Marshall v. Warden Pickaway Correctional Institution

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS; OVERRULING Petitioner's Objections. This action is DISMISSED. Signed by Judge Algenon L. Marbley on 2/17/2017. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION KENNETH ADAM MARSHALL, CASE NO. 2:15-CV-2775 JUDGE ALGENON L. MARBLEY MAGISTRATE JUDGE KEMP Petitioner, v. WARDEN, PICKAWAY CORRECTIONAL INSTITUTION, Respondent. OPINION AND ORDER On September 28, 2016, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 24.) On October 20, 2016, the Court granted Petitioner’s Motion for Reconsideration (ECF No. 25), permitting Petitioner to file objections to the Magistrate Judge’s Order and Report and Recommendation for consideration by this Court. (ECF No. 27.) Petitioner has filed a Responsive Pleading to the Court (ECF No. 30), which the Court will construe as Petitioner’s objections to the Magistrate Judge’s recommendation of dismissal of this case. (See ECF No. 21.) Therefore, the Order Adopting the Report and Recommendation and Judgment of dismissal of this action (ECF Nos. 23, 24) without consideration of Petitioner’s objections are VACATED. Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner’s objections (ECF No. 30) are OVERRULED. The Order and Report and Recommendation (ECF No. 21) is ADOPTED and AFFIRMED. This action is hereby DISMISSED. In his Responsive Pleading to the Court, Petitioner indicates that he has submitted exhibits demonstrating that he provided notice to the Respondents requesting processing of the warrants, detainers and holders against him, which were ignored. Additionally, he states that he requested and was denied participation in programs, “PRC/Early Release” and suffered other losses as a result. He has attached documents in support of this claim. However, this case relates to a detainer that apparently has been placed against Petitioner by the State of Indiana. Petitioner has failed to meet the requirement that he be “in custody” so as to obtain federal habeas corpus relief. See 28 U.S.C. § 2254(a); Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Moreover, Petitioner has been released from prison, and the Warden of the Pickaway Correctional Institution is not a party against whom a challenge to out-of-state warrants may be brought. Petitioner has presented no basis for the reconsideration of the Magistrate Judge’s recommendation of dismissal of this case. For these reasons, and for the reasons addressed in the Magistrate Judge’s Order and Report and Recommendation, Petitioner’s objections (ECF No. 30) are OVERRULED. The Order and Report and Recommendation (ECF No. 21) is ADOPTED and AFFIRMED. This action is hereby DISMISSED. IT IS SO ORDERED. s/Algenon L. Marbley ALGENON L. MARBLEY United States District Judge 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?