Opinion
CASE NO. 2:09-CV-1002.
January 26, 2010
OPINION AND ORDER
On January 4, 2010, the Magistrate Judge issued a Report and Recommendation pursuant to Rule 4 of the Rules governing Section 2254 Proceedings in the United States District Courts recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation. For the reasons that follow, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Petitioner objects to the Magistrate Judge's recommendation of dismissal of his habeas corpus petition as unexhausted. Petitioner contends that he has exhausted his claims by filing a state habeas corpus petition in the Ohio Supreme Court. See Objections. However, as noted by the Magistrate Judge, petitioner's on-the-record claims must be raised on direct appeal, and not in state habeas corpus proceedings. See, e.g., McBroom v. Russell, 77 Ohio St.3d 47, 48 (1996), citing Lunda v. Russell, 70 Ohio St.3d 561, 639 (1994) (habeas corpus not available to challenge validity or sufficiency of an indictment, as direct appeal constitutes an adequate remedy for such claims). The Ohio Supreme Court has held:
"A writ of habeas corpus is warranted in certain extraordinary circumstances `where there is an unlawful restraint of a person's liberty and there is no adequate remedy in the ordinary course of law.'" Johnson v. Timmerman-Cooper (2001), 93 Ohio St.3d 614, 616, 757 N.E.2d 1153, quoting Pegan v. Crawmer (1996), 76 Ohio St.3d 97, 99, 666 N.E.2d 1091.
. . . "`[H]abeas corpus, like other extraordinary writ actions, is not available where there is an adequate remedy at law.'" Agee v. Russell (2001), 92 Ohio St.3d 540, 544, 751 N.E.2d 1043, quoting Gaskins v. Shiplevy (1996), 76 Ohio St.3d 380, 383, 667 N.E.2d 1194.Drake v. Tyson-Parker, 101 Ohio St.3d 210 (2004). Therefore, petitioner must file an appeal of the appellate court's denial of his motion for leave to appeal before obtaining federal habeas corpus review. 28 U.S.C. § 2254(b), (c).
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the foregoing reasons, and for reasons detailed in the Magistrate Judge's Report and Recommendation, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.