Buoscio v. Warden North Central Correctional Institution

Filing 3

REPORT AND RECOMMENDATION that this action be dismissed re 2 Petition for Writ of Habeas Corpus filed by Samuel Buoscio. Objections to R&R due by 10/29/2012. Signed by Magistrate Judge Norah McCann King on 10/11/12. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SAMUEL BUOSCIO,
Petitioner,
vs.

Civil Action 2:12-cv-915
Judge Sargus
Magistrate Judge King

WARDEN, NORTH CENTRAL
CORRECTIONAL COMPLEX,
Respondent.
REPORT AND RECOMMENDATION
Petitioner is an inmate in an Ohio prison.

He has filed a

petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging
– not his state court criminal conviction – but a November 2000 order of
the Franklin County Court of Common Pleas declaring him a vexatious
litigator under Ohio law.

This matter is now before the Court pursuant

to Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts, which requires a preliminary review of the petition.
Because the Court concludes that petitioner is not entitled to habeas
corpus relief, it is recommended that the petition be dismissed.
Section 2254 authorizes a federal court to entertain an
application for a writ of habeas corpus on behalf of a person in state
custody “only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”
2254(a).

28 U.S.C. §

The petition does not challenge the constitutionality of

petitioner’s custody; it seeks to challenge the imposition of “vexatious
litigator sanctions” which, petitioner alleges, deprive him of his
constitutional right of access to the courts.
Because

petitioner does not challenge the basis of his

custody, Section 2254 does not provide habeas corpus relief to him.
It is therefore RECOMMENDED that the petition be dismissed.

If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file and
serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. §636(b)(1); F.R. Civ. P. 72(b).

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Response to objections must be

filed within fourteen (14) days after being served with a copy thereof.
F.R. Civ. P. 72(b).
The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to de
novo review by the District Judge and of the right to appeal the decision
of the District Court adopting the Report and Recommendation. See Thomas
v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers,
Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters,
638 F.2d 947 (6th Cir. 1981).

October 11, 2012
(Date)

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge

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