Galluzzo v. State of Ohio, et al. et al

Filing 15

REPORT AND RECOMMENDATIONS re 14 Petition for Writ of Habeas Corpus filed by Michael A Galluzzo- Accordingly, it is respectfully recommended that the Amended Petition herein be dismissed, without prejudice to its refiling after Petitioner has exh austed his available state court remedies. Objections to R&R due by 9/29/2017. Signed by Magistrate Judge Michael R. Merz on 9/15/17. (kma)(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
WESTERN DIVISION AT DAYTON
MICHAEL A. GALLUZZO,
Petitioner,

:

- vs -

Case No. 3:17-cv-218
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

STATE OF OHIO, et al.,
:
Respondents.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on the Amended Petition (ECF No. 14) for
initial review under Rule 4 of the Rules Governing § 2254 Cases which provides in pertinent
part: “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to
notify the petitioner.”
When Petitioner initially filed this action, he was in the pre-trial custody of the Sheriff of
Clark County. After the case was transferred here from the Eastern Division on June 27, 2017,
the Court ordered the Sheriff as custodian to supplement his response to the Petition by showing
what had happened in the Clark County Municipal Court to the case on which Mr. Galuzzo was
arrested (ECF No. 9). The Clark County Prosecutor filed a Supplemental Memorandum which
showed that Petitioner had been convicted in the Clark County Municipal Court and sentenced to
thirty days confinement with twenty-four days suspended on certain conditions (ECF No. 10).

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The Court found that by virtue of imposition of those conditions, Mr. Galluzzo remained
sufficiently in custody to invoke the habeas corpus jurisdiction of this Court (Order, ECF No. 11,
PageID 83). However, because the custody was now post-judgment, the Court was required to
proceed under 28 U.S.C. § 2254. Id. The Clerk was ordered to furnish Petitioner with the
standard form for § 2254 cases and he was directed to file an amended petition on that form not
later than September 14, 2017. Id.
Mr. Galluzzo has now filed his First Amended Petition. He has not used the standard
form and has failed to provide much of the information that form requests. However, he has
provided sufficient information for initial review under Rule 4.
Before presenting claims in federal habeas corpus, a state court defendant must exhaust
the remedies available to him under state law for litigating his federal constitutional claims. 28
U.S.C. § 2254(b) and (c); Picard v. Connor, 404 U.S. 270, 275 (1971). In Ohio, this includes
direct and delayed appeal to the Ohio Court of Appeals and the Ohio Supreme Court. Mackey v.
Koloski, 413 F.2d 1019 (6th Cir. 1969); Allen v. Perini, 424 F.2d 134, 140 (6th Cir. 1970).
In the body of his Amended Petition, Galluzzo claims he has exhausted state court
remedies because there was no final appealable order “where the court acted without jurisdiction
in violation of substantial rights, there is no valid order to appeal.” (Amended Petition, ECF No.
14, PageID 90). At the same place, Galluzzo asserts he has not “filed any other action in any
state of [sic] federal court regarding this matter.”
Petitioner is wrong in his assertion. The Ohio Second District Court of Appeals has
appellate jurisdiction on criminal judgments in the Clark County Municipal Court. It certainly
has jurisdiction to decide the federal constitutional claims made by Mr. Galluzzo, to wit, that the
Clark County Municipal Court tried and convicted him without jurisdiction and pursuant to Ohio
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criminal and traffic statutes which interfere with his fundamental rights. It is too late for
Galluzzo to file a direct appeal of right from his conviction, but he still has the remedy of
delayed appeal available. This Court may not adjudicate a habeas corpus petition that contains
unexhausted claims and indeed must dismiss such petitions. Rose v. Lundy, 455 U.S. 509
(1982); accord, Pilette v. Foltz, 824 F.2d 494 (6th Cir. 1987).
Accordingly, it is respectfully recommended that the Amended Petition herein be
dismissed, without prejudice to its refiling after Petitioner has exhausted his available state court
remedies.

September 15, 2017.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by mail. .Such objections shall specify the portions of
the Report objected to and shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party=s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140,
153-55 (1985).

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