REPORT AND RECOMMENDATION

STEPHANIE K. BOWMAN, Magistrate Judge.

Petitioner, an inmate in state custody at the Lebanon Correctional Institution in Lebanon, Ohio, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the petition and respondent's return of writ. (Docs. 1, 10).

I. FACTUAL BACKGROUND

The Ohio Court of Appeals, Twelfth Appellate District set forth the following summary of facts1 that led to petitioner's convictions and sentence:

(Doc. 10, Ex. 7).

II. PROCEDURAL HISTORY

State Trial Proceedings

On August 20, 2008, the Butler County, Ohio grand jury returned a sixteen-count indictment charging petitioner with three counts of corruption of a minor, eleven counts of rape, one count of felonious sexual penetration, and one count of unlawful sexual conduct with a minor. (Doc. 10, Ex. 1). Petitioner, through counsel, entered a plea of not guilty to all counts charged in the indictment.

Petitioner filed several pretrial motions. First, on September 16, 2008, petitioner filed a motion to sever the counts in the indictment and a motion in limine. (Doc. 10, Ex. 2). Petitioner also subsequently filed a motion to suppress statements given to law enforcement and any evidence seized as a result of those statements. (Doc. 10, Ex. 3). On October 7, 2008, petitioner also filed a motion to dismiss counts one through ten of the indictment because he claimed they were time-barred. (Doc. 10, Ex. 6). On October 14, 2008, the trial court denied petitioner's pretrial motions and the case proceeded to trial. (Doc. 10, Ex. 8, 9, 10).

On November 14, 2008, petitioner was found guilty of all charges. (Doc. 10, Ex. 11). Petitioner was sentenced on December 9, 2008. (Doc. 10, Ex. 13).

Direct Appeal

On December 17, 2008, through counsel, petitioner filed a notice of appeal to the Ohio Court of Appeals. (Doc. 10, Ex. 14). Petitioner raised the following two assignments of error:

(Doc. 10, Ex. 15). On October 5, 2009, the Ohio Court of Appeals issued a judgment entry affirming the judgment of the trial court. (Doc. 10, Ex. 17).

Delayed Appeal to the Ohio Supreme Court

On December 26, 2012, petitioner filed a pro se notice of appeal and motion for a delayed appeal to the Ohio Supreme Court. (Doc. 10, Ex. 18, 19). The Ohio Supreme Court denied petitioner's motion for a delayed appeal on February 6, 2013. (Doc. 10, Ex. 20).

Federal Habeas Corpus

Petitioner filed the instant federal habeas corpus action on March 21, 2013. (Doc. 1). Petitioner raises two grounds for relief in the petition:

(Doc. 1, pp. 5-6).

Respondent has filed a return of writ in opposition to the petition. (Doc. 10). Respondent contends that petitioner's grounds are not cognizable and procedurally defaulted.2

III. THE PETITION SHOULD BE DENIED

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)(B) through (D) apply to his claims. Petitioner has not alleged that a State created impediment prevented him from filing the instant petition or 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 or on direct appeal. Since petitioner was aware of the facts underlying his claims by the close of trial and before the conclusion of the direct review proceedings, his 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."

In this case, petitioner's conviction and sentence became final on November 19, 2009, when the 45-day period expired for filing a timely appeal to the Ohio Supreme Court from the Ohio Court of Appeals' October 5, 2009 decision affirming the trial court's final judgment entry of conviction and sentence. See Ohio S.Ct.Prac.R. 6.01(A)(1). Although petitioner tried to pursue a delayed appeal to the Ohio Supreme Court, it is well-settled that unsuccessful motions for leave to file a delayed appeal, such as the one filed by petitioner in this case, do not restart the running of the statute under § 2244(d)(1)(A), but rather only can serve to toll an unexpired limitations period under § 2244(d)(2). See, e.g., Black v. Warden, Lebanon Corr. Inst., No. 1:12cv821, 2013 WL 3811774, at *5 (S.D. Ohio July 19, 2013) (Bowman, M.J.) (Report & Recommendation) (and numerous cases cited therein), adopted, 2013 WL 4067818 (S.D. Ohio Aug. 12, 2013) (Black, J.); Taher v. Warden, Warren Corr. Inst., No. 1:12cv400, 2013 WL 485789, at *6 (S.D. Ohio Feb. 6, 2013) (Litkovitz, M.J.) (Report & Recommendation), adopted, 2013 WL 811867 (S.D. Ohio Mar. 5, 2013) (Bertelsman, J.) (and numerous cases cited therein); Sayles v. Warden, London Corr. Inst., No. 1:11cv524, 2012 WL 3527226, at *5 n.1 (S.D. Ohio July 17, 2012) (Wehrman, M.J.) (Report & Recommendation) (and numerous cases cited therein), adopted, 2012 WL 3527140 (S.D. Ohio Aug. 15, 2012) (Dlott, J.); see also Applegarth v. Warden, North Cent. Corr. Inst., 377 F. App'x 448, 449-50 (6th Cir. 2010) (and Sixth Circuit cases cited therein). Cf. Little v. Warden, Warren Corr. Inst., No. 1:10cv468, 2011 WL 2358565, at *4 n.2 (S.D. Ohio May 16, 2011) (Litkovitz, M.J.) (Report & Recommendation) (noting that although the Supreme Court held in Jimenez v. Quarterman, 555 U.S. 113, 120-21 (2009), that the granting of a delayed appeal motion restores the pendency of the direct appeal, thereby rendering the conviction non-final under § 2244(d)(1)(A), a delayed appeal motion that is denied does not restart the limitations period), adopted, 2011 WL 2293316 (S.D. Ohio June 9, 2011) (Bertelsman, J.). See generally Gonzalez v. Thaler, ___ U.S. ____, 132 S.Ct. 641, 653-54 (2012) (distinguishing Jimenez, where the Court had adopted "the out-of-time appeal's date of finality over the initial appeal's date of finality," in holding that the petitioner's state conviction became final under § 2244(d)(1)(A) "when his time for seeking review with the State's highest court expired"). Therefore, the statute commenced running on November 20, 2009, one day after petitioner's conviction became final within the meaning of § 2244(d)(1)(A), and expired one year later absent 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, ___ U.S. ____, 130 S.Ct. 2549, 2554 (2010); Allen v. Siebert, 552 U.S. 3, 4 (2007) (per curiam); Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003).

No statutory tolling applies under Section 2244(d)(2) to extend the limitations period in this case. The statute of limitations had run for 1126 days before petitioner filed his December 20, 2012 motion to file a delayed appeal with the Ohio Supreme Court. Because petitioner did not have any properly filed post-conviction motions pending during the one-year statute of limitations, statutory tolling does not serve to extend the limitations period. See Vroman, 346 F.3d at 602.

The AEDPA's statute of limitations is subject to equitable tolling, see Holland, 130 S.Ct. at 2560, "when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond the litigant's control." Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)), petition for cert. filed, Nos. 11-10643, 11A869 (U.S. Apr. 25, 2012). 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, 130 S.Ct. at 2562 (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 indicates that his appellate counsel failed to inform him of the Ohio Court of Appeals' October 5, 2009 decision. (Doc. 16, p. 2). According to petitioner, he was illiterate and unable to have other inmates look up his case "because sex offenders are targeted by prison gangs for intense persecution both mentally and physically." Id. Petitioner claims that it was not until late 2012 that he determined that his appeal was denied, when he was "transferred to a cell with an inmate who assisted others with their legal work." Id. at 3.

The Sixth Circuit has found equitable tolling to be warranted in circumstances where a petitioner is not informed of a state court decision. In Miller v. Collins, 305 F.3d 491 (6th Cir. 2002), the petitioner was not notified that his post-conviction application was denied by the Ohio Court of Appeals until six months after the decision. Id. at 492-93. Finding that petitioner lacked notice that the AEDPA clock was running and that he was diligent in pursuing his claims, the Sixth Circuit held that the statute of limitations should be equitably tolled during the six months between the decision and when the petitioner was notified. Id. at 495-96.

To the extent that petitioner contends that he is entitled to equitable tolling during the time he remained uninformed of the denial of his direct appeal his argument is without merit. In contrast to Miller, petitioner has not demonstrated that he diligently pursued his rights. In reaching its decision, the Miller court found that the petitioner "acted diligently to protect his rights both before and after receiving notice." Id. at 496. Specifically, the court found that petitioner did not "passively await" a decision on his post-conviction application, noting that the petitioner filed a motion to proceed to judgment within nine months of filing.3 Id. See also Calhoun v. Preslesnik, No. 1:09-cv-468, 2010 WL 910261, at *2 (W.D. Mich. Mar. 12, 2010) (noting that the petitioner sent four letters to the state supreme court requesting the status of his case in finding that the petitioner satisfied his burden of proving he did not have notice of the denial of his application for leave to appeal). In the instant case, petitioner filed his direct appeal on December 17, 2008. (Doc. 10, Ex. 14). On December 26, 2012, over three years after the October 5, 2009 denial of his direct appeal, petitioner filed a motion for delayed appeal to the Ohio Supreme Court. (See Doc. 10, Ex. 17, 18). Therein, petitioner noted that he "does not recall having been given any actual notice of the State Court of Appeals' decision" and, because of his being illiterate at the time, that "he was unaware of his duties or rights until November 20, 2012," when he was transferred to a cell shared by an inmate law clerk. (Doc. 10, Ex. 18). According to petitioner, his cellmate verbally explained for the first time his duties and right to appeal. Id. However, in waiting over three years to inquire about the status of his appeal, 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. Winkfield v. Bagley, 66 F. App'x 578, 583-84 (6th Cir. 2003). See also Keeling v. Warden, 673 F.3d 452, 463-64 (6th Cir. 2012); Elliot v. Dewitt, 10 F. App'x 311, 312-13 (6th Cir. 2001).

Accordingly, petitioner is not entitled to equitable tolling. Because equitable tolling principles do not apply to extend the limitations period in this case, the instant habeas corpus petition, filed long after the statute of limitations had run its course, is time-barred.

In sum, the undersigned concludes that under the applicable one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A), the petition is time-barred and should be DENIED with prejudice.

IT IS THEREFORE RECOMMENDED THAT:

1. Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED with prejudice on the ground that it is time-barred under 28 U.S.C. § 2244(d).

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).4

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 DENY petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).