Courtney v. Perry

Filing 2

REPORT AND RECOMMENDATION that this action be DISMISSED because Petitioner has not exhausted his state court remedies. Objections to R&R due by 2/28/2017. Signed by Magistrate Judge Terence P. Kemp on 2/14/2017. (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
DUANE COURTNEY,

CASE NO. 2:17-cv-0026

Petitioner,
JUDGE MICHAEL H. WATSON
MAGISTRATE JUDGE KEMP
v.
MAJOR PERRY, WARDEN,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, who is being held at the Franklin County Jail awaiting trial on criminal
charges, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. 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 because Petitioner has not exhausted his state court remedies.
I. Facts and Procedural History
The brief habeas corpus petition which has been filed states these facts. Petitioner
is housed at the Franklin County Corrections Center located on Jackson Pike in Columbus,
Ohio. A bond of $10,000.00 has been set in his case and he has not been able to post it. He
asserts that, as of the date he filed his petition (January 11, 2017), he had been incarcerated
for almost forty days without a pretrial hearing or any discovery. Although he also
describes, in his petition, certain problematic conditions of confinement, in his request for
relief, Petitioner asks to be released from the jail, and also asks that his criminal case be

removed to federal court if possible. See Doc. 1.
II. Exhaustion of State Remedies
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 both 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.

Additionally, as the O’Sullivan court made clear, it is not enough to ask just one state court
to address the problem; “state prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State's established
appellate review process.” Id. at 845.
It is rare that a federal court gets involved in a state criminal matter before the

2

Petitioner has been convicted of a crime, but it does happen. In that situation, the prisoner
is not being held under a judgment of conviction by a state court, so the exhaustion
requirement set forth in §2254(b) does not apply directly. However, even if the relief is
being sought under 28 U.S.C. §2241 (which is the federal statute to be used by prisoners
who are still awaiting trial), state court remedies must be exhausted. As the Court of
Appeals said in Atkins v. People of the State of Mich., 644 F.2d 543, 546 (6th Cir. 1981),
“although §2241 establishes jurisdiction in the federal courts to consider pretrial habeas
corpus petitions, the courts should abstain from the exercise of that jurisdiction if the
issues raised in the petition may be resolved either by trial on the merits in the state courts
or by other state procedures available to the petitioner.”
So the question here is whether there are remedies that Petitioner can pursue
through the state courts to challenge his being held on a $10,000.00 bond, which he appears
to consider excessive - a claim arising under the Eighth Amendment to the United States
Constitution - or to challenge the length of his pretrial detention. The answer is yes, and
Petitioner’s failure to pursue those remedies prevents this federal court from ordering his
release.
A similar issue was presented to the United States District Court for the Northern
District of Ohio in Roth v. McGuire, 2007 WL 315766 (N.D. Ohio Jan. 30, 2007). There, the
court, after acknowledging that the exhaustion requirement applies to a state-court
defendant seeking review of bond conditions in federal court, held that Ohio allows such
persons to seek relief in the state courts by filing a petition for a state writ of habeas corpus.
3

Roth cited the Ohio Supreme Court’s decision in Chari v. Vore, 91 Ohio St. 3d 323, 325 (1991)
as holding that “[h]abeas corpus is the proper remedy to raise the claim of excessive bail
in pretrial-release cases.” Ohio courts have routinely heard state habeas corpus cases
where bail is an issue. See, e.g., Smith v. Leis, 165 Ohio App.3d 581 (Hamilton Co. 2005).
Consequently, until Petitioner asks the state courts to review his bail, he cannot get any
relief on that issue from a federal court.
Petitioner has also asked that, if possible, his state court criminal case be removed
to federal court. Removal of a case from state court can occur only if there is a statute
which authorizes it. “The right of a defendant or defendants to remove rests entirely by
statutory provision....” Perkins v. Halex Co. Div. of Scott Fetzer, 744 F.Supp. 169, 172 (N.D.
Ohio 1990). A criminal case can be removed only if the defendant is an officer or agency
of the United States or is a member of the military who is being prosecuted for an act taken
in that capacity. See 28 U.S.C. §§1442, 1442a. Petitioner has not alleged any basis for
removal, so he is not entitled to that remedy.
III. Recommended Disposition
For the reasons set forth above, the Magistrate Judge RECOMMENDS that this
action be DISMISSED as unexhausted.
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,
4

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/ Terence P. Kemp
United States Magistrate Judge

5