Fisher v. Frizzell et al, No. 2:2018cv00627 - Document 6 (S.D. Ohio 2018)
Court Description: OPINION and ORDER adopting and affirming 4 the Report and Recommendation. Signed by Judge Michael H. Watson on 11/5/18. (jk)
Download PDF
<![CDATA[
Fisher v. Frizzell et al Doc. 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Samantha M. Fisher, No. 2:18-CV-627 Petitioner, Judge Michael H. Watson V. Magistrate Judge Chelsey M. Vascura Robert Frizzell, et at., Respondent. OPINION AND ORDER On October 9, 2018, the Magistrate Judge Issued a Report and Recommendation ("R&R") recommending that the Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. EOF No. 4. Petitioner has filed objections to the R&R. EOF No. 5. Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the following reasons, Petitioner's Objections, EOF No. 5, are OVERRULED. The R&R, EOF No. 4, is ADOPTED and AFFIRMED. This action is hereby DISMISSED. The Court DECLINES to issue a certificate of appealability. On April 5, 2016, Petitioner pleaded guilty in the Ross County Court of Common Pleas to two counts of sexual battery. The trial court sentenced her to a term of three years community control, plus 60 days in jail, and classified her as a Tier III Sex Offender. See Judgment Entry of Sentence, EOF No. 3-4, PAGEID # 69. As her sole claim for federal habeas corpus relief. Petitioner asserts that the imposition of a mandatory lifetime Tier III Sex Offender Dockets.Justia.com classification under Ohio's Senate Biii 10 vioiates the Eighth Amendment. The Magistrate Judge recommended dismissai of this action based on the Court's iack of jurisdiction to consider the issue because Petitioner cannot satisfy the "in custody" requirement set forth in 28 U.S.C. § 2254. Petitioner objects to that recommendation. Petitioner argues that the Sixth Circuit decision in Leslie v. Randle, 296 F.3d 518 (6th Cir. 2002), is not determinative of the issue of whether she can establish that she is "in custody" so as to obtain federal habeas corpus relief because Leslie involved Ohio's former sexuai offender statutory scheme, rather than the significantly more onerous and punitive statute at issue here. Petitioner argues that Hautzenroeder v. Dewine, 887 F.3d 737, 740-41 (6th Cir. 2018), is aiso not dispositive because uniike the petitioner in that case, Petitioner remains subject to community controi. Finaiiy, Petitioner objects to the Court's consideration of Doty v. Warden, No. 1:12-cv-239, 2013 WL 429100 (S.D. Ohio Feb. 1,2013), arguing that the Doty court's discussion of the issue was dicta. These arguments are not weil-taken. It Is "well settled law" in the Sixth Circuit that a petitioner's sexuai predator designation is not custodial for purposes of the Antlterrorism and Effective Death Penalty Act. See Bachman v. Wilson, No. 16-3479, 2018 WL 3995742, at *5 (6th Cir. Aug. 20, 2018) (citing Leslie, 296 F.3d at 522-23; Hautzenroeder, 887 F.3d at 740-41. The Sixth Circuit in Hautzenroeder recentiy affirmed that law as applied to Ohio's 2007 amendments to its sex offender registration scheme conciuding that the 2 differences were insufficient to piece a petitioner "in custody" for purposes of federai habeas corpus review. in Leslie v. Randle, we decided that a habeas petitioner's obiigations under Ohio's sex offender registration law were "more analogous to coiiaterai consequences such as the loss of the right to vote than to severe restraints on freedom of movement such as parole." 296 F.3d 518, 522-23 (6th Cir. 2002). But Leslie concemed Ohio's pre-2007 sex offender registration scheme. That year, Ohio revamped its law to align with the federal Sex Offender Registration and Notification Act ("SORNA"). See State v. Bodyke, 126 Ohio St.3d 266, 933 N.E.2d 753, 759 (2010). To prevail, therefore, Hautzenroeder must show that the new law's requirements so materially differ from the old regime's as to warrant a different result. She argues that several features of Ohio's SORNA meet this test. We are unpersuaded. Id. at 740-41. it is immaterial that Petitioner remains subject to the restrictions of community control because she does not otherwise challenge her underlying Judgment of conviction or sentence. She only challenges her designation as a Tier ill Sex Offender. See Moviel v. Smith, No. 1:08-cv-1612, 2010 WL 148141, at *2 (N.D. Ohio Jan. 12, 2010) ("[Pjrecedent within this Circuit concludes that, even ifthe petitioner is currently incarcerated, a challenge of this nature fails to satisfy the 'in custody' requirement necessary to obtain habeas relief.") (citing Ratliffv. Jefferys, No. 3:06-cv-1931. 2007 WL 4248173 (N.D.Ohio Nov.30, 2007)). "The Sixth Circuit has held that a petitioner, who attacks only his classification under Ohio's sex offender registration and reporting statute and not his underlying conviction and sentence, is not 'in custody' under the habeas statute." Doty, 2013 WL 429100, at *6 (citing Lewis v. Randie, 36 F. App'x at 780-81). Further, and contrary to Petitioner's argument here. Doty was dismissed both on statute of iimitations grounds and because the petitioner had faiied to meet the "in custody requirement." Thus, the decision in Doty remains persuasive authority. For these reasons and for the reasons detaiied in the R*R, Petitioner's Objections, EOF No. 5, are OVERRULED. The R&R, EOF No. 4, is ADOPTED and AFFIRMED. This action is hereby DISMISSED. Pursuant to Ruie 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court now considers whether to issue a certificate of appeaiabiiity. See 28 U.S.C. § 2255(d). When a claim has been denied on the merits, a certificate of appeaiabiiity may issue only ifthe petitioner "has made a substantial showing of the denial of a constitutional right." 26 U.S.C. § 2253(c)(2). To make a substantial showing of the denial of a constitutional right, a petitioner must show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDanlel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)). When a claim has been denied on procedural grounds, a certificate of appeaiabiiity may issue ifthe petitioner establishes that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Id. 4 / This Court Is not persuaded that reasonable jurists would debate this Court's dismissal of Petitioner's claim as waived. Therefore, the Court DECLINES to Issue a certificate of appealablllty. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal would not be In good faith and that an application to proceed In forma pauperls on appeal should be DENIED. The Clerk Is DIRECTED to enter final JUDGMENT. IT IS SO ORDERED. MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
