Malone v. Erdos

Filing 26

Memorandum of Opinion and Order For the reasons set forth herein, the Court adopts the Magistrate Judge's Report and Recommendation (ECF No. 22 ), grants Respondent's Motion to Dismiss (ECF No. 18 ), and denies Petitioner's Motions (ECF Nos. 16 , 20 , 21 and 25 ). Judge Benita Y. Pearson on 4/20/2017. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DONALD K. MALONE,
Petitioner,
v.

RONALD ERDOS,
Respondent.

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CASE NO. 3:16CV1881

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF Nos. 16, 18, 20,
21, 25]

Petitioner Donald K. Malone, an Ohio prisoner proceeding pro se, filed a Petition for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 3. The case was referred to
Magistrate Judge Thomas M. Parker for a Report and Recommendation. Petitioner filed two
Motions for Appointment of Counsel (ECF Nos. 16, 20) and a Motion for copies of various
documents (ECF No. 21). Respondent filed a Motion to Dismiss. ECF No. 18. The magistrate
judge issued a Report recommending that the Court grant Respondent’s Motion to Dismiss and
deny Petitioner’s Motions as moot. ECF No. 22.
Petitioner did not file objections within the fourteen day cutoff set by Fed. R. Civ. P.
72(b)(2). See also ECF No. 22 at PageID #: 269 (informing Petitioner that “[a]ny objections to
this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14)
days after being served with a copy of this document.”). Several weeks later, Petitioner filed a

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Motion seeking appointment of counsel, removal from the Southern Ohio Correctional Facility,
and to Supplement the Record. ECF No. 25.
To the extent Petitioner’s recent Motion (ECF No. 25) can be interpreted as objections to
the magistrate judge’s Report, the Court overrules the objections. The Court adopts the
magistrate judge’s Report and grants Respondent’s Motion to Dismiss.
I. Background
Petitioner pleaded guilty to corruption of a minor, abduction, and aggravated assault in
the Marion County, Ohio Court of Common Pleas. ECF No. 18-1 at PageID #: 190. He did not
appeal his sentence. He was later classified as a sexual predator, in accordance with the
retroactive application of Ohio Rev. Code § 2950. Id. at PageID #: 248. Petitioner did not
appeal this decision. This classification became final on February 16, 2004. See Ohio App. R.
4(A) (allowing 30 days to appeal).
After being released from prison, Petitioner was indicted and found guilty of two counts
of rape, one count of kidnapping, two counts of intimidation of an attorney, victim, or witness in
a criminal case, and one count of possessing criminal tools. ECF No. 18-1 at PageID #: 163.
Petitioner pleaded guilty to the sexually violent predator specifications. Petitioner received an
aggregate sentence of twenty-five years to life. Id. at PageID #: 170. On October 15, 2007, the
appellate court affirmed the judgment of the trial court as to all counts except one count of
intimidation of a witness. Ohio v. Malone, No. 9-05-43, 2007 WL 2983155 (Ohio App. Ct. Oct.
15, 2007). On February 3, 2009, the Ohio Supreme Court affirmed. State v. Malone, 121 Ohio

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St. 3d 244 (2009). This decision became final on May 5, 2009. See R. S. Ct. 13 (allowing 90
days to file a writ of certiorari); ECF No. 18 at PageID #: 147–48.
Petitioner filed this Petition on July 1, 2016, asserting four grounds for relief. ECF No. 3.
II. Standard of Review
Parties must file any objections to a report and recommendation within fourteen days of
service. Fed. R. Civ. P. 72(b)(2). Failure to object within this time waives a party’s right to
appeal the district court’s judgment. Thomas v. Arn, 474 U.S. 140, 145 (1985); United States v.
Walters, 638 F.2d 947, 949–50 (6th Cir. 1981).
When objections have been made to a magistrate judge’s Report and Recommendation,
the district court’s standard of review is de novo. Fed. R. Civ. 72(b)(3). A district judge:
must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to. The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.
Id. Near verbatim regurgitation of the arguments made in earlier filings are not true objections.
When an “objection” merely states disagreement with the magistrate judge’s suggested
resolution, it is not an objection for the purposes of this review. Cvijetinovic v. Eberlin, 617
F.Supp. 2d 620, 632 (N.D. Ohio 2008), rev’d on other grounds, 617 F.3d 833 (6th Cir. 2010).
Such “general objections” do not serve the purposes of Fed. R. Civ. P. 72(b). See Jones v.
Moore, No. 3:04CV7584, 2006 WL 903199, at *7 (N.D. Ohio April 7, 2006). “A party who files
objections to a magistrate [judge]’s report in order to preserve the right to appeal must be
mindful of the purpose of such objections: to provide the district court ‘with the opportunity to

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consider the specific contentions of the parties and to correct any errors immediately.’” Id.
(citing United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981)). The Supreme Court
upheld this rule in Thomas v. Arn, 474 U.S. 140, 144 (1985), a habeas corpus case.
The Court has conducted a de novo review of the portions of the magistrate judge’s
Report to which Petitioner has properly objected.
III. Discussion
The magistrate judge recommended that the Court grant Respondent’s Motion to Dismiss.
ECF No. 22 at PageID #: 269. Respondent urges the Court to dismiss the petition as untimely,
and contends that neither equitable tolling nor Petitioner’s claim of actual innocence is sufficient
to overcome the state of limitations. ECF No. 18 at PageID #: 146, 148–52.
A federal petition for a writ of habeas corpus from a state-court judgment is subject to the
Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitations
provided in 28 U.S.C. § 2244(d)(1). Section 2244(d)(1)(A) instructs that the limitations period
runs from “the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.”
A. Objections
To the extent Petitioner’s Motion (ECF No. 25) can be construed as an objection, it is
overruled. As a preliminary matter, the objection is untimely. Petitioner filed his Motion (ECF
No. 25) on March 8, 20171—over a month after the magistrate judge’s February 2, 2017 Report

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Under the “prison mailbox rule,” a pro se prisoner’s filing “is deemed filed
(continued...)
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(ECF No. 22) and beyond the fourteen-day cutoff. See Fed. R. Civ. P. 72(b)(2). Moreover, even
if Petitioner had timely filed, he does not raise true objections to the magistrate judge’s Report.
Petitioner’s Motion complains largely of prison conditions, and does not reference the Report
and Recommendation. Petitioner contends that prison employees have been trafficking drugs
into the prison or using smokeless tobacco while on duty. ECF No. 25 at PageID #: 274–75. He
also states that he is in danger because the prison officers will take revenge on him for reporting
on their allegedly corrupt dealings. Id. at PageID #: 276. Petitioner also includes an appeal from
a grievance he filed, alleging that an officer was chewing smokeless tobacco. ECF No. 25-1.
Petitioner’s grievance was denied when it was determined that the officer was chewing beef
jerky. Id. at PageID #: 280.
These objections are not responsive to the magistrate judge’s finding that Petitioner’s
claim was barred by the AEDPA’s one-year statute of limitations. Nor do they demonstrate that
Petitioner is entitled to equitable tolling, or that he is actually innocent. For these reasons, Court
overrules Petitioner’s objections, to the extent that they can be construed as such. The Court
adopts the magistrate judge’s Report and Recommendation, and grants Respondent’s Motion to
Dismiss.
B. Petitioner’s Motion (ECF No. 25)

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when it is handed over to prison officials for mailing to the court.” Brand v. Motley, 526
F.3d 921, 935 (6th Cir. 2008). Without other evidence, a prisoner “does so on the date he
or she signed the [filing].” Petitioner signed his Motion on March 8, 2017. ECF No. 25
at PageID #: 276. As there is no evidence to the contrary, Petitioner’s Motion is
considered to have been handed over for mailing, and, therefore, filed, on March 8, 2017.
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In the event that Petitioner’s Motion is not an objection to the magistrate judge’s report, it
is denied as beyond the scope of habeas review. As described above, Petitioner’s Motion
challenges the conditions of his confinement. Petitioner has chosen the wrong mechanism to
communicate his argument. Conditions of confinement are properly challenged in a 42 U.S. §
1983 action, not a habeas petition. Turnboe v. Gundy, 27 F. App’x 339, 340 (6th Cir. 2001)
(affirming district court’s denial of a prisoner’s habeas petition that argued the petitioner was
improperly transferred and citing Preiser v. Rodriguez, 411 U.S. 475, 499 (1973); Badea v. Cox,
931 F.2d 573, 574 (9th Cir. 1991)).
Moreover, Petitioner fails to reveal an actual injury. Petitioner only expresses
anticipatory concern for his safety. Similarly, he does not offer any reason authorizing the Court
to invade the province of the State to determine where a convicted state prisoner should be
confined. See Lewis v. Casey, 518 U.S. 343 (1996) (federal courts are not authorized to interfere
with the state’s administration of its prison unless an inmate shows actual injury).
Nor does Petitioner have a liberty interest in moving to another facility. See Meachum v.
Fano, 427 U.S. 215, 225 (1987) (holding that transfer of a prisoner from one institution to
another within the state prison system does not implicate the Fourteenth Amendment’s Due
Process Clause); Wilson v. Yaklich, 148 F.3d 596, 601 (6th Cir. 1998). Finally, to the extent
Petitioner’s Motion can be interpreted as a motion for a temporary restraining order or
preliminary injunction, he has not met his burden of establishing “immediate and irreparable
injury, loss, or damage[.]” Fed. R. Civ. P. 65(b)(1).
For the foregoing reasons, the Court denies Petitioner’s Motion to Transfer.
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IV. Conclusion
The Court adopts the magistrate judge’s Report and Recommendation, grants
Respondent’s Motion to dismiss, and denies Petitioner’s Motions.

IT IS SO ORDERED.

April 20, 2017
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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