# Martin v. The State Of Ohio

> District Court, S.D. Ohio · March 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10382003

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** March 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS

HOWARD E. MARTIN, III, : Case No. 2:22-cv-4423
:
Petitioner, :
: Judge Sarah D. Morrison
vs. :
Magistrate Judge Karen L. Litkovitz
:
TIM SHOOP, WARDEN :
CHILLICOTHE CORRECTIONAL :
INSTITUTION :
:
Respondent. :

REPORT AND RECOMMENDATIONS

This habeas corpus matter was opened on the Court’s docket on December 19, 2022.
(See Doc. 1). Petitioner initially submitted the originating document, entitled “Writ of Habeas
Corpus,” in a separate civil case he is pursuing in this Court. See Martin v. State of Ohio, No.
2:22-cv-1654 (S.D. Ohio) (Doc. 18 therein). The Clerk of Court then opened this separate
habeas corpus action with the originating document. The cases are proceeding separately.
On December 27, 2022, Petitioner was ordered to address two issues in this case. First,
Petitioner was ordered to either pay the $5.00 filing fee or move to proceed in forma pauperis.
Second, Petitioner was ordered to file an amended petition on the appropriate standard form that
names a proper respondent and sets forth his grounds for relief and other required information.
(Deficiency Order, Doc. 3). The Court sent Petitioner blank copies of the standard forms he
might need.
On January 30, 2023, the Court again ordered Petitioner to pay the filing fee or move to
proceed in forma pauperis. (Second Deficiency Order, Doc. 5). The Court also reiterated that a
proper habeas corpus petition, on the proper form, was needed:
[Petitioner] is also ORDERED to submit to the Court an Amended Petition, using
the appropriate standard form, setting out his grounds for relief and the other
required information. The Amended Petition must name a proper respondent over
which this Court would have jurisdiction and upon which this Court could order
service.
(Doc. 5, PageID 41) (emphasis in original). As in the first Deficiency Order, Petitioner was
advised “that failure to comply with this Second Deficiency Order will result in the dismissal of
this action for want of prosecution and/or failure to comply with the Court’s orders.” (Doc. 3,
PageID 21; Doc. 5, PageID 40).
Petitioner has since paid the $5.00 filing fee. He has submitted two further filings that
may be intended to be amended petitions for habeas corpus relief. (See Doc. 4, 6). In the most
recent filing, he lists the Warden of Chillicothe Correctional Institution as Respondent in the
caption, which appears to be appropriate. (Doc. 6). But Petitioner still has not submitted an
amended petition that complies with this Court’s deficiency orders.
Specifically, Petitioner has failed to submit a petition on the appropriate standard form as
anticipated by Rule 2 of the Rules Governing Section 2254 Cases in the United States District
Courts (the “2254 Rules”) and as ordered by this Court. As this Court explained in the first
Deficiency Order:
[T]he “Writ of Habeas Corpus” document submitted by Petitioner is not on the
proper form used to seek habeas corpus relief in federal court. Rule 2 of the Rules
Governing Section 2254 Cases in the United States District Courts (the “2254
Rules”) requires a state prisoner seeking habeas corpus relief to provide certain
information in his petition. The 2254 Rules anticipate that a petition will be on the
standard form to ensure that petitioner provides the required information to the
court. See Rule 2(d) of the 2254 Rules. The document submitted by Petitioner is
not on the standard form and does not contain all the required information.
. . .
In this respect, the Court notes that Petitioner is in custody in a state correctional
facility and appears to be “a person in custody pursuant to the judgment of a State
court.” 28 U.S.C. § 2254(b)(1). According to the website of the Ohio Department
of Rehabilitation and Correction, Petitioner is in custody pursuant to a judgment of
a Hamilton County, Ohio, Court. See https://appgateway.drc.ohio.gov/Offender
Search/Search/Details/A733696 (citing Case No. B1405503) (accessed December
21, 2022). This is the same case number Petitioner references in his initial filing.
(See Doc. 1, PageID 3).
It thus appears that Petitioner must submit his petition under 28 U.S.C. § 2254,
using the appropriate form for such a petition. Petitioner, however, appears to seek
to proceed under 28 U.S.C. § 2255. (See Doc. 1, PageID 3, 7, 9 (citing that statute)).
Section 2255 is available only to “[a] prisoner in custody under sentence of a court
established by Act of Congress,” that is, a federal court. See Allen v. White, 185 F.
App’x 487, 490 (6th Cir. 2006) (holding that Section 2255 “does not apply to state
prisoners”). But because of the paucity of information in the initial filing, it is
unclear which is appropriate.
Petitioner is ORDERED to submit to the Court an Amended Petition, using the
appropriate standard form, setting out his grounds for relief and the other required
information. The Amended Petition must name a proper respondent over which this
Court would have jurisdiction and upon which this Court could order service.
(Deficiency Order, Doc. 3, PageID 19-20). The Court sent Petitioner copies of the standard
forms for both a § 2254 petition and a § 2255 motion, but he did not return either.
Instead, Petitioner has twice refiled, with largely the same content, the “Writ of Habeas
Corpus” document that he originally submitted. (Compare Doc. 1, Doc. 4, and Doc. 6).
Petitioner still seeks to proceed under 28 U.S.C. § 2255 (see Doc. 6, PageID 42, 47, 49) but has
not identified the judgment of a federal court under which he is in custody. Petitioner has
likewise not identified the date of his conviction and sentence (and any appeals), which may be
relevant to this Court’s determination of whether the statute of limitations bars his action. See 28
U.S.C. § 2244(d). He has not described whether he has exhausted his state court remedies,
which is generally required before a state prisoner can seek habeas corpus relief. See 28 U.S.C.
§ 2254(b)-(c). He has not indicated whether he has previously sought federal habeas corpus
relief, which may require him to obtain authorization from the Court of Appeals before seeking
such relief here. See 28 U.S.C. § 2244(b). His filings are not signed under penalty of perjury
and do not substantially follow the standard form as the Habeas Rules require.1
In short, Plaintiff has failed to provide sufficient information for this Court to determine
whether “it plainly appears from the petition and any attached exhibits that the petitioner is not

entitled to relief in the district court.” See Rule 4, Habeas Rules. Without a proper petition, the
Undersigned is unable to conduct the required preliminary review.
This is not the first time that Petitioner has been directed to file a proper petition or
application for a writ of habeas corpus under § 2254 if he wanted to pursue such relief. In a
previous civil action, this Court recounted some history of Petitioner’s conviction and provided
him with some instruction about filing a proper petition in this Court:
Following an Ohio State Supreme Court judgment relating to his state-court
criminal conviction, Plaintiff, Howard E. Martin III, a state inmate who is
proceeding without the assistance of counsel, sought to appeal the judgment by
filing a document he labeled “NOTICE OF APPEAL.” (ECF No. 1). However,
Plaintiff did not include the required filing fee or an application to proceed in forma
pauperis. (ECF No. 2). As a result, the Magistrate Judge issued a Notice of
Deficiency and advised Plaintiff to proceed by filing a petition for writ of habeas
corpus under 28 U.S.C. § 2254, to the extent he sought an order declaring that his
state-court criminal conviction was obtained in violation of his rights guaranteed
under the Constitution. (ECF No. 32-3). Plaintiff subsequently filed his in forma
pauperis application along with other documents and attachments, two of which
were titled “COMPLAINT.” (See ECF Nos. 4, 5, and 5-1).
The Magistrate Judge considered these filings together to determine whether they
were subject to dismissal under § 1915(e). (ECF No. 6 at 5). After construing
Plaintiff’s filings liberally, the Magistrate Judge found that Plaintiff may have been

1 Rule 2 provides, in relevant part:
(c) Form. The petition must:
(1) specify all the grounds for relief available to the petitioner;
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten; and
(5) be signed under penalty of perjury by the petitioner or by a person authorized to sign
it for the petitioner under 28 U.S.C. § 2242.
(d) Standard Form. The petition must substantially follow either the form appended to these
rules or a form prescribed by a local district-court rule. The clerk must make forms available to
petitioners without charge.
Rule 2, Habeas Rules.
seeking to advance the following claims: (1) a direct appeal of a judgment the Ohio
Supreme Court entered relating to a state-court criminal case; (2) claims for habeas
relief; (3) a First Amendment access-to-courts claim; (4) a civil perjury claim; (5)
due process claims for lost property; and (6) state-law attorney malpractice claims.
(ECF No. 6 at 5-6).
Plaintiff timely filed an Objection to the Report and Recommendation. (ECF No.
12, 13, 14). In his objection, Plaintiff seems to have appealed each of the above
claims and additionally asserted two more claims: (1) a Sixth Amendment right to
a fast and speedy trial claim; and (2) an Eighth Amendment Cruel and Unusual
Punishment claim. (ECF No. 13).
. . .
B. Claims for Habeas Relief
Plaintiff maintains the assertion that his trial and appellate counsel in his state-court
criminal actions provided ineffective assistance of counsel in violation of the Sixth
Amendment. (ECF No. 13). In the Magistrate Judge’s Report and
Recommendation, these claims were dismissed without prejudice and Plaintiff was
advised to instead appropriately proceed with these claims in an application for writ
of habeas corpus under 28 U.S.C. § 2254. (ECF No. 6 at 6-7).
However, Plaintiff appears to regard his objection to the Magistrate Judge’s Report
and Recommendation as his application for writ of habeas corpus and, indeed, titles
his objection as “Writ of Habeas Corpus.” (ECF No. 13).
An objection to a Magistrate Judge’s Report and Recommendation does not
constitute an application for writ of habeas corpus; instead, an application for writ
of habeas corpus must be filed in accordance with 28 U.S.C. § 2254. Therefore, the
Magistrate Judge did not err in recommending the Court dismiss Plaintiff’s habeas
claims without prejudice and instruction to file a petition for writ of habeas corpus
under 28 U.S.C. § 2254. Accordingly, Plaintiff’s Motion to Enforce Habeas Corpus
(ECF No. 23) is also dismissed without prejudice.
Martin v. Ohio, No. 2:18-cv-1147, 2019 WL 2373746, at *1-2 (S.D. Ohio June 5, 2019), recon.
denied, 2019 WL 6051113 (S.D. Ohio Nov. 15, 2019), second recon. denied, 2020 WL
13627213 (S.D. Ohio July 21, 2020) (Marbley, C.J.; Vascura, M.J.) (emphases added). The
United States Court of Appeals for the Sixth Circuit found Petitioner’s attempted appeal from
this decision to be frivolous:
There is no non-frivolous basis on which to argue that the district court erred by
dismissing without prejudice Martin’s claims of ineffective assistance of counsel,
perjured and tainted testimony, and the denial of a speedy trial, because—as the
district court explained to Martin at the outset—he needed to raise those claims in
a § 2254 petition, not a civil rights action. See Preiser v. Rodriguez, 411 U.S. 475,
489 (1973).
Martin v. Ohio, No. 19-3844 (6th Cir. Sept. 1, 2020) (Order, p.4). See also Martin v. Ohio, No.
1:12-cv-650, 2013 WL 1750362, at *3 (S.D. Ohio Apr. 23, 2013) (Barrett, D.J.; Bowman, M.J.)
(dismissing purported “habeas corpus” allegations directed to plaintiff’s previous conviction that
were raised in a § 1983 complaint). Petitioner has not, despite these admonitions, and despite the
two deficiency orders issued in this case, filed a proper petition for a writ of habeas corpus here.
“District courts have the inherent power to sua sponte dismiss civil actions for want of
prosecution to manage their own affairs so as to achieve the orderly and expeditious disposition
of cases.” Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962). “This measure is available to the
district court as a tool to effect ‘management of its docket and avoidance of unnecessary burdens
on the tax-supported courts [and] opposing parties.’” Knoll v. AT & T, 176 F.3d 359, 363 (6th
Cir. 1999) (internal citations omitted). Failure of a party to comply with an order of the Court
warrants invocation of the Court’s inherent power. See Fed. R. Civ. P. 41(b) (applicable here
under Rule 12, Habeas Rules (“The Federal Rules of Civil Procedure and the Federal Rules of
Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions or
these rules, may be applied to a proceeding under these rules.”)). Here, Petitioner was twice
warned that his case would be dismissed if he did not file a proper petition on the appropriate
form. (Doc. 3, PageID 21; Doc. 5, PageID 40). He has failed to do so.

Accordingly, the Undersigned RECOMMENDS that this Court DISMISS this action
without prejudice for want of prosecution and for failure to comply with this Court’s two
deficiency orders. See Allen v. King, No. 2:21-cv-10908, 2021 WL 5499243 (E.D. Mich. Nov.
22, 2021) (dismissing habeas matter for failure to comply with an order to file a proper habeas
petition); Smith v. Covington, No. 5:10-cv-336, 2011 WL 4005341, at *1 (E.D. Ky. Mar. 14,
2011), report and recommendation adopted, 2011 WL 4005337 (E.D. Ky. Sept. 8, 2011)
(dismissing habeas matter where the initial filing “did not comply with Rule 2 of the Rules
Governing Habeas Corpus Cases Under Section 2254 because the submission did not

substantially conform to the standard form” and “did not provide the relevant information
regarding the underlying conviction, which was required to ensure that the Petition was properly
before the Court” and “it cannot be determined whether Petitioner exhausted all state remedies,
which is required before federal habeas review occurs,” and the petitioner failed to correct the
issue); Brown v. Horton, No. 2:19-cv-174, 2019 WL 7765355, at *2-3 (W.D. Mich. Nov. 26,
2019), report and recommendation adopted, 2020 WL 475244 (W.D. Mich. Jan. 29, 2020)
(noting that the court had previously dismissed a non-standard habeas petition where the
petitioner failed to comply with an order to file an amended petition on the standard form).
The Undersigned further RECOMMENDS that the Court DENY a certificate of
appealability, as reasonable jurists would not debate whether Petitioner has failed to comply with

this Court’s two deficiency orders. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
NOTICE REGARDING OBJECTIONS TO
THIS REPORT AND RECOMMENDATION

If any party objects to this Report and Recommendation (“R&R”), the party may serve
and file specific, written objections to it within FOURTEEN DAYS after being served with a
copy thereof. Fed. R. Civ. P. 72(b); Rule 12 of the Rules Governing Section 2254 Cases in the
United States District Court. All objections shall specify the portion(s) of the R&R objected to
and shall be accompanied by a memorandum of law in support of the objections. The Court may
extend the fourteen-day objections period if a timely motion for an extension of time is filed.
A Judge of this Court will make a de novo determination of those portions of the R&R to
which objection is made. Upon proper objection, 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 R&R will result in a
waiver of the right to have the District Judge review the R&R de novo, and will also operate as a
waiver of the right to appeal the decision of the District Court adopting the R&R. See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

March 17, 2023 Hern Xethonr
KAREN L. LITKOVITZ
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10382003. Public record. Not legal advice.