The opinion
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JAMES V. BROWN, : Case No. 1:25-cv-362
:
Petitioner, :
: Judge Michael R. Barrett
vs. :
:
Magistrate Judge Kimberly A. Jolson
WARDEN, LONDON :
CORRECTIONAL :
INSTITUTION, :
:
Respondent.
ORDER AND REPORT AND RECOMMENDATION
Petitioner, an inmate in state custody at Alvis House1 in Chillicothe, Ohio, has filed a
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 8). Because Petitioner’s
direct appeal from the criminal judgment he seeks to challenge remains pending, the Undersigned
RECOMMENDS that this habeas corpus action be DISMISSED without prejudice for failure
to exhaust available state-court remedies. The Undersigned further ORDERS that Petitioner’s
“Motion of Understanding and Clarification” (Doc. 11) is GRANTED.
I. MOTION OF UNDERSTANDING AND CLARIFICATION
Beginning with the latter, Petitioner seeks clarification of the screening standard that will
be applied to his Petition by virtue of his having sought and received permission to proceed without
prepayment of fees. (Doc. 11). His motion is GRANTED so that the Court may provide that
clarification. In short, his Petition will not be subjected to any different standard of review.
1 Petitioner was previously incarcerated at the London Correctional Institution. (Doc. 13).
Petitioner appears to question why, if monies from his prison trust account have been
collected and applied to the filing fees in this case and a companion prisoner civil rights case (Case
No. 1:25-cv-176), his habeas petition and civil rights complaint are being subjected to a screening
process that is reserved for complainants deemed in forma pauperis, which he contends he no
longer is. The short answer is that his habeas petition is not being subjected to any different
standard. The Prison Litigation Reform Act that requires a prisoner who files a civil rights action,
over time and as he is able, to pay the full filing fee, does not apply to habeas corpus actions. In
other words, a habeas petitioner who seeks and receives permission to proceed without the
prepayment of the $5 fee is not required thereafter to pay the full fee. And every habeas corpus
petition is reviewed in accordance with the same statutory and constitutional standards without
regard to whether the filing fee was paid.
II. PETITION
Next, Petitioner challenges a criminal judgment issued by the Highland County Court of
Common Pleas. (Doc. 8, at 52). Because Petitioner’s direct appeal was pending (and remains
pending), the Court directed Petitioner to show cause why his Petition should not be dismissed
without prejudice for Plaintiff’s failure to exhaust his available state-court remedies. (Doc. 9, at
3–4).
Petitioner’s response argues that his efforts to appeal the criminal judgment against him
have been delayed, obstructed, and/or ignored by the state courts. (Doc. 10 at 143–45). He
suggests that some of his filings were delayed by mail-room irregularities at London Correctional
Institution, where he was incarcerated when he initiated his appeals of the criminal judgment
against him. (Id. at 143–44). Primarily he asserts that the state trial and appellate courts have
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refused to act on any of his requests for relief, including his motion to appoint counsel. (Id. at
145). After re-arguing the merits of his claims (id., at 146–47), Petitioner circles back to reiterate
that his efforts to prosecute his state-court appeal are being obstructed, delayed, and/or ignored
(id. at 147–48). Petitioner’s allegations are belied by publicly available judicial records.
The statute governing habeas corpus petitions filed by state prisoners contains an
exhaustion requirement. 28 U.S.C. § 2254(b)–(c). Specifically, the statute provides that an
application for a writ of habeas corpus by a state prisoner shall not be granted unless the petitioner
has exhausted his or her state court remedies, there is an absence of available state corrective
process, or circumstances exist that render such process ineffective to protect the petitioner’s
rights. 28 U.S.C. § 2254(b)(1). A state defendant with federal constitutional claims is required to
first fairly present those claims to the state courts for consideration because of the equal obligation
of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent
needless friction between the state and federal courts. See Anderson v. Harless, 459 U.S. 4, 6
(1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275–76 (1971). Under the “fair
presentation” requirement, “state prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State’s established
appellate review process,” which includes discretionary review in the Supreme Court of Ohio. See
O’Sullivan v. Boerckel, 526 U.S. 838, 842–43 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th
Cir. 1990). Additionally, in Ohio, claims that do not appear on the face of the trial record must be
presented to the state courts in a petition for postconviction relief pursuant to Ohio Rev. Code Ann.
§ 2953.21, or, if untimely and/or successive, Ohio Rev. Code § 2953.23. See Brown v. Bobby, No.
4: 07-cv-239, 2008 WL 4114317 (N.D. Ohio Aug. 28, 2008) (citing State v. Perry, 10 Ohio St. 2d
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175, 178 (1967)); Hill v. Mitchell, No. 1:98-cv-452, 2006 WL 2807017, at *43 (S.D. Ohio Sep.
27, 2006) (citing State v. Cole, 2 Ohio St. 3d 112 (1982)).
If a petitioner fails to fairly present his claims through the requisite levels of state appellate
review, but still has an avenue open to him in the state courts by which he may present the claims,
then his petition is subject to dismissal without prejudice for failure to exhaust state remedies. 28
U.S.C. § 2254(c). Although the exhaustion requirement is not jurisdictional, and an application
for habeas corpus relief may be denied on the merits despite the petitioner’s failure to exhaust, 28
U.S.C. § 2254(b)(2), there is a strong presumption in favor of requiring the exhaustion of state
remedies. See Granberry v. Greer, 481 U.S. 129, 131 (1987). Additionally, while the exhaustion
requirement may be excused where the available state court process is incapable of resolving the
petitioner’s claims, 28 U.S.C. § 2254(b)(1)(B)(ii); Johnson v. Bauman, 27 F.4th 384, 388–89 (6th
Cir. 2022), Petitioner here fails to demonstrate such futility.
In this case, Petitioner challenges a criminal judgment issued by the Highland County
Court of Common Pleas. (Doc. 8, at 52). As was the case when the Court issued its order to show
cause, review of publicly available online records from the Highland County Clerk of Courts
demonstrates that Petitioner’s direct appeal to the Ohio Court of Appeals for the Fourth Appellate
District remains pending as of the date of this Order.2 In fact, Petitioner has three different appeals
pending in the state appellate court challenging the criminal judgment(s) against him, to wit: Case
Numbers 25CA0010, 25CA0016, and 25CA0018. And in the five weeks since Petitioner filed his
2 Viewed at https://eaccess.hccpc.org/eservices/searchresults.page?x=d7QKevUegKm9cFB-
Gey1e2yEcPgY6zEpIuwAd*3sAab9Sd5lpSXOFy4*fCefyWkm4r9s8YrgUeT7CcdJelwGRw Public Records search
under Petitioner’s name, James Brown and Case No. 25CA0010. This Court may take judicial notice of court records
that are available online to members of the public. See Lynch v. Leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004) (citing
Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999)).
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response to the Court’s show cause order, the appellate court dockets reflect that transcripts have
been ordered, motions have been ruled on, and counsel has been appointed. In short, Petitioner’s
assertions of obstruction, delay, and inaction are not supported by publicly available judicial
records.
Accordingly, because Petitioner has not completed the direct appeal of his convictions and
sentence, his Petition should be dismissed without prejudice.
III. CONCLUSION
It is ORDERED that the Motion for Clarification (Doc. 11) is GRANTED.
It is RECOMMENDED that the instant petition be DISMISSED, without prejudice, for
failure to exhaust available state-court remedies before applying for federal habeas corpus relief.
IT IS SO ORDERED AND RECOMMENDED.
Date: September 3, 2025 /s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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).
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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 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.3d 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.
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