Pettus-Brown vs Warden, Correctional Reception Center

Filing 22

SUBSTITUTE REPORT AND RECOMMENDATIONS IN PART; ORDER DENYING EVIDENTIARY HEARING - The Warden's Motion to Dismiss is MOOT and in lieu of a stay, the Magistrate Judge recommends the Motion to Dismiss be denied and Petitioner's Motion for Jud gment on the Pleadings should be denied. Objections to R&R due by 2/9/2015. Finally, Petitioner's Motion for Evidentiary Hearing is DENIED. Signed by Magistrate Judge Michael R Merz on 1/22/2015. (kpf1)(This document has been sent 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.

SUBSTITUTE REPORT AND RECOMMENDATIONS IN PART;
ORDER DENYING EVIDENTIARY HEARING

This habeas corpus case is before the Court on Petitioner’s Objections (Doc. Nos. 20, 21)
to the Magistrate Judge’s Report and Recommendations (“Report,” Doc. No. 18). The Report
deals with two Motions:

(1) the Warden’s Motion to Dismiss (Doc. No. 8) and (2) the

Petitioner’s Motion for Judgment on the Pleadings (Doc. No. 12).

Motion to Dismiss

In the Motion to Dismiss, the Warden raised the affirmative defense that Pettus-Brown
had not exhausted his available state court remedies, but sought dismissal rather than a stay
pending exhaustion (Doc. No. 8, PageID 27-29).

Pettus-Brown responded that exhaustion

should be excused. The Report found the claims were not exhausted, but recommended a stay
instead of dismissal because it appeared finality in the Ohio courts would occur in short order

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(Doc. No. 18, PageID 198.)
Events have overtaken the Report. As noted in the body of the Report, the First District
Court of Appeals affirmed revocation of Pettus-Brown’s community control sanction and prison
sentence of November 26, 2014 (Doc. No. 18, PageID 195). This meant Pettus-Brown had until
January 10, 2015, to appeal to the Ohio Supreme Court. A check of the Ohio Supreme Court’s
docket on January 21, 2015, revealed no case pending with Pettus-Brown as a party. This means
Pettus-Brown’s state court remedies are exhausted, at least on direct appeal.1 Accordingly, the
Motion to Dismiss is MOOT and in lieu of a stay, the Magistrate Judge recommends the Motion
to Dismiss be denied.

Motion for Judgment on the Pleadings

The Report’s conclusions that Pettus-Brown’s Motion for Judgment on the Pleadings
should be denied is ripe for District Court decision without further report by the Magistrate
Judge.

Motion for Evidentiary Hearing

Pettus-Brown “requests an evidentiary hearing at this Honorable Court’s earliest
available date, at which time Mr. Pettus-Brown will present further evidence and witness
testimony that support the granting of this habeas corpus petition.” (Doc. No. 21, PageID 221).
Petitioner has not indicated on what issues he intends to present evidence or what that evidence

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The Motion to Dismiss does not suggest any other remedies available to Pettus-Brown except those on direct
appeal.

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will be.

However, in determining whether a state court’s determination of a federal

constitutional claim is contrary to or an objectively unreasonable application of clearly
established Supreme Court precedent, this Court is limited to the record created before the state
courts and is disabled from holding an evidentiary hearing. Cullen v. Pinholster, 563 U.S. ___,
131 S. Ct. 1388 (2011). The Motion for Evidentiary Hearing is therefore DENIED.

January 22, 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
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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