Marcum v. Duchak et al
REPORT AND RECOMMENDATIONS - It is accordingly respectfully recommended that Mr. Marcum's request for habeas corpus relief be dismissed without prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should b e denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. If the Court adopts this recommendation, i t should also find there is no just reason for delay and enter a judgment on the habeas corpus claims so that Mr. Marcum can appeal if he wishes. Objections to R&R due by 1/25/2018. Signed by Magistrate Judge Michael R. Merz on 1/11/2018. (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
STATE OF OHIO,
EX REL TED MARCUM,
- vs -
Case No. 3:17-cv-437
District Judge Walter H. Rice
Magistrate Judge Michael R. Merz
SHERIFF DAVE DUCHAK, et al.,
REPORT AND RECOMMENDATIONS ON REQUEST FOR HABEAS
This case is before the Court for initial review pursuant to Rule 4 of the Rules Governing
§ 2254 Cases. In the body of his Complaint in this case, Petitioner Marcum has sought habeas
corpus relief from the sentence he is serving in the Miami County Jail in the custody of Respondent
Sheriff Dave Duchak.
Habeas corpus relief may not be granted in a proceeding under 42 U.S.C. § 1983. A district
court cannot grant release from confinement in a § 1983 action; to do so would frustrate the habeas
exhaustion requirements. Preiser v. Rodriquez, 411 U.S. 475 (1973). When a complaint purports
to be under 42 U.S.C. § 1983 but seeks release or even if findings of illegal conviction would be a
necessary predicate to granting requested money damages, a federal court must await exhaustion
before proceeding either in habeas or 1983. Hadley v. Werner, 753 F.2d 514 (6th Cir. 1985).
Petitioner’s request for habeas corpus relief was filed first in the Miami County Common
Pleas Court and assigned to The Honorable William H. Wolff, Jr., who was sitting by assignment.
Judge Wolff ruled that state habeas corpus was not available to Marcum because he could obtain
relief for the legal claims he made on appeal from Judge Gutmann’s judgment. Federal habeas
corpus does not follow that rule, but does require that, before a habeas corpus action is brought, a
petitioner must exhaust available state court remedies. 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). It also includes the remedy of a petition for post-conviction relief under Ohio
Revised Code § 2953.21. Manning v. Alexander, 912 F.2d 878 (6th Cir. 1990).
Because Marcum has not yet exhausted his available state court remedies, his request for
habeas corpus relief should be dismissed without prejudice. He can review his request (by a
separate habeas corpus petition filed on the required standard form available from the Clerk) once
his state court remedies are exhausted.
It is accordingly respectfully recommended that Mr. Marcum’s request for habeas corpus
relief be dismissed without prejudice. Because reasonable jurists would not disagree with this
conclusion, Petitioner should be denied a certificate of appealability and the Court should certify
to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be
permitted to proceed in forma pauperis. If the Court adopts this recommendation, it should also
find there is no just reason for delay and enter a judgment on the habeas corpus claims so that Mr.
Marcum can appeal if he wishes.
January 11, 2018.
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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