Marcum v. Duchak et al

Filing 28

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS - If Mr. Marcum will file a separate habeas corpus petition embodying his claims for that relief, the Magistrate Judge will grant a motion to hold those claims in abeyance pending exhaustion of state court remedies. However, the Magistrate Judge remains persuaded that Mr. Marcum should be required to exhaust. Objections to R&R due by 2/9/2018. Signed by Magistrate Judge Michael R. Merz on 1/26/2018. (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,
Petitioner,

:

- vs -

Case No. 3:17-cv-437
District Judge Walter H. Rice
Magistrate Judge Michael R. Merz

SHERIFF DAVE DUCHAK,
:
Respondent.

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This case is before the Court on Petitioner’s Supplemental Objections (ECF No. 26) to
two Reports and Recommendations (ECF No. 16 & 17), combined in the same document with
initial Objections to Magistrate Judge Merz’s Report and Recommendations on motion for
Temporary Protection Order (ECF No. 18). Despite this caption, Mr. Marcum only presents
additional arguments on the recommendation that he be required to exhaust available state court
remedies. Judge Rice has recommitted the matter for reconsideration in light of the Objections
(ECF No. 27).
Mr. Marcum notes that he had already objected (ECF No. 21) to the first two of these
Reports, but wishes to supplement his objections and states that he is still within the fourteen-day
time period allowed for objections.

While the time observation is correct, piece-mealing

objections is not an acceptable practice. Fed. R. Civ. P. 72 contemplates one set of objections to
each report. While the Court will deal with the merits of the supplemental objections on this
occasion, future sets of objections may not be supplemented without prior court permission.
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The Magistrate Judge recommended dismissing the habeas corpus portion of Mr.
Marcum’s Complaint without prejudice to its re-filing after he had exhausted state court
remedies (Report, ECF No. 16, PageID 338). Marcum objected that the State had waived
exhaustion by removing the case to federal court (Objections, ECF No. 21). On reconsideration
by order of Judge Rice, the Magistrate Judge noted that, under the AEDPA, waiver must be
express rather than implied and the Attorney General, who represents the State in habeas corpus
cases, was not counsel of record in the case (Supplemental Report, ECF No. 25).
Mr. Marcum now notes that this way of approaching exhaustion may prevent habeas
corpus review because his imprisonment in the underlying case will expire April 2, 2018, and he
might not thereafter be in sufficient custody to invoke the habeas corpus jurisdiction of this
Court (ECF No. 26, PageID 385-87). He suggests instead that the proper course is to hold the
habeas case in abeyance pending exhaustion. Id.
Petitioner’s objection is well-taken. Mr. Marcum’s dilemma is the same one the Supreme
Court had in mind in its decision in 2005 when it held district courts have authority to grant stays
in habeas corpus cases to permit exhaustion of state court remedies in consideration of the
AEDPA’s preference for state court initial resolution of claims. Rhines v. Weber, 544 U.S. 269,
277-278 (2005). If Mr. Marcum will embody his habeas claims in a petition under 28 U.S.C. §
2254 and file it with a motion to stay pending exhaustion, the Magistrate Judge will withdraw the
recommendation to dismiss without prejudice. The reason for separating out the habeas claims is
that this case was filed as a civil rights case under 42 U.S.C. § 1983 and the Supreme Court has
held habeas corpus relief may not be granted in a § 1983 case. Preiser v. Rodriquez, 411 U.S.
475 (1973). The Clerk will furnish Mr. Marcum with the proper habeas corpus form and he is
granted leave to file the petition in forma pauperis.

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Marcum’s second supplemental objection is that exhaustion is not required “when the
Miami County Municipal Court has not exercised jurisdiction on ruling on Petitioner Marcum’s
Motion for Relief from Judgment pursuant to Ohio R. Civ. P. 60(b)(5), and where an excusable
procedural default occured [sic].” (ECF No. 26, PageID 388.) In that motion Marcum avers he
brought up matters outside the record, to wit, that he was badgered into waiving his right to
counsel. Id.
Because the Miami County Municipal Judge had not ruled on the motion to vacate,
Marcum avers he included in his original complaint a request for mandamus relief to compel the
Miami County Municipal Judge to rule on that motion. On November 30, 2017, Visiting Judge
Wolff denied mandamus relief because of the pendency of an appeal from the conviction (ECF
No. 1-13). Marcum complains that he did not receive a copy of this order until after the time for
appealing from it to the Second District Court of Appeals had expired because of the service
practices of the Miami County Clerk of Courts. Id. at PageID 388-91.
The usual mode of seeking relief from an Ohio criminal judgment based on facts outside
the record is to file a petition for post-conviction relief under Ohio Revised Code § 2953.21. In
Dayton v. Hill, 21 Ohio St. 2d 125 (1970), the Ohio Supreme Court held that Ohio municipal
courts did not have jurisdiction to entertain petitions under Ohio Revised Code § 2953.21 when
the conviction was for violation of a municipal ordinance. In State v. Cowan, 101 Ohio St. 3d
372 (2003), it extended that ruling to violations of state law. The Cowan court concluded:
[**P19] In the years since this court's decision in Hill, the General
Assembly has amended the post-conviction relief statute several
times but still has never provided a procedure for handling any
type of post-conviction petition in municipal court. See, e.g., 146
Ohio Laws, Part IV, 7815, 7823 (eff. 9-21-95); 146 Ohio Laws,
Part VI, 10539, 10549 (eff. 10-16-96). Sub.S.B. No. 11 (eff. 1029-03). In order for this court to hold that R.C. 2953.21 allows for
municipal court jurisdiction, we would have to devise a procedure
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under which this post-conviction review could be accomplished in
municipal court, since it is not provided in the plain language of
the statute. To create this procedure would be to rewrite the statute,
a function that must be left to the discretion of the General
Assembly if it disagrees with the interpretations taken by this
court.
Id.
Marcum cites State v. Black, 2008 WL 2938827 (1st Dist. Aug. 1, 2008), to demonstrate
the propriety of method of proceeding. Black had been convicted of assault in the Hamilton
County Municipal Court and sentenced to 180 days confinement. After unsuccessful appeals, he
filed a “post-conviction motion for ineffective assistance of counsel” in the sentencing court.
The First District applied Cowan to hold that the Hamilton County Municipal Court had no
jurisdiction under Ohio Revised Code § 2953.21 and should have recast Black’s motion as
arising under Ohio R. Civ. P. 60(B)(5) as incorporated into Ohio R. Crim. P. 57(B). However, it
also held the municipal court had no jurisdiction to decide at Rule 60(B) motion while a direct
appeal was pending. Id. at ¶ 13. The First District did not hold that habeas corpus was available
as a remedy to Black. See Id. at ¶ 5.
Judge Wolff characterized the motion Marcum filed in the Miami County Municipal
Court as a “motion for a new sentencing hearing” and held Judge Gutmann would not have
jurisdiction to consider that motion, absent a remand from the Second District of the direct
appeal. Because that motion is not in the record before this Court, the Magistrate Judge has no
way of telling whether it is a motion that should be recharacterized as arising under Ohio R. Civ.
P. 65(B) to present matter outside the record. Assuming the Second District would follow Black,
Marcum would have an available remedy parallel to Ohio Revised Code § 2953.21 in such a
motion in the municipal court. Judge Wolff is correct that the Miami County Municipal Court
would have no jurisdiction to consider that motion without a remand, but Mr. Marcum could
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seek such a remand from the Second District. Thus the procedure available under Ohio law
(assuming, again, the Second District would follow Black) is not futile. Therefore Mr. Marcum
should be required to exhaust available state court remedies either by seeking remand from the
Second District or by waiting until that court decides his appeal, then filing a Rule 60(B)(5)
motion in the Miami County Municipal Court.

Conclusion

As set forth above, if Mr. Marcum will file a separate habeas corpus petition embodying
his claims for that relief, the Magistrate Judge will grant a motion to hold those claims in
abeyance pending exhaustion of state court remedies. However, the Magistrate Judge remains
persuaded that Mr. Marcum should be required to exhaust.

January 26, 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
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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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