Pettus-Brown vs Warden, Correctional Reception Center

Filing 29

ORDER adopting Report and Recommendations re 18 Report and Recommendations and 22 Report and Recommendation; granting in part 8 Motion to Dismiss - case shall be stayed pending outcome of Petitioner's direct appeal; and denying 12 Motion for Judgment on the Pleadings. Signed by Judge Michael R. Barrett on 3/19/15. (ba1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
LAWSHAWN R. PETTUS-BROWN,

CASE NO.: 1:14-CV-292

Petitioner,

Barrett, J.
Merz, M.J.

v.
WARDEN, CORRECTIONAL RECEPTION
CENTER,
Respondent.
OPINION AND ORDER
This matter is before the Court on the January 6, 2015 Report and Recommendation
(Doc. 18), Petitioner’s Objection to the Report and Recommendation and Request for Hearing
(Doc. 20), the January 22, 2015 Substitute Report and Recommendation (Doc. 22), Respondent’s
Objections to the Substitute Report and Recommendation in Part and Renewed Motion to
Dismiss (Doc. 23), the January 28, 2015 Order Withdrawing in Part Substitute Report and
Recommendations (Doc. 24), and Petitioner’s Motion to Strike Respondent’s Filing, and in the
Alternative, Response to Respondent’s Objection and Judicial Notice to the Court (Doc. 28).
I.

BACKGROUND
A.

January 6, 2015 Report and Recommendation (Doc. 18)

The Report addresses Respondent’s Motion to Dismiss (Doc. 8), which Petitioner
opposes (Doc. 9), as well as Petitioner’s Motion for Judgment on the Pleadings (Doc. 12), which
Respondent opposes (Doc. 13) and in support of which Petitioner has filed a reply (Doc. 14).
With respect to the Motion to Dismiss, the Magistrate Judge concluded that Petitioner had not
exhausted his state court remedies given that he still had the opportunity to appeal to the Ohio
Supreme Court, but he recommended a stay rather than dismissal pending exhaustion. By
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pursuing the motion to dismiss, Respondent indicated it was not waiving Petitioner’s failure to
exhaust.
As for the Motion for Judgment on the Pleadings, the Magistrate Judge found that the
motion was premature given that the pleadings had not yet closed, Respondent had not filed an
answer, and Petitioner thus could not yet file a reply. The Magistrate Judge further recognized
that Petitioner requested consideration of supposedly admitted facts even though there was no
indication of any place in the record where those facts were admitted as well as various matters
outside the pleadings for which no showing had been made that the document was before any
state court that decided any of this claims. Accordingly, he recommended denying the motion
for judgment on the pleadings.
B.

Petitioner’s January 20, 2015 Objections (Doc. 20)

Petitioner objects to both conclusions in the Report. As to the Motion to Dismiss,
Petitioner claims it is not a proper responsive pleading. He further contends that he presented his
claims to the state court and that pursuing his claims further would be an exercise in futility. He
claims that Respondent also has waived exhaustion in this matter.
In regard to the motion for judgment on the pleadings, Petitioner contends that the Report
failed to consider whether his motion should be converted into one for summary judgment. He
further argues that the Report does not take into account Respondent’s waiver in labeling the
motion as premature.
Petitioner also requests an evidentiary hearing.
C.

January 22, 2015 Substitute Report and Recommendation In Part; Order
Denying Evidentiary Hearing (Doc. 22)

The Substitute Report addresses Petitioner’s January 20, 2015 objections. Addressing the
objections to the motion to dismiss, the Substitute Report indicates that since the first Report was
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issued the time for appealing to the Ohio Supreme Court had passed and the Ohio Supreme
Court’s docket as of January 21, 2015 revealed no case pending with Petitioner as a party. As
such, the Report notes that Petitioner’s state court remedies were exhausted, at least on direct
appeal, and since the Motion to Dismiss was moot, the Report recommends denying it in lieu of
the earlier-issued stay.
In regard to the motion for judgment on the pleadings, the Report states that the
recommendation in the January 6, 2015 Report was ripe for decision without a further report
form the Magistrate Judge.
The Report also denies Petitioner’s request for an evidentiary hearing.
D.

Respondent’s January 26, 2015 Objections to the Substitute Report in Part
and its Renewed Motion to Dismiss (Doc. 23)

Respondent objects to the Magistrate Judge’s recommendation as to the Motion to
Dismiss in the Substitute Report. First, Respondent contends that Petitioner still has the remedy
of delayed appeal to the Ohio Supreme Court available to him under S. Ct. Prac. R. 701(A)(4),
such that he has not exhausted his state court remedies as to his claim that the trial court erred by
improperly sentencing him for a violation of his community control sanctions. Respondent
suggests that Petitioner could delete that unexhausted claim from his petition.
Second, Respondent argues that Petitioner filed an application to reopen his appeal based
on ineffective assistance of counsel on December 22, 2014. Respondent represented that as of
the date of the objections, that application remanded pending in the Ohio Court of Appeals.
Respondent argues that he may not assert ineffective assistance of counsel as the cause of a
procedural default of grounds three and four which were not included in either state court appeal,
as it too must first be exhausted in the state courts.
E.

January 28, 2015 Order Withdrawing in Part Substitute Report and
Recommendations (Doc. 24)
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The Order responds to Respondent’s Objections, agreeing with Respondent that
Petitioner still has not exhausted his remedies of delayed direct appeal to the Ohio Supreme
Court or reopening direct appeal to raise claims of ineffective assistance of appellate counsel.
The Magistrate Judge determined that until those two remedies are exhausted or Petitioner
persuades the Court that they are futile, exhaustion is not complete. Accordingly, the Magistrate
Judge ordered withdrawn the Substitute Report’s conclusions that exhaustion is complete and
that Respondent’s motion to dismiss is moot.
F.

Petitioner’s February 11, 2015 Motion to Strike Respondent’s Filing, and in
the Alternative, Response to Respondent’s Objection and Judicial Notice to
the Court (Doc. 28)

As the Magistrate Judge already denied Petitioner’s Motion to Strike on February 11,
2015, the undersigned shall address only the other issues raised in Petitioner’s filing. First,
Petitioner reasserts that any allegation of failure to exhaust should be excused in accordance with
28 U.S.C. § 2254(b)(1)(B). Alternatively, he argues that the Magistrate Judge’s Substituted
Report was correct regarding the motion to dismiss.
Second, Petitioner argues that the state court lacks jurisdiction over his claims and he
need not assert them in the state court.
Third, Petitioner argues that the Magistrate Judge failed to consider his matters outside
the pleadings in ruling on his motion for judgment on the pleadings. He also requests an
evidentiary hearing to show that he is unlawfully confined.
II.

LEGAL STANDARD
When objections to an order of a magistrate judge are received on a non-dispositive

matter, the district judge must consider timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law. Fed. R. Civ. P. 72.

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When objections to a magistrate judge’s report and recommendation are received on a
dispositive matter, the assigned district judge “must determine de novo any part of the magistrate
judge's disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). After review,
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.; see also 28 U.S.C.
§ 636(b)(1). General objections are insufficient to preserve any issues for review: “[a] general
objection to the entirety of the Magistrate [Judge]’s report has the same effect as would a failure
to object.” Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Nevertheless, the objections of a petitioner appearing pro se will be construed liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
III.

ANALYSIS
The issues now before the undersigned are (1) whether the case should be stayed pending

the outcome of Petitioner’s direct appeal; (2) whether the motion for judgment on the pleadings
should be denied; and (3) whether Petitioner should be granted an evidentiary hearing.
The undersigned agrees with the Magistrate Judge that exhaustion is not complete. Upon
review of the state court record, it is apparent that Petitioner has not exhausted all of the
remedies available to him, as he still has the remedy of a delayed appeal in the state court (a
remedy he has not sought). S. Ct. Prac. R. 701(A)(4); see also Dangelo v. Ohio, 876 F.2d 103,
103 (6th Cir. 1989) (“Because the petitioner has not filed a delayed appeal, he has not exhausted
his state remedies.”) (citing Pillette v. Foltz, 824 F.2d 494, 498 (6th Cir. 1987)). With respect to
the ineffective assistance of counsel claim, Petitioner’s application for reopening of direct appeal
to raise claims of ineffective assistance of appellate counsel was denied on February 27, 2015 but

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has not yet been appealed to the highest court, 1 which means Petitioner still has not exhausted
his state court remedies. Carter v. Mitchell, 693 F.3d 555, 564 (6th Cir. 2012) (recognizing that
a petitioner must appeal the denial of a Rule 26(b) application and give the Ohio Supreme Court
a full or fair opportunity to rule on it in order to exhaust his claims for the purposes of habeas
corpus review). Petitioner has not otherwise persuaded the undersigned that the exhaustion of
those remedies is futile. Accordingly, the undersigned adopts the Magistrate Judge’s ruling that
the case should be stayed at this time pending the outcome of Petitioner’s direct appeal.
The undersigned further agrees with the Magistrate Judge that the motion for judgment
on the pleadings should be denied. Although Petitioner has taken issue with the failure to
consider the request to convert the motion to one for summary judgment, the Magistrate Judge
correctly considered that issue in the January 6, 2015 Report. As the undersigned agrees with the
Magistrate Judge that Petitioner requested consideration of supposedly admitted facts even
though there was no indication of any place in the record where those facts were admitted as well
as various matters outside the pleadings for which no showing had been made that the document
was before any state court that decided any of this claims, the undersigned declines to convert
the motion into one for summary judgment.
With respect to the evidentiary hearing, the undersigned concludes that the Magistrate
Judge’s denial of an evidentiary hearing was not clearly erroneous or contrary to law. That
objection is therefore overruled.
IV.

CONCLUSION
For the foregoing reasons, Petitioner’s objections (Doc. 28) are OVERRULED and the

undersigned ADOPTS the Magistrate Judge’s January 6, 2015 Report (Doc. 18) as to the motion
to dismiss and motion for judgment on the pleadings consistent with the January 28, 2015 Order
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See State of Ohio v. Lashawn Pettus, Case No. C-1400165 (Hamilton Cty. App. Ct.).

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Withdrawing in Part the Substitute Report, and the January 22, 2015 Substitute Report and Order
(Doc. 22) as to the denial of the evidentiary hearing.
It is ORDERED that:
1. The Motion to Dismiss (Doc. 8) is GRANTED IN PART given the finding that
Petitioner has not exhausted his state court remedies, but the case shall be STAYED
pending the outcome of Petitioner’s direct appeal; and
2. The Motion for Judgment on the Pleadings (Doc. 12) is DENIED.
IT IS SO ORDERED.
s/Michael R. Barrett
JUDGE MICHAEL R. BARRETT
UNITED STATES DISTRICT JUDGE

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