Opinion
CASE NO. 5:09 CV 2718.
January 15, 2010
MEMORANDUM OF OPINION AND ORDER
On November 19, 2009, petitioner pro se Barry Lynn Thomas filed the above-captioned petition for writ of habeas corpus under 28 U.S.C. § 2254. Thomas is incarcerated at the Belmont Correctional Institution, having been convicted of sexual battery in 2005. For the reasons stated below, the petition is denied and this action is dismissed.
A federal court may entertain a habeas petition filed by a person in state custody only on the ground that he is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). In addition, petitioner must have exhausted all available state remedies. 28 U.S.C. § 2254(b).
It is evident on the face of the petition that Thomas has yet to exhaust his state court remedies, as there is no indication he has pursued a direct appeal to the Ohio Supreme Court. The petition is thus premature.
Petitioner's state habeas action is facially insufficient for purposes of exhaustion, as such an action may be pursued solely to challenge jurisdiction of the trial court. Ohio Rev. Code § 2725.05.
The court expresses no opinion concerning whether or not petitioner procedurally defaulted in the state court.
Accordingly, this action is dismissed without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis on which to issue a certificate of appealability. Fed.R.App.P. 22(b); 28 U.S.C. § 2253.
IT IS SO ORDERED.