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RICHARD M. CARTER, Petitioner, v. JAMES ERWIN, Warden Respondent

OPINION AND ORDER

EDMUND SARGUS, District Judge

Petitioner, Richard M. Carter, a state prisoner, has pending before this Court an action for a writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254. On June 27, 2003, the Magistrate Judge issued a Report and Recommendation recommending that the petition for a writ of habeas corpus be dismissed. On July 10, 2003, Petitioner filed objections to that recommendation. Pursuant to 28 U.S.C. § 636(b)(1), this Court has conducted de novo review of the portions of the Report and Recommendation objected to by Petitioner. After careful review, this Court agrees with the Magistrate Judge's conclusion that the petition should be dismissed.

Petitioner objects to the Report and Recommendation's finding that he is required to exhaust his state court remedies. As noted by the Magistrate Judge in the Report and Recommendation, Petitioner stated that he does not intend to file a motion for a delayed appeal to the Ohio Supreme Court, and that he currently has a writ of error coram nobis pending with the Franklin County Court of Common Pleas. As part of his objections, Petitioner claims that he has exhausted his remedies because he filed the still-pending writ of error coram, nobis. Alternatively, he argues he cannot exhaust his state court remedies because the state courts lack statutory authority over him. Thus, according to Petitioner, any state corrective process is inherently ineffective. He further claims that this Court erred by failing to provide analysis under the Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), procedural default test. Finally, he makes unsubstantiated claims that he will continue to suffer a miscarriage of justice.

The Court has reviewed these objections, and to the extent that the objections reiterate the arguments already presented in the petition, the objections are overruled for the reasons discussed in the Report and Recommendation. Petitioner has failed to present any valid arguments to excuse him from the requirements of exhaustion. Granberry v. Greer, 481 U.S. 129(1987). He has failed to substantiate his claim of the absence of any state corrective process or circumstances that render such process ineffective to protect his rights as required under 28 U.S.C. § 2254 (b)(1)(B). Accordingly, this Court agrees with the Magistrate Judge's finding in the Report and Recommendation that Petitioner failed to meet his burden on federal habeas review that he has exhausted his state court remedies or that he was entitled to be excused from exhausting his state court remedies.

The Report and Recommendation is hereby ADOPTED AND AFFIRMED. The petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED, and this case is DISMISSED.

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CARTER v. ERWIN, (S.D.Ohio 2003)
(Aug 4, 2003)