JAMES G. CARR, SR., District Judge.
This is a habeas corpus case pursuant to 28 U.S.C. § 2254. Following referral to her docket, United States Magistrate Judge Kathleen B. Burke filed a Report and Recommendation (R&R) recommending that I deny the petition. (Doc. 14). She likewise denied petitioner's motion for appointment of an expert. (Id. at 1369-70).
Pending is petitioner's non-specific objection to the R&R. (Doc. 15). As respondent points out (Doc. 16, ID 1374), I may adopt the R&R on the grounds that petitioner has filed a general objection, rather than specifying the basis for his objection, much less submitting an argument thereon. See Howard v. Sec. of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991) ("A general objection . . .has the same effects as would a failure to object.").
Nonetheless, I address Judge Burke's legal analysis and conclusion as if the petitioner had perfected his objections to the R&R. Doing so, I find, on the basis of de novo review, that whatever objections the petitioner might have made could not be well taken.
Accordingly, I adopt Judge Burke's R&R as the order of this court, deny relief and dismiss the petition. I also decline to issue a Certificate of Appealability, as jurists of reason could not reasonably reach a different result.
On October 12, 2009, as "M," a fourteen-year-old child, was walking to school, the petitioner grabbed her, put a knife to her throat, threatened her and forced her into an abandoned house. Petitioner took M upstairs to a second-floor bedroom. Despite M's pleas to leave, the petitioner raped her-keeping the knife within close reach during the attack. When he was done, petitioner left. M kicked the knife away, dressed and ran home.
On arriving home, M was incoherent and in tears. She attempted to tell her brother what happened but could not speak clearly. He called their parents and M was able to explain what happened. After unsuccessfully attempting to find the petitioner in the neighborhood, M's family took her to the police and reported the crime. M then underwent a rape kit and medical examination at the Akron Child Advocacy Center.
Officers went to the abandoned house. There, they found a evidence corroborating M's statement: a kitchen knife, the victim's underwear, and a pair of glasses M reported losing that morning. They observed bodily fluids on the floor. The officers took photos of the scene and recovered the underwear, glasses and the knife. The house burned down two days later.
M later identified petitioner from a photographic lineup; she identified him again at trial, reiterating with certainty that he was her assailant. DNA deposited during the rape also matched the petitioner's DNA. Petitioner acknowledged the genetic match but insisted M had consented to the encounter, even though the knife and evidence of blunt force trauma to M's genital area suggested otherwise.
A Mahoning County grand jury indicted petitioner on charges of rape, kidnaping and gross sexual imposition in November, 2009. His trial did not begin until February 28, 2011.
In the interim, the petitioner requested multiple continuances and discharged two attorneys.
On December 11, 2009, petitioner's first attorney submitted a signed waiver of petitioner's right to a speedy trial. While the record confirms that petitioner was present in the courtroom when his attorney submitted the waiver, petitioner has subsequently argued that he was not there, and that his signature was a forgery.
Petitioner discharged his first lawyer in July, 2010, and the court granted defense counsel's motion to withdraw. The court appointed petitioner a new attorney in August, 2010, but this second attorney also withdrew within a month of his appointment. In September 2010, the court noted that petitioner had retained new counsel. At that point, trial was scheduled for November 8, 2010.
In October 2010, petitioner's third attorney moved to dismiss the indictment, alleging a violation of petitioner's speedy trial rights. Petitioner claimed, contrary to what was reflected in the record, that he was not present in court when his counsel filed a waiver of his speedy trial rights and did not sign the speedy trial waiver. The court held a hearing on the motion and overruled it.
On November 3, 2010, the court received a letter from petitioner dated April 15, 2010. In it, petitioner objected to the speedy trial waiver and demanded a trial within a reasonable time. The court held a pretrial hearing that same day, and the parties agreed to reschedule trial for February 28, 2011-the earliest date available to the court and the parties.
The trial began as scheduled on February 28, 2011. Three days later, disbelieving the petitioner's consent defense, the jury convicted him of rape, two counts of kidnaping, and gross sexual imposition. The state court sentenced him to 21½ years' imprisonment.
On appeal, petitioner's counsel asserted four assignments of error: (1) that the trial court denied his right to a speedy trial; (2) that the court erred in computing his sentence, as rape, gross sexual imposition and kidnaping are allied offenses of similar import that should have been merged; (3) that the court erred in failing to suppress the results of an unduly suggestive photo array; and (4) that his convictions for rape, gross sexual imposition and kidnaping were against the manifest weight of the evidence.
On December 9, 2013, the appellate court affirmed petitioner's conviction and sentence. Petitioner's attorney informed him of the decision on January 10, 2014. The petitioner did not file a motion for review in the Ohio Supreme Court.
Petitioner's brother then retained new counsel. That attorney informed petitioner that on January 24, 2014, she had filed a notice of appeal with the Ohio Supreme Court.
On May 15, 2015, following petitioner's inquiry as to the status of his appeal, the Clerk of the Ohio Supreme Court informed petitioner that no such appeal had been filed. (That court had, in the interim, suspended the attorney petitioner's brother had hired from the practice of law).
Six months later, on November 24, 2015, petitioner, acting pro se, filed a delayed application for reopening pursuant to Ohio App. R. 26(B) in the Ohio Court of Appeals. Another seven months after that (and more than thirteen months total after learning his attorney failed to seek review in Ohio's highest court), petitioner filed a pro se motion for delayed appeal in the Ohio Supreme Court on June 17, 2016.
To excuse the untimeliness of both motions, petitioner explained that his retained attorney failed to file a motion for review with the Ohio Supreme Court as promised. Finding such explanation unpersuasive, both courts refused to consider his motions-the Ohio Court of Appeals on June 29, 2016, and the Ohio Supreme Court on August 31, 2016.
Six months later, on February 14, 2017, petitioner filed the instant habeas corpus petition.
The one-year limitations period for filing a writ of habeas corpus under the Antiterroism and Effective Death Penalty Act (AEDPA), begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 224(d)(1)(A).
For petitioner, that date was January 23, 2014-45 days after the Ohio Court of Appeals' December 9, 2013, decision overruling his assignments of error and affirming the trial court's judgment. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012); see also Ohio S. Ct. Prac. R. 7.01(A)(1)(a)(i). Petitioner did not file his habeas corpus petition until February 14, 2017, more than two years after the statute ran.
Considering the lengthy delay, Judge Burke found: (1) that petitioner failed to exercise due diligence in seeking further state court review; and (2) that no extraordinary circumstance-including "attorney error . . . in connection with a discretionary appeal with the Supreme Court of Ohio and/or an App. R. 26(B) application"-prevented him from making a timely filing. (Doc. 14, ID 1366-68). She therefore concluded that petitioner was not entitled to equitable tolling of the AEDPA limitations period.
I agree.
Nonetheless, I turn briefly to the putative merits of the petition, in which petitioner again asserts four grounds for relief: (1) denial of his constitutional right to a speedy trial; (2) the trial court's acceptance of a fraudulent (i.e., forged) wavier of his speedy trial rights; (3) the trial court's failure to hold a hearing on petitioner's claim that the waiver was forged; and (4) his attorney's ineffective assistance in failing to file a motion for delayed review in the Ohio Supreme Court.
Petitioner's speedy trial waiver, if valid, forecloses the first three claims. And again, the record shows that he was present when his attorney submitted the wavier. (Doc. 9-1, ID 127-28). That fact establishes the presumptive validity of his signature on the form. Petitioner's bald, unsupported assertions of forgery do not rebut this presumption.
In any event, and more significantly, even if petitioner had established that the waiver was invalid, he has failed to show that his constitutional right to a speedy trial was violated.
To determine whether a defendant has been denied his right to a speedy trial, the Supreme Court instructs me to consider four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). In this case, none of them favor petitioner.
First, the state tried petitioner on February 28, 2011, roughly seventeen months after his October 12, 2009 arrest; even without considering the delays attributable to him, this amount of time is not extraordinary. See e.g., United States v. Jackson, 473 F.3d 660, 668 (6th Cir. 2007) ("[N]either a ten- nor a twenty-month delay is extraordinary under our precedents."). Second, much of the delay was in fact attributable to petitioner, who cycled through several attorneys and, as Judge Burke noted, requested a number of continuances. (Doc. 14, ID 1354-55).
Third, petitioner did not properly assert his right to a speedy trial or withdraw the waiver until November 3, 2010. When he did, the court addressed the matter at a prescheduled hearing that same day. Petitioner's third attorney agreed at the hearing to continue the trial date to February 28, 2011-the earliest date on which he, the court, and the prosecution were available. As the Ohio Court of Appeals found, the state's prompt response to petitioner's demand satisfied its duty to "bring the accused to trial within a reasonable time." State v. Hudson, 2013-Ohio-5529, ¶ 25, 2013 WL 6672424, *7 (Ohio App.).
Fourth, and perhaps most importantly, petitioner has not shown how the delay, even if excessive and unwarranted, prejudiced him at trial. Generally, the "most serious" consideration for the prejudice factor is "the possibility that the defense will be impaired" by the delay, which can "skew[] the fairness of the entire system." Barker, 407 U.S. at 532.
But petitioner was not at all hindered in making his case for acquittal. He admitted his acts, but claimed M consented to them. At bottom then, the verdict hinged on whether the jury believed the petitioner or the victim. And this was no "he said/she said" contest.
Aside from the unlikelihood that a fourteen-year-old girl might leave a "consensual" encounter in a distraught, incoherent state, there was a significant piece of evidence that substantially corroborated M's account and undermined the petitioner's: the knife officers found at the abandoned house.
In the same vein, petitioner points to no evidence he lost as a result of the delay. While his day in court may not have come as promptly as he desired, what happened later was no different than what might have happened earlier. Thus, even assuming that he did not sign the waiver, and that the trial court should have had a hearing to determine that fact,
As for the ineffective assistance claim, the attorney petitioner's brother retained clearly committed malpractice when she falsely told petitioner she had submitted a motion for delayed review in the Ohio Supreme Court. But her conduct does not give rise to a claim for ineffective assistance of counsel, because "the right to appointed counsel extends [only] to the first appeal of right, and no further." Pennsylvania v. Finley, 481 U.S. 551, 555 (1982). What is more, "a Rule 26(B) application to reopen is a collateral matter rather than part of direct review. As such, there is no federal constitutional right to assistance of counsel at that stage." Lopez v. Wilson, 426 F.3d 339, 352 (6th Cir. 2005) (en banc, footnote omitted).
I note, moreover, that even if petitioner had a constitutional right to effective assistance of counsel, he has not shown that his attorney's malpractice caused any prejudice. He has not shown that the Ohio Supreme Court would have granted an untimely motion for review, much lass that, if it had, it would have reversed the petitioner's convictions.
Judge Burke's R&R is well taken in all respects. Understandably, she did not reach the foreclosed merits of the petition. I have done so simply to underscore the fact that under no circumstance is the petitioner entitled to relief.
It is, therefore,
ORDERED THAT:
So ordered.
On February 16, 2017, Petitioner Charles Hudson ("Petitioner" or "Hudson") filed this habeas corpus action pursuant to 28 U.S.C. § 2254 ("Petition") asserting three grounds for relief.
This matter has been referred to the undersigned Magistrate Judge pursuant to Local Rule 72.2. Also pending before this Court is Hudson's Motion for Appointment of Expert Assistance. Doc. 11.
For the reasons set forth herein, the undersigned
In a habeas corpus proceeding instituted by a person in custody pursuant to a judgment of a state court, the state court's factual findings are presumed correct. The petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Railey v. Webb, 540 F.3d 393, 397 (6th Cir. 2008). The Seventh District Court of Appeals summarized the facts underlying Hudson's conviction as follows:
See State v. Hudson, 2013-Ohio-5529, ¶¶ 2-9, 2013 WL 6672424, **1-2 (Ohio App. Dec. 9, 2013); Doc. 9-1, pp. 155-158, ¶¶ 2-9.
In November 2009, a Mahoning County Grand Jury indicted Hudson on one count of rape in violation of O.R.C. § 2907.02(A)(2)(B), a first degree felony, (Count 1); two counts of kidnapping in violation of O.R.C. §§ 2905.01(A)(4)(C) and 2905.01(A)(2)(C), first degree felonies, (Count 2 and Count 3); and one count of gross sexual imposition in violation of O.R.C. § 2907.05(A)(1)(C), a fourth degree felony, (Count 4). At his arraignment on November 24, 2009, Hudson entered a plea of not guilty. Doc. 9-1, p. 6.
On December 11, 2009, Hudson waived his right to a speedy trial; a pretrial was held; further motion practice and discovery was to be conducted; and the trial scheduled for December 14, 2009, was continued. Doc. 9-1, pp. 7-8.
On January 15, 2010, Hudson's case was called for a pretrial. Doc. 9-1, p. 9. Upon Hudson's counsel's motion to continue trial due to defense counsel's unavailability, the trial was reset to March 22, 2010, and a pretrial was set for February 25, 2010. Doc. 9-1, p. 9. On February 25, 2010, upon request of the defense, the trial was continued to June 7, 2010, and a pretrial was scheduled for May 26, 2010. Doc. 9-1, p. 10. Upon motion of the defense, the May 26, 2010, pretrial was later rescheduled to June 3, 2010. Doc. 9-1, p. 11. At the June 3, 2010, pretrial, the trial was continued to allow the State sufficient time to have DNA testing performed. Doc. 9-1, p. 12. The pretrial was continued to September 3, 2010. Doc. 9-1, p. 12.
On July 9, 2010, Hudson sent a letter to the Clerk of Court of the Mahoning County Common Pleas Court indicating that he had discharged his attorney, Thomas E. Zena, as of July 5, 2010, and he requested an immediate court date. Doc. 9-1, pp. 13, 254. On August 4, 2010, Attorney Zena filed a motion to withdraw. Doc. 9-1, p. 254. On August 10, 2010, the trial court sustained Attorney Zena's motion to withdraw as counsel and appointed Attorney Ronald Knickerbocker to represent Hudson. Doc. 9-1, p. 254.
On September 3, 2010, a pretrial was held. Doc. 9-1, p. 14. The trial court sua sponte continued the matter and reset it for further pretrial on November 3, 2010, and scheduled the jury trial for November 8, 2010. Doc. 9-1, p. 14. In its order, the court referred to Hudson's December 11, 2009, speedy trial waiver. Doc. 9-1, p. 14. Attorney Knickerbocker filed a motion to withdraw as counsel on September 15, 2010. Doc. 9-1, p. 255. The court granted Attorney Knickebocker's motion to withdraw, noting that the court had been advised that Attorney Fernando Mack had been retained as counsel for Hudson. Doc. 9-1, pp. 15, 255. The pretrial remained scheduled for November 3, 2010, and the trial remained scheduled for November 8, 2010. Doc. 9-1, pp. 15, 255.
On October 15, 2010, Hudson, through counsel, filed a Motion to Suppress due to an alleged violation of Hudson's speedy trial rights. Doc. 9-1, pp. 16-23. Hudson argued that the amount of time that had elapsed and his prior counsel's requests for continuances were unreasonable. Doc. 9-1, p. 16. Hudson contended that, contrary to what was reflected on the docket, he was not present in court when his speedy trial rights were waived on December 11, 2009; he did not sign a speedy trial waiver; and he instructed his counsel not to waive his speedy trial rights. Doc. 9-1, p. 17, n. 1. On November 1, 2010, Hudson, through counsel, also filed a Motion to Suppress Witness Identification, seeking to suppress any out of court and any in court identification testimony. Doc. 9-1, pp. 24-33. The State filed a memorandum in response to Hudson's motion to dismiss. Doc. 9-1, pp. 39-59. Following a hearing on December 15, 2010, the trial court overruled Hudson's motion to dismiss and motion to suppress witness identification.
In the interim, on November 3, 2010, a letter from Hudson, bearing the date of April 15, 2010, was filed with the court. Doc. 9-1, p. 34. In that letter, Hudson objected to the speedy trial waiver and demanded a trial within a reasonable time. Doc. 9-1, p. 34. Also, on November 3, 2010, a pretrial was held. Doc. 9-1, p. 35. By agreement of the parties, the jury trial set for November 8, 2010, was continued to February 28, 2011,
On December 3, 2010, Hudson, through counsel, filed a motion to suppress oral statements. Doc. 9-1, pp. 36-38. The State filed a memorandum in opposition on December 28, 2010. Doc. 9-1, p. 256. A suppression hearing was scheduled for February 11, 2011. Doc. 9-1, p. 257. Defendant filed a motion to continue the hearing, which was granted. Doc. 9-1, p. 61. By agreement of the parties, the hearing was continued to February 14, 2011. Doc. 9-1, p. 61. Following the hearing, the trial court overruled the motion to suppress. Doc. 9-1, p. 62.
The jury trial commenced on February 28, 2011. Doc. 10, p. 3. On March 3, 2011, the jury returned guilty verdicts for rape (Count 1), two counts of kidnapping (Count 2 and Count 3), and gross sexual imposition (Count 4). Doc. 9-1, pp. 63, 257-258. On April 19, 2011,
On May 13, 2011, Hudson, through counsel, filed a notice of appeal to the Seventh District Court of Appeals. Doc. 9-1, p. 65. On January 17, 2012, Hudson's counsel filed Appellant's Assignments of Error and Merit Brief.
Doc. 9-1, pp. 67-68. The State of Ohio filed its appellate brief on May 16, 2012. Doc. 9-1, pp. 106-145. On June 20, 2012, Hudson filed his reply brief. Doc. 9-1, pp. 146-153. On December 9, 2013, the Seventh District Court of Appeals overruled Hudson's assignments of error and affirmed the judgment of the trial court. Doc. 9-1, pp. 154-186. Hudson did not file a timely appeal with the Supreme Court of Ohio.
On June 17, 2016, Hudson, acting pro se, filed a notice of appeal (Doc. 9-1, pp. 187-189) and a motion for leave to file a delayed appeal in the Supreme Court of Ohio (Doc. 9-1, pp. 190-239).
In his motion for leave to file a delayed appeal, Hudson acknowledged that his counsel in his direct appeal advised him on January 10, 2014, that the court of appeals had affirmed his conviction on December 9, 2013. Doc. 9-1, p. 226. At that time, Hudson terminated his direct appeal counsel because he believed that he had been ineffective by not raising winning issues in the court of appeals. Doc. 9-1, p. 226. Thereafter, at Hudson's request, Hudson's brother retained new counsel to represent Hudson in the Supreme Court of Ohio or possibly in the court of appeals with respect to an App. R. 26(B) application. Doc. 9-1, p. 226. Hudson further indicated that his new appellate counsel, Jana Deloach, notified him via telephone that she had filed a notice of appeal with the Supreme Court of Ohio on January 24, 2014. Doc. 9-1, p. 226. In a letter Hudson sent to the Supreme Court of Ohio, stamped May 13, 2015, Hudson relayed that Attorney Deloach had informed him that she had been suspended from the practice of law and that he was searching for a new attorney and he requested information regarding the status of his appeal. Doc. 9-1, pp. 228, 231. Hudson stated that he received a letter from the clerk's office of the Supreme Court of Ohio, dated May 15, 2015, which stated that Attorney Deloach had not filed anything on his behalf. Doc. 9-1, pp. 226, 228, 232. Hudson stated that he thereafter filed an application for delayed reopening in the Seventh District Court of Appeals. Doc. 9-1, pp. 226, 228, 233-237. He also stated he had received a pro se packet from the Ohio Public Defender's Office, dated April 19, 2016, regarding how to file a delayed appeal with the Supreme Court of Ohio. Doc. 9-1, p. 226.
On August 31, 2016, the Supreme Court of Ohio denied Hudson's motion for a delayed appeal and dismissed the matter. Doc. 9-1, p. 240.
Prior to filing his motion for delayed appeal in the Supreme Court of Ohio, on November 24, 2015, Hudson, acting pro se, filed a delayed application for reopening pursuant to App. R. 26(B) in the Seventh District Court of Appeals. Doc. 9-1, pp. 241-245. Hudson argued that his appellate counsel's "inadequate performance compromised the appeal." Doc. 9-1, p. 241. Hudson asserted that he had good cause for the untimely filing of his App. R. 26(B) application. Doc. 9-1, pp. 242-243. He argued Attorney Deloach failed to file the necessary paperwork for his appeal and failed to arrange for another attorney to handle her appeal. Doc. 9-1, p. 243. Hudson also argued that his appellate counsel failed to raise winning issues. Doc. 9-1, p. 244.
On June 29, 2016, the Seventh District Court of Appeals denied Hudson's App. R. 26(B) application. Doc. 9-1, pp. 246-248, 267. Hudson conceded and the court of appeals found that Hudson's application was untimely.
Hudson did not file an appeal from the Seventh District Court of Appeals' June 29, 2016, opinion and judgment entry.
On February 16, 2017, Hudson, acting pro se, filed his federal habeas corpus petition. Doc. 1. In his Petition, Hudson certified that he placed his Petition in the prison mailing system on February 14, 2017. Doc. 1, p. 37. "Under the mailbox rule, a habeas petition is deemed filed when the prisoner gives the petition to prison officials for filing in the federal courts." Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002) (citing Houston v. Lack, 487 U.S. 266, 273 (1988)). Thus, Hudson's Petition is deemed filed as of February 14, 2017.
In his Petition, Hudson raised three grounds for relief. Doc. 1. Prior to the filing of an Answer, on March 20, 2017, Hudson filed an amendment to his Petition, adding a fourth ground for relief. Doc. 4. Hudson's grounds for relief are as follows:
Doc. 1, pp. 6, 8-9, Doc. 4, pp. 1-2.
Respondent argues that Hudson's Petition should be dismissed because it is barred by the statute of limitations. Alternatively, Respondent argues that Hudson procedurally defaulted his grounds for relief and/or his grounds for relief are without merit.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), apply to petitions filed after the effective date of the AEDPA. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007). In particular, the controlling AEDPA provision states:
28 U.S.C. § 2254(d).
The Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), 28 U.S.C. § 2244, limits the time within which a person in custody pursuant to the judgment of a state court may file a petition for a federal writ of habeas corpus and provides, in relevant part:
28 U.S.C. § 2244(d).
Under 28 U.S.C. § 2244(d)(1)(A), the AEDPA statute of limitations starts to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."
On December 9, 2013, the court of appeals issued its decision overruling Hudson's assignments of error and affirming the judgment of the trial court. Doc. 9-1, pp. 154-186. Hudson had 45 days to appeal that decision to the Supreme Court of Ohio but did not file an appeal within that time period. See S.Ct.Prac.R. 7.01 (notice of appeal to perfect a jurisdictional appeal to the Supreme Court of Ohio shall be filed within 45 days from the entry of judgment being appealed).
Thus, under 28 U.S.C. § 224(d)(1)(A), Hudson's conviction became final and the AEDPA statute of limitations began to run when Hudson's appellate filing deadline expired, i.e., January 23, 2014, or 45 days after the Seventh District Court of Appeals affirmed Hudson's conviction and sentence. See Gonzalez v. Thaler, 565 U.S. 134, 150, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) (For petitioners not seeking review in the Supreme Court, "the judgment becomes final . . . when the time for pursuing direct review in [the Supreme] Court, or in state court, expires."). Thus, the one-year AEDPA statute of limitation started to run on January 24, 2014, and expired one year later on January 24, 2015.
Hudson filed his federal habeas Petition with this Court on February 14, 2017, well beyond the expiration of the AEDPA one-year statute of limitation. Accordingly, absent tolling, Hudson's Petition is barred by the one-year statute of limitations under § 2244(d)(1)(A).
Under statutory tolling, the statute of limitations is tolled for any period of time in which a properly filed petition for post-conviction relief is pending before the state courts. Jurado v. Burt, 337 F.3d 638, 640 (6th Cir. 2003). This statutory tolling provision, however, does not "revive the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations." Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (internal quotations and citation omitted).
Between January 24, 2014, and January 24, 2015, Hudson filed no petitions for postconviction relief. Accordingly, statutory tolling does not apply.
AEDPA's statute of limitations is subject to equitable tolling under certain circumstances. Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011) (citing Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010)). Equitable tolling allows courts to review time-barred habeas petitions "provided that `a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control.'" Robinson v. Easterling, 424 Fed. Appx. 439, 442 (6th Cir. 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)). There are two forms of equitable tolling: (1) traditional equitable tolling; and (2) actual innocence equitable tolling. As discussed below, a petitioner, by satisfying the Holland two-part test, may be entitled to traditional equitable tolling. Additionally, a petitioner may be entitled to actual innocence equitable tolling. However, for the reasons set forth below, Hudson is entitled to neither form of equitable tolling.
A habeas petitioner is entitled to equitable tolling only if he establishes that (1) "he has been pursuing his rights diligently[;]"
Hudson argues that he is entitled to equitable tolling because he exercised due diligence in attempting to argue his case but he was prevented from timely pursuing his appellate rights due to attorney error. Doc. 12-1, pp. 2-3. He asserts that he did not learn until May of 2015 that Attorney Deloach had failed to timely file a notice of appeal with the Supreme Court of Ohio. Doc. 12-1, p. 2; see also Doc. 9-1, p. 191 (In his motion for delayed appeal filed in the Supreme Court of Ohio, Hudson states "It was not until I received a letter from the clerk's office, of the Supreme Court of Ohio, dated May 15, 2015, that I realized that she had not filed the Notice of Appeal, nor had she filed the App. R. 26(B)."). After learning of Attorney Deloach's failure to act in a timely manner, Hudson asserts that he proceeded to file an action against Attorney Deloach and wrote to the Ohio Public Defender's Office and that that office provided him a list of attorneys that he could contact. Doc. 12-1, p. 2. Per Hudson, no attorneys responded to his request to represent him in filing an App. R. 26(B) application or notice of appeal with the Supreme Court of Ohio. Id. In late September or early October 2015, Hudson claims that he received a pro se packet from the Ohio Public Defender's Office and then proceeded to perform research and, in November 2015, he filed a delayed application for reopening his appeal. Id. More than a year after learning that Attorney Deloach had not filed an appeal with the Supreme Court of Ohio, on June 17, 2016, Hudson filed a motion for delayed appeal with the Supreme Court of Ohio. Id.
Thus, Hudson seeks to excuse his untimely filing of his habeas petition due to attorney error occurring in connection with a discretionary appeal with the Supreme Court of Ohio and/or an App. R. 26(B) application. However, "[t]here can be a constitutional claim of ineffective assistance of counsel only at a stage of the proceedings when there is a right to counsel under the Sixth Amendment." Smith v. Ohio Dep't of Rehab. & Corr., 463 F.3d 426, 433 (6
Furthermore, although Hudson acknowledges learning in May of 2015 that his appellate counsel failed to take action in pursuit of his appeal, Hudson waited until November 24, 2015 to file a delayed application for reopening his appeal. Doc. 9-1, p. 241. Moreover, he waited even longer, i.e., until June 17, 2016, a full year after learning that his appellate counsel had failed to file a notice of appeal with the Supreme Court of Ohio, to file a motion for delayed appeal with the Supreme Court of Ohio. Doc. 9-1, p. 190. And then, and after the Supreme Court of Ohio denied his motion for delayed appeal on August 31, 2016,
In Sands v. Clipper, a court within this court district was faced with and rejected an argument similar to that presented by Hudson. 2015 WL 1538829, **6-7 (N.D. Ohio Apr. 7, 2015). Considering the foregoing, the undersigned, like the court in Sands, finds Hudson's claim of entitlement to equitable tolling unpersuasive. See Sands, 2015 WL 1538829, **6-7 (when considering whether a petitioner was entitled to equitable tolling of the AEDPA statute of limitations, the court considered a claim of ineffective assistance of appellate counsel but found the claim unavailing, noting "it is well settled that there is no right to counsel for an appeal to the Ohio Supreme Court" and the claimant could not show that the alleged "ineffective assistance of his Ohio counsel in not timely filing an appeal to the Ohio Supreme Court also somehow excuse[d] any subsequent failures and defaults in bringing a timely federal habeas action.").
Even if Hudson could demonstrate that the alleged ineffective assistance of counsel was an "extraordinary circumstance [that] stood in his way and prevented timely filing," Hudson cannot satisfy the first prong of the two-part Holland test, namely, that "he has been pursuing his rights diligently[.]" Holland, 560 U.S. at 649. Accordingly, traditional equitable tolling is not warranted.
In addition to equitable tolling under the traditional two-part test outlined above, "a petitioner may also be eligible for equitable tolling if he demonstrates actual innocence, so that by refusing to consider his petition due to timeliness the court would cause a fundamental miscarriage of justice." Patterson v. Lafler, 455 Fed. Appx. 606, 609 (6th Cir. 2012). "A valid claim of actual innocence requires `new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Id. (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)) (emphasis supplied). "The evidence must demonstrate factual innocence, not mere legal insufficiency." Id. (citing Bousley v. United States, 523 U.S. 614, 623 (1998)). The Supreme Court has underscored the fact that "the miscarriage of justice exception . . . applies to a severely confined category: cases in which new evidence shows `it is more likely than not that no reasonable juror would have convicted the petitioner.'" McQuiggin v. Perkins, 133 S.Ct. 1924, 1933 (2013) (quoting Schulp, 513 U.S. at 329) (emphasis supplied).
Hudson's main argument throughout his filings his that he did not agree to a waiver of his speedy trial rights. Hudson, however, has not argued or demonstrated actual innocence. Accordingly, the undersigned finds no basis for concluding that Hudson should be entitled to tolling of the statute of limitations based on a claim of actual innocence.
On August 10, 2017, Hudson filed a motion for appointment of expert assistance requesting that the Court grant him funds to pay the costs and fees associated with a handwriting expert. Doc. 11. Hudson contends that a handwriting expert is necessary in order to support his claim that he did not sign the speedy trial waiver that was accepted and relied upon by the trial court. Doc. 11, Doc. 11-1. In light of the undersigned's recommendation that the Court dismiss Hudson's federal habeas petition as barred by the statute of limitations, Hudson's motion for appointment of expert assistance (Doc. 11) is
For the reasons set forth above, the undersigned
