Marshall v. Warden, Pickaway Correctional Institution

Filing 33

ORDER granting 8 Motion to Dismiss; adopting 29 Report and Recommendations.. Signed by Judge Gregory L. Frost on 6/30/15. (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

KENNETH MARSHALL,
CASE NO. 2:14-CV-812
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth P. Deavers

Petitioner,
v.
WARDEN, PICKAWAY
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On June 9, 2015, the Magistrate Judge issued a Report and Recommendation denying
Petitioner’s Motion for Relief from Judgment and “Rule 54 Judgment on the Pleadings”, and
recommending that Respondent’s Motion to Dismiss be granted.

Petitioner has filed an

Objection to the Magistrate Judge’s Report and Recommendation.
Petitioner maintains that he has provided the state courts an adequate opportunity to
review his claims. He claims that he is being denied appellate review due to his indigent status.
He contends that the denial of counsel excuses his failure to exhaust state court remedies.
As discussed by the Magistrate Judge, however, Petitioner must present his claims to the
state’s highest court in order to satisfy the exhaustion requirement. O’Sullivan v. Boerckel, 526
U.S. 838 (1999). He has not done so. He may still pursue a delayed appeal in the Ohio Supreme
Court. Further, Petitioner has no Sixth Amendment right to counsel in connection with the
discretionary appeal to the Ohio Supreme Court. See Pennsylvania v. Finley, 481 U.S. 551, 555,
107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (“[T]he right to appointed counsel extends to the first
appeal of right, and no further.”).

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Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. Petitioner’s
Objection, ECF 31, is OVERRULED.

The Report and Recommendation, ECF 29, is

ADOPTED and AFFIRMED. Petitioner’s Motion for Relief from Judgment and “Rule 54
Judgment on the Pleadings” are DENIED. Respondent’s Motion to Dismiss is GRANTED.
This action is hereby DISMISSED.
IT IS SO ORDERED.
/s/ GREGORY L. FROST
GREGORY L. FROST
United States District Judge

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