Opinion
Case No. 1:03cv709.
March 3, 2006
ORDER
Petitioner, who was in state custody under the supervision of the Hamilton County, Ohio, Probation Office when he initiated this action, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on petitioner's unopposed motion for reconsideration of a Report and Recommendation issued on January 13, 2006 ( see Doc. 4) to administratively stay and terminate the petition on the Court's active docket pending petitioner's exhaustion of state court remedies. (Doc. 8).
The Court assumes that by now, petitioner has served his sentence imposed on October 26, 2000 of five (5) years under "community control" supervision. ( See Doc. 3, attached Ohio Court of Appeals' decision in State v. Idowu, No. C-10646 (Ohio Ct. App. June 28, 2002)).
Petitioner avers in his motion that he "had anticipated the possibility the Court may adopt Respondent's position on the issue of exhaustion and had filed a new application with the Court of Common Pleas and later the Court of Appeals for the First Appellate District." ( Id.). Petitioner has attached as exhibits to his motion for reconsideration, a motion filed by him with the state trial court on April 11, 2005 entitled "Motion For Reconsideration Of The Order Denying Defendant's Request To Withdraw His Guilty Plea," and supporting memorandum; the trial court's entry on June 9, 2005 denying the motion for reconsideration without opinion; petitioner's filings on appeal to the Ohio Court of Appeals, First Appellate District; the State's motion to dismiss the appeal on the ground that the denial of petitioner's motion for reconsideration was "not a final appealable order;" and the Ohio Court of Appeals' entry on November 10, 2005 granting the State's motion to dismiss. ( Id., Exs. 1-6). Petitioner apparently did not attempt a further appeal to the Ohio Supreme Court; nor did he pursue the remedies suggested by this Court in its January 13, 2006 Report and Recommendation of (1) a delayed appeal under Ohio R. App. 5(A) to the Ohio Court of Appeals, or (2) under the authority of State v. Bush, 773 N.E.2d 522, 526 (Ohio 2002), a post-sentence motion to withdraw his guilty plea under Ohio R. Crim. P. 32.1 ( see Doc. 4, pp. 7-8).
Although petitioner did not seek relief in the state courts by utilizing the arguably available state court remedies discussed in the January 13, 2006 Report and Recommendation, petitioner's motion for reconsideration (Doc. 8) is GRANTED, and the January 13, 2006 Report and Recommendation (Doc. 4) is VACATED. For the reasons given in a separate Report and Recommendation issued this date, petitioner's petition for writ of habeas corpus should be denied notwithstanding any failure on his part to exhaust state court remedies. See 28 U.S.C. § 2254(b)(2).
IT IS SO ORDERED.