O'Keefe v. LeGrand

Filing 38

OPINION and ORDER adopting 32 the Report and Recommendation; denying 33 Petitioner's Motion for Leave to Proceed in forma pauperis; denying 34 Petitioner's Motion to Appoint Counsel; finding as moot Petitioner's Motions 26 , 27 and 28 . Signed by Judge Michael H. Watson on 10/31/17. (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

BRIAN KERRY O'KEEFE,
Petitioner,
V.

ROBERT LEGRAND, et al.,

CASE NO. 2:17-CV-845

Judge Michael H. Watson
Magistrate Judge KImberly A. Jolson

Respondents.
OPINION AND ORDER

On October 4, 2017, the Magistrate Judge issued a Report and

Recommendation ("R&R") pursuant to Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts recommending that the instant petition be

dismissed as moot. EOF No. 32. Petitioner objected to the R&R. EOF No. 35.
Pursuant to 28 U.S.C. § 636(b), this court has conducted a de novo review. For the
reasons that follow. Petitioner's objection is OVERRULED. The R&R is ADOPTED
and AFFIRMED.

Petitioner has also moved for leave to proceed in forma pauperls, EOF No.
33; to convert his habeas action into an action alleging vioiations of 42 U.S.C.

§ 1983 and for the appointment of counsel, ECF No. 34; and has filed a proposed
complaint alleging violations of § 1983, ECF No. 33-1. For the reasons that follow,
the motions, ECF Nos. 33, 34, are DENIED.

Further, while this action was pending before the United States District Court

for the Districtof Nevada, Petitioner filed two motions requesting judicial action and

one motion requesting judicial notice of certain court documents in prior
proceedings. ECF Nos. 26, 27, and 28. Now that the Court has dismissed the
habeas petition as moot. Petitioner's motions requesting judicial notice and judicial
action are also DENIED as MOOT.

While serving a sentence of five years of probation imposed on April 29,
2005, by the Court of Common Pleas for Fairfield County, Ohio, Petitioner was

arraigned by the state of Nevada for charges of second degree murder with use of a

deadly weapon. As a result, on January 29,2009, the Fairfield County Prosecutor
moved to revoke Petitioner's probation (the "Revocation Motion"). ECF No. 15-1.
After being tried and convicted in Nevada, Petitioner was sentenced 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. ECF No. 15-2. That
sentence was affirmed by the Nevada Supreme Court in 2013. O'Keefe v. State of

Nevada, No. 61631, 2013 WL 1501038, at * 1 (Nev. Sup. Ct., April 10, 2013). More
than two and a half years later, and while Petitioner was in custody in Nevada

pursuant to that sentence, on January 28, 2016, the Fairfield County Ohio SherrifTs
Department sent a copy of the Revocation Motion to the NDC with a copy of a
capias for Petitioner's arrest issued by the Fairfield County Common Pleas Court.
ECF No. 15-1. The Sherriff asked NDC to place a detainer on Petitioner and to alert
Ohio authorities when he was released so that he could be extradited to Ohio for

revocation proceedings. Id.

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Petitioner responded by executing a petition for a writ of habeas corpus under

28 U.S.C. § 2241 on July 15, 2016,^ aiieging that his probation had expired on April
29,2010—^five years after it was imposed—and that the imposition of a detainer on
the basis of an expired sentence of probation constitutes "double jeopardy." ECF
Nos. 1,11.

The Magistrate Judge correctly explained, however, that after Petitioner filed

his petition, on June 30, 2017, the Fairfieid County Common Pleas Court dismissed

the Revocation Motion, terminated Petitioner's probation, and recalled the capias for

Petitioner's arrest. ECF No. 35-1. Accordingly, Petitioner's double jeopardy
challenge is now moot.

Petitioner objects to the Magistrate Judge's recommendation of dismissal.
Petitioner asserts that the Magistrate Judge erred by finding that Petitioner should

have invoked 28 U.S.C. § 2254 in his petition instead of § 2241. This assertion is

not well taken. There is no question that Petitioner was convicted and sentenced by
the Fairfieid County Court of Common Pleas and, thus, he is not a pretrial or preconviction detainee. Accordingly, the provisions of § 2254 govern his petition. See

Allen V. White, 185 F. App'x 487, 490 (6th Cir. 2006) (explaining that although a
federal prisoner may collaterally attack the lawfulness of a sentence under 28 U.S.C.

§ 2255 and the execution of a sentence under § 2241, a state court prisoner can use

§ 2254 to assert both types of challenges), in any event, regardless of whether he
proceeds under § 2241 or § 2254, Petitioner's double jeopardy claim has been
mooted by the actions of the Fairfieid County Common Pleas Court.

^The petition was filed on July 21, 2016. ECF Nos. 1,11.
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Petitioner's other objections also do not impact the Magistrate Judge's
mootness analysis. Petitioner complains that the Magistrate Judge did not
accurately describe every aspect of his state court cases. For example, he

complains that the Magistrate Judge stated that Petitioner pleaded "guilty" instead of
"no contest" to the misdemeanor charges in Fairfield County that led to his sentence

of probation in 2005 and did not indicate that Petitioner was tried three times by the
Nevada courts before he was ultimately convicted and sentenced for murder

charges there. But the Magistrate Judge's mootness analysis did not rely upon
anything that happened in the Nevada cases or upon anything that happened in the

Fairfield County case before Petitioner's petition was filed. Rather, Petitioner's
challenge has been mooted by actions that occurred only in the Fairfield County
case and only after he executed his petition.
Petitioner also complains about the procedures used by the Fairfield County

Common Pleas Court. For instance, he alleges that he was not notified when the
Prosecutor filed the Revocation Motion, that it took the Fairfield County Common
Pleas Court eight years to dismiss the Revocation Motion, and that the court never

notified Petitioner when It dismissed the Revocation Motion. Assuming that these
allegations are true, they still do not create a current controversy that could form the

basis for habeas relief. The Fairfield County Common Pleas Court has already
terminated Petitioner's probation and recalled the capias for his arrest. ECF No. 351. This Court will not order a state court to do something that it has already done.
Townsend v. Vasbinder, 365 F. App'x 657, 660 (6th Cir. 2010) (explaining that
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courts determine whether a case Is moot by considering "whether the relief sought

would, if granted, make a difference to the legal interests ofthe parties") (quoting
United States v. City of Detroit, 401 F.3d 448, 450-51 (6th Cir. 2005)). Therefore,
Petitioner's objections to the R&R are OVERRULED and the R&R is ADOPTED and
AFFIRMED.

As discussed above, Petitioner's two motions for the Court to take judicial

action and his motion for judicial notice of certain court documents are DENIED as
MOOT given the Court's dismissal of this case. ECF Nos. 26, 27, 28.
Petitioner has also filed with this Court a motion to convert his habeas petition

to an action alleging violations of § 1983 and a motion to proceed in forma pauperis
in a § 1983 case. ECF Nos. 34, 33. The Court declines to allow Petitioner to

convert this habeas action in this manner given that habeas and § 1983 actions are
generally subject to different filing requirements. Accordingly, Petitioner's motion to
convert and his motion to proceed in forma pauperis are DENIED. ECF Nos. 33, 34.
The Clerk is directed to remove ECF Nos. 26, 27, 28, 32, 33, and 34 from the
Court's pending motions list.
IT IS SO ORDERED.

MICHAEL H. WATSON. JUDGE
UNITED STATES DISTRICT COURT

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