Gerald v. State of Ohio
Memorandum Opinion and Order. Petitioner's Motion to Amend the Petition 6 is granted. The Petition 1 is denied, and this action is dismissed without prejudice under Rule 4 of the Rules Governing Section 2254 Cases. This Court further certifies that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c). Judge Jack Zouhary on 7/21/2017. (D,L)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Case No. 5:17 CV 614
OPINION AND ORDER
-vsJUDGE JACK ZOUHARY
Ohio Department of Rehabilitation
Petitioner pro se Jeremy Gerald filed a Petition for Writ of Habeas Corpus under 28 U.S.C.
§ 2254 (Doc. 1). In 2016, Gerald was convicted by the Summit County Court of Common Pleas of
three counts of receiving stolen property, plus one count each of failure to comply with police orders
and driving under suspension. He is currently serving a six and a half year sentence in the Richland
Correctional Institution. He asserts the following eight grounds for relief: (1) the State lacked
probable cause to charge him with the offenses; (2) his bail was excessively high; (3) his motion to
suppress should have been granted; (4) his motion to sever should have been granted; (5) his motion
for change of venue should have been granted; (6) his motion regarding jail conditions should have
been granted; (7) there was “racism” in the jury selection process; and (8) Ohio Revised Code
§ 2921.331 -- governing failure to comply with police orders directing traffic, one of the offenses for
which Gerald was convicted -- is unconstitutionally vague (Doc. 1 at 28–36).
Gerald also seeks to amend his Petition to name the Ohio Department of Rehabilitation and
Corrections (ODRC) as Respondent (Doc. 6). That request is granted.
Despite its length, the Petition contains very little factual information. Gerald alleges he was
arrested and charged with three counts of receiving stolen property, three counts of theft, and one
count each of failure to comply, assault, driving under suspension, turning in a roadway, speeding,
and willful or wanton operation of a vehicle (Doc. 1 at 28). A Stow Municipal Court Magistrate
conducted a preliminary hearing and found probable cause for all the charges (id.). The case was then
bound over to the Summit County Court of Common Pleas.
The grand jury met in December 2015. They found probable cause to indict Petitioner on
seven of the charges (id. at 29). Gerald filed a pro se petition for a writ of habeas corpus in the Ohio
Supreme Court, claiming the state lacked probable cause to charge him (Doc. 3 at 107–08). The court
denied his petition (id. at 109), and the case proceeded to trial.
At the outset of trial, the State moved to dismiss one of the receiving stolen property charges
because the owner of the property could not be located (Doc. 1-1 at 73; Doc. 4-1 at 65). The jury
returned its verdict on August 5, 2016, finding Gerald guilty of failure to comply with the order of a
police officer, three counts of receiving stolen property, and driving under suspension (Doc. 1-1 at
73). He was sentenced to an aggregate term of incarceration of six and one half years (id. at 74). The
court also suspended his license for another six months (id.).
The following month, Gerald appealed his convictions to the state court of appeals (Doc. 3 at
7). The appeal was dismissed as untimely (id. at 19). In December 2016, Gerald requested leave to
file a delayed appeal (id. at 35). That motion was denied in March 2017. Upon review of the state
court docket, it appears Gerald filed a notice of appeal of that decision in the intermediate appellate
court, but it is unclear whether he actually filed the appeal in the Ohio Supreme Court.
Meanwhile, in December 2016, Gerald moved for a new trial, raising some of the same
arguments included in this Petition (Doc. 1-1 at 2, 96–98). The trial court denied the motion the
following month (id. at 116–19), and the state court docket shows Gerald requested leave to file a
delayed appeal in April 2017. The state appellate court denied the request and dismissed the appeal.
In June 2017, Gerald appealed that decision to the Ohio Supreme Court. That appeal remains
Finally, the state court docket also reflects a petition for post-conviction relief filed in May
2017, which raises many of the arguments presented to this Court. That petition remains pending in
the state trial court.
Rather than waiting for the Ohio courts to decide his appeal and post-conviction petition,
Gerald filed this Petition. He contends, based on the state court rulings, that the state appellate courts
have demonstrated a refusal to apply the law in an unbiased way to vindicate his rights, and
exhaustion of state court remedies should therefore be excused.
Before this Court can review the merits of the Petition, Gerald must surmount several
procedural barriers, including exhaustion. As a general rule, a state prisoner must exhaust all possible
state remedies before a federal court will review a petition for a writ of habeas corpus. 28 U.S.C.
§ 2254(b) & (c); see Baldwin v. Reese, 541 U.S. 27 (2004). Exhaustion is fulfilled once a state
supreme court provides a convicted defendant a full and fair opportunity to review his or her claims
on the merits. O’Sullivan v. Boerckel, 526 U.S. 838, 842–43 (1999); Rust v. Zent, 17 F.3d 155, 160
(6th Cir. 1994); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990).
To be properly exhausted, each claim must have been “fairly presented” to the state courts.
See e.g. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Frazier v. Huffman, 343 F.3d 780, 797
(6th Cir. 2003). Fair presentation requires that the state courts be given the opportunity to see both
the factual and legal basis for each claim. Wagner, 581 F.3d at 414. For the claim to be exhausted,
it must be presented to the state courts as a federal constitutional issue, not merely as an issue arising
under state law. Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984). Moreover, the claim must be
presented to the state courts under the same legal theory in which it is later presented in federal court.
Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). Simply stated, a federal court may review only
federal claims that were evaluated on the merits by a state court.
Gerald acknowledges he did not exhaust his state court remedies. As explained above, a
petitioner cannot obtain federal habeas relief unless he has completely exhausted his available state
court remedies to the state’s highest court. Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001); 28
U.S.C. § 2254(b)(1)(A). The United States Supreme Court has emphasized that the “interests of
comity and federalism dictate that state courts must have the first opportunity to decide a petitioner’s
claims,” since “it would be unseemly in our dual system of government for a federal district court to
upset a state court conviction without an opportunity to [sic] the state courts to correct a constitutional
violation.” Rhines v. Weber, 544 U.S. 269, 273–74 (2005) (citations omitted). Accordingly, where
a habeas petition contains unexhausted claims, there is a “strong presumption” in favor of requiring
a petitioner to pursue his available state remedies. Granberry v. Greer, 481 U.S. 129, 131 (1987); see
also O’Guinn v. Dutton, 88 F.3d 1409, 1412 (6th Cir. 1996) (“[T]he Supreme Court has been quite
clear that exhaustion is the preferred avenue and that exceptions are to be for narrow purposes only”).
There is an exception. This Court need not wait for Gerald’s claims to be exhausted if it
determines that a return to state court would be futile. Duckworth v. Serrano, 454 U.S. 1, 3 (1981)
(“An exception is made only if there is no opportunity to obtain redress in state court or if the
corrective process is so clearly deficient as to render futile any effort to obtain relief.”); Pillette v.
Foltz, 824 F.2d 494, 498 (6th Cir. 1987) (“One example of a special circumstance is where it is clear
that requiring a petitioner to pursue further review before the state courts would be futile because state
law precludes further review.”). Gerald generally protests how the state courts have handled his case,
but he identifies no valid reason why requiring him to exhaust his state court remedies would be futile.
Gerald has remedies available to him as he pursues claims in the Ohio courts. While this
Court cannot guarantee Gerald will obtain the relief he seeks, neither can this Court conclude that
continuing to exhaust his state court remedies would be futile. The merits of Gerald’s claims must
await a decision from the state courts, and so this action is dismissed to allow Gerald to complete state
The Petition is denied, and this action is dismissed without prejudice under Rule 4 of the Rules
Governing Section 2254 Cases. This Court further certifies that there is no basis upon which to issue
a certificate of appealability. 28 U.S.C. § 2253(c).
IT IS SO ORDERED.
s/ Jack Zouhary
U. S. DISTRICT JUDGE
July 21, 2017
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