J. GREGORY WEHRMAN, Magistrate Judge.
Petitioner, an inmate in state custody at the Warren Correctional Institution, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the petition (Doc. 2), respondent's return of writ (Doc. 13), and petitioner's reply.
On June 9, 2006, petitioner was indicted by the Hamilton County, Ohio grand jury on two counts of kidnapping, in violation of Ohio Rev. Code § 2905.01(B)(1); two counts of felonious assault, in violation of Ohio Rev. Code §§ 2903.11(A)(1) & (2); two counts of having weapons while under disability, in violation of Ohio Rev. Code § 2923.13(A)(2); and one count each of theft of a motor vehicle, aggravated robbery, and murder, in violation of Ohio Rev. Code §§ 2913.02(A)(1), 2911.01(A)(1), and 2903.02(A) respectively. (Doc. 13, Ex. 3). On June 14, 2006, petitioner pled not guilty to all charges. (Doc. 13, Ex. 4, p. 15).
Through counsel, petitioner filed a motion to suppress statements made by petitioner to the police obtained in violation of his Fifth Amendment rights, a motion to suppress witness identification, and a motion for separate trials. (Doc. 13, Ex. 5, 8, 10). The trial court denied each of petitioner's motions. (Doc. 13, Ex. 6, 7, 9, 11, 12, 13).
On October 12, 2006, petitioner waived his right to a jury trial with regard to the two counts of having weapons while under disability, electing to have a bench trial on those charges. (Doc. 13, Ex. 14). The remaining charges were tried before a jury. On December 14, 2006, petitioner was found guilty of all charges. (Doc. 13, Ex. 4, p. 8). On January 11, 2007, he was sentenced to a total aggregate sentence of eighty years and six months to life. (Doc. 13, Ex. 15, p. 2).
On January 12, 2007, through counsel, petitioner filed a timely appeal to the Ohio Court of Appeals. (Doc. 13, Ex. 17). Petitioner raised eight assignments of error:
(Doc. 13, Ex. 18). On April 4, 2008, the Ohio Court of Appeals affirmed the trial court's judgment. (Doc. 13, Ex. 2).
On May 16, 2008, through counsel, petitioner filed an appeal to the Ohio Supreme Court. (Doc. 13, Ex. 20). In his memorandum in support of jurisdiction petitioner presented two propositions of law:
(Doc. 13, Ex. 21). On September 10, 2008, the Ohio Supreme Court denied leave to appeal and dismissed the appeal "as not involving any substantial constitutional question." (Doc. 13, Ex. 23).
During the pendency of his appeal to the Ohio Supreme Court, petitioner filed a pro se application to reopen his direct appeal. (Doc. 13, Ex. 24). Therein, petitioner argued that his appellate counsel was ineffective for failing to raise the following errors on appeal:
(Doc. 13, Ex. 24). Petitioner subsequently filed a motion for leave to amend his application to reopen, alleging that his appellate counsel was also ineffective for failure to raise the following two errors:
(Doc. 13, Ex. 26). The Ohio Court of Appeals granted petitioner's application on January 7, 2009. (Doc. 13, Ex. 27). The appellate court found that petitioner had demonstrated "a genuine issue as to whether he had a colorable claim of ineffective assistance of appellate counsel" based on appellate counsel's failure to challenge the trial court's imposition of consecutive prison terms for his felonious assault convictions under Ohio Rev. Code §§ 2903.11 (A)(1) and (2). Id. at 3-4.
On March 25, 2009, through counsel, petitioner raised the following assignment of error in his reopened appeal:
(Doc. 13, Ex. 28). On May 20, 2009, the Ohio Court of Appeals reversed the judgment of the trial court, finding that the petitioner "could have only been sentenced once for felonious assault under either R.C. 2903.11(A)(1) or R.C. 2903.11(A)(2)" as the convictions involved allied offenses of similar import. (Doc. 13, Ex. 30, p. 2). The case was remanded to the trial court for resentencing.
During the pendency of petitioner's reopened appeal, petitioner filed a pro se appeal to the Ohio Supreme Court from the appellate court's January 7, 2009 judgment. (Doc. 13, Ex. 31). Petitioner raised three assignments of error:
(Doc. 13, Ex. 32). The Ohio Supreme Court dismissed the appeal as not involving any substantial constitutional question on April 22, 2009. (Doc. 13, Ex. 33).
Petitioner was resentenced on August 17, 2009. (Doc. 13, Ex. 1). As directed by the Ohio Court of Appeals, the trial court merged the two felonious assault charges for sentencing and sentenced petitioner to eight years for the offense. Id.
Through counsel, petitioner filed a timely appeal of the re-sentence on August 21, 2009. (Doc. 13, Ex. 34). Petitioner raised the following assignment of error:
(Doc. 13, Ex. 35). On February 10, 2010, the Ohio Court of Appeals affirmed the judgment of the trial court. (Doc. 13, Ex. 37).
On May 5, 2010, petitioner filed a pro se application to reopen his appeal, arguing that his appellate attorney was ineffective for raising the following assignments of error in the appeal of his resentencing:
(Doc. 13, Ex. 38). On June 9, 2010, the appeals court overruled petitioner's application, finding that "the issues were previously raised and adjudicated, and they are barred by res judicata." (Doc. 13, Ex. 40).
On July 16, 2010, petitioner appealed the Ohio Court of Appeals' denial of his 26(B) application to the Ohio Supreme Court. (Doc. 13, Ex. 41). Petitioner raised three propositions of law:
(Doc. 13, Ex. 42). On September 29, 2010, the Ohio Supreme Court dismissed the appeal "as not involving any substantial constitutional question." (Doc. 13, Ex. 43).
On September 13, 2011, petitioner commenced the instant habeas corpus action.
Id. at 20-27.
On December 29, 2011, petitioner filed a motion to stay proceedings. (Doc. 10). Therein, petitioner argues that in State v. Johnson, 924 N.E.2d 1061 (Ohio 2010), the Ohio Supreme Court "modified the test for determining whether multiple offenses are allied offenses o[f] similar import and prohibited by the Double Jeopardy Clause of the United States Constitution." (Doc. 10, p. 1). Petitioner moves the Court to stay these proceedings because he "has a potential constitutional claim that has not been fully exhausted in state courts." Id. As an attachment to his motion to stay, petitioner includes a motion to vacate and correct a void sentence which petitioner filed in the state trial court on December 21, 2011. Id. at 3. Petitioner's motion to vacate was overruled by the trial court on January 6, 2012.
On January 19, 2012, respondent filed a return of writ. (Doc. 13). Respondent contends that the petition should be dismissed with prejudice because the petition is time barred under 28 U.S.C. § 2244(d)(1)(A). Id. at 17-23. In addition, respondent argues that petitioner procedurally defaulted Grounds Two and Four of the petition by failing to present these claims on direct appeal. Id. at 23.
On February 2, 2012, in response to the return of writ, petitioner filed a motion to requesting leave to amend. (Doc. 18). Therein, petitioner seeks to amend his original petition to include a ground for relief asserting that his appellate counsel was ineffective. Id. at 1. Petitioner notes that he "raised this ground for relief in state court proceeding yet he failed to raise it in his 2254 petition, in spite of the fact that two of the claims that he alleged his appellate counsel was ineffective for failing to raise, are raised as independent claims in the instant petition." Id.
Respondent opposes the motion to amend, arguing that the "the additional claims do not relate back to timely filed claims, amendment would be futile and Respondent would be unduly prejudiced by an amendment." (Doc. 19, p. 1). Respondent contends that the amendment would be futile because petitioner's entire petition, including the proposed amended ineffective assistance of appellate counsel claim, is time barred by the applicable statute of limitations. Id. at 4.
On March 15, 2012, petitioner filed a motion requesting an extension of time to file a response to the return of writ. (Doc. 20). Petitioner notes that "[t]his court has yet to rule on the motion to amend, therefore the parameters of any response are not clearly defined, so Petitioner is requesting that he be granted an extension of time to file his response until after this court has ruled on his motion to amend." Id. at 1. In addition, petitioner requested that the Court rule on the motion to amend prior to requiring him to respond to the return of writ. Id.
On March 27, 2012, petitioner responded to the return of writ as to the timeliness of his petition. (Doc. 21). In the motion, "[p]etitioner posits that it is from that September 29, 2010 dismissal of his appeal in the Ohio Supreme Court that his conviction became final by the conclusion of direct review. Petitioner filed the instant petition on September 23, 2011, therefore, he is within the one-year period of limitations as outlined in 29 U.S.C. § 2244(d)(1)." Id. at 3.
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 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 running of 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.
Under § 2244(d)(1)(A), the statute of limitations began to run on March 29, 2010, when petitioner's conviction became final by the expiration of the 45-day period for filing an appeal to the Ohio Supreme Court from the appellate court's February 10, 2010 denial of petitioner's appeal of his resentencing.
During the one-year limitations period, petitioner was entitled to statutory tolling under 28 U.S.C. § 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). "The tolling provision does not, however, `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." Vroman, 346 F.3d at 602 (quoting Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998)). Once the limitations period is expired, state collateral review proceedings can no longer serve to avoid the statute of limitations bar. Id.
In the instant case, the limitations period ran for 37 days before petitioner filed his May 5, 2010 application to reopen. (See Doc. 13, Ex. 38; Doc. 21, p. 3). The limitations period was tolled until June 9, 2010, when the Ohio Court of Appeals denied his application. (See Doc. 13, Ex. 40). The clock began to run again on June 10, 2010, for an additional 36 days until July 16, 2010, when petitioner appealed the Ohio Court of Appeals denial of his application to reopen to the Ohio Supreme Court. (See Doc. 13, Ex. 41). The Ohio Supreme Court denied his appeal on September 29, 2010, (Doc. 13, Ex. 43), and the limitations period ran the remaining 292 days, expiring on July 19, 2011. Petitioner did not file the instant petition until September 13, 2011. Accordingly, 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, 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)). 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.), cert. denied, 132 S.Ct. 456 (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).
Petitioner has not demonstrated that he is entitled to equitable tolling in this case. Although it is at least arguable that petitioner has been diligent in pursuing his rights, petitioner has offered no explanation as to why he waited over seventeen months after his conviction became final to file the instant petition. To the extent that petitioner mistakenly thought that his 26(B) application to reopen his appeal was part of his direct appeal of his resentencing, it is well-settled that petitioner's pro se status and lack of legal expertise does not constitute an "extraordinary circumstance" that would justify excusing the statute-of-limitations bar to review. Cf. Hall, 662 F.3d at 751-52; see also Johnson v. United States, 544 U.S. 295, 311 (2005) (in a case where the defendant defended his delay in challenging a state conviction on the basis of his pro se status and lack of "sophistication" in understanding legal procedures, the Court stated: "[W]e have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness."). The Court therefore finds that petitioner is not entitled to equitable tolling.
Accordingly, in sum, the undersigned concludes that the instant petition, filed well after the statute of limitations had run its course, is time-barred. Therefore, petitioner's federal habeas corpus petition (Doc. 3) should be
1. Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 2) be
2. A certificate of appealability should not issue with respect to any claims alleged in the petition, which this Court has concluded is barred from review on a procedural ground, because under the first prong of the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), "jurists of reason" would not find it debatable whether the Court is correct in its procedural ruling.
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).
Pursuant to Fed. R. Civ. P. 72(b),
