UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

HERBERT SMITH,

Petitioner,

vs.

THOMAS SCHWEITZER, Warden, 

Lebanon Correctional Institution, 

Respondent.

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Case No. 1:18-cv-514

Judge Timothy S. Black

Magistrate Judge Karen L. Litkovitz

DECISION AND ENTRY

ADOPTING THE REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 12)

This case is before the Court pursuant to the Order of General Reference to United 

States Magistrate Judge Karen L. Litkovitz. Pursuant to such reference, the Magistrate 

Judge reviewed the pleadings filed with this Court, and on July 30, 2019, submitted a

Report and Recommendation. (Doc. 12). On August 8, 2019, Petitioner Herbert Smith 

filed objections. (Doc. 14). 

Petitioner’s objections concern the first, second, third, and fourth grounds for 

relief raised in his habeas petition. After reviewing the Report and Recommendation, 

Petitioner’s objections, and the case record, the Court finds that Petitioner’s objections 

are not well-taken. 

Petitioners first and second grounds for habeas relief relate to his assertion that the 

Ohio Department of Rehabilitation and Correction (“ODRC”) improperly 

administratively increased his sentence. (Doc. 1-1 at 9-13). The Magistrate Judge 
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accurately stated that courts have found increasing a prisoner’s sentence administratively, 

rather than through a judicial proceeding, constitutes a due process violation. (Doc. 12 at 

8) (citing Hayden v. Mohr, No. 16-4051, 2017 WL 4216588, at *2 (6th Cir. May 4, 

2017)). Pursuant to the state court record, the Magistrate Judge found that at Petitioner’s 

1994 sentencing for his robbery conviction, the court determined that his robbery 

sentence and prior 1977 kidnapping sentence should be served consecutively. (Id. at 8-9, 

9 n.7). Thus, the Magistrate Judge concluded that Petitioner’s sentence was not 

administratively increased. 

Petitioner’s objection to the Magistrate Judge’s finding as to his first and second 

grounds for relief is primarily an issue of semantics. Petitioner states that the Magistrate 

Judge discussed whether the state court improperly “aggregated” his sentences and did 

not address the specific issue he raised regarding ODRC’s alleged administrative increase 

of his sentence. (Doc. 14 at 4). However, this objection is meritless. As noted above, 

the Magistrate Judge identified this issue, discussing that it is a due process violation for 

ODRC to administratively increase a prison sentence. The Magistrate Judge went on to 

properly find that no administrative increase occurred here based on the state-court 

record. Accordingly, Petitioner’s objection is overruled. 

Petitioner also takes issue with the Magistrate Judge’s finding that the state court 

was not required to specifically state that his two sentences were to run consecutively. 

(Id. at 11). However, the Magistrate Judge correctly held that because Ohio law at the 

time mandated that petitioner’s 1977 kidnapping sentence and 1994 robbery sentence run

consecutively, the state court was not obligated to expressly state that it was imposing a 
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consecutive sentence. (Doc. 12 at 9) (citing Hayden, 2017 WL 4216588, at *2). Thus, 

this objection also lacks merit. 

With respect to Petitioner’s third ground for relief—that his sentence has been 

satisfied—the Magistrate Judge first held that this issue is purely a matter of state law, 

and thus does not involve a cognizable issue for federal habeas review. (Doc. 12 at 10). 

The Judge further held Petitioner failed to demonstrate he is being held beyond his

maximum sentence expiration date. (Id. at 10-11). 

Petitioner’s objection here is that the Magistrate Judge failed to address his 

concern that his sentence has been fulfilled, instead discussing the state court’s decision 

to run his sentences consecutively. (Doc. 14 at 7-8). However, the Court agrees with the 

Magistrate Judge’s reasoning that based on the state-court record, and considering the 

consecutive sentences imposed, Petitioner is not being held beyond his maximum release 

date. Thus, Petitioner is not entitled to habeas relief on this ground. 

Finally, as to Petitioner’s fourth ground for relief, the Magistrate Judge found 

Petitioner’s argument to be missing from his submitted memorandum. (Doc. 12 at 11). 

Petitioner asserts in his objections that his arguments were included at pages thirteen and 

fourteen of his habeas petition, but the pages do not appear in the petition filed of record. 

(Doc. 1; Doc. 14 at 8). Nevertheless, the Magistrate Judge correctly guessed that 

Petitioner intended to raise as his fourth ground for habeas relief, the “Proposition of Law 

No. Four.” that Petitioner previously asserted in his brief to the Supreme Court of Ohio. 

(See Doc. 6 at 78; Doc. 12 at 11). Further, the Magistrate Judge properly found that the 

issues Petitioner intended to raise as his fourth ground for relief are duplicative of 
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Petitioner’s earlier claims that the ODRC improperly increased his prison sentence. 

(Doc. 14 at 10-11). Accordingly, this objection is also meritless. 

 As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has 

reviewed the comprehensive findings of the Magistrate Judge and considered de novo 

all of the filings in this matter. Upon consideration of the foregoing, the Court does 

determine that such Report and Recommendation (Doc. 12) should be and is hereby 

ADOPTED in its entirety. 

Accordingly, for the reasons stated above:

1) Respondent’s Motion to Dismiss Petitioner’s petition for a writ of habeas 

corpus pursuant to 28 U.S.C. § 2254 (Doc. 7) is GRANTED; 

2) Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. 

§ 2254 (Doc. 5) is DISMISSED with prejudice;

3) A certificate of appealability shall not issue because Petitioner has not 

stated a viable claim of the denial of a constitutional right, nor are the 

issues presented adequate to deserve encouragement to proceed further; 

4) An appeal of this Order would not be taken in good faith, and accordingly 

Petitioner is denied leave to appeal in forma pauperis; and

5) The Clerk shall enter judgment accordingly, whereupon this case is 

TERMINATED on the docket of this Court. 

IT IS SO ORDERED.

Date: 

Timothy S. Black

United States District Judge

8/23/19