JEFFREY J. HELMICK, District Judge.
Willie J. Rogers, an inmate in the custody of the Ohio Department of Rehabilitation and Correction, seeks a writ of habeas corpus pursuant to 22 U.S.C. § 2254. (Doc. No. 1). Magistrate Judge David A. Ruiz reviewed the petition as well as related briefing pursuant to Local Rule 72.2(b)(2) and recommends I dismiss the petition in part and deny it in part. (Doc. No. 38). Rogers has submitted objections to Judge Ruiz's Report and Recommendation. (Doc. No. 41). Judge Ruiz recommends I dismiss part of Rogers' petition as a second or successive attempt to challenge a warrant issued by the State of Ohio to revoke his parole, and deny the remainder of his petition as procedurally defaulted. For the reasons stated below, I overrule Rogers' objections and dismiss his petition in part and deny it in part.
In 1983, Rogers was convicted of two counts of kidnapping and three counts of gross sexual imposition. He later was convicted of the offense of child stealing in a separate case. His convictions were upheld on appeal, though the state appellate court remanded the case to the trial court to amend his sentence. Following remand, Rogers was sentenced to a term of 15 to 65 years in prison.
In 1992, Rogers applied for parole. His application was approved, as was his request that his parole supervision be transferred to the State of California upon his release from custody. At the same time, he also was transferred to the custody of the Maricopa County, Arizona Sheriff's Department to serve a sentence in Arizona. Rogers subsequently was released from prison in Arizona in February 1997, but he did not report to his parole officer.
In June 2003, Rogers was convicted of several offenses, including assault with a deadly weapon, in a California state court and was sentenced to prison. The State of Ohio later learned Rogers was in custody in California and, on July 12, 2013, issued a warrant and detainer request to the California Department of Corrections and Rehabilitation.
On June 13, 2014, Rogers filed a habeas petition under § 2254 challenging the detainer. Judge Gregory Frost, a district judge on the United States District Court for the Southern District of Ohio, denied Rogers' petition, and the Sixth Circuit Court of Appeals denied Rogers' request for a certificate of appealability.
Rogers was returned to the custody of the Ohio Department of Rehabilitation and Correction ("ODRC") on July 30, 2015, after completing his sentence in California. Rogers' parole was revoked following an August 19, 2015 hearing before a hearing officer with the Ohio Adult Parole Authority; the hearing officer also recommended Rogers serve at least 24 months of his sentence before being considered again for parole. The ODRC subsequently recalculated the date on which Rogers would have served his maximum sentence, to account for a total of 4,380 days of "lost time." (Doc. No. 16-2 at 5).
Rogers filed a habeas petition in the Lorain County, Ohio Court of Common Pleas. That court granted Respondent's motion for summary judgment on January 19, 2016, after Rogers failed to respond to that motion. Rogers appealed the trial court's decision, but his appeal was dismissed because he failed to comply with the requirement of Ohio Revised Code § 2969.25(C), which required Rogers to submit a motion to waive the full filing fee and an affidavit of indigency, including a statement of the balance of his inmate account. (Doc. No. 16-2 at 157). The Supreme Court of Ohio denied jurisdiction of Rogers' appeal on July 27, 2016.
Rogers filed his habeas petition in this Court on August 10, 2016, asserting ten grounds for relief:
(Doc. No. 1 at 5-15).
Once a magistrate judge has filed a report and recommendation, a party to the litigation may "serve and file written objections" to the magistrate judge's proposed findings and recommendations, within 14 days of being served with a copy. 28 U.S.C. § 636. Written objections "provide the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately . . . [and] to focus attention on those issues — factual and legal — that are at the heart of the parties' dispute." Kelly v. Withrow, 25 F.3d 363, 365 (6th Cir. 1994) (quoting United States v. Walters, 638 F.3d 947, 949-50 (6th Cir. 1981) and Thomas v. Arn, 474 U.S. 140, 147 (1985)). A district court must conduct a de novo review only of the portions of the magistrate judge's findings and recommendations to which a party has made a specific objection. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3).
Section 2244 generally prohibits an inmate from filing multiple habeas petitions challenging the same judgment. 28 U.S.C.A. § 2244(a) ("No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus."). If a petitioner files a second or successive habeas petition without first obtaining permission from the Court of Appeals, "the district court shall transfer the document to [the Sixth Circuit] pursuant to 28 U.S.C. § 1631." In re Sims, 111 F.3d 45, 47 (6th Cir. 1997); see also 28 U.S.C. § 2244(b)(3).
A petition is not "second or successive" if it challenges a judgment different than the judgment the inmate challenged in an earlier petition, Askew v. Bradshaw, 636 F. App'x 342, 346-47 (6th Cir. 2016), or if it challenges "a parole determination or disciplinary proceeding that occurred after the prisoner's initial petition was filed." In re Jones, 652 F.3d 603, 605-06 (6th Cir. 2010). If a habeas petition challenges more than one judgment, a district court must determine which judgments a petitioner attacks with which claims. In re Caldwell, 917 F.3d 891, 894 (6th Cir. 2019).
Rogers challenges the State of Ohio's assertion of jurisdiction over him following his 2003 California conviction and the subsequent revocation of his parole. Rogers previously challenged the detainer warrant, and also raised claims that he had been denied his constitutional right to a parole violation hearing. Rodgers v. Ohio, No. 2:14-CV-453, 2015 WL 196431, at *3 (S.D. Ohio Jan. 15, 2015). The court concluded the detainer warrant was valid and that Rogers was not entitled to habeas relief on that ground. Id.
The court also concluded Rogers' right to a parole revocation hearing had not yet vested, because his detainer warrant had not yet been executed. Id. Thus, while Rogers included claims concerning extradition and parole revocation in his first habeas petition, his inclusion of those claims in his current petition does not mean those claims are second or successive, because they initially were dismissed as premature. See Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998).
Therefore, Rogers' petition is a second or successive petition only to the extent it challenges the issuance of the detainer warrant. Rogers' challenges to his extradition and subsequent parole revocation are not "second or successive."
A state prisoner seeking federal habeas relief must "first exhaust his state remedies and `meet the State's procedural requirements for presenting his federal claims.'" Smith v. Warden, Toledo Corr. Inst., ___ F. App'x ____, No. 17-3220, 2019 WL 2518311, at *6 (6th Cir. June 18, 2019) (quoting Coleman v. Thompson, 501 U.S. 722, 729-32 (1991)). If the prisoner fails to comply with a state procedural rule while presenting the prisoner's claims to the state court, those claims may be procedurally defaulted, so long as the state procedural rule is an independent and adequate ground for the state court's decision not to reach the merits of the prisoner's claims. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).
As I noted above, Rogers filed a motion for a writ of habeas corpus in the Lorain County, Ohio Court of Common Pleas, challenging his extradition and the subsequent revocation of his parole. That court granted Respondents' motion for summary judgment, and Rogers appealed. When he appealed, however, he failed to comply with the filing requirements set forth in Ohio Revised Code § 2969.25. (Doc. No. 16-2 at 157-58). The appellate court dismissed his appeal on that basis.
The requirements of Section 2969.25 are an independent and adequate ground upon which the state court relied in declining to consider the merits of Rogers' claims. See, e.g., Fuqua v. Williams, 797 N.E.2d 982, 984 (Ohio 2003); State ex rel. Ellis v. Wainwright, ___ N.E.3d ____, 2019-Ohio-2853 (Ohio July 17, 2019) (An inmate's failure to comply with § 2969.25(C) is grounds for dismissal of a habeas petition).
Rogers argues he cured his procedural default when he filed a motion for reconsideration and provided the information and statements required by Section 2969.25(C). Ohio law mandates strict compliance with these requirements at the time of filing, Ellis, 2019-Ohio-2853, at *1, and the appellate court specifically denied the motion for reconsideration because "the Supreme Court [of Ohio] does not permit delayed compliance" with those requirements. (Doc. No. 19-2 at 12).
Rogers' default, pursuant to an independent and adequate state procedural rule, bars federal habeas review of his claims unless he "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
Rogers argues that full compliance with the statutory requirements is out of his control, because a state employee must produce the account statement that indigent appellants are required to file. (Doc. No. 41 at 2-3). While this reasoning conceivably might constitute "cause" for a procedural default, see Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994), Rogers' argument is only theoretical. He does not claim he actually requested the necessary information before filing his notice of appeal, nor is there evidence he offered that explanation to the Ohio courts.
Moreover, Rogers also fails to demonstrate a fundamental miscarriage of justice occurred, because he offers no evidence of actual innocence. See, e.g., Schlup v. Delo, 513 U.S. 298, 314-15 (1995).
Therefore, I conclude Rogers' claims concerning his extradition and parole revocation are barred by the procedural-default rule and deny his habeas petition on those grounds.
For the reasons stated above, I overrule Rogers' objections and adopt Judge Ruiz's Report and Recommendation, (Doc. No. 38), in part.
I deny Rogers' petition regarding his claims alleging violation of his constitutional rights during his extradition from California and his subsequent parole revocation. Further, I certify there is no basis on which to issue a certificate of appealability. 28 U.S.C. § 2253; Fed. R. App. P. 22(b).
I dismiss Rogers' petition to the extent it seeks relief for the detainer warrant or any other claims preceding the issuance of the detainer warrant and transfer those portions of the petition to the Sixth Circuit pursuant to 28 U.S.C. § 1631.
Finally, I deny as moot his motion for a ruling and a hearing, (Doc. No. 56), and his second motion for ruling, (Doc. No. 57).
So Ordered.
