Galluzzo v. State of Ohio, et al. et al
Filing
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SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Because Galluzzo has not exhausted available state court remedies for his constitutional claims, it is again respectfully recommended that his Petition be dismissed without prejudice for lack of exhaustion. Objections to R&R due by 10/17/2017. Signed by Magistrate Judge Michael R. Merz on 10/3/2017. (kpf)(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.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 16) to
the Magistrate Judge’s Report and Recommendations recommending this case be dismissed
with0out prejudice to its refiling after the Petitioner exhausted available state court remedies
(ECF No. 15). District Judge Rose has recommitted the case for reconsideration in light of the
Objections (ECF No. 17).
Galluzzo was convicted in the Clark County Municipal Court on June 26, 2017, on
several traffic violations and sentenced to both confinement and a probationary sentence. (ECF
No. 10-15, PageID 80). In his Amended Petition, he claimed he had exhausted available state
court remedies, even though he had not appealed, because there was no final appealable order
(ECF No. 14, PageID 90). The Magistrate Judge concluded this was not correct because
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
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County Municipal Court tried and convicted him without
jurisdiction and pursuant to Ohio criminal and traffic statutes
which interfere with his fundamental rights.
(Report, ECF No. 15, PageID 105-06.)
Galluzzo objects that he has exhausted state remedies because he challenged the
jurisdiction of the Municipal Court in a motion in that court and filed a Petition for Recusal of
the trial court judge in the Ohio Supreme Court on June 15, 2017. The exhaustion doctrine,
however, is not satisfied by raising the constitutional claim. Instead, Petitioner must “exhaust” –
present in every forum available – his constitutional claims. He does not deny that he has neither
taken a direct appeal nor filed a request for a delayed appeal in the Second District Court of
Appeals and this is one of the available state court remedies he must exhaust.
Galluzzo secondly objects that the State of Ohio had no jurisdiction to proceed and
particularly that the judgment against him is not a lawful judgment (Objections, ECF No. 16,
PageID 109). He then writes at length why he believes the Clark County Municipal Court had
no jurisdiction over either the subject matter of his case or over his person and claims that its
judgment is therefore not lawful. This argument is beside the point. This Court cannot exercise
its habeas corpus jurisdiction (except to deny the writ on the merits) until Galluzzo’s lack of
jurisdiction claim has been exhausted by presenting it to the Second District Court of Appeals
and, if unsuccessful, to the Ohio Supreme Court. That is, we do not have power to decide that
the state court was without jurisdiction until that claim has been presented to the Ohio appellate
courts.
Because Galluzzo has not exhausted available state court remedies for his constitutional
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claims, it is again respectfully recommended that his Petition be dismissed without prejudice for
lack of exhaustion.
October 3, 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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