O'Keefe v. LeGrand

Filing 32

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS dismissing 11 Petition for Writ of Habeas Corpus. Objections to R&R due by 10/18/2017. Signed by Magistrate Judge Kimberly A. Jolson on 10/4/2017. (ew)(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
BRIAN KERRY O’KEEFE,
CASE NO. 2:17-CV-845
JUDGE MICHAEL H. WATSON
Magistrate Judge Kimberly A. Jolson

Petitioner,
v.
ROBERT LEGRAND, et al.,
Respondents.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus under 28
U.S.C. § 2241. (Doc. 11). 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 undersigned RECOMMENDS
that this action be DISMISSED.
I.

Facts and Procedural History
On April 29, 2005, Petitioner was sentenced to five years of probation after he pleaded

guilty to charges of Criminal Non-Support of Dependents, Ohio Revised Code Section
2919.21(A)(2), in the Court of Common Pleas for Fairfield County, Ohio. (State of Ohio v.
Brian K. O’Keefe, Case No. 2004-CR-0237, Docket Sheet). While still subject to probation in
Ohio, Petitioner was arraigned on January 6, 2009, for charges of second-degree murder with use
of a deadly weapon by the state of Nevada. (State of Nevada v. Brian K. O’Keefe, Case No.
08C250630, Docket Sheet). Accordingly, on January 29, 2009, the Fairfield County Prosecutor
moved to revoke Petitioner’s probation for having violated the terms of his probation. (Doc. 151).

Petitioner was tried and convicted in Nevada. The Nevada Supreme Court reversed
Petitioner’s conviction on April 7, 2010, because of prejudicial jury instructions. (Doc. 17,
PAGEID#: 84). After a retrial, however, Petitioner was convicted and sentenced on August 30,
2012, to the Nevada Department of Corrections (“NDC”) for a term of ten to twenty-five years to
be followed by a consecutive term of eight to twenty years. (Doc. 15-2). That sentence was
affirmed by the Nevada State Supreme Court on April 10, 2013. O’Keefe v. State of Nevada, No.
61631, 2013 WL 1501038, at * 1 (Nev. Sup. Ct., April 10, 2013). Petitioner is in the custody of
the state of Nevada pursuant to that judgment of conviction and sentence.
On January 28, 2016, the Fairfield County Sherriff’s Department forwarded the January
29, 2009 motion to revoke Petitioner’s probation to the NDC and copy of a capias for
Petitioner’s arrest issued by the Fairfield County Court of Common Pleas. (Doc. 15-1). The
Sherriff also asked NDC to place a detainer on Petitioner and to notify the Sherriff’s department
when Petitioner was released so that he could be extradited to Ohio for probation revocation
proceedings. (Id.).
On July 21, 2016, Petitioner filed a petition under 28 U.S.C. § 2241 in the United States
District Court for the District of Nevada. (Doc. 11). In it, he alleges that the detainer requested
by Fairfield County Ohio violates the Fifth Amendment’s Double Jeopardy Clause because
Petitioner’s probation expired on April 29, 2010—five years after it was originally imposed—
and that the imposition of a detainer on the basis of an expired sentence of probation constitutes
“double jeopardy.” (Id.). Petitioner fails to acknowledge, however, that the Fairfield County
Prosecutor moved to revoke his probation on January 29, 2009, fifteen months before it was due
to expire. Moreover, on June 30, 2016, the Fairfield County Court of Common Pleas dismissed
the Prosecutor’s motion to revoke Petitioner’s probation, terminated Petitioner’s probation, and

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recalled the capias for Petitioner’s arrest. (State of Ohio v. Brian K. O’Keefe, Case No. 2004CR-0237, June 30, 2017 Entry). Accordingly, Petitioner is not in, or possibly subject to, custody
because of an Ohio court judgment. Nevertheless, because Petitioner challenged the validity of a
detainer based upon an Ohio court judgment, the Nevada District Court transferred the action to
this Court on September 26, 2017. (Doc. 29).
II.

DISCUSSION
Rule 4 provides that “[i]f it plainly appears from the petition ... that the petitioner is not

entitled to relief in the district court, the judge must dismiss the petition . . . .” Rule 4 applies to
habeas corpus petitions filed under 28 U.S.C. § 2254 and § 2241. Evans v. U.S. Marshal Serv.,
No. 2:14-CV-1451, 2015 WL 1476654, at *2 (S.D. Ohio Mar. 31, 2015). In addition, 28 U.S.C.
§ 2243 provides that a district court may summarily dismiss a habeas petition if it appears that a
petitioner is not entitled to relief. See Blevins v. Lamanna, 23 F. Appx. 216, 218 (6th Cir. 2001).
In this case, it appears that Petitioner is not entitled to relief and that dismissal is proper.
As a preliminary matter, Petitioner should have sought habeas relief under § 2254 instead of
§ 2241. The Ohio detainer, if it existed, would be based on an Ohio judgment, and § 2254, not
§ 2241, applies when persons are in custody pursuant to a state court judgment.

Even if

Petitioner had invoked the proper mechanism, however, he would not be entitled to relief from
this Court. The Fairfield County probation revocation proceedings have been dismissed and the
capias recalled. There is no detainer based upon an Ohio court judgement. Consequently,
Petitioner’s challenge is moot.
III.

RECOMMENDED DISPOSITION
For the foregoing reasons, the undersigned RECOMMENDS that this action be

DISMISSED.

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Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
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 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).
IT IS SO ORDERED.
Date: October 4, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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