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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

STATE OF OHIO

 EX REL TED MARCUM,

Petitioner, : Case No. 3:17-cv-437

- vs - 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. 10-

29-03). 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).