Lee v. Warden, Chillicothe Correctional Institution

Filing 3

ORDER and REPORT AND RECOMMENDATION: The Petitioner's 1 Motion for Leave to Proceed in forma pauperis is GRANTED. Petitioner shall be PERMITTED to prosecute this action without prepayment of fees or costs and judicial officers w ho render services in this action will do so as if costs had been prepaid. It is RECOMMENDED that this action be DISMISSED. Petitioner's request for the appointment of counsel is DENIED. Objections to R&R due by 6/22/2018. Signed by Magistrate Judge Chelsey M. Vascura on 6/8/2018. (kpt)(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
JALEN D. LEE,
Case No. 2:18-cv-561
Judge James L. Graham
Magistrate Judge Chelsey M. Vascura

Petitioner,
v.
TIMOTHY SHOOP, WARDEN,
CHILLICOTHE CORRECTIONAL
INSTITUTION,
Respondent.

ORDER and
REPORT AND RECOMMENDATION
This is an action pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. Petitioner
seeks release from confinement imposed pursuant to a state-court judgment in a criminal action.
This case has been referred to the Undersigned pursuant to 28 U.S.C. § 636(b) and Columbus
General Order 14-1 regarding assignments and references to United States Magistrate Judges.
Petitioner has filed a Motion for Leave to Proceed in forma pauperis. Upon
consideration, the undersigned finds the motion to be meritorious and it is GRANTED.
Petitioner shall be PERMITTED to prosecute this action without prepayment of fees or costs
and judicial officers who render services in this action will do so as if costs had been prepaid.
This matter is before the Court on its own motion under Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts (“Rule 4”). Pursuant to Rule 4, the Court
conducts a preliminary review to determine whether “it plainly appears from the face of the
petition and any attached exhibits that the petitioner is not entitled to relief . . . .” If it does so
appear, the petition must be dismissed. Id. For the reasons that follow, the undersigned
RECOMMENDS dismissal under Rule 4.

Facts and Procedural History
Petitioner challenges his March 9, 2016 conviction pursuant to his guilty plea in the
Licking County Court of Common Pleas on aggravated robbery. On June 8, 2016, the trial court
imposed a sentence of four years incarceration. Petitioner indicates that he never filed an appeal
or pursued other state collateral action. He did, however, file a grievance with the Ohio Supreme
Court Disciplinary Counsel against his attorney based on an alleged conflict of interest. He has
attached a letter dated May 25, 2018, from the Ohio Supreme Court Disciplinary Counsel
advising him that he must seek review of his claim of the denial of the effective assistance of
counsel through the state courts and that absent a finding of the ineffective assistance of counsel,
it would not further review his case. (ECF No. 1-2, PAGEID # 22-23.) On June 7, 2018,
Petitioner filed this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts
that he was denied the effective assistance of counsel based on a conflict of interest during plea
bargaining and sentencing proceedings (claim one) and that his guilty plea was not knowing,
intelligent, or voluntary based on the ineffective assistance of counsel (claim two). The
undersigned finds that these claims must be dismissed as unexhausted.
Exhaustion
Before a federal habeas court may grant habeas corpus relief, a state prisoner must
exhaust his available state-court remedies. Castille v. Peoples, 489 U.S. 346, 349 (1989);
Silverburg v. Evitts, 993 F.2d 124, 126 (1993); see also 28 U.S.C. § 2254(d)(1). If a habeas
petitioner has the right under state law to raise a claim by any available procedure, he has not
exhausted that claim. 28 U.S.C. § 2254 (b), (c). Moreover, a constitutional claim for relief must
be presented to the state’s highest court in order to satisfy the exhaustion requirement.
O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). A habeas petitioner bears the burden of

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demonstrating that he has properly and fully exhausted his available state-court remedies with
respect to the claims he seeks to present for federal habeas review. Prather v. Rees, 822 F.2d
1418, 1420 n. 3 (6th Cir. 1987).
Here, Petitioner has never presented his claims to the state courts. Moreover, he may still
do so. He may file a motion for a delayed appeal under the provision of Ohio Appellate Rule
5(A). Therefore, plainly, this action remains unexhausted and subject to dismissal on that basis.
Recommended Disposition
For the reasons set forth above, it is RECOMMENDED that this action be
DISMISSED. Petitioner’s request for the appointment of counsel is DENIED.
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).

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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/ Chelsey M. Vascura_____
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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