IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHAD R. WHEELER,

Petitioner,

vs. Civil Action 2:10-CV-1127

Judge Frost

Magistrate Judge King

WARDEN, MADISON CORRECTIONAL

INSTITUTION,

Respondent.

REPORT AND RECOMMENDATION

Petitioner challenges in this action the revocation of his

sentence of community control by the Franklin County Court of Common

Pleas:

GROUND ONE: “Due Process – Petitioners Rights to

Due Process were violated when Petitioner was never

afforded timely hearings towards the revocation of

Petitioner’s Probation (Not to exceed 60 days)

while being detained and available for said

hearings. No Probationary/Revocation Hearings of

any form were ever held period, and Petitioner was

sentenced to a Prison term of 3 yrs. approximately

9 months later during a sentencing hearing on a New

2005 case.” 

GROUND TWO: “Involuntary Servitude to the State –

If relief is not granted, Petitioner will in fact

be forced to serve a Prison Term of 3 years on said

Probation minus any form of Due Process Revocation

Hearings and undoubtedly [sic] against Petitioner’s

will leaving Petitioner to Involuntary Servitude.” 

Petition, Doc. No. 1, at 5, 7. This matter is now before the Court on

respondent’s motion to dismiss the action for failure to exhaust state

court remedies. Doc. No. 9. Although petitioner was granted an

extension of time to respond to the motion to dismiss, Order, Doc. No.

11, petitioner has not responded to the motion.

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On August 27, 20009, the Ohio Court of Appeals for the Tenth

District denied petitioner’s request for post-conviction relief, in

which petitioner raised his challenges to the revocation of his

community control, reasoning that petitioner’s challenges should have

been raised on direct appeal. Exhibit 47 to Motion to Dismiss, at 3-

4. Petitioner acknowledges that a direct appeal from the order of

revocation “was never perfected and heard.” Petition, at 5,7. 

Although the period for filing a timely direct appeal has long since

passed, petitioner may still file a motion for delayed direct appeal

from the trial court’s decision. See Ohio Appellate Rule 5(A). 

Because petitioner has not yet properly presented his claims to the

Ohio courts, and still has available to him an avenue by which to do

so, he has not exhausted his state court remedies. See 28 U.S.C.

§2254(b), (c). See also O’Sullivan v. Boerckel, 526 U.S. 838, 844

(1999)(a constitutional claim for relief must be presented to the

state’s highest court in order to satisfy the exhaustion requirement).

Moreover, a stay of these proceedings pending exhaustion is not

warranted. See Rhines v. Weber, 544 U.S. 269, 274 (2005). Should

petitioner’s motion for a delayed direct appeal be granted, the

statute of limitations will begin anew. Moreover, petitioner has

failed to establish good cause for his failure, thus far, to request a

delayed direct appeal, notwithstanding the fact that the Ohio court of

appeals advised him of that remedy nearly two years ago.

It is therefore RECOMMENDED that respondent’s motion to dismiss,

Doc. No. 9, be GRANTED and that this action be dismissed, without

prejudice, for failure to exhaust available state court remedies.

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If any party seeks review by the District Judge of this

Report and Recommendation, that party may, within fourteen (14) days,

file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and

Recommendation, and the part thereof in question, as well as the basis

for objection thereto. 28 U.S.C. §636(b)(1); F.R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after

being served with a copy thereof. F.R. Civ. P. 72(b). 

The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the right

to de novo review by the District Judge and of the right to appeal the

decision of the District Court adopting the Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation

of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United

States v. Walters, 638 F.2d 947 (6th Cir. 1981).

July 6, 2011 s/Norah McCann King 

 (Date) Norah McCann King

 United States Magistrate Judge

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