Rodgers v. State of Ohio et al

Filing 85

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 54 Motion to Dismiss, filed by Sara Andrew, Ohio Parole Board, Ohio Department of Rehabilitation and Correction, State Of Ohio, 81 Motion for Leave to File filed by Otis Lee Rodgers, 77 Motion for Extension of Time filed by Otis Lee Rodgers, 73 Report and Recommendations, 82 Motion for Miscellaneous Relief filed by Otis Lee Rodgers, 84 Motion for Miscellaneous Relief filed by Otis Lee Rodgers. Signed by Judge Gregory L. Frost on 1/15/15. (kn)(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
EASTERN DIVISION
OTIS LEE RODGERS,
Petitioner,

Civil Action 2:14-cv-453
Judge Frost
Magistrate Judge King

vs.
STATE OF OHIO, et al.,
Respondents.

OPINION AND ORDER
Petitioner, who is currently incarcerated in California, filed an
action in the United States District Court for the Central District of
California asserting claims for damages under 42 U.S.C. § 1983 in
connection with a detainer lodged against him by the Ohio Adult Parole
Authority. ECF No. 1.

The action was thereafter transferred to the

Eastern District of California, Order, ECF No. 4, and petitioner’s
application for leave to proceed in forma pauperis was granted.
Order, ECF No. 8. Petitioner’s request to transfer the case to this
Court, ECF 23, was also granted. Order, ECF No. 24. Petitioner
thereafter filed a Petition for a Writ of Habeas Corpus, ECF No. 32,
and his claims for monetary damages under 42 U.S.C. § 1983 were
dismissed. Opinion and Order, ECF No. 38.1
On December 10, 2014, the United States Magistrate Judge
recommended that respondent’s Motion to Dismiss, ECF No. 54, be
granted.

Order and Report and Recommendation, ECF No. 73.

This

matter is now before the Court on petitioner’s objections to that
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Petitioner’s appeal from the dismissal of his claims under § 1983
remains pending.
Rodgers v. State of Ohio, Case No. 14-3683 (6th Cir.).

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recommendation, Objection, ECF No. 76. Petitioner has also filed
motions for leave to supplement those objections. Motion for Extension
of Time to Supplement the Objections, ECF No. 77; Motion for Leave to
File Supplemental Objections, ECF No. 81. The latter motion appears to
be petitioner’s supplemental objections.
Petitioner’s motions for leave to supplement his objections, ECF
Nos. 77, 81, are GRANTED. In considering petitioner’s objections to
the Magistrate Judge’s recommendations, the Court will consider all of
petitioner’s filings.
The Magistrate Judge summarized the facts relevant to the
resolution of this case, as well as petitioner’s claims, as follows:
On June 9, 1983, following his conviction in the
Court of Common Pleas for Cuyahoga County on two counts of
kidnapping and three counts of gross sexual imposition,
Petitioner was sentenced to an aggregate indeterminate
term of imprisonment of fifteen to sixty-five years.
Exhibits A, B, C to Motion to Dismiss, PageID# 335-37.
Petitioner’s maximum release date is March 22, 2048.
Exhibit C to Motion to Dismiss, PageID# 338. In 1992,
Petitioner was released on parole to be served in
California following service of a sentence imposed by the
State of Arizona. Id. at PageID# 338, 341; Exhibits to
Traverse, ECF 67, PageID# 413. Ohio’s parole authorities
indicated that Petitioner’s Ohio parole would remain
inactive until the completion of his Arizona sentence;
upon his release on the Arizona sentence, Petitioner was
to report for supervision in California and to notify Ohio
parole authorities.
Exhibits C, D, E, to Motion to
Dismiss, Page ID# 338-41. Petitioner was also directed to
notify the Adult Parole Authority “[i]n the event of [his]
imprisonment in another state . . . .” Exhibit D to Motion
to Dismiss, PageID# 339. Once activated, Petitioner’s
parole supervision would continue for at least two years
and supervision could be extended or revoked for failure
to comply with these directives. Id. at PageID# 340.
Ohio’s parole supervision would not terminate until the
State of Ohio granted a final release. Id.
On July 12, 2013, the Ohio Adult Parole Authority
issued an arrest warrant based on Petitioner’s alleged

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violation of conditions of parole. Exhibit G to Motion to
Dismiss, PageID# 342.
That warrant was received as a
detainer against Petitioner’s release from the custody of
the Department of Corrections and Rehabilitation in
California, where Petitioner is currently confined.
Id.
at PageID# 343.
Petitioner is scheduled to be released
from confinement by California on August 24, 2015. Id.
There is no evidence that Petitioner has been granted a
certificate of final release from parole by Ohio.
See
O.R.C. § 2967.16.
Petitioner
challenges
Ohio’s
parole
violation
proceedings, taking the position that he fully satisfied
his parole obligations while serving his Arizona sentence;
therefore, Petitioner contends, his Ohio parole had expired
prior to the issuance of the warrant against him.
Petitioner contends that Ohio lacks jurisdiction to hold
him beyond the expiration of his California sentence and
complains that the Ohio parole board waited too long before
issuing the parole violation warrant.
As noted supra,
Petitioner denies having been advised that his Ohio parole
would continue beyond the expiration of his Arizona
sentence; he alleges generally that Respondents have
falsified or manufactured documents.
Petitioner also
complains that he was denied a hearing prior to his
adjudication as a parole violator. The Petition asks that
Ohio’s parole violation warrant be declared invalid.
Order and Report and Recommendation, ECF No. 73, pp. 2-3 (footnotes
omitted). Without definitively determining the issue of exhaustion,
the Magistrate Judge concluded that the Petition affords no basis for
federal habeas corpus relief:
The record fails to support Petitioner’s claim that his
parole in Ohio expired prior to the issuance of the parole
violator warrant. Under Ohio law, a parolee remains in the
custody of the Ohio Department of Rehabilitation and
Correction until the Ohio Adult Parole Authority grants the
parolee “a final release.” O.R.C. § 2967.02(C), (D). There
is no evidence that Petitioner has ever been granted a
final release from parole by Ohio. See also Palmer v. Ghee,
117 Ohio App. 3d 189 (Ct. App. 3d Dist. 1997)(Ohio parole
authority is not estopped by its failure to promptly pursue
parolee who had not been granted a certificate of final
release). In any event, the Ohio parole board is not
required to pursue parole revocation proceedings while
Petitioner remains in the custody of California pursuant to
a new criminal conviction. Federal law requires only that

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a parole revocation hearing be held within a reasonable
time after the state has secured custody of the parolee by
executing the detainer and returning the parolee to the
institution from which he was paroled.
In Moody v.
Daggett, 429 U.S. 78 (1976), the United States Supreme
Court held that there is no constitutional duty to provide
a parolee an adversary parole revocation hearing until he
is taken into custody as a parole violator by execution of
the warrant:
Petitioner's
present
confinement
and
consequent
liberty loss derive not in any sense from the
outstanding parole violator warrant, but from [the
convictions for which he is currently incarcerated].
Issuance of the warrant and notice of that fact to
the institution of confinement did no more than
express
the
[Parole]
Board's
intent
to
defer
consideration of parole revocation to a later time.
Id. at 86. Accord Santiago-Fraticelli v. Thoms, 221 F.3d
1336 (6th Cir. 2000)(unpublished); Myers v. Davenport, 2:06cv-247, 2006 WL 1705180 (S.D. Ohio June 16, 2006). In
short, until Ohio’s parole violator warrant is executed,
Petitioner’s constitutional right to a hearing has not
vested.
To the extent that Petitioner may intend to
allege a violation of Ohio law, any such claim cannot form
the basis for federal habeas corpus review. See Pulley v.
Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d
735, 738 (6th Cir. 1988).
Order and Report and Recommendation, ECF No. 73, pp. 5-6.

The

Magistrate Judge therefore recommended that the action be dismissed.
Id.
This Court will consider the matter de novo.

See 28 U.S.C. §

636(b); Fed. R. Civ. P. 72(b).
Petitioner argues that, because his parole was inactive while he
was in the custody of Arizona, it cannot be reactivated without notice
and a hearing that conforms to constitutional notions of due process.
Petitioner also argues that he satisfied his 2 year minimum term of
parole while in custody in Arizona. He again denies, as he did before
the Magistrate Judge, that he ever received parole instructions

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following his release from confinement in Arizona. However, these
contentions miss the mark.

Petitioner was sentenced in 1983 to an

aggregate indeterminate term of imprisonment of up to 65 years, or
until 2048. Under Ohio law, a parolee remains in the custody of the
Ohio Department of Rehabilitation and Correction until the Ohio Adult
Parole Authority grants the parolee “a final release.”

O.R.C. §

2967.02(C), (D). There is no evidence that Petitioner has ever been
granted a final release from parole by Ohio.

Moreover, Ohio is not

required by the United States Constitution to pursue parole revocation
proceedings so long as petitioner remains in his current custody of
California. See Moody v. Daggett, 429 U.S. at 86; Santiago-Fraticelli
v. Thomas, 221 F.3d 1336. To the extent that petitioner intends to
assert a violation of state law or argue that the State of Ohio is
estopped, by the passage of time, from pursuing its detainer,
petitioner remains free to do so in connection with state parole
revocation proceedings, whenever those proceedings are instituted.
In short, petitioner’s objections to the recommendation of the
Magistrate Judge, Objection, ECF Nos. 76, 81, are DENIED.

The Report

and Recommendation, ECF No. 73, is ADOPTED AND AFFIRMED. Respondent’s
Motion to Dismiss, ECF No. 54, is GRANTED.
Petitioner’s Motion to Compel, ECF No. 82, and Motion to Postpone
the Non-Oral Hearing Date, ECF No. 84, are DENIED as moot.
The Clerk is DIRECTED to enter FINAL JUDGMENT.
/s/

Gregory L. Frost
Gregory L. Frost
United States District Judge

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