Byerly v. OHIO, State of et al

Filing 7

ORDER AND REPORT AND RECOMMENDATIONS re 5 Petition for Writ of Habeas Corpus. It is RECOMMENDED that the warden of the Ross Correctional Institution be named as the respondent in this case. it is FURTHER RECOMMENDED that petitioners claims against the remaining defendants be dismissed. Objections to R&R due by 5/19/2014) Petitioner's MOTION for Leave to Proceed in forma pauperis (doc. 1 ) is GRANTED. Signed by Magistrate Judge Norah McCann King on 5/1/2014. (pes1)

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

STEPHEN W. BYERLY,
Petitioner,
Case No. 2:14-cv-266
Judge Sargus
Magistrate Judge King

v.

STATE OF OHIO, et al.,
Respondents.

ORDER and REPORT AND RECOMMENDATION
Stephen W. Byerly, a state prisoner currently incarcerated in the
Ross Correctional Institution, seeks leave to proceed in a civil
action in this Court without prepayment of fees or costs.

ECF 1.

Because it appears that petitioner seeks to challenge his state court
conviction, the Court construes the action as one seeking a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner’s motion for

leave to proceed in forma pauperis, ECF 1, is therefore GRANTED.

All

judicial officers who render services in this action shall do so as if
the costs had been prepaid.
The Court directed petitioner to submit a form habeas corpus
petition, Order, ECF 2;

Order, ECF 4, and petitioner has now done so.

Petition, ECF 5.1

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Although it is not entirely clear, it appears that petitioner intends to
challenge his conviction in the Richland County Court of Common Pleas based
on alleged irregularities in proceedings before the Mansfield Municipal
Court. If so, the action may be subject to transfer to the Northern District
of Ohio. See 28 U.S.C. § 2241(d).

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Petitioner’s original pleading named as defendants a number of
state court judges and other individuals and also sought monetary
damages in connection with his allegedly invalid conviction. However,
the appropriate respondent in a habeas corpus action is the person who
has custody of the petitioner.

Rule 2(a) of the Rules Governing

Section 2254 Cases in United States District Courts (“If the
petitioner is currently in custody under a state-court judgment, the
petition must name as respondent the state officer who has custody.”).
Moreover, petitioner’s claim for monetary damages arising out of his
allegedly invalid criminal conviction cannot proceed unless his
criminal conviction has first been “reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal, or
ha[s] otherwise been called into question by a federal court’s
issuance of a writ of habeas corpus.” Lanier v. Bryant, 332 F.3d 999,
1005-06 (6th Cir.2003)(citing Heck v. Humphrey, 512 U.S. 477 (1994)).
Because petitioner is currently incarcerated in the Ross
Correctional Institution, the warden of that facility is therefore the
proper respondent.

It is therefore RECOMMENDED that the warden of the

Ross Correctional Institution be named as the respondent in this case.
Because petitioner’s criminal conviction has not yet been reversed,
expunged or otherwise called into question, it is FURTHER RECOMMENDED
that petitioner’s claims against the remaining defendants be
dismissed.
The Clerk of Court is DIRECTED to mail a copy of the Petition and
a copy of this Order to the Warden of the Ross Correctional
Institution and to the Attorney General of Ohio, Criminal Justice

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Section, 150 East Gay Street, 16th Floor, Columbus, Ohio 43215.
Respondent is ORDERED to answer the Petition in accordance with
the provisions of Rule 5, Rules Governing Section 2254 Cases in the
United States District Courts, within twenty-one (21) days of the date
of this Order.
Petitioner may have twenty-one (21) days thereafter to file a
reply to the respondent’s answer or other response to the petition.

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); Fed. 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.

Fed. 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 Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

s/ Norah McCann King___
Norah McCann King
United States Magistrate Judge
May 1, 2014

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