Peters v. Mausser et al

Filing 10

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by William Peters. The Magistrate Judge RECOMMENDS that the Petition be DISMISSED. Petitioner's requests for the appointment of counsel and for an evidentiary hearing are DENIED. Objections to R&R due by 1/14/2016. Signed by Magistrate Judge Norah McCann King on 12/28/2015. (pes)(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
WILLIAM PETERS,
Petitioner,
Case No. 2:14-cv-02314
Chief Judge Sargus
Magistrate Judge King

v.
CYNTHIA MAUSSER and
ADULT PAROLE AUTHORITY,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition, ECF No. 1, Respondent’s Return
of Writ, ECF No. 5, Petitioner’s Traverse, ECF No. 6, and the exhibits of the parties. For the
reasons that follow, the Magistrate Judge RECOMMENDS that the Petition be DISMISSED.
Petitioner’s requests for the appointment of counsel and for an evidentiary hearing,
presented in his Traverse, are DENIED.
Petitioner was convicted, pursuant to the terms of his negotiated plea, on charges of
abduction, kidnapping, and rape in the Seneca County Court of Common Pleas. However, this
action does not challenge Petitioner’s underlying conviction; rather, it is the Ohio Adult Parole
Authority’s (“parole board”) subsequent denial of Petitioner’s release on parole that is at issue in
this case.
Since 2006, the parole board has considered and denied Petitioner’s release on parole on
at least five (5) occasions: Petition, PageID# 12, 20, 21, 23, 27. In November 2013, the parole
board continued the matter to November 2015. Id. at PageID# 27. Petitioner filed this habeas
corpus action on November 17, 2014, alleging that the application of 1996 parole guidelines to
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deny him release on parole violates the Ex Post Facto Clause.1

Respondent argues that

Petitioner’s claim(s) fail to provide a basis for relief and lack merit.2 This Court concludes that
the action must be dismissed, but for a reason not addressed by Respondent.
The record does not establish that Petitioner has exhausted his state court remedies
regarding his claim. Before a federal habeas court may grant relief, a state prisoner must exhaust
his available state court remedies. Castille v. Peoples, 489 U.S. 346, 349 (1989); Silverburg v.
Evitts, 993 F.2d 124, 126 (1993). See also 28 U.S.C. § 2254(d)(1). If a habeas petitioner has the
right under state law to raise a claim by any available procedure, he has not exhausted that claim.
28 U.S.C. § 2254(b), (c). Moreover, a constitutional claim for relief must be presented to the
state's highest court in order to satisfy the exhaustion requirement. O'Sullivan v. Boerckel, 526
U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).
“[T]he Ohio Supreme Court has held that a declaratory judgment action is the proper
remedy to determine the facial constitutionality or constitutional application of parole guidelines.
Hattie v. Anderson, 68 Ohio St.3d 232, 235 (1994). See also Curtis v. Ohio Adult Parole

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 As summarized by the United States District Court for the Northern District of Ohio:
On 1 July 1996, Ohio Senate Bill 2 went into effect. Before Senate Bill 2, inmates received an
indefinite sentence and the Ohio Adult Parole Authority (“OAPA”) determined the amount of time
the inmate would serve before being released on parole. Inmates convicted after 1 July 1996
generally received a definite term of incarceration. Because there was no longer a minimum and
maximum sentence, there was no need for a parole system for inmates sentenced after Senate Bill
2. Instead, a term of supervised release was added to their sentences.
In response to Senate Bill 2, the OAPA revised the parole guidelines in 1998, and again in 2000,
to give a projected release date to those inmates who were convicted prior to 1 July 1996 and who
did not get the benefit of a definite sentence. These guidelines assigned a numerical offense
category to an inmate based upon the nature of his or her crime, and a risk score based upon
several factors including the inmate's criminal record and institutional behavior. The two numbers
were then placed on a grid which determined the recommended range of time in terms of the
number of months that the inmate should serve before he or she would be considered suitable for
parole release (“the guideline range”). The projected release date was set for a period of time
within the guideline range. These guidelines were not mandatory and the OAPA had the discretion
to depart upward or downward from the guideline score.

Mubashshir v. Sheldon, 2012 WL 11134, * 1 (N.D. Ohio Jan. 3, 2012).
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 Respondent does not address the timeliness of the Petition.

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Authority, Case No. 04AP–1214, 2006 WL 23248 (Ohio App. 10 Dist. Jan.5, 2006); State of
Ohio v. Hall, Case No.2003–T–0114, 2004 WL 2785544 at * 11 (Ohio App. 11 Dist. Dec.6,
2004). Additionally,
[u]nder Ohio law, a writ of mandamus is available to compel the
“performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station,” Ohio Revised Code s
2731.01, and Ohio courts have interpreted this language as
providing for mandamus relief against the Adult Parole Authority
where the Authority has failed to perform an act which it has a
clear legal duty to perform. Swiss v. Ohio Pardon and Parole
Commission, 117 Ohio App. 141, 191 N.E.2d 186 (1963). . . . Ohio
courts in other contexts have held that a writ of mandamus will lie
to compel a general due process hearing. State ex rel. Wright v.
Morrison, 80 Ohio App. 135, 75 N.E.2d 106 (1947); State ex rel.
Ruple Bus Service v. Wickliffe Bd. of Education, 11 Ohio Misc.
127, 229 N.E.2d 762 (C.P.1967).
Williams v. Perini, 557 F.2d 1221, 1223 (6th Cir. 1977). Because the record does not indicate
that Petitioner pursued either of these avenues of relief, his claim remains unexhausted.
As noted supra, Respondent did not address the exhaustion issue in the Return of Writ.
However, considerations of comity and federalism require a federal habeas court to sua sponte
review the exhaustion issue. See Rockwell v. Yukins, 217 F.3d 421, 423-24 (6th Cir. 2000). See
also Richards v. Money, 2005 WL 1181856, at *5 (N.D. Ohio May 18, 2005)("It is well settled
in the Sixth Circuit that courts may raise and consider sua sponte the exhaustion defense). The
Court therefore recommends that the action be dismissed, without prejudiced, as unexhausted.
Petitioner will have the opportunity to address the exhaustion issue in his objections, if any, to
this recommendation.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED,
without prejudice, as unexhausted.

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Petitioner’s requests for the appointment of counsel and for an evidentiary hearing,
presented in his Traverse, are DENIED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A judge of this Court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. §
636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
December 28, 2015
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