1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

BRIAN W. BOLES, 

Petitioner, : Case No. 3:18-cv-236 

- vs - District Judge Thomas M. Rose 

Magistrate Judge Michael R. Merz 

OHIO ADULT PAROLE 

 AUTHORITY, 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This is an action pursuant to 28 U.S.C. § 2254 brought pro se by Petitioner Brian W. Boles 

(Petition, ECF No. 1). When the case was transferred here from the Northern District of Ohio, the 

Magistrate Judge ordered an answer to be filed (Order for Answer, ECF No. 7). In response, the 

Attorney General has filed the State Court Record (ECF No. 9) and a Return of Writ ECF No. 10). 

The same order set a deadline for Petitioner’s reply of twenty-one days after the Answer or August 

23, 2018. That time has expired and Petitioner has neither filed a reply nor sought an extension of 

time to do so. The case is therefore ripe for decision. 

 Petitioner Brian Boles signed his Petition in this case on May 26, 2018, and presumably 

placed it in the prison mail system that day (ECF No. 1, PageID 15). The Magistrate Judge read 

the Petition as claiming that Boles had been sentenced to six months confinement on a new 

conviction of domestic violence on November 17, 2017, and was being held beyond expiration of 

that sentence (Order for Answer, ECF No. 7, PageID 34). As the Return of Writ points out, Boles 

was given seventy-four days jail time credit on the November 14, 2017, conviction and had 

Case: 3:18-cv-00236-TMR-MRM Doc #: 12 Filed: 09/05/18 Page: 1 of 3 PAGEID #: 125
2 

completed serving that sentence long before he filed for habeas corpus relief. Because he was not 

in custody on the November 14th conviction when he filed, this Court lacks jurisdiction to 

adjudicate any claim he may have about the November 14th conviction. Maleng v. Cook, 490 U.S. 

488 (1989). Any claim related to the November 14th conviction should be dismissed for lack of 

jurisdiction. 

 Because he was on post-release control for two prior convictions when he committed the 

new domestic violence offense, the Adult Parole Authority charged him with a violation, held a 

hearing, and imposed a sentence of 162 days confinement for that violation. Although there were 

two post-release control terms being served, the time for the violations apparently was ordered to 

run concurrently. Since Boles actually sued the Adult Parole Authority, the Court now understands 

it is the post-release control term of which he is complaining. However, the Petition does not state 

any claim of deprivation of constitutional rights relating to that term of incarceration. In particular, 

nothing in the Constitution requires that a term of incarceration for violating post-release control 

must be served concurrently with the sentence for the crime that constitutes the violation. 

 Because the Court has no jurisdiction over the expired domestic violence term and Boles 

pleads no constitutional claim as to the post-release revocation term, the Magistrate Judge 

respectfully recommends the Petition be dismissed with prejudice. 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. 

September 4, 2018. 

 s/ Michael R. Merz

 United States Magistrate Judge 

Case: 3:18-cv-00236-TMR-MRM Doc #: 12 Filed: 09/05/18 Page: 2 of 3 PAGEID #: 126
3 

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 

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).

Case: 3:18-cv-00236-TMR-MRM Doc #: 12 Filed: 09/05/18 Page: 3 of 3 PAGEID #: 127