Hayes v. Warden, Hamilton County Justice Center
Filing
23
REPORT AND RECOMMENDATIONS - Because Petitioner has not exhausted her remedy of a petition for writ of habeas corpus under Ohio law, the Petition herein should be dismissed without prejudice to its refiling if necessary after exhaustion. Because reas onable jurists would not disagree with this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be p ermitted to proceed in forma pauperis. Objections to R&R due by 2/10/2025. Signed by Magistrate Judge Michael R. Merz on 1/27/2025. (kpf)(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
DARREAL HAYES,
Petitioner,
:
- vs -
Case No. 1:24-cv-436
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
MAJOR DAN EMS, WARDEN,
Hamilton County Justice Center,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus action, brought pro se by Petitioner Darreal Hayes pursuant to 28
U.S.C. § 2241, is before the Court for decision on the merits. Relevant pleadings are the Petition
(ECF No. 1), Respondent’s Answer (ECF No. 21), and Petitioner’s Response to Answer (ECF No.
18).
A state prisoner seeking federal habeas corpus relief must first exhaust the remedies
available to her in the state courts. 28 U.S.C. § 2254(b) and (c); Picard v. Connor, 404 U.S. 270,
275 (1971). The exhaustion requirement applies to pretrial petitions as well as petitions under §
2254. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973). Habeas corpus
under state law rather than mandamus is the appropriate action for a person seeking immediate
release from prison. State ex rel Lemmon v. Ohio Adult Parole Authority, 78 Ohio St. 3d 186
(1997).
From her Response, it appears Petitioner is aware of the possibility of filing for habeas
1
corpus under Ohio law, but has not done so. She indicates the Hamilton County authorities have
not provided her with an appropriate form, but as far as this Court is aware, there is not such form.
Her counsel in the Ohio criminal case will be able to provide her with the address of the Ohio First
District Court of Appeals and the statutory reference for an Ohio writ. Petitioner has also not
advised this Court of the status of her Ohio criminal case, i.e. when it is set for trial.
Because Petitioner has not exhausted her remedy of a petition for writ of habeas corpus
under Ohio law, the Petition herein should be dismissed without prejudice to its refiling if
necessary after exhaustion.
Because reasonable jurists would not disagree with this conclusion, it is also recommended
that Petitioner be denied a certificate of appealability and that the Court certify to the Sixth Circuit
that any appeal would be objectively frivolous and should not be permitted to proceed in forma
pauperis.
January 27, 2025.
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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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. 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.
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