parole
on or after a specified date did not constitute a deprivation of “liberty” within the meaning of the
Due Process Clause)).
Indeed, the Ohio Supreme Court ruled in Petitioner’s case that under Ohio law as well,
Petitioner had not “established a right to a new early-release hearing.” Scarberry, 139 Ohio St.
3d at 113, 9 N.E.2d at 1024. It explained,
[T]here is no legal basis for this court to order a new hearing to consider early
release. The decision to grant or deny early release is wholly discretionary, and a
prisoner has no “expectancy of parole upon which [he] can base his due process
claims.” State ex rel. Blake v. Shoemaker, 4 Ohio St.3d 42, 43, 446 N.E.2d 169
(1983). Therefore, Scarberry cannot demonstrate a clear legal duty on the part of
the OAPA to conduct a second hearing.
Id. at 113-14.
For these reasons, the undesigned recommends that the Court dismiss with prejudice
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Petitioner’s claim that the OAPA’s denial of his request for early release violated his due process
rights because the claim is noncognizable on federal habeas review.4
VI.

CONCLUSION AND RECOMMENDATION
For the above reasons, the undersigned recommends that the Court dismiss Petitioner’s

federal habeas corpus petition in its entirety with prejudice.

Date: September 29, 2016

/s/George J. Limbert
George J. Limbert
United States Magistrate Judge

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this notice. Fed. R. Civ. P. 72; L.R. 72.3. Failure to
file objections within the specified time WAIVES the right to appeal the Magistrate Judge’s
recommendation. L.R. 72.3(b).

4

Even if this claim were cognizable on habeas, it would fail. The undersigned agrees
with the Ohio Supreme Court that the statement in the 2010 Rader violation report of which
Petitioner complains “[did] not accuse Scarberry of committing rape in 2009, and therefore he
cannot establish a due-process violation.” Scarberry, 139 F.2d at 114, 9 N.E.2d at 1024.
Although the sentence contains misstatements, read in context, it clearly referred to the 1983
rape, not the 2009 incident.
21