IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JOHN L. CHAPMAN, 

 CASE NO. 2:17-CV-1031 

 Petitioner, CHIEF JUDGE EDMUND A. SARGUS, JR. 

 Magistrate Judge Chelsey M. Vascura 

 v. 

WARDEN, BELMONT 

COUNTY JAIL, 

 Respondent. 

ORDER and 

REPORT AND RECOMMENDATION 

 Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254. This matter is before the Court on its own motion to consider the sufficiency of 

the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States 

District Courts. 

Petitioner has filed a request to proceed in forma pauperis and submitted an Affidavit in 

support. (Doc. 1-1, PageID# 11-12.) Upon consideration, the Court finds that the motion is 

meritorious, and it is therefore GRANTED. 

IT IS ORDERED THAT the Petitioner be allowed to prosecute this action without 

prepayment of fees or costs and that judicial officers who render services in this action shall do 

so as if the costs had been prepaid. 

For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be 

DISMISSED without prejudice as premature. 

Petitioner asserts that he is currently incarcerated in violation of the Fourth Amendment. 

He states that, on July 4, 2017, police conducted a pretextual traffic stop, and without probable 
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cause thereafter conducted an illegal search, resulting in his arrest. Petitioner has attached a 

copy of the State’s response to his motion to suppress evidence, in Case Number 17-CR-0208. 

(Doc. 1-2, PageID# 13.) The docket of the Belmont County Court of Common Pleas indicates 

that Petitioner was charged with possession of drugs, and that he is pursuing a jury trial on these 

charges. The case is currently scheduled for trial to jury on December 18, 2017. See 

http://bceaccess.dyndns.org, Case No. 17 CR 0208. Thus, Petitioner has yet to be convicted of 

any offense. He does not indicate to the contrary. 

 28 U.S.C. § 2254 provides that “[t]he Supreme Court, a Justice thereof, a circuit judge, 

or a district court shall entertain an application for a writ of habeas corpus in behalf of a person 

in custody pursuant to the judgment of a State court only on the ground that he is in custody in 

violation of the Constitution or laws or treaties of the United States.” Petitioner does not allege 

that he is in custody pursuant to the judgment of any state court at this time. Thus, this action is 

premature. Although pretrial habeas petitions may be brought under the provision of 28 U.S.C. 

2241, except in extraordinary circumstances, federal courts do not review pretrial habeas corpus 

petitions. See Varner v. Berrien County Trial Court, No. 1:14-cv-895, 2014 WL 4385428, at *1 

(W.D. Mich. Sept. 3, 2014) (citing Christian v. Wellington, 739 F.3d 294, 298 (6th Cir. 2014)). 

Such are not the circumstances here. See id. (noting that such circumstances “may include 

speedy-trial challenges and double-jeopardy challenges – rights that cannot be fully vindicated if 

postponed until after conviction and sentence) (citations omitted). 

Moreover, the sole claim that Petitioner raises herein, i.e., an alleged violation of the 

Fourth Amendment, does not provide a basis for federal habeas corpus relief, so long as the 

Petitioner had an opportunity to present the claim to the state courts. See Davis v. Morgan, No. 

2:15-cv-00613, 2016 WL 6493420, at *9 (S.D. Ohio Nov. 2, 2016) (citing Stone v. Powell, 428 
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U.S. 465, 482 (1976)); Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982) (opportunity for full and 

fair litigation of a Fourth Amendment claim exists where the state procedural mechanism 

presents an opportunity to raise the claim, and presentation of the claim was not frustrated by a 

failure of that mechanism.) Such appear to be the circumstances here. 

One, the key purpose of federal habeas corpus is to free innocent 

prisoners. But whether an investigation violated the Fourth 

Amendment has no bearing on whether the defendant is guilty. 

[Stone v. Powell], at 490, 96 S.Ct. 3037. Two, exclusion is a 

prudential deterrent prescribed by the courts, not a personal right 

guaranteed by the Constitution. Any deterrence produced by an 

additional layer of habeas review is small, but the cost of undoing 

final convictions is great. Id. at 493, 96 S.Ct. 3037. 

Good v. Berghuis, 729 F.3d 636, 637 (6th Cir. 2013). 

Recommended Disposition 

Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED 

without prejudice as premature.

Procedure on Objections 

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 

636(b)(1).
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The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 

 /s/ Chelsey M. Vascura___ 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE