Chad Kister v. Appalachian Behavioral Healthcare

Filing 9

REPORT AND RECOMMENDATIONS: Petitioner 1/22/13 5 MOTION for Leave to Proceed in forma pauperis filed by Chad Kister is GRANTED; the Magistrate Judge RECOMMENDS that the petition be dismissed because petitioner has failed to exhaust his Ohio court remedies. Objections to R&R due by 3/4/2013. Signed by Magistrate Judge Mark R. Abel on 2/15/13. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Chad Kister,

:
Petitioner

:
:

v.
Appalachian Behavioral Healthcare,
Respondent

Case No. 2:12-cv-1225
Judge Sargus

:

Magistrate Judge Abel

:

REPORT AND RECOMMENDATION
Petitioner Chad Kister, a state prisoner, brings this action for a writ of habeas
corpus under the provisions of 28 U.S.C. §2241. Petitioner's January 22, 2013 motion to
proceed in forma pauperis (doc. 5) is GRANTED. This matter is now before the Magistrate Judge for initial screening.
The petition alleges that Athens County Common Pleas Court Judge Michael
Ward arbitrarily and capriciously ordered that he be locked up for six months at Appalachian Behavioral Healthcare. Records of the Athens County Common Pleas Court
indicate that Kister was indicted May 3, 2012 for trespass in a habitation. Apparently his
attorney believed Mr. Kister should enter a pleas of not guilty by reason of insanity. Mr.
Kister opposed his undergoing a psychological evaluation to determine whether he was
insane at the time of the alleged offense. A competency hearing was held December 17,
2012, and Judge Ward found Kister incompetent to stand trial. He was involuntarily
committed to the custody of Appalachian Behavioral Healthcare. State of Ohio v.

Chadwick W. Kister, Case No. 12CR0141 (Athens Ctry.C.P.Ct. 2012) (http://coc.athensoh.
org/pa/, last accessed February 13, 2013).
A state prisoner seeking federal habeas corpus relief must first exhaust the
remedies available to him in the state courts. 28 U.S.C. §2254(b) and (c); Picard v.
Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). In Ohio, this includes direct
and delayed appeal to the Ohio Court of Appeals and the Ohio Supreme Court. Mackey
v. Koloski, 413 F. 2d 1019 (6th Cir. 1969); Allen v. Perini, 424 F. 2d 134, 140 (6th Cir. 1970).
The rule requiring exhaustion of state court remedies applies to involuntary commitments when a defendant is found incompetent to stand trial. See, Harris v. Ohio, 2012
WL 1072286 (N.D. Ohio March 29, 2012) and Martin v. Summit Behavioral Healthcare
Center, 2009 WL 4139246 (S.D. Ohio Nov. 23, 2009). A habeas petition in federal district
court containing claims which have not yet been exhausted must be dismissed. Rose v.
Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982); Pilette v. Foltz, 824 F. 2d 494
(6th Cir. 1987).
Here petitioner Kister has available the Ohio court remedy of an appeal from the
order finding him incompetent to stand trial. Harris v. Ohio, 2012 WL 1072286 (N.D.
Ohio March 29, 2012). Alternatively, he may have unexhausted remedies under Ohio
Revised Code § 5122.15. See, Martin v. Summit Behavioral Healthcare Center, 2009 WL
4139246 (S.D. Ohio Nov. 23, 2009). He must first exhaust this Ohio court remedies
before seeking his release through federal habeas corpus.
WHEREUPON, the Magistrate Judge RECOMMENDS that the petition be dis2

missed because petitioner has failed to exhaust his Ohio court remedies.
If any party objects to this Order, that party may, within fourteen (14) days, file
and serve on all parties a motion for reconsideration by the Court, specifically designating this Order and the part thereof in question, as well as the basis for objection
thereto. 28 U.S.C. §636(b)(1)(B)l; Rule 72(b), Fed. R. Civ. P.
The parties are specifically advised that failure to object to the Order will result
in a waiver of the right to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court. Thomas v. Arn, 474 U.S. 140, 150-52 (1985);
United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also, Small v. Secretary of Health
and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).
Copies of the petition and this Order shall be mailed to the Attorney General of
Ohio, Corrections Litigation Section, 150 E. Gay St., 16th Floor, Columbus, OH 43215.

s/Mark R. Abel
United States Magistrate Judge

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