IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JALEN D. LEE, 

 Case No. 2:18-cv-561 

 Petitioner, Judge James L. Graham 

 Magistrate Judge Chelsey M. Vascura 

 v. 

TIMOTHY SHOOP, WARDEN, 

 CHILLICOTHE CORRECTIONAL 

 INSTITUTION, 

 Respondent. 

ORDER and 

REPORT AND RECOMMENDATION 

 This is an action pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. Petitioner 

seeks release from confinement imposed pursuant to a state-court judgment in a criminal action. 

This case has been referred to the Undersigned pursuant to 28 U.S.C. § 636(b) and Columbus 

General Order 14-1 regarding assignments and references to United States Magistrate Judges. 

 Petitioner has filed a Motion for Leave to Proceed in forma pauperis. Upon 

consideration, the undersigned finds the motion to be meritorious and it is GRANTED. 

Petitioner shall be PERMITTED to prosecute this action without prepayment of fees or costs 

and judicial officers who render services in this action will do so as if costs had been prepaid. 

 This matter is before the Court on its own motion under Rule 4 of the Rules Governing 

Section 2254 Cases in the United States District Courts (“Rule 4”). Pursuant to Rule 4, the Court 

conducts a preliminary review to determine whether “it plainly appears from the face of the 

petition and any attached exhibits that the petitioner is not entitled to relief . . . .” If it does so 

appear, the petition must be dismissed. Id. For the reasons that follow, the undersigned 

RECOMMENDS dismissal under Rule 4. 
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Facts and Procedural History 

Petitioner challenges his March 9, 2016 conviction pursuant to his guilty plea in the 

Licking County Court of Common Pleas on aggravated robbery. On June 8, 2016, the trial court 

imposed a sentence of four years incarceration. Petitioner indicates that he never filed an appeal 

or pursued other state collateral action. He did, however, file a grievance with the Ohio Supreme 

Court Disciplinary Counsel against his attorney based on an alleged conflict of interest. He has 

attached a letter dated May 25, 2018, from the Ohio Supreme Court Disciplinary Counsel 

advising him that he must seek review of his claim of the denial of the effective assistance of 

counsel through the state courts and that absent a finding of the ineffective assistance of counsel, 

it would not further review his case. (ECF No. 1-2, PAGEID # 22-23.) On June 7, 2018, 

Petitioner filed this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts 

that he was denied the effective assistance of counsel based on a conflict of interest during plea 

bargaining and sentencing proceedings (claim one) and that his guilty plea was not knowing, 

intelligent, or voluntary based on the ineffective assistance of counsel (claim two). The 

undersigned finds that these claims must be dismissed as unexhausted. 

Exhaustion 

Before a federal habeas court may grant habeas corpus relief, a state prisoner must 

exhaust his available state-court remedies. Castille v. Peoples, 489 U.S. 346, 349 (1989); 

Silverburg v. Evitts, 993 F.2d 124, 126 (1993); see also 28 U.S.C. § 2254(d)(1). If a habeas 

petitioner has the right under state law to raise a claim by any available procedure, he has not 

exhausted that claim. 28 U.S.C. § 2254 (b), (c). Moreover, a constitutional claim for relief must 

be presented to the state’s highest court in order to satisfy the exhaustion requirement. 

O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). A habeas petitioner bears the burden of 
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demonstrating that he has properly and fully exhausted his available state-court remedies with 

respect to the claims he seeks to present for federal habeas review. Prather v. Rees, 822 F.2d 

1418, 1420 n. 3 (6th Cir. 1987). 

 Here, Petitioner has never presented his claims to the state courts. Moreover, he may still 

do so. He may file a motion for a delayed appeal under the provision of Ohio Appellate Rule 

5(A). Therefore, plainly, this action remains unexhausted and subject to dismissal on that basis. 

Recommended Disposition 

For the reasons set forth above, it is RECOMMENDED that this action be 

DISMISSED. Petitioner’s request for the appointment of counsel is DENIED. 

Procedure on Objections 

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

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). 

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). 
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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