Tierney v. Kasich, No. 1:2011cv01978 - Document 52 (N.D. Ohio 2014)

Court Description: Opinion and Order Adopting Report and Recommendation of the Magistrate Judge signed by Judge James S. Gwin on 4/2/14. The Court overrules petitioner's objections and dismisses the petition with prejudice. The Court certifies that an appeal from this decision could not be taken in good faith and no basis exists upon which to issue a certificate of appealability. (Related Docs. 1 , 39 , 41 , 42 , 46 , 47 , 48 , 50 , 51 ) (M,G)

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Tierney v. Kasich Doc. 52 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ------------------------------------------------------: MICHAEL C. TIERNEY, : : Petitioner, : : vs. : : : JOHN KASICH, Governor, : : Respondent. : ------------------------------------------------------- CASE NO. 1:11-CV-01978 OPINION & ORDER [Resolving Docs. 39, 41, 42, 46, 47, 48, 50, and 51] JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Petitioner Michael C. Tierney filed his pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254.1/ Respondent says the petition should be dismissed for lack of jurisdiction.2/ Before the Court is Magistrate Judge Baughman’s Report and Recommendation recommending that the Court dismiss Tierney’s petition in its entirety.3/ For the reasons stated below, the Court ADOPTS the Report and Recommendation and DISMISSES WITH PREJUDICE the petition.4/ To invoke a federal district court's jurisdiction to review a petition for a writ of habeas corpus, a petitioner must be “a person in custody pursuant to the judgment of a State court ... in violation of the Constitution or laws or treaties of the United States.”5/ The petitioner must be in custody under the conviction or sentence at issue at the time the habeas petition was filed.6/ A petitioner is not in custody after the petitioner’s sentence has been fully discharged merely because 1/ Doc. 1. Doc. 12. 3/ Doc. 47. 4/ Because Petitioner Tierney’s petition is dismissed with prejudice, his motions for appointment of counsel, motion for copies of the entire record, and motions to amend the complaint are moot. 5/ 28 U.S.C. § 2254(a) (emphasis added). 6/ Maleng v. Cook, 490 U.S. 488, 491 (1989). 2/ Dockets.Justia.com Case No. 1:11-CV-01978 Gwin, J. the prior conviction was used to enhance the sentence imposed for a subsequent crime.7/ In 2000, Petitioner Tierney was convicted in Ohio state court for theft, safecracking, and breaking and entering. He was sentenced to 30 months.8/ After his direct appeal, on June 13, 2002, Tierney was re-sentenced to 17 months.9/ As a result of his shorter sentence and credit for time served, Tierney was released subject to any outstanding warrants or orders from the parole board.10/ On September 20, 2011, Petitioner Tierney filed his pro se petition for habeas corpus under 18 U.S.C. § 2254 challenging his 2000 conviction because that conviction enhanced the sentence he received in Florida.11/ Thus, Tierney was not “in custody” at the time of filing the instant petition for purposes of federal habeas corpus under 28 U.S.C. § 2254(a) for either the 2000 original judgment of conviction or the 2002 re-sentencing judgment of conviction. Accordingly, the petition should be dismissed The Court notes that Petitioner Tierney’s reliance on Lackawanna County. Dist. Attorney v. Coss is misplaced.12/ In this case, the Supreme Court held a prisoner is “in custody” for habeas jurisdiction when a § 2254 petition asserts a challenge to a present sentence that was enhanced by an allegedly invalid prior conviction.13/ Here Petitioner Tierney does not challenge his present sentence. Rather he challenges his past sentence imposed in 2000. Thus, this case is inapplicable. For the foregoing reasons, the Court OVERRULES Petitioner’s objections, ADOPTS the 7/ Id. at 492. Doc. 1. 9/ Doc. 12 at 6. 10/ “Respondent was unable to locate any period of parole supervision stemming from Tierney’s 2002 re-sentencing. Even if there were a period of parole supervision from that judgment of conviction, such supervision period could not exceed a period of 5-years. Thus, any period of parole supervision would have expired in 2007, well-before the filing of the instant habeas petition.” Id. n. 3 (internal citation omitted). 11/ Doc. 1. 12/ Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394 (2001). 13/ Id. 8/ -2- Case No. 1:11-CV-01978 Gwin, J. recommendations of Magistrate Judge Baughman, and DISMISSES WITH PREJUDICE the petition. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and no basis exists upon which to issue a certificate of appealability.14/ IT IS SO ORDERED Dated: April 2, 2014 s/ James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE 14/ 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). -3-

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