Fikes v. Warden Marion Correctional Insitution et al

Filing 3

REPORT AND RECOMMENDATION that 2 Petition for Writ of Habeas Corpus be DISMISSED as unexhausted and as barred by the one-year statute of limitations found in 28 U.S.C. § 2244(d). Objections to R&R due by 3/1/2017. Motion GRANTED - 1 MOTION for Leave to Proceed in forma pauperis. Signed by Magistrate Judge Terence P. Kemp on 2/15/2017. (agm)(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
JAMES W. FIKES, JR.

CASE NO. 2:16-CV-0832

Petitioner,
JUDGE MICHAEL H. WATSON
MAGISTRATE JUDGE KEMP
v.
WARDEN, MARION CORRECTIONAL
INSTITUTION, AND OHIO ADULT
PAROLE AUTHORITY,
Respondents.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus
pursuant to 28 U.S.C. §2254. He has also moved for leave to proceed in forma pauperis,
which motion (Doc. 1) is GRANTED. This matter is before the Court on its own motion
to consider the sufficiency of the petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts. For the reasons that follow, the Magistrate
Judge RECOMMENDS that this action be DISMISSED as unexhausted and as barred by
the one-year statute of limitations found in 28 U.S.C. § 2244(d).
I. Facts and Procedural History
The facts of this case are taken from the Petition which is attached to the motion for
leave to proceed in forma pauperis. The important facts are as follows.
Petitioner was convicted in the Lorain County Court of Common Pleas in 2006 of
the crime of escape and sentenced to three years in prison. He pleaded guilty to that
charge. He asserts that the prison term expired on August 7, 2009, and that he was granted

parole status (although never actually released from prison), but his parole status was
subsequently revoked without the benefit of a parole hearing. He identifies November 2,
2010 as the date of the Parole Authority’s action. He did eventually get a parole hearing,
but not until March, 2011, at which time his case was continued for three more years. He
does not say what happened at the next parole hearing, but he is still incarcerated, so he
clearly was not granted parole at that time. The website of the Ohio Department of
Rehabilitation and Correction shows that he is currently serving a sentence of ten to fifty
years for rape, imposed by the Court of Common Pleas of Huron County, Ohio, and that
his next parole hearing will take place in 2019.
Petitioner claims that after the expiration of his three-year escape sentence in 2009,
the State of Ohio lost jurisdiction to continue his imprisonment. He asserts claims under
the Due Process and Ex Post Facto clauses of the United States Constitution. He admits
that he has never appealed the actions of the Parole Authority, but states that he has no
remedy of appeal available.
II. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which became
effective on April 24, 1996, imposes a one-year statute of limitations on the filing of habeas
corpus petitions. 28 U.S.C. § 2244(d) provides:
(d) (1) A 1–year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court. The limitation
period shall run from the latest of-

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(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws
of the United States is removed, if the applicant was prevented
from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for State
postconviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.
This Court has previously held, citing numerous decisions from both the Sixth
Circuit Court of Appeals and other District Courts, that the statute of limitations for a claim
based on parole revocation accrues on the date that the revocation becomes final. See, e.g,
Al’Shahid v. Warden, Pickaway Correctional Institution, 2016 WL 5942287, *2-3 (S.D. Ohio Oct.
13, 2016), adopted and affirmed 2016 WL 7045632 (S.D. Ohio Dec. 5, 2016). “A parole
revocation becomes final when a hearing officer for the Ohio Adult Parole Authority
determines that the defendant violated the conditions of his release and, therefore, the
revocation sanction should be imposed.” Klopp v. Wolfe, 8 Fed.Appx. 444, 446 (6th Cir. Apr.
30, 2001). According to Petitioner, that action occurred well more than a year prior to the

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date he signed his habeas corpus petition, which was August 21, 2016. Consequently, his
claim is barred by the one-year statute of limitations found in 28 U.S.C. §2244(d).
Even if that were not so, there are substantial procedural barriers here as well. It is
a statutory requirement that before a federal court can grant habeas corpus relief to a state
prisoner who is being held under a judgment issued by a state court, that prisoner must
have asked for relief from the state courts and been denied. See 28 U.S.C. §2254(b). That
statute says that a petitioner cannot get federal habeas corpus relief unless he or she “has
exhausted the remedies available in the courts of the State....” There is an exception
available if the state has no corrective process to address the particular issue being raised.
The reason that a petitioner must first seek relief from the state courts is so those courts
have a chance to fix their own errors before a federal court steps in and does it for them.
As the United States Supreme Court said in O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999),
State courts, like federal courts, are obliged to enforce federal law. Comity
[which is the respect a federal court owes to the state judicial system] thus
dictates that when a prisoner alleges that his continued confinement for a
state court conviction violates federal law, the state courts should have the
first opportunity to review this claim and provide any necessary relief.

Ohio courts will review the actions of the Parole Authority in the context of a
petition for a writ of mandamus. See Wright v. Ghee, 74 Ohio St. 3d 465 (1996). This Court
has required habeas petitioners to exhaust that remedy before filing for relief in federal
court. See, e.g., McCardle v. Warden, London Corr. Inst., 2010 WL 3719241 (S.D. Ohio Sept. 15,
2010), adopted and affirmed 2010 WL 4384247 (S.D. Ohio Oct. 27, 2010). They also will

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consider, in a state habeas corpus action, a claim that a prisoner is being held beyond the
expiration of his sentence. See Johnson v. Robinson, 2016 WL 3216731 (Ross Co. App. June
8, 2016). Consequently, the petition filed in this case is also unexhausted, in addition to
being time-barred. Finally, to the extent that any state mandamus action may no longer be
available to Petitioner (and the Court expresses no opinion on this point), he would have
procedurally defaulted his claims for purposes of federal habeas corpus relief.
Consequently, there are multiple reasons why he is entitled to no relief here and why his
petition must be dismissed.
III. Recommended Disposition
For the reasons set forth above, the Court RECOMMENDS that this action be
DISMISSED as barred by the one-year statute of limitations found in 28 U.S.C. §2244(d)
and as either unexhausted or procedurally defaulted.
IV. 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

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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/ Terence P. Kemp
United States Magistrate Judge

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