Coleman v. Mayberry et al

Filing 3

REPORT AND RECOMMENDATIONS re 2 Complaint. Petitoner's motion for leave to proceed in forma pauperis 1 is GRANTED. The Magistrate Judge RECOMMENDS that the petition be dismissed because it fails to state a claim for relief under 42 U.S.C. § 1983 and because petitioner has failed to exhaust his Ohio court remedies for his federal habeas corpus claims - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 07/21/2014. (sr1)

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

Keith Coleman,

:
Petitioner

Gwen Howe-Gebers, et al.,
Respondents

Civil Action 2:14-cv-0541

:

v.

:

Judge Graham

:

Magistrate Judge Abel

:

REPORT AND RECOMMENDATION
Petitioner Keith Coleman, a state prisoner incarcerated at the North Central
Correctional Institution, brings this action which he characterizes as a civil rights
complaint under 42 U.S.C. § 1983, but which the Court treats as a petition for writ of
habeas corpus under 28 U.S.C. §2254. Petitioner’s June 9, 2014 motion for leave to
proceed in forma pauperis (doc. 1) is GRANTED. This matter is before the Magistrate
Judge on the Court’s own motion. Rule 4, Rules Governing Section 2254 Cases in the
United States District Courts.
The petition alleges that respondents have unlawfully restrained petitioner
Coleman's liberty. Coleman was convicted in February 2014 in the Court of Common
Pleas for Wood County, Ohio of a fourth degree felony in violation of Ohio Revised
Code § 2925.035. He was sentenced to a term of one year and four months imprisonment. (http://www.drc.ohio.gov/OffenderSearch/details.aspx?id=A698013&pg=x)
Petitioner alleges that he is held in the custody of respondents in violation of the

Constitution of the United States in that he is not guilty of the offense for which he
stands convicted.
A civil rights action is not a substitute for habeas corpus. When a prisoner
challenges the fact or duration of his confinement, his sole federal remedy is habeas
corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Heck v. Humphrey, 512 U.S. 477, 787
(1994); Edwards v. Balisok, 520 U.S. 641 (1997).
Here the complaint prays that petitioner be released from prison. Petitioner also
seeks money damages. However, a decision in petitioner's favor would necessarily
undermine his criminal conviction. Consequently, his sole remedy is through habeas
corpus. Since his convictions have not been set aside, he is not entitled to seek relief
under 42 U.S.C. § 1983. Heck, above.
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).
It also includes the remedy of a petition for post-conviction relief under Ohio Revised
Code §2953.21. Manning v. Alexander, 912 F. 2d 878 (6th Cir. 1990). 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).
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The complaint also contains allegations regarding petitioner's conditions of
confinement, but none of these allegations pleads sufficient facts to give any named
defendant fair notice of what they are alleged to have done to deprive Coleman of a
constitutional right and when they are alleged to have engaged in actionable conduct.
WHEREUPON, the Magistrate Judge RECOMMENDS that the petition be
dismissed because it fails to state a claim for relief under 42 U.S.C. § 1983 and because
petitioner has failed to exhaust his Ohio court remedies for his federal habeas corpus
claims.
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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