The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
ROBERT O. HAYDEN,
Petitioner, : Case No. 2:23-cv-1694
- vs - District Judge Sarah D. Morrison
Magistrate Judge Michael R. Merz
TIM SHOOP, WARDEN,
Chillicothe Correctional Institution1,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case was brought pro se under 28 U.S.C. § 2254 to contest revocation
of Petitioner’s parole (Petition, ECF No. 1). The Magistrate Judge reference in this case was
recently transferred to the undersigned to help balance the Magistrate Judge workload in this
District (Transfer Order, ECF No. 11)
Petitioner pleads one ground for relief, to wit, that he was “denied due process when the
Ohio Adult Parole Authority failed to provide him a Final Revocation hearing under the Consent
Decree, Morrissey v. Brewer 408 U.S 471 [(1972)] the Fourteenth Amendment of Due Process
Clause.” Id. at PageID 15.
Hayden asserts this Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343, but
jurisdiction in habeas corpus is created by 28 U.S.C. § 2241. Despite the mistaken citation, the
1 Tim Shoop as Warden of the Chillicothe Correctional Institution maintains custody of Petitioner and is therefore the
correct Respondent in this case. The caption is amended as set forth here.
Court does have jurisdiction, which Respondent does not dispute, of the subject matter and
personal jurisdiction over the Respondent.
Briefly stated, Hayden was convicted of rape in 1984. He was released on parole, but in
1990 again arrested for rape. Based on his 1990 conviction, the Ohio Adult Parole Authority
revoked his parole in 1990 and recommitted him to custody to serve out his two rape sentences
consecutively to each other. Respondent documents the seven parole board hearings Hayden has
received since then, the most recent being in 2018 (Return, ECF No. 6, PageID 117, citing State
Court Record, ECF 5, Exhibit 16, PageID 62).
Respondent raises a number of defenses including lack of exhaustion and that Hayden has
received all the constitutionally required hearings. It is not necessary to discuss the merits of each
of these, because the Petition is clearly untimely. Hayden’s parole was revoked in 1990, but he
did not file his Petition in this case until May 22, 2023.2 Respondent asserts the Petition was filed
well outside the applicable one-year statute of limitations adopted by the Antiterrorism and
Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA") and
codified at 28 U.S.C. § 2244(d).
In his Amended Traverse, Petitioner asserts the AEDPA does not apply, relying on United
States v. Armour, 402 U.S. 673 (1971). That was a case to enforce the terms of a consent decree
from 1920 in the meat packing industry. A consent decree in that case resulted in a permanent
injunction and the United States brought an action alleging violation of that injunction. If Armour
believed the action was untimely, it could have raised the equitable defense of laches which it did
not. Laches is completely separate from the statute of limitations codified in § 2244. Armour is
completely inapposite. Nothing about the consent decree in Kellogg v. Shoemaker, 927 F.Supp.
2 This filing date gives Hayden the benefit of the mailbox rule adopted in Houston v. Lack, 487 U.S. 266 (1988)).
244, 247 (S.D. Ohio, 1996), exempts members of the Kellogg class from the AEDPA, even
assuming Hayden is a member of that class, which Respondent denies.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with
this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and
that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should
not be permitted to proceed in forma pauperis.
August 22, 2024.
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #
s/ Michael R. Merz
United States Magistrate Judge