Williams v. Warden Chillicothe Correctional Institution

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 7-25-11. (ga)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GARY L. WILLIAMS,
Petitioner,
CASE NO. 2:11-cv-537
v.

JUDGE GEORGE C. SMITH

WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,

Magistrate Judge Kemp

Respondent.
OPINION AND ORDER
On June 20, 2011, the Court received an “Application for a
Rule Nisi Order and for an Alternative Writ of Habeas Corpus
Pursuant to 28 U.S.C. §0651(a)(b) for its Lawful Determination”
from petitioner Gary L. Williams.

According to the petition, Mr.

Williams resides at the Chillicothe Correctional Institution.
However, he claims that he is not a “state prisoner.”

In his

petition, he asks this Court to determine the lawfulness of his
continued detention.
In a Report and Recommendation filed on June 24, 2011, the
Magistrate Judge treated Mr. Williams’ application as a petition
for a writ of habeas corpus filed under 28 U.S.C. §2254.

The

Magistrate Judge then applied Rule 4 of the Rules Governing
Section 2254 Actions in the United States District Courts, which
requires an initial screening of a habeas corpus petition prior
to the issuance of a show cause order.

Because Mr. Williams’

state court conviction became final more than one year before he
filed his petition, the Magistrate Judge concluded, based on the
statute of limitations found in 28 U.S.C. §2244(d)(1), that this
action is time-barred, and recommended dismissal of the case on
that ground.
Mr. Williams has now filed an objection to that

recommendation.

In his objection, he does not disagree that the

statute of limitations for habeas corpus actions expires one year
after a state conviction becomes final, nor does he dispute any
of the information contained in the Report and Recommendation
about when he was convicted (2001) or that he never filed a
direct appeal from that conviction.

However, he raises a number

of objections to the Magistrate Judge’s treatment of the case as
a habeas corpus petition and to the Magistrate Judge’s
jurisdiction to issue a report and recommendation.

For the

following reasons, and after reviewing the objections de novo,
the Court will adopt the Report and Recommendation and dismiss
this case.
I.
Because petitioner has not objected to the accuracy of the
Report and Recommendation’s recapitulation of the history of the
state criminal proceedings, and because the public records bear
out the history recited, the Court adopts that history as the
background of this case.

As the Report and Recommendation points

out, the available public records show that petitioner is serving
a state sentence as a result of a 2001 conviction for rape and
gross sexual imposition which was imposed by the Franklin County
Court of Common Pleas on June 25, 2001.

That conviction became

final, for purposes of the statute of limitations found in 28
U.S.C. §2244(d)(1), on July 25, 2001, and the statute of
limitations expired one year later, on July 25, 2002.

If this

current case is indeed a habeas corpus petition filed under 28
U.S.C. §2255, it was filed well past the expiration of the
limitations period.
In arguing against the application of §2244(d)(1), Mr.
Williams contends that he is not

a state prisoner and that he is

not seeking relief under 28 U.S.C. §2254.

He appears to argue

that his state conviction “is already a legal nullity” and that

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he is not challenging it here.

He also claims that he is not a

“prisoner” as that term is defined in 28 U.S.C. §1915(h), which
reads in full: “As used in this section, the term ‘prisoner’
means any person incarcerated or detained in any facility who is
accused of, convicted of, sentenced for, or adjudicated
delinquent for, violations of criminal law or the terms and
conditions of parole, probation, pretrial release, or
diversionary program.”
28 U.S.C. §1915(h) was adopted as part of the Prison
Litigation Reform Act, which, as a number of courts have held, is
inapplicable to petitions for writs of habeas corpus.

See Strbac

v. Sniezek, 2007 WL 1544782 (N.D. Ohio May 24, 2007).

Thus, it

is irrelevant whether Mr. Williams is or is not a “prisoner”
under that statutory definition for purposes of deciding if his
petition must be construed as a habeas corpus petition.

What is

more relevant is the fact that §2254 specifically applies to
actions brought “in behalf of a person in custody pursuant to the
judgment of a State court.”

Although Mr. Williams claims he is

not in such custody because the state court judgment is a
“nullity,” it does not appear that any state or federal court has
so determined.

Given this conclusion, the proper analysis of the

case is the one which appears in the Report and Recommendation.
As the Magistrate Judge stated,
a state prisoner seeking release may proceed only under
§2254 because it covers the specific situation of a
person in state custody asking a federal court for
relief. The All Writs Act is available only in those
situations where no other federal statute covers the
situation at hand. See Pennsylvania Bureau of Correction
v. United States Marshals Serv., 474 U.S. 34, 43 (1985).
As the court observed in Owens v. Boyd, 235 F.3d 356, 360
(7th Cir. 2000), a case which, like this one, involved a
claim which would be time-barred if presented under
§2254,
[Petitioner]

believes
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that

he

can

avoid

§2244(d)(1) by recharacterizing his petition
as a request for habeas corpus under 28 U.S.C.
§2241 or coram nobis under the All-Writs Act,
28 U.S.C. §1651(a).
Not so. Section
2244(d)(1) applies to every “application for a
writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.” It
does not distinguish between applications
under §2241 and those under §2254. Anyway, as
the Supreme Court observed in Felker v.
Turpin, 518 U.S. 651, 662, 116 S.Ct. 2333, 135
L.Ed.2d 827 (1996), and we reiterated in
Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir.
2000), every collateral attack by a state
prisoner on a final judgment of conviction
necessarily depends on §2254. It is not
possible to escape its limitations by citing
some other statute.
Report and Recommendation, ECF No. 3, at 3-4.

The Court further

agrees that, no matter what the basis is for Mr. Foster’s
challenge to his state court conviction - even if he claims the
court proceeded in the absence of jurisdiction and did not enter
a valid judgment - this type of claim may only be raised in a
federal court by way of a §2254 petition.

See Frazier v. Moore,

2006 WL 3146436 (S.D. Ohio Oct 31, 2006), aff’d

252 Fed. Appx. 1

(6th Cir. October 7, 2007).
III.
For all of these reasons, the Court concludes that Mr.
Williams, despite his arguments to the contrary, is a “state
prisoner” and may seek relief from his state conviction and
sentence only under 28 U.S.C. §2254.

Under the statute of

limitations applicable to such actions, his petition was not
timely filed.

Consequently, his objections (ECF No. 5) to the

Report and Recommendation (ECF No. 3) are OVERRULED and the
Report and Recommendation is ADOPTED AND AFFIRMED.

This case is

DISMISSED on grounds that it was not filed within the time
permitted by 28 U.S.C. §2244(d)(1).

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IT IS SO ORDERED.

/s/ George C. Smith
George C. Smith
United States District Judge

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