KAREN L. LITKOVITZ, Magistrate Judge.
Petitioner, an inmate in state custody at the London Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before the Court on respondent's motion to dismiss (Doc. 7), petitioner's traverse (Doc. 10), respondent's reply (Doc. 12), and petitioner's objections (Doc. 13).
On October 28, 2008, the Hamilton County, Ohio grand jury returned a five-count indictment charging petitioner with aggravated murder, two counts of aggravated robbery, and two counts of having weapons while under disability. (Doc. 7, Ex. 1). On April 8, 2009, following a jury trial, petitioner was found guilty of aggravated murder and one count each of aggravated robbery and having a weapon while under disability. (Doc. 7, Ex. 8). Petitioner was found not guilty on the remaining counts in the indictment. (See id.).
On April 30, 2009, petitioner was sentenced to life without parole in the Ohio Department of Corrections for the aggravated murder conviction
On May 28, 2009, petitioner, through new counsel, filed a timely notice of appeal to the Ohio Court of Appeals. (Doc. 7, Ex. 12). Petitioner raised the following five assignments of error in his appellate brief:
3. The trial court erred to the prejudice of appellant by not allowing defense counsel to introduce evidence favorable to the appellant.
4. The judgment of the trial court is contrary to the manifest weight of evidence.
5. Appellant's convictions are not supported by sufficient evidence.
(Doc. 7, Ex. 13). On June 9, 2010, the appeals court overruled petitioner's assignments of error and affirmed the judgment of the trial court. (Doc. 7, Ex. 15).
Meanwhile, on May 3, 2010, petitioner filed a prose state habeas corpus petition in the Warren County Court of Common Pleas. (Doc. 7, Ex. 16). On August 13, 2010, the state court dismissed the petition. (Doc. 7, Ex. 19).
Petitioner filed a prose notice of appeal from the denial of his state habeas corpus petition on September 2, 2010, which was denied by the Ohio Court of Appeals on March 21, 2011. (Doc. 7, Ex. 20, 24).
Petitioner did not seek further review of the decision in the Ohio Supreme Court.
On December 13, 2012, over two years after the Ohio Court of Appeals affirmed his conviction on direct appeal, petitioner filed a pro se notice of appeal and motion to file a delayed appeal to the Ohio Supreme Court. (Doc. 7, Ex. 25, 26). On February 6, 2013, the Ohio Supreme Court denied petitioner's motion for a delayed appeal and dismissed the case. (Doc. 7, Ex. 28).
Petitioner, filed the instant habeas petition pro se on December 11, 2013.
(Doc. 1).
Respondent has filed a motion to dismiss the petition on the ground that it is barred from review by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). (Doc. 7).
Under 28 U.S.C. § 2244(d)(1), as amended by§ 101 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, a person in custody pursuant to the judgment of a state court must file an application for a writ of habeas corpus within one year from the latest of:
28 U.S.C. § 2244(d)(1). Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled during the pendency of a properly filed application for state post-conviction relief or other collateral review.
Petitioner has not argued, nor is there evidence in the record to suggest, that the provisions set forth in§§ 2244(d)(1)(C) or (D) apply to his claims. Petitioner has not alleged that his claims are governed by a newly recognized constitutional right made retroactively applicable to his case. Furthermore, petitioner's grounds for habeas relief are based on alleged errors that occurred during the trial proceedings, precluding any argument that § 2244(d)(1)(D) applies in this matter.
Instead, petitioner contends that the limitations period in this case should be governed by § 2244(d)(1)(B), based on the alleged ineffective assistance of his appellate counsel. (Doc. 10, pp. 2-4). Specifically, petitioner claims that following the Ohio Court of Appeals' June 9, 2010 denial of his direct appeal, that "[c]ounsel erroneously informed him that he had filed a Notice of Appeal and Memorandum in [Support of] Jurisdiction, which was not in fact true." (Doc. 10, p. 3). Petitioner indicates that he wrote counsel numerous times regarding the status of his appeal and was instructed "to wait to have his appeal decided." (Id. at 4-5). "After nearly two years of waiting for the court's decision, [petitioner] talked to a legal clerk at the institutional law library who suggested the he should write the Clerk of the Ohio Supreme Court to learn the status of his appeal." (Id. at 3). Petitioner subsequently learned that no appeal had been filed by counsel and he pursued his December 13, 2012 delayed appeal to the Ohio Supreme Court. (Id.). Petitioner now contends that counsel's ineffective assistance constitutes a state-created impediment to filing a timely habeas petition.
In order to invoke the limitations provision set forth in § 2244(d)(1)(B), petitioner must establish that "(1) he was prevented from filing a federal habeas petition, (2) by State action, (3) in violation of the Constitution or federal law." Neff v. Brunsman, No. 1:06-cv-135, 2007 WL 912122, at *7 (S.D. Ohio March 23, 2007) (Spiegel, J.; Black, M.J.) (quoting Evans v. Lazaroff, No. 2:06-cv-188, 2006 WL 3759697, at *5 (S.D. Ohio Dec. 19, 2006) (Holschuh, J.; Abel, M.J.) (unpublished) (citations omitted). Under this provision, there must be a causal connection between the allegedly unconstitutional state action and being prevented from filing the petition. Id. (citing Dunker v. Bissonnette, 154 F.Supp.2d 95, 105 (D. Mass. 2001)).
The ineffective assistance of counsel may constitute a state action under § 2244(d)(1)(B). See Winkfield v. Bagely, 66 F. App'x 578, 582 (6th Cir. 2003). However, petitioner has failed to establish any unconstitutional state action that prevented him from filing a timely habeas corpus petition in this case. Because petitioner had no Sixth Amendment right to counsel in connection with the discretionary appeal to the Ohio Supreme Court, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("[T]he right to appointed counsel extends to the first appeal of right, and no further."), petitioner has failed to establish that his attorney's alleged ineffectiveness constitutes an unconstitutional state action under§ 2244(d)(1)(B). See, e.g., King. v. Warden, No. 1:07-cv-428, 2008 WL 2795518, at *4 (S.D. Ohio July 18, 2008) ("Since petitioner's appeal to the Supreme Court of Ohio is not an appeal of right, but rather a discretionary appeal, petitioner has no constitutional right to that appeal, Finley, 481 U.S. at 555, and any alleged failure of the Ohio Court of Appeals or his appellate counsel to notify him of any further appeal to the Ohio Supreme Court does not constitute unconstitutional state action under§ 2244(d)(1)(B)."); Santiago v. Hurley, No. 2:05-cv-560, 2006 WL 3196295, at *4 (S.D. Ohio Nov. 2, 2006) (finding that the failure of appellate counsel to notify the petitioner of the Ohio Supreme Court's decision was did not constitute state action under § 2244(d)(1)(B), because petitioner was not entitled to the assistance of counsel on appeal to the Ohio Supreme Court).
Therefore, in this case, petitioner's grounds for relief are governed by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A), which began to run when petitioner's conviction became final "by the conclusion of direct review or the expiration for the time for seeking such review."
Under§ 2244(d)(1)(A), petitioner's conviction became final on July 24, 2010, upon expiration of the 45-day period for filing an appeal as of right from the court of appeals' June 9, 2010 judgment entry. See Ohio Sup. Ct. Prac. R. 7.01(A)(1)(a)(1). The statute commenced running on July 26, 2010, the next business day after petitioner's conviction became final, see Fed. R. Civ. P. 6(a); Bronaugh v. Ohio, 235 F.3d 280, 285 (6th Cir. 2000), and expired one year later on July 26, 2011, absent the application of statutory or equitable tolling principles.
During the one-year limitations period, petitioner was entitled to statutory tolling under§ 2244(d)(2) based on any pending "properly filed" applications for state post-conviction relief or other collateral review. See 28 U.S.C. § 2244(d)(2). See also Holland v. Florida, 560 U.S. 631, 634 (2010); Allen v. Siebert, 552 U.S. 3, 4 (2007) (per curiam); Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003). In this case, petitioner filed his state habeas corpus petition on May 3, 2010, which tolled the limitations period until March 21, 2011, when the Ohio Court of Appeals affirmed the dismissal of the petition. (See Doc. 7, Ex. 16, 24). The statute of limitations began to run the following day, and expired one year later, on March 22, 2012. Because petitioner did not file his habeas petition until December 11, 2013, it appears the petition is time-barred unless petitioner is entitled to equitable tolling.
The AEDPA's statute of limitations is subject to equitable tolling, see Holland, 560 U.S. at 645, "when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond the litigant's control." Hall v. Warden, Lebanon Carr. Inst., 662 F.3d 745, 749 (6th Cir. 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)). Equitable tolling is granted "sparingly." Id. (quoting Robertson, 624 F.3d at 784). A habeas petitioner is entitled to equitable tolling only if he establishes that (1) "he has been pursuing his rights diligently;" and (2) "some extraordinary circumstance stood in his way and prevented timely filing." Id. (quoting Holland, 560 U.S. at 649 (internal quotations omitted)); see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Although the Sixth Circuit previously utilized a five-factor approach in determining whether a habeas petitioner is entitled to equitable tolling, Holland's two-part test has replaced the five-factor inquiry as the "governing framework" to apply. Hall, 662 F.3d at 750 (citing Robinson v. Easterling, 424 F. App'x 439, 442 n.1 (6th Cir. 2011)). "With Holland now on the books, the `extraordinary circumstances' test, which requires both reasonable diligence and an extraordinary circumstance, has become the law of this circuit." Id.; see also Patterson v. Lafler, 455 F. App'x 606, 609 n.1 (6th Cir. 2012).
In this case, petitioner has failed to demonstrate that he is entitled to equitable tolling. Even assuming, without deciding, that petitioner's claims regarding his appellate attorney amount to an extraordinary circumstance,
First, petitioner failed in his duty to monitor the status of his appeal in waiting over two years-from June 9, 2010 until November 1, 2012-to inquire about the status of his appeal. In his motion to file a delayed appeal to the Ohio Supreme Court, petitioner noted that "on or nearly exactly November 1, 2012," petitioner "engaged one of the prison's inmate law clerks into a discussion of his case. The prison clerk assessed that the reason no decision was forthcoming ... was due to the fact that no appellate brief o[r] request for jurisdiction had been filed on [petitioner's] behalf." (Doc. 7, Ex. 26, p. 2). Petitioner indicates that he subsequently wrote the Ohio Supreme Court clerk who confirmed that no appeal had been filed. (Doc. 10, p. 3). Petitioner's failure to seek assistance from the prison law clerk or check the status of his appeal with the Ohio Supreme Court earlier is particularly significant here, where petitioner has indicated that his letters to his appellate counsel checking on the status of his appeal were "were simply ignored" or "to no avail." (Doc. 7, Ex. 26, p. 2; Affidavit, p. 1). In waiting over two years to inquire about his case, petitioner failed in his duty to monitor the status of his appeal and was not sufficiently diligent to warrant equitable tolling of the limitations period in this case.
Petitioner's subsequent delay in filing his habeas corpus petition in this Court also demonstrates a lack of diligence. Although, petitioner attempts to demonstrate that he was diligent in this action by claiming that he promptly filed a motion for a delayed appeal after contacting the Ohio Supreme Court clerk (see Doc. 10, p. 3), the Sixth Circuit has indicated that the relevant inquiry in determining whether equitable tolling applies is whether petitioner was diligent in pursuing federal habeas relief. Vroman, 346 F.3d at 605 (finding that petitioner's decision to proceed solely in state court "rather than filing his federal habeas petition and protecting his federal constitutional rights, demonstrates a lack of diligence"). In this case, petitioner waited over ten months from the Ohio Supreme Court's February 6, 2013 denial of his delayed appeal to file his habeas petition. See Colbert v. Tambi, 513 F.Supp.2d 927, 936 (S.D. Ohio 2007) (finding equitable tolling inappropriate where petitioner failed to explain an eleven month delay following the denial of his delayed appeal). Petitioner has not argued that he was prevented from filing a habeas petition during this time nor has he informed the Court of any extraordinary circumstance that explains his delay in doing so.
Accordingly, in sum, the undersigned concludes that the instant petition-filed 627 days after the expiration of the limitations period- is time-barred. Therefore, respondent's motion to dismiss (Doc. 7) should be
1. Respondent's motion to dismiss (Doc. 7) be
2. A certificate of appealability should not issue with respect to the statute of limitations issue addressed herein because "jurists of reason would not find it debatable as to whether this Court is correct in its procedural ruling" under the first prong of the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
3. With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and therefore
