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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

DUSTIN GLENN,

Petitioner, : Case No. 3:17-cv-435

- vs - District Judge Walter H. Rice

Magistrate Judge Michael R. Merz

PREBLE COUNTY SHERIFF

DEPARTMENT AND STATE OF 

OHIO

:

Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner’s 

Objections (ECF No. 11) to the Magistrate Judge’s Report and Recommendations (the “Report,”

ECF No. 4). Judge Rice has recommitted the case for reconsideration in light of the Objections 

(Recommittal Order, ECF No. 12).

Custody

The Report recommended dismissal of the Petition for lack of jurisdiction because it 

appeared from the face of the Petition that Glenn was no longer in custody (ECF No. 4, PageID

65-66). The Report relied on Maleng v. Cook, 490 U.S. 488 (1989), which holds that there is no 

custody after a sentence expires and Leslie v. Randle, 296 F.3d 518 (6th Cir. 2002), which holds that 

the Ohio Revised Code § 2950.01 requirement for registration by a sex offender does not create custody 
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sufficient to support habeas corpus jurisdiction (ECF No. 4, PageID 65-66). Glen objects that he is 

still in custody by virtue of a mandatory five-year term of post-release control (ECF No. 11, PageID

92).

The docket of the Preble County Common Pleas Court in its Case No. 13 CR 011388 shows 

that Glenn was convicted by a jury on March 25, 2014, on one count of unlawful sexual conduct 

with a minor in violation of Ohio Revised Code § 2907.04(A) and sentenced on June 12, 2014, to 

a one year term of confinement. He was also found to be a Tier II sex offender. Glenn asserts that 

as a result of that conviction, he was required by Ohio Revised Code § 2967.28 to serve a 

mandatory term of post-release control of five years (Objections, ECF No. 11, PageID 92). The 

Judgment Entry of Sentence attached to the Petition confirms that five years of post-release control 

was imposed (ECF No. 3, PageID 61).

A person on bond is sufficiently in custody to invoke federal habeas corpus jurisdiction. 

Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984); Hensley v. Municipal Court,

411 U.S. 345 (1973); Lawrence v. 48th District Court, 560 F.3d 475, (6th Cir. 2009); McVeigh v. 

Smith, 872 F.2d 725, 727 (6th Cir. 1989). The logic of these cases has been extended to persons 

on parole or probation. Miskel v. Karnes, 397 F.3d 446 (6th Cir. 2005); Tiitsman v. Black, 536 

F.2d 678 (6h Cir. 1976); United States ex rel Baker v. Finkbeiner, 551 F.2d 180 (7th Cir. 1977); 

United States ex rel. Rybarik v. Maroney, 406 F.2d 1055 (3rd Cir, 1969).

Based on Glenn’s being subject to a mandatory term of post-release control, that part of 

the Report recommending dismissal for lack of custody is WITHDRAWN.
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Request for Stay Pending Exhaustion

Glen objects to the Magistrate Judge’s “denying Mr. Glenn’s request to stay this instant

action until 100% exhaustion is completed in the state court.” (ECF No. 11, PageID 91). That 

request was made on January 4, 2018 (ECF No. 5, PageID 69). The Magistrate Judge denied it 

the same day because the Report had already been filed recommending dismissal

because (1) Mr. Glenn is not in the custody of the Sheriff of Butler 

County on his sexual offender registration requirement to give this 

Court jurisdiction over the case, (2) in any event [this Court] cannot 

grant relief from a sexual offender registration obligation, and (3) 

any challenge to the 2013 conviction is barred by the statute of 

limitations (ECF No. 4). None of those reasons for dismissal are 

impacted at all by the pendency of the state court proceedings. The 

purpose of the exhaustion doctrine is to allow state courts to decide 

first any federal constitutional questions involved with a conviction 

before a federal habeas court becomes involved. But because the 

relief sought here is relief this Court cannot grant in habeas, there is 

no reason to stay the proceedings.

(Decision, ECF No. 6, PageID 82).

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. However, in recognizing that authority, the Supreme Court held:

[S]tay and abeyance should be available only in limited 

circumstances. Because granting a stay effectively excuses a 

petitioner's failure to present his claims first to the state courts, stay 

and abeyance is only appropriate when the district court determines 

there was good cause for the petitioner's failure to exhaust his claims 

first in state court. Moreover, even if a petitioner had good cause for 

that failure, the district court would abuse its discretion if it were to 

grant him a stay when his unexhausted claims are plainly meritless. 

Cf. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas 

corpus may be denied on the merits, notwithstanding the failure of 

the applicant to exhaust the remedies available in the courts of the 

State"). . . .
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On the other hand, it likely would be an abuse of discretion for a 

district court to deny a stay and to dismiss a mixed petition if the 

petitioner had good cause for his failure to exhaust, his unexhausted 

claims are potentially meritorious, and there is no indication that the 

petitioner engaged in intentionally dilatory litigation tactics.

Rhines v. Weber, 544 U.S. 269, 277-278 (2005). “Staying a federal habeas petition frustrates 

AEDPA’s objective of encouraging finality by allowing a petitioner to delay the resolution of 

federal proceedings. Id.

In his Petition, Glenn pleads the following grounds for relief:

Ground One: Petition[er’s] U.S. Constitution right to counsel was 

violated when no waiver of counsel was executed.

Ground Two: Petition[er’s] U.S. Constitutional right to due 

process was violated when no consent hearing was held to determine 

Tier II [sex offender] status.

Ground Three: Petitioner[‘s] U.S. Constitutional right to due 

process was violated when Petitioner was denied to appeal.

(Petition, ECF No. 3, PageID 41-44).

Ground One

Regarding Ground One, Glenn has attached the February 8, 2018, State of Ohio’s 

Memorandum in Opposition to Glenn’s Application for Reconsideration of the Denial of his 

Delayed Appeal (ECF No. 11, PageID 101-04). In that document the State admits that Glenn did 

not sign a waiver of counsel form before trial. Id. at PageID 103. 

Ohio R. Crim. P. 44(C) provides: “Waiver of counsel shall be in open court and the advice 

and waiver shall be recorded as provide in Rule 22. In addition, in serious offense cases, the waiver 
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shall be in writing.” Glen was charged with a fourth degree felony which is a serious offense under 

Ohio R. Crim. P. 2(C). Prima facie, then, Ohio law required a written waiver in this case. The 

State has argued to the Twelfth District Court of Appeals that the error is harmless because Glen 

was orally advised on two occasions about proceeding without counsel (ECF No. 11, PageID 103). 

If the Twelfth District decides this was not harmless error, grants Glenn a delayed appeal, and then 

reopens the trial court judgment, the AEDPA one-year statute of limitations will begin to run again 

whenever the new judgment becomes final.

However, if the Twelfth District denies a delayed appeal and Glenn has thereby exhausted 

his state court remedies, he would still be faced with the fact that he did not file in this Court within 

one year of the time his conviction became final and it would still be barred by the statute of 

limitations. Nothing in the Objections responds to the Report’s calculation of when the statute 

ran.

Moreover, Ground One does not state a claim upon which habeas corpus relief can be 

granted. There is no federal constitutional right to a have one’s waiver of counsel memorialized 

in written form. The fact that Ohio R. Crim. P. 44(C) requires a written waiver does not make 

failure to obtain a written waiver somehow a violation of either the Sixth Amendment right to 

counsel or the Fourteenth Amendment Due Process Clause. Not every requirement of state 

criminal procedure becomes mandated by the Due Process Clause. “A state cannot be said to have 

a federal due process obligation to follow all of its procedures; such a system would result in the 

constitutionalizing of every state rule, and would not be administrable.” Levine v. Torvik, 986 F.2d 

1506, 1515 (6th Cir. 1993), cert. denied, 509 U.S. 907 (1993),
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Ground Two

In Ground Two Glenn claims his Due Process rights were violated when he was not given 

a “consent” hearing before being classified as a Tier II sex offender. The classification is noted in 

the Judgment Entry (ECF No. 3 at PageID 62). Ohio Revised Code § 2950.01(F) defines as a Tier 

II sex offender any person who has been convicted of one of a set of listed offenses, which includes 

persons who violate Ohio Revised Code § 2907.04(A), such as Mr. Glenn. Ohio Revised Code §

2950.01(B)(2) excludes from the definition of sex offender a person who has been convicted of a 

sexually-oriented offense and the sexual conduct or contact involved was consensual, the victim 

was over thirteen, and the offender is not more than four years older than the victim. The 

Magistrate Judge presumes Glenn’s claim is that he was not given a hearing at which the issue of 

consent could have been determined.

Glenn does not provide the Court with any of the relevant facts, particularly how old he 

was at the time of the offense and how old the victim was. Nor does he provide any authority for 

the proposition that a hearing on the consent issue is mandated by the Constitution. Finally, he 

offers no reason why this Ground for Relief is not precluded by the statute of limitations.

Ground Three

In Ground Three, Glenn claims he was denied his Due Process rights when he was denied 

a delayed appeal.

There is no federal constitutional right to appeal criminal verdicts for error review. 
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McKane v. Durston, 153 U.S. 684 (1894), cited as still good law in Lopez v. Wilson, 426 F.3d 339, 

355 (6th Cir. 2005); Halbert v. Michigan, 545 U.S. 605 (2005). “Due process does not require a 

State to provide appellate process at all.” Goeke v. Branch, 514 U.S. 115, 120 (1995). If there is 

no federal constitutional right to appeal at all, it follows that there cannot be a constitutional right 

to a delayed appeal.

Conclusion

Having reconsidered the case as ordered, the Magistrate Judge withdraws his 

recommendation regarding custody, but again respectfully recommends that the Petition herein be 

dismissed with prejudice as barred by the statute of limitations.

February 23, 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 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 
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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).