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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT CINCINNATI

DARRELL W. STEPHENS, 

Petitioner, : Case No. 1:17-cv-796 

- vs - District Judge Michael R. Barrett 

Magistrate Judge Michael R. Merz 

CHARLES BRADLEY, Warden, 

 Pickaway Correctional Institution 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 Petitioner Darrell Stephens brought this action pro se under 28 U.S.C. § 2254 to obtain 

relief related to his convictions for felonious sexual penetration and rape in the Hamilton County 

Common Pleas Court in 1992. He pleads the following grounds for relief: 

Ground One: Ex Post Facto 

Supporting Facts: The Hamilton County Sheriff’s Department 

imposed Senate Bill 10 (Adam Walsh Act) sex offender registration 

duties retroactively, even after the Ohio Supreme Court ruled Ohio’s 

AWA statute to be punitive. To clarify, this claim is not about sex 

offender classification, it is about sex offender registration duties. 

The Hamilton County courts were complicit by acquiescence. 

Hamilton County enforced AWA registration duties to [sic] a 

Megan’s Law client (me). 

Ground Two: Double Jeopardy 

Supporting Facts: The Hamilton County Sheriff’s Department, 

with the complicit acquiescence of the state courts, imposed Ohio 

Senate Bill 10 (Adam Walsh Act) registration duties which resulted 

in added punishment for the same offense (See Ground One). Adam 

Walsh punitive statutes have been applied to Petitioner’s Megan’s 
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law classification status, specifically Adam Walsh registration 

duties. 

Ground Three: Due Process 

Supporting Facts: The Hamilton County Sheriff Department with 

the acquiescence of the Hamilton County courts, imposed punitive 

sex offender registration duties with no basis in law to do so. 

(Petition, ECF No. 1, PageID 5, 7, 8.) 

 Although the Petition attacks the same 1992 conviction as Stephens’s prior habeas corpus 

action in this Court (Case No. 1:05-cv-243), the Court has determined this is not a second or 

successive habeas application subject to the provisions of 28 U.S.C. § 2244(b) because it relates 

to a consequence of the 1992 conviction imposed after judgment was entered in the prior case 

(Report, ECF No. 18, PageID 984, 986-89; adopted without objections, ECF No. 19). The Court 

would not have had jurisdiction to decide the case if the Petition were a second or successive 

application. Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam); Franklin v. Jenkins, 839 

F.3d 465, 473-74(6th Cir. 2016). 

 Although the Petition passes the second-or-successive test, that fact is not conclusive of 

our jurisdiction, as Petitioner argues in his Reply (ECF No. 24, PageID 1046-47). Nor can we 

presume jurisdiction absent an express challenge; it is well-established that “parties cannot waive 

the requirement of subject matter jurisdiction.” Watson v. Cartee, 817 F.3d 299, 302 (6th Cir. 

2016), quoting Ammex, Inc. v. Cox, 351 F.3d 697, 702 (6th Cir. 2003). Federal courts are courts of 

limited jurisdiction; they are empowered to hear only those cases which are within the judicial 

power of the United States as defined in the United States Constitution and as further granted to 

them by Act of Congress. Finley v. United States, 490 U.S. 545, 550 (1989); Aldinger v. Howard, 

427 U.S. 1, 15 (1976), both superseded by statute on other grounds as stated in Exxon Mobil Corp. 

v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005). Therefore, there is a presumption that a federal 
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court lacks jurisdiction until it has been demonstrated. Turner v. Pres., Dirs. & Co. of the Bank of 

N. Am., 4 U.S. 8 (1799). Facts supporting subject matter jurisdiction must be affirmatively pleaded 

by the person seeking to show it. Bingham v. Cabot, 3 U.S. 382 (1798). The burden of proof is 

on the party asserting jurisdiction if it is challenged. McNutt v. Gen. Motors Acceptance Corp. of 

Indiana, 298 U.S. 178, 182-83 (1935). A federal court is further obliged to note lack of subject 

matter jurisdiction sua sponte. Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908); 

Capron v. Van Noorden, 6 U.S. 126, 127 (1804); Clark v. United States, 764 F. 3d 653, 657 (6th

Cir. 2014); Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 

(6th Cir. 2009). 

 Stephens’ filings show, at least prima facie, that the Hamilton County, Ohio, Sheriff has 

attempted to apply the Ohio instantiation of the Adam Walsh Act to him by way of notifying him 

he must register under that Act (Petition, ECF No. 1, PageID 5, 7). He has at least a colorable 

claim that applying Adam Walsh to him results in a constitutional violation. However, he is not 

in custody pursuant to the Sheriff’s interpretation. That is to say, no state actor has charged him 

with any offense based on the purported application of Adam Walsh to him. 

 Custody is a prerequisite to habeas corpus jurisdiction. Maleng v. Cook, 490 U.S. 488, 490 

(1989); Hautzenroeder v. DeWine, 887 F.3d 737, 740 (6th Cir. 2018), citing Stevenson v. Summers, 

258 F.3d 520, 522 (6th Cir. 2001). While Stephens remains in custody on his 1992 convictions, 

nothing about his current custody depends on the application of the Adam Walsh Act registration 

requirements to him. That is, he is in no way currently being deprived of his liberty for failing to 

register under the Adam Walsh Act. 

If Stephens were released and then charged a with a new offense for failure to comply with 

the Adam Walsh registration requirements, he could bring a habeas case to challenge that 
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application. A person on bond is sufficiently in custody to invoke federal habeas corpus 

jurisdiction, See Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300 (1984); Hensley v. 

Mun. Court San Jose Milpitas Jud. Dist., Santa Clary Cnty., California, 411 U.S. 345, 351 (1973); 

Lawrence v. 48th Dist. Court, 560 F.3d 475, 480 (6th Cir. 2009); McVeigh v. Smith, 872 F.2d 725, 

727 (6th Cir. 1989). 

Stephens is in the same position as any person in the general population who is threatened 

with being charged under a statute whose threatened application to him he challenges as 

unconstitutional. Ordinarily a person in that position must wait to be charged, then challenge the 

constitutionality in the ordinary course of criminal proceedings. Younger v. Harris, 401 U.S. 37 

(1971). 

Because he is not in custody on any official charge of violating the Adam Walsh Act, this 

Court lacks jurisdiction in habeas corpus to adjudicate his constitutional claims. Therefore, the 

Petition should be dismissed without prejudice1

 for lack of jurisdiction. Because reasonable jurists 

would not disagree with this conclusion, Petitioner should be denied a certificate of appealability 

and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous 

and therefore should not be permitted to proceed in forma pauperis. 

February 15, 2019. 

 s/ Michael R. Merz

 United States Magistrate Judge 

 

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 Respondent seeks dismissal with prejudice (Return of Writ, ECF No. 21, PageID 994, 1020), but that would imply 

a decision on the merits, which this Court is without jurisdiction to make in a habeas case. See Semtek Int’l, Inc. v. 

Lockheed Martin Corp., 531 U.S. 497, 505 (2001) (internal quotation marks and citation omitted) (“[A] dismissal 

‘with prejudice’ evinces the intention of the court to make the dismissal on the merits.”). 
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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 objections. 

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 Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir. 1981).