Jackson v. Mausser et al

Filing 12

REPORT AND RECOMMENDATIONS. The Magistrate Judge RECOMMENDS that petitioner's Motion for Summary Judgment, ECF 10 , be DENIED, and that respondent's Motion to Dismiss, ECF 5 , be GRANTED, and that this action be dismissed. Objections to R&R due by 7/13/2015. Signed by Magistrate Judge Norah McCann King on 6/25/2015. (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

NATHANIEL A. JACKSON,
Petitioner,
vs.

Civil Action 2:15-cv-313
Judge Frost
Magistrate Judge King

CYNTHIA MAUSSER, et al.,
Respondents.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, was convicted in 1992 of aggravated
murder with a firearm specification and was sentenced on the murder
conviction to life in prison with the possibility of parole after
twenty years and on the firearm specification to three years in
prison. See Jackson v. Russell, 1:95-cv-165 (S.D. Ohio). Petitioner
now brings this habeas corpus action pursuant to 28 U.S.C. § 2241,
challenging the denial of his release on parole. The Petition, ECF 1,
names as respondents the Chairperson of the Ohio Adult Parole Board
(“OAPB”), as well as the OAPB itself. Petitioner alleges that he
appeared before the OAPB on November 17, 2014; the OAPB denied his
release at that time and continued parole consideration for sixty (60)
months. Petition, PageID# 2-3. See also Affidavit of Debra Warren,
attached as Exhibit 16 to Motion to Dismiss. Petitioner claims in this
action that, in doing so, the OAPB acted in violation of petitioner’s
rights under the ex post facto clause of the United States
Constitution.

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This matter is now before the Court on respondent’s motion to
dismiss the action for failure to exhaust or as a successive petition,
Motion to Dismiss, ECF 5, and on petitioner’s motion for summary
judgment, Motion for Summary Judgment, ECF 10. The Court will consider
the motions in reverse order.
Motion for Summary Judgment
Petitioner’s Motion for Summary Judgment asks that this Court
direct the OAPB “to immediately return him before the Board as the
Board in this Petition has not properly Answered the Complain.” Id. at
PageID# 142 [sic]. In support of the motion, petitioner contends that
no timely response was made to the Petition and that, in any event,
the response actually filed, i.e., the Motion to Dismiss, was
improperly filed on behalf of the Warden of the Chillicothe
Correctional Institution, the prison in which petitioner is currently
incarcerated, rather than on behalf of the named respondents.
Petitioner’s motion is without merit in both respects.
Although response to the Petition was originally due on February
16, 2015, see Order, ECF 2, the Court thereafter extended that date to
April 17, 2015. Order, ECF 4. The Motion to Dismiss was in fact filed
on April 17, 2015, and is therefore not untimely.
The Motion to Dismiss was filed on behalf of the “Respondent.”
Motion to Dismiss, PageID# 19. Petitioner contends that, because the
Petition names the Chairperson of the OAPB and the OAPB itself as
respondents, there has been no proper response to the Petition.
However, as counsel for respondent properly notes, the proper
respondent in this habeas corpus case is the person who has custody of

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the petitioner. See 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.”)
is the warden of CCI.

That person

It was therefore not improper to file the

Motion to Dismiss on behalf of the “Respondent.”
In short, petitioner’s Motion for Summary Judgment is without
merit.
Motion to Dismiss
Respondent moves to dismiss the action as either unexhausted or
as a second or successive petition. Motion to Dismiss. The Court
concludes that, although this is not a successive petition, the matter
must be dismissed as unexhausted.
Second or Successive Petition
In 1995, petitioner filed a habeas corpus action in this Court,
challenging his conviction for aggravated murder with a firearm
specification in the Hamilton County Court of Common Pleas. Jackson v.
Russell, 1:95-cv-165 (S.D. Ohio).

Final judgment dismissing that case

was entered on March 25, 1998. The United States Court of Appeals for
the Sixth Circuit declined to issue a certificate of appealability,
Jackson v. Russell, Case No. 98-3441 (6th Cir. Sept. 18, 1998), and the
United States Supreme Court denied the petition for a writ of
certiorari. Jackson v. Russell, 528 U.S. 1119 (1999).
first appeared before the OAPB in June 2008.

Petitioner

Affidavit of Debra

Warren, attached as Exhibit 16 to Motion to Dismiss. This action
challenges petitioner’s most recent denial of parole following his
third appearance before the OAPB in November 2014.

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Federal law does not permit the filing of a “second or successive
application” unless “the applicant . . . move[s] in the appropriate
court of appeals for an order authorizing the district court to
consider the application.” 28 U.S.C. § 2244(b)(3)(A). Clearly, the
statute in this regard does not “refe[r] to all

. . . applications

filed second or successively in time.” Panetti v. Quarterman, 551 U.S.
930, 944 (2007). A later filed petition that presents a claim that was
not ripe for presentation at the time the earlier action was filed
will not be considered a second or successive petition within the
meaning of the statute. Id. at 947. “A petition is successive if ‘it
raises a claim that could have been raised in the first petition but
was not so raised, either due to deliberate abandonment or inexcusable
neglect.’” In re Marsch, 209 Fed. Appx 481, 483 (6th Cir. Dec. 20,
2006)(quoting In re Bowen, 436 F.3d 699, 704 (6th

Cir. 2006)(citing

McCleskey v. Zant, 499 U.S. 467, 489 (1991)). The United States Court
of Appeals for the Sixth Circuit has held that a habeas corpus
petition that challenges the denial of parole, but which is filed
after an earlier petition challenging the underlying criminal
conviction, is a second or successive petition within the meaning of §
2244(b)(3)(A) if the denial of parole occurred prior to the filing of
the first habeas corpus action. In re Marsch, 209 Fed. Appx 481.
As noted, petitioner’s first habeas corpus action became final in
this Court in 1998. Petitioner’s first appearance before the parole
board occurred long after that date, in 2008.

It therefore cannot be

said that the claim asserted in this action was ripe for presentation
in his first habeas corpus action.

Under these circumstances, the

Court concludes that this is not a second or successive petition

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within the meaning of § 2244(b)(3)(A).
Exhaustion
Respondent also argues that the current petition must be
dismissed for failure to exhaust the claim presented. This Court
agrees.
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 (1999).
In Ohio, a prisoner who wishes to challenge the action of the
parole board may file an action for mandamus under O.R.C. § 2731.01 et
seq. Williams v. Perini, 557 F.2d 1221 (6th Cir. 1977). See also Hattie
v. Anderson, 68 Ohio st. 3d 232 (1994). Petitioner has not alleged
that he has presented his claim to any state court.

It therefore

appears that he has not exhausted the claim presented in this action.
Under these circumstances, this Court cannot entertain that claim.
It is therefore RECOMMENDED that petitioner’s Motion for Summary
Judgment, ECF 10, be denied, that respondent’s Motion to Dismiss, ECF
5, be granted, and that this action be dismissed, without prejudice,
for failure to exhaust.
If any party seeks review by the District Judge of this Report

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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 the 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 waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure to object to the magistrate judge’s recommendations
constituted a waiver of [the defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation).

Even when timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails to specify the issues of contention, does not suffice to
preserve an issue for appeal . . . .”) (citation omitted)).

June 25, 2015
(Date)

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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