IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GARY L. WILLIAMS, 

Petitioner, 

CASE NO. 2:11-cv-537

v. JUDGE GEORGE C. SMITH

WARDEN, CHILLICOTHE Magistrate Judge Kemp

CORRECTIONAL INSTITUTION,

Respondent.

OPINION AND ORDER

On June 20, 2011, the Court received an “Application for a

Rule Nisi Order and for an Alternative Writ of Habeas Corpus

Pursuant to 28 U.S.C. §0651(a)(b) for its Lawful Determination”

from petitioner Gary L. Williams. According to the petition, Mr.

Williams resides at the Chillicothe Correctional Institution. 

However, he claims that he is not a “state prisoner.” In his

petition, he asks this Court to determine the lawfulness of his

continued detention.

In a Report and Recommendation filed on June 24, 2011, the

Magistrate Judge treated Mr. Williams’ application as a petition

for a writ of habeas corpus filed under 28 U.S.C. §2254. The

Magistrate Judge then applied Rule 4 of the Rules Governing

Section 2254 Actions in the United States District Courts, which

requires an initial screening of a habeas corpus petition prior

to the issuance of a show cause order. Because Mr. Williams’

state court conviction became final more than one year before he

filed his petition, the Magistrate Judge concluded, based on the

statute of limitations found in 28 U.S.C. §2244(d)(1), that this

action is time-barred, and recommended dismissal of the case on

that ground.

Mr. Williams has now filed an objection to that

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recommendation. In his objection, he does not disagree that the

statute of limitations for habeas corpus actions expires one year

after a state conviction becomes final, nor does he dispute any

of the information contained in the Report and Recommendation

about when he was convicted (2001) or that he never filed a

direct appeal from that conviction. However, he raises a number

of objections to the Magistrate Judge’s treatment of the case as

a habeas corpus petition and to the Magistrate Judge’s

jurisdiction to issue a report and recommendation. For the

following reasons, and after reviewing the objections de novo,

the Court will adopt the Report and Recommendation and dismiss

this case.

I.

Because petitioner has not objected to the accuracy of the

Report and Recommendation’s recapitulation of the history of the

state criminal proceedings, and because the public records bear

out the history recited, the Court adopts that history as the

background of this case. As the Report and Recommendation points

out, the available public records show that petitioner is serving

a state sentence as a result of a 2001 conviction for rape and

gross sexual imposition which was imposed by the Franklin County

Court of Common Pleas on June 25, 2001. That conviction became

final, for purposes of the statute of limitations found in 28

U.S.C. §2244(d)(1), on July 25, 2001, and the statute of

limitations expired one year later, on July 25, 2002. If this

current case is indeed a habeas corpus petition filed under 28

U.S.C. §2255, it was filed well past the expiration of the

limitations period.

In arguing against the application of §2244(d)(1), Mr.

Williams contends that he is not a state prisoner and that he is

not seeking relief under 28 U.S.C. §2254. He appears to argue

that his state conviction “is already a legal nullity” and that

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he is not challenging it here. He also claims that he is not a

“prisoner” as that term is defined in 28 U.S.C. §1915(h), which

reads in full: “As used in this section, the term ‘prisoner’

means any person incarcerated or detained in any facility who is

accused of, convicted of, sentenced for, or adjudicated

delinquent for, violations of criminal law or the terms and

conditions of parole, probation, pretrial release, or

diversionary program.”

28 U.S.C. §1915(h) was adopted as part of the Prison

Litigation Reform Act, which, as a number of courts have held, is

inapplicable to petitions for writs of habeas corpus. See Strbac

v. Sniezek, 2007 WL 1544782 (N.D. Ohio May 24, 2007). Thus, it

is irrelevant whether Mr. Williams is or is not a “prisoner”

under that statutory definition for purposes of deciding if his

petition must be construed as a habeas corpus petition. What is

more relevant is the fact that §2254 specifically applies to

actions brought “in behalf of a person in custody pursuant to the

judgment of a State court.” Although Mr. Williams claims he is

not in such custody because the state court judgment is a

“nullity,” it does not appear that any state or federal court has

so determined. Given this conclusion, the proper analysis of the

case is the one which appears in the Report and Recommendation. 

As the Magistrate Judge stated, 

a state prisoner seeking release may proceed only under

§2254 because it covers the specific situation of a

person in state custody asking a federal court for

relief. The All Writs Act is available only in those

situations where no other federal statute covers the

situation at hand. See Pennsylvania Bureau of Correction

v. United States Marshals Serv., 474 U.S. 34, 43 (1985). 

As the court observed in Owens v. Boyd, 235 F.3d 356, 360

(7th Cir. 2000), a case which, like this one, involved a

claim which would be time-barred if presented under

§2254,

[Petitioner] believes that he can avoid

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§2244(d)(1) by recharacterizing his petition

as a request for habeas corpus under 28 U.S.C.

§2241 or coram nobis under the All-Writs Act,

28 U.S.C. §1651(a). Not so. Section

2244(d)(1) applies to every “application for a

writ of habeas corpus by a person in custody

pursuant to the judgment of a State court.” It

does not distinguish between applications

under §2241 and those under §2254. Anyway, as

the Supreme Court observed in Felker v.

Turpin, 518 U.S. 651, 662, 116 S.Ct. 2333, 135

L.Ed.2d 827 (1996), and we reiterated in

Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir.

2000), every collateral attack by a state

prisoner on a final judgment of conviction

necessarily depends on §2254. It is not

possible to escape its limitations by citing

some other statute. 

Report and Recommendation, ECF No. 3, at 3-4. The Court further

agrees that, no matter what the basis is for Mr. Foster’s

challenge to his state court conviction - even if he claims the

court proceeded in the absence of jurisdiction and did not enter

a valid judgment - this type of claim may only be raised in a

federal court by way of a §2254 petition. See Frazier v. Moore,

2006 WL 3146436 (S.D. Ohio Oct 31, 2006), aff’d 252 Fed. Appx. 1

(6th Cir. October 7, 2007). 

III.

For all of these reasons, the Court concludes that Mr.

Williams, despite his arguments to the contrary, is a “state

prisoner” and may seek relief from his state conviction and

sentence only under 28 U.S.C. §2254. Under the statute of

limitations applicable to such actions, his petition was not

timely filed. Consequently, his objections (ECF No. 5) to the

Report and Recommendation (ECF No. 3) are OVERRULED and the

Report and Recommendation is ADOPTED AND AFFIRMED. This case is

DISMISSED on grounds that it was not filed within the time

permitted by 28 U.S.C. §2244(d)(1).

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IT IS SO ORDERED. 

/s/ George C. Smith 

George C. Smith

United States District Judge

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