Rahab v. Warden Noble Correctional Institution

Filing 17

ORDER denying 1 Petition. Signed by Judge Michael R. Barrett on 2/3/20. (ba)(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
Malik Rahab,
Petitioner,
- vs -

Case No. 1:17-cv-412
Judge Michael R. Barrett

Warden, Noble Correctional Institution,
Respondent.
ORDER
This matter is before the Court on the Magistrate Judge=s Report and
Recommendation (“R&R”), Supplemental R&R, and Respondent’s Objections to those
R&Rs (Docs. 10, 13, 15, 16) which relate to Petitioner’s, a state prisoner proceeding pro
se, petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).
Petitioner asks this Court to release him from custody or vacate his sentence and
impose a reduced sentence or remand for resentencing before a different judge. (Doc. 1
PageID 15), (Doc. 6 PageID 199). In his sole ground for relief, he argues that the trial
judge employed actual vindictiveness, i.e., an intention to punish him for exercising his
right to a trial, during his sentencing. (Doc. 1). The Magistrate Judge adequately
discussed and summarized the remainder of the procedural background and pertinent
facts of this case in the R&R and the same will not be repeated herein. (Doc. 10).
The Ohio Department of Rehabilitation and Correction’s website shows that
Petitioner was released from prison on judicial release on December 19, 2018. 1 See Ohio

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The Court takes judicial notice of this information. See Young v. Mohr, No. 2:12-CV-349, 2013 WL 693050,
at *4 (S.D. Ohio Feb. 26, 2013) (citing FED. R. EVID. 201 (“The court may judicially notice a fact that is not
subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose

Rev. Code § 2929.20 (Judicial release).
The Court finds that the petition, that challenges the existence of actual
vindictiveness at his sentencing, is moot because he is no longer in custody. See Brantley
v. Sloan, No. 1:16CV00200, 2017 WL 4326661, at *3 (N.D. Ohio Feb. 8, 2017), report
and recommendation adopted, No. 16-CV-200, 2017 WL 4310649 (N.D. Ohio Sept. 28,
2017). Compare Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968) (holding that the
expiration of a petitioner’s sentence and his subsequent release, before a judicial decision
on his petition, does not moot the petition where collateral consequences of conviction
exist), with Spencer v. Kemna, 523 U.S. 1, 7 (1998) (“Once the convict's sentence has
expired, however, some concrete and continuing injury other than the now-ended
incarceration or parole—some “collateral consequence” of the conviction—must exist if
the suit is to be maintained.”), and Gentry v. Deuth, 456 F.3d 687, 694 (6th Cir. 2006)
(holding that, where a habeas petition attacks the sentence rather than the conviction, the
petition is almost always moot) (emphasis added).
In light of the above, it is ORDERED that the petition (Doc. 1) is denied as moot
and the Clerk is DIRECTED to CLOSE and TERMINATE this matter from the Court’s
docket.
IT IS SO ORDERED.
_s/ Michael R. Barrett_______
Michael R. Barrett
United States District Judge

accuracy cannot reasonably be questioned.”) and Landt v. Farley, 2012 WL 4473209, *1 (N.D. Ohio Sept.
26, 2012) (noting that the “court may take judicial notice of matters of public record, including duly recorded
documents, and court records available to the public through the PACER system and via the internet.”)
(quotation marks and citation omitted)).

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