The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DANNY L. JAYJOHN, III,
CASE NO. 2:20-CV-2977
Petitioner, CHIEF JUDGE ALGENON L. MARBLEY
Magistrate Judge Chelsey M. Vascura
v.
WARDEN, CHILLICOTHE CORRECTIONAL
INSTITUTION,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. 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.
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 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 that this
action be DISMISSED pursuant to Rule 4.
I. BACKGROUND
Petitioner challenges his April 3, 2019 convictions pursuant to his guilty plea on two
counts of burglary. Petitioner does not indicate the name or location of the court that entered
judgment against him. The trial court imposed a term of seven years’ incarceration. Petitioner
indicates that he did not file an appeal or pursue other state collateral relief. On June 11, 2020,
he filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. As his sole ground for relief,
Petitioner asserts that the charges should have been reduced to breaking and entering.
II. RULE 2, RULES GOVERNING SECTION 2254 CASES
A habeas petition must “allege the facts concerning the applicant’s commitment or
detention, the name of the person who has custody over him and by virtue of what claim or
authority, if known.” 28 U.S.C. § 2242. Further, Rule 2(c) of the Rules Governing Section 2254
Cases in the United States District Courts provides that the Petitioner must specify the nature of
his grounds for relief and state the facts in support of each ground. “Dismissal under Rule 2(c) is
appropriate when a petition and accompanying pleadings are unintelligible and a court is unable
to determine what alleged errors of fact or law are at issue for adjudication.” Arega v. Warden,
Chillicothe Corr. Inst., 347 F.Supp.3d 359, 361 (S.D. Ohio 2018) (citations omitted).
Here, Petitioner asserts that the charges against him should have been reduced. Even
liberally construing the pleadings, the Court cannot decipher the nature of any federal
constitutional claim. See 28 U.S.C. § 2254(a). “Liberal construction does not require a court to
conjure allegations on a litigant’s behalf.” Erwin v. Edwards, 22 F. App’x 579, 580 (6th Cir.
2001) (citing Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)). Thus, this action is subject to
dismissal.
III. EXHAUSTION
Before a federal habeas court may grant relief, a state prisoner must exhaust his available
remedies in the state courts. 28 U.S.C. § 2254(b)(1); Castille v. Peoples, 489 U.S. 346, 349
(1989); Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993). 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. Manning v. Alexander, 912
F.2d 878, 881 (6th Cir. 1990). In Ohio, this exhaustion requirement includes direct and delayed
appeals to the Ohio Court of Appeals and the Ohio Supreme Court. Mackey v. Koloski, 413 F.2d
1019 (6th Cir. 1969); Allen v. Perini, 26 Ohio Misc. 149 (6th Cir. 1970).
Petitioner does not indicate that he has filed a timely appeal or pursued any other state
collateral relief. He may still pursue a motion for a delayed appeal pursuant to Ohio Appellate
Rule 5(A). Thus, this action is alternatively subject to dismissal as unexhausted. See Summers v.
Warden, No. 2:16-cv-00063, 2017 WL 412875, at *5 (S.D. Ohio Jan. 31, 2017) (petition may be
dismissed as unexhausted where the petitioner failed to pursue a timely appeal or motion for a
delayed appeal) (citing Keeley v. Warden, Belmont Correctional Institution, No. 2:15-cv-00972,
2016 WL 1642965, at *5-6 (S.D. Ohio April 26, 2016); Ortiz v. Wolfe, No. 2:08-cv-94, 2009 WL
995622, at *5-6 (S.D. Ohio April 14, 2009)).
IV. RECOMMENDED DISPOSITION
For the reasons set forth above, it is RECOMMENDED that this action be
DISMISSED.
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). 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