Pettus-Brown vs Warden, Correctional Reception Center

Filing 18

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Court find Pettus-Brown has not exhausted his available state court remedies, at least on the record presently before this Court. Rather than dismissing the case, however, it is als o recommended that the case be stayed pending the outcome of Pettus-Brown's direct appeal. Finally, it is recommended the Motion for Judgment on the Pleadings be denied. The parties are ORDERED to keep this Court currently advised of the proceed ings in the state court appeal. Objections to R&R due by 1/23/2015. Signed by Magistrate Judge Michael R Merz on 1/6/2015. (kpf1)(This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
LaSHAWN R. PETTUS-BROWN,
Petitioner,

:

- vs -

Case No. 1:14-cv-292
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

WARDEN, Correctional Reception
Center,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner LaShawn R. Pettus-Brown pursuant
to 28 U.S.C. § 2254, is before the Court on two motions under to Fed. R. Civ. P. 12: 1)
Respondent’s Motion to Dismiss for failure of Petitioner to exhaust available state court
remedies (Doc. No. 8) which Pettus-Brown opposes (Doc. No. 9) and 2) Petitioner’s Motion for
Judgment on the Pleadings (Doc. No. 12) which Respondent opposes (Doc. No. 13) and in
support of which Pettus-Brown has filed a Reply (Doc. No. 14).
Both of these motions are dispositive within the meaning of 28 U.S.C. § 636(b) and thus
require a recommended disposition from a Magistrate Judge, rather than a decision.

Motion to Dismiss

Respondent seeks dismissal because, he alleges, Pettus-Brown has not exhausted
available state court remedies in that his direct appeal from revocation of his community control
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sentence is pending in the Hamilton County Court of Appeals (Case No. C-140165)(Motion,
Doc. No. 8, PageID 25).1

At the time the Motion to Dismiss was filed, briefing in the First

District was not due to be complete until August 1, 2014. Id. However, the website of the
Hamilton County Clerk of Courts contains a link to a decision by the First District Court of
Appeals overruling Pettus-Brown’s sole assignment of error and affirming his sentence. The
decision was entered November 26, 2014. Pettus-Brown thus has until January 10, 2015, to
appeal to the Supreme Court of Ohio.
A state prisoner seeking federal habeas corpus relief must first exhaust the remedies
available to him in the state courts. 28 U.S.C. § 2254(b) and (c); Picard v. Connor, 404 U.S.
270, 275 (1971). In Ohio, this includes direct and delayed appeal to the Ohio Court of Appeals
and the Ohio Supreme Court. Mackey v. Koloski, 413 F.2d 1019 (6th Cir. 1969); Allen v. Perini,
424 F.2d 134, 140 (6th Cir. 1970).
The exhaustion doctrine is not jurisdictional and is thus waivable by the State, Ex parte
Royall, 117 U.S. 241 (1886); Granberry v. Greer, 481 U.S. 129 (1987). However, 28 U.S.C. §
2254(b)(3) as added by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No
104-132, 110 Stat. 1214), provides "[a] State shall not be deemed to have waived the exhaustion
requirement or be estopped from reliance upon the requirement unless the State, through counsel,
expressly waives the requirement." Obviously the State of Ohio has not waived exhaustion in
this case, as its instant Motion seeks to enforce the exhaustion doctrine. In the absence of
exceptional or unusual circumstances, principles of comity and federalism require that
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When any document is filed with this Court, the Court’s electronic filing system affixes a unique Page
Identification Number in the upper right hand corner of every page. The attention of the parties is directed to this
Magistrate Judge’s Standing Order of May 8, 2014, which provides in pertinent part “All references to the record in
this Court must be to the filed document by title, docket number, and PageID reference. (E.g., Defendant’s Motion
to Dismiss, Doc. No. 27, PageID ___.)” The large majority of cases before this Magistrate Judge are habeas corpus
cases with large state court records and correct citation to the record is critical to judicial economy. Therefore,
nonconforming filings will be stricken.

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unexhausted claims be decided in the first instance by the state courts even if the State does not
raise the defense. O'Guinn v. Dutton, 88 F.3d 1409 (6th Cir. 1996)(per curiam)(en banc).
In his Memorandum in Opposition to the Motion to Dismiss, Pettus-Brown does not
dispute that he appealed to the First District. Instead, he argues his lack of exhaustion should be
excused (Memorandum, Doc. No. 9, PageID 142-43). However, the Sixth Circuit has held that
the remedy of appeal to the Ohio Supreme Court must be exhausted. Bray v. Andrews, 640 F.3d
731, 735 (6th Cir. 2011), citing Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009).
Pettus-Brown objects to Respondent’s use of a motion to dismiss without the
simultaneous filing of an answer (Doc. No. 14).

But Judge Litkovitz’s Order for answer

expressly anticipates that there may be a motion to dismiss and provides a separate schedule for
Petitioner to respond (Doc. No. 2, PageID 6). Fed. R. Civ. P. 12(b) also anticipates that a motion
to dismiss will be filed before an answer.
Pettus-Brown asserts there is no controversy between the parties because he has reached
an agreement with Respondent “via private administrative remedy” (Response, Doc. No. 9,
PageID 141). The referenced Exhibit 1 shows only and at best ex parte efforts of Petitioner to
impose an obligation on the State of Ohio to respond to him. No mutual settlement of the case
is shown by Exhibit 1.
Respondent urges the Court to dismiss the habeas petition rather than staying
consideration pending exhaustion because it asserts the Petition is meritless. The Magistrate
Judge instead recommends the Court stay this case pending exhaustion. In the sort of cases
anticipated by Rhines v. Weber, 544 U.S. 269, 277-278 (2005), where the Supreme Court
authorized a stay pending exhaustion but cautioned against using it routinely, a petitioner seeks a
stay before even commencing state court proceedings. If the petitioner is seeking to vacate a

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capital sentence, he has a motive for the delay caused by a return to the state courts which is not
present in a case like this where the habeas petitioner has every incentive to move his state court
case along as fast as the process will allow. The First District Court of Appeals has already
decided the case and the Ohio Supreme Court can be expected to decide promptly whether to
hear the case. Given these factors, comity with the Ohio courts suggests a stay rather than a
dismissal.

Motion for Judgment on the Pleadings

Pettus-Brown moves the Court to grant him judgment on the pleadings under Fed. R. Civ.
P. 12(c) which provides “[a]fter the pleadings are closed – but early enough not to delay trial – a
party may move for judgment on the pleadings.” In a habeas corpus case, the pleadings are the
Petition for Writ (sometimes called an application in the United States Code), the Answer, and
the Reply (called the Traverse in older practice). In this case the pleadings are not yet closed:
Respondent has not yet filed an answer and until he does, Petitioner cannot file a reply. Thus the
Motion for Judgment on the Pleadings is premature.
It also appears Pettus-Brown does not appreciate the limits on what the Court may
consider in deciding a motion for judgment on the pleadings. He adverts in his Motion to
numerous supposedly admitted facts, but cites no place in the record (much less in the pleadings)
where those facts are admitted. He also wants the Court to consider various matters outside the
pleadings, such as the Affidavit that appears in his Response in Opposition to Respondent’s
Motion to Dismiss at Docket Number 9-1, PageID 151-54. But he has made no showing that
that document was before any state court that decided any of his claims. While it is certainly

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conceivable that there would be habeas corpus cases where judgment on the pleadings would be
appropriate (e.g., if the Respondent admitted that the sentencing court lacked subject matter
jurisdiction over the offense in suit), this is certainly not such a case, at least at the present
juncture.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Court find
Pettus-Brown has not exhausted his available state court remedies, at least on the record
presently before this Court. Rather than dismissing the case, however, it is also recommended
that the case be stayed pending the outcome of Pettus-Brown’s direct appeal. Finally, it is
recommended the Motion for Judgment on the Pleadings be denied.
The parties are ORDERED to keep this Court currently advised of the proceedings in the
state court appeal.

January 6, 2015.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
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to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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