Hertel v. State of Ohio

Filing 16

OPINION AND ORDER granting 10 Motion to Dismiss; adopting Report and Recommendations re 14 Report and Recommendations.. Signed by Judge James L. Graham on 5/5/2017. (ds)(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
FRANK K.C. HERTEL, SR.,
Petitioner,

CASE NO. 2:16-CV-00435
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth P. Deavers

v.
STATE OF OHIO,
Respondent.
OPINION AND ORDER
On February 16, 2017, the Magistrate Judge issued a Report and Recommendation
recommending that Respondent’s Motion to Dismiss (ECF No. 10) be granted and that the
instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. (ECF No.
14.) Petitioner has filed an Objection to the Magistrate Judge’s Report and Recommendation.
(ECF No. 15.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For
the reasons that follow, Petitioner’s Objection (ECF No. 15) is OVERRULED. The Report and
Recommendation (ECF No. 14) is ADOPTED and AFFIRMED. Respondent’s Motion to
Dismiss (ECF No. 10) is GRANTED. This action is hereby DISMISSED.
Petitioner is currently incarcerated in ASPC Kingman/Huachuca, an Arizona correctional
facility, pursuant to a 20 year definite sentence for sexual conduct with a minor under the age of
15. He is simultaneously serving his sentence on his convictions pursuant to his 2014 guilty plea
in the Delaware County Court of Common Pleas in Case Number 00CRI-11-361, on three counts
of rape and two counts of gross sexual imposition on charges related to his minor child. On
March 5, 2014, the trial court sentenced Petitioner in that case to five to twenty-five years on
each count of rape, and to two to ten years on each count of gross sexual imposition, all such

sentences to run consecutively to each other, but concurrently to his Arizona sentence. See State
v. Hertel, No. 14CAA-04-0019, 2015 WL 1403147, at *1 (Ohio App. 5th Dist. March 26, 2015).
Petitioner, however, challenges the state court’s dismissal of charges filed against him in 2014,
in Case Number 14CRI-01-0021. Petitioner asserts that he was denied the effective assistance of
appellate counsel, because his attorney failed to file a timely appeal in regard to the trial court’s
dismissal of the 2014 Indictment in Case Number 14-CRI-01-0021 (claim one); that he was
denied his rights under the Interstate Agreement on Detainers Act (claim two); that the state
courts improperly denied him transcripts of proceedings in regard to the dismissal of charges in
Case Number 14-CRI-01-0021 (claim three); and that he has “suffered prejudice” from the
dismissal of Case Number 14-CRI-01-0021 (claim four). The Magistrate Judge recommended
dismissal of this action based on Petitioner’s failure to meet the requirement that he be “in
custody” under the conviction challenged, as required under 28 U.S.C. § 2254(a). Petitioner
objects to the Magistrate Judge’s recommendation.
Petitioner argues that his challenges to the 2014 case, if successful, would result in the
dismissal of charges against him on the 2000 Indictment, under which he currently remains
incarcerated. Petitioner indicates that his claim under the Interstate Agreement on Detainers Act
applies to the charges filed in both cases. He further contends that his attorney’s failure to file a
timely appeal in Case Number 14-CRI-01-0021 created an “incomplete record” for his appeal in
Case Number 00-CRI-361, and that therefore, this Court has jurisdiction to consider his claims.
Objection (ECF No. 15, PageID# 1078.) Petitioner argues at length that the dismissal of charges
in the 2014 case permitted his improper convictions on the charges filed in 2000.
Although Petitioner now attempts to couch his arguments in terms of the 2000 charges
under which he stands convicted, his claims plainly relate to what he contends amounted to the

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improper dismissal of the 2014 Indictment. However, federal habeas corpus does not provide
Petitioner relief for his challenges to the dismissal of charges under which he has never been
subject to incarceration or any other restraint on his liberty. “[T]he essence of habeas corpus is
an attack by a person in custody upon the legality of that custody, and [] the traditional function
of the writ is to secure release from illegal custody.” Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir.
1986)(citing Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). If Petitioner seeks to obtain
federal habeas corpus review of the constitutionality of the convictions under which he currently
stands incarcerated, he must do so by challenging his underlying convictions on the charges
alleged in the 2000 indictment, not the dismissal of charges subsequently filed against him in
2014.
For these reasons and for the reasons addressed in the Magistrate Judge’s Report and
Recommendation, Petitioner’s Objection (ECF No. 15) is OVERRULED. The Report and
Recommendation (ECF No. 14) is ADOPTED and AFFIRMED. Respondent’s Motion to
Dismiss (ECF No. 10) is GRANTED. This action is hereby DISMISSED.
IT IS SO ORDERED.
Date: May 5, 2017
_________s/James L. Graham
JAMES L. GRAHAM
United States District Judge

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