Perotti v. Erdos, Case No. 1:18-cv-446

• Decision Date: 03 June 2019
• Docket Number: Case No. 1:18-cv-446
• Parties: JOHN PEROTTI, Petitioner, v. RON ERDOS, Warden, Southern Ohio Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JOHN PEROTTI, Petitioner, v. RON ERDOS, Warden, Southern Ohio Correctional Facility, Respondent.

Case No. 1:18-cv-446

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

June 3, 2019

District Judge Susan J. Dlott

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

In this habeas corpus action under 28 U.S.C. § 2241, Petitioner challenges the May 2016 revocation of his parole (Petition, ECF No. 1, PageID 4). He reports that he previously filed Case No. 1:00-cv-527 related to the same claim. Id. at PageID 6.

Petitioner pleads the following grounds for relief:

Ground One: Respondents have retaliated against Perotti, both for previous actions, and for appealing the 5-11-16 continuance [spelling unclear] and have records of litigation in his master file.

Ground Two: Respondents violated Perotti's right to be free from erroneous information in making a decision.

Ground Three: Respondents delayed his revocation hearing, refused to call his witnesses and transcripts, delay resulted in inability to defend due to witness deaths.

Ground Four: Petitioner was denied his right to counsel of choice, access to a law library, before revocation hearing, subjected to a S.B.2 criteria, is being held past his statutory maximum sentences.

Id. at PageID 7.

Perotti also lists in the attached Memorandum ten supposed causes of action related to his grounds for relief. They are

1. Respondents have retaliated against petitioner for exercising his constitutional rights in violation of the First Amendment to the United States and Ohio constitution as well as state statute.

2. Respondents have violated 5 U.S.C. §552 and the Ohio and United States of America [Constitutions] by not keeping accurate records on petitioner and relying upon the same to continue him 5 years based upon false information violating his procedural and substantive due process rights to a fair hearing based upon accurate facts.

3. Respondent Ohio [Adult Parole Authority ("APA")] was notified of the availability of petitioner for a revocation hearing but failed to hold said hearing within a reasonable period of time causing irreparable harm and prejudice to him in violation of State statute [sic] and constitution.

4. Respondents refusal to hold the formal revocation hearing while petitioner was on bond and available to the APA caused petitione[r] irreparable harm and was conspiratorily [sic] and retalitorily [sic] motivated in violation of state and federal statutes and constitution.

5. Respondents refusal to allow petitioner access to the law library, phone, and counsel of choice before the revocation hearing deprived him of his right to a fair hearing, access to the courts as guarenteed by state and federal statute and constitution causing irreparable harm.

6. Petitioner has served each and every day of all his state sentences making his continued confinement by the apa and respondents wrongfull [sic] and false imprisonment as well as the statutes used to continue him in prison after he has completed his maximum sentences void for vagueness as applied to him in that he never had "fair warning" that he could be continued to be held in prison after all his sentences were completed, also subjecting him to cruel and unusual and disporportionate [sic] punishment in violation of the state and federal constitution.

7. Respondents use of post S.B. 2 rules and factors on him violate his right to be free of ex post fact violation and subject him to double jeopardy in violation of state and fedeal [sic] law.

8. Respondents refusal to run his state and federal time concurrent after being ordered to do so by the federal judge violate his state and federal rights.

9. When petitioners sentence was vacated the two and three quarter years after the maximum sentence of ten years for felon in opossession [sic] of ammunition must count as "pre-trial" detention and apply to the time for his revocation hearing and continuence [sic].

10. Petitioner does not meet the criteria enumerated in 5120:1-1-18 (a) (1-6) thus should not be given any more prison time for the federal violation he already served thirteen years on.

Id. at PageID 15-16.

The underlying convictions are said to have occurred in Cuyahoga and Scioto Counties (Petition, ECF No. 1, PageID 2). Perotti asserts that his claims have been presented to Ohio's Fourth, Ninth, and Tenth District Courts of Appeal, and to the Supreme Court of Ohio. Id. at PageID 7.

On Magistrate Judge Stephanie K. Bowman's Order, the Attorney General filed the State Court Record (ECF No. 15) and a Return of Writ (ECF No. 16). Perotti then filed his Reply (ECF No. 22), making the case ripe for decision.

The Magistrate Judge reference in the case was transferred to the undersigned on May 23, 2019, to help balance the Magistrate Judge workload in the District (ECF No. 26).

Litigation History

The Return of Writ shows that Perotti challenged his parole revocation by filing a petition for writ of habeas corpus in the Ninth District on June 13, 2016. That court dismissed the petition for Perotti's failure to comply with the mandatory provisions of Ohio Revised Code § 2969.25(A)and (C). State ex rel. Perotti v. Clipper, No. 16 CA 010962 (9^th Dist. Jul. 25, 2016) (unreported; copy at State Court Record, ECF No. 15, PageID 277-78), citing State ex rel. Hall v. Mohr, 140 Ohio St. 3d 297, 2013-Ohio-3735, ¶ 4; State ex rel Graham v. Findlay Mun. Ct., 106 Ohio St. 3d 63, 2005-Ohio-3671, ¶ 6. Perotti appealed to the Supreme Court of Ohio, affirmed the Ninth District's judgment. State ex rel. Perotti v. Clipper, 151 Ohio St. 3d 132, 2017-Ohio-8134.

Perotti also filed a petition for writ of habeas corpus and/or mandamus in the Tenth District Court of Appeals. This petition was also dismissed for failure to comply with the requirements of Ohio Revised Code § 2969.25(C). State ex rel Perotti v. Ohio Adult Parole Authority, No. 16AP-710, 2017-Ohio-817 (10^th Dist. Mar. 7, 2017). Despite Perotti's statement to the contrary, there is no indication in the State Court Record that he ever sought review of the Tenth District's dismissal in the Supreme Court of Ohio.On April 17, 2017, Perotti filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Ohio. Perotti v. Warden, Mansfield Correctional Institution, Case No. 1:17-cv-876 (State Court Record, ECF No. 15, PageID 309, et seq.). Judge James S. Gwin granted Perotti's motion for dismissal without prejudice on June 7, 2018. Id. at PageID 384.

While his Northern District case was pending, Perotti filed a second petition for writ of habeas corpus and/or mandamus in the Tenth District (State Court Record, ECF No. 15, PageID 411, et seq.) That court found Perotti had been declared a vexatious litigator in 2008 and was therefore required to comply with the provisions of Ohio Revised Code § 2323.52, which he had not done; it therefore dismissed the petition. Id. at PageID 425.

Perotti later sought leave to proceed in mandamus and/or habeas corpus in the Fourth District Court of Appeals (State Court Record, ECF No. 15, PageID 463 et seq.). That court denied him leave to file because he had again failed to comply with Ohio Revised Code § 2969.25(A).Perotti v. Ohio Adult Parole Authority, No. 18 CA 3838 (4^th Dist. Aug. 7, 2018) (unreported; copy at State Court Record, ECF No. 15, PageID 460-61).

Perotti again on August 27, 2018, attacked his parole revocation in a motion for leave to proceed with habeas corpus and/or mandamus in the Fourth District Court of Appeals. The Fourth District again denied leave to proceed because it found Perotti had failed to comply with Ohio Revised Code § 2969.25(A). Perotti v. Ohio Adult Parole Authority, Case No. 18CA3846 (4^th Dist. Nov. 20, 2018) (unreported; copy attached to Traverse, ECF No. 22-1, at PageID 578-81)

Analysis

Respondent defends against each of Perotti's claims in various ways, but the dispositive question is whether he has procedurally defaulted these claims by failing properly to pursue state court remedies.

The procedural default doctrine in habeas corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6^th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); accord Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, afederal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review. Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87; Boyle v. Million, 201 F.3d 711, 716 (6^th Cir. 2000) (citation omitted). Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963). Coleman, 501 U.S. at 724.

[A] federal court may not review federal claims that were procedurally defaulted in state court—that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is an important "corollary" to the exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 S. Ct. 1847, 158 L. Ed. 2d 659 (2004). "Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal

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