KAREN L. LITKOVITZ, Magistrate Judge.
Petitioner, an inmate in state custody at the Ross Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 2). This matter is before the Court on respondent's motion to dismiss (Doc. 9) and petitioner's response in opposition. (Doc. 10). For the reasons stated below, the undersigned recommends that the motion to dismiss be granted and the petition be dismissed on the ground that it is time-barred pursuant to 28 U.S.C. § 2241(d)(1).
On February 5, 2007, the Hamilton County, Ohio, grand jury returned a six-count indictment charging petitioner with four counts of aggravated burglary, one count of receiving stolen property, and one count of failure to comply with an order or signal of police officer. (Doc. 7, Ex. 1). After initially entering a not guilty plea, petitioner withdrew his plea and entered a plea of guilty to three counts of aggravated robbery and one count of failure to comply with an order or signal of police. (Doc. 7, Ex. 2). In exchange for the guilty plea, the prosecution dismissed the remaining counts. (See Doc. 7, Ex. 3).
On May 16, 2007, petitioner was sentenced to a total aggregate prison sentence of twenty-two years in the Ohio Department of Corrections. (Doc. 7, Ex. 4).
On May 25, 2007, petitioner filed a pro se motion to withdraw his guilty plea. (Doc. 7, Ex. 7). Petitioner argued that his trial counsel failed to advise him of the terms of the plea agreement and that he should have been given a competency hearing due to his history of mental illness. On June 12, 2007, the trial court overruled petitioner's motion. (Doc. 7, Ex. 8).
On June 20, 2007, petitioner filed a pro se notice of appeal to the Ohio Court of Appeals. (Doc. 7, Ex. 9). Petitioner's motion was sua sponte denied as untimely filed by entry issued June 29, 2007. (Doc. 7, Ex. 10).
Petitioner, through different counsel than at trial, filed a second notice of appeal and motion for leave to file a delayed appeal on November 15, 2007. (Doc. 7, Ex. 11, 12). The Ohio appeals court granted petitioner leave to file a delayed direct appeal. (Doc. 7, Ex. 15).
(Doc. 7, Ex. 18). Petitioner withdrew his second assignment of error. (Doc. 7, Ex. 19). On September 24, 2008, the Ohio Court of Appeals overruled petitioner's assignments of error and affirmed the judgment of the trial court. (Doc. 7, Ex. 21).
Petitioner did not seek further review in the Ohio Supreme Court.
On January 22, 2014, several years later, petitioner filed a pro se motion to vacate sentence. (Doc. 7, Ex. 22). Petitioner filed identical motions on January 31, 2014 and March 24, 2014. (Doc. 7, Ex. 23, 24). On February 15, 2017, the trial court denied petitioner's motions. (Doc. 7, Ex. 25).
Meanwhile, on October 15, 2014, petitioner filed a pro se application to reopen his appeal pursuant to Ohio App. R. 26(B). (Doc. 7, Ex. 26). Petitioner argued that his appellate counsel was ineffective for failing to raise an assignment of error alleging that the trial court judge was biased. On December 16, 2014, the Ohio Court of Appeals denied petitioner's application as untimely filed. (Doc. 7, Ex. 27).
Petitioner did not appeal this decision to the Ohio Supreme Court.
On January 6, 2019, more than four years later, petitioner commenced the instant federal habeas corpus action.
(Doc. 1 at PageID 25-30).
Respondent has filed a motion to dismiss the petition (Doc. 9), to which petitioner has responded. (Doc. 10).
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.
There is no evidence in the record in this case to suggest that the provisions set forth in §§ 2244(d)(1)(B) through (D) apply to petitioner's grounds for relief. 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 his trial court proceedings. Because petitioner was aware of the facts underlying his claims or the claims could have been discovered through the exercise of due diligence by the close of the direct review, 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 10, 2008, upon the expiration of the 45-day period for filing an appeal as of right from the court of appeals' September 24, 2008 judgment entry dismissing his appeal.
During the one-year limitations period, petitioner was entitled to tolling of the statute 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, 560 U.S. 631, 635 (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.
It is well-settled that a state application for post-conviction relief is "properly filed" within the meaning of § 2244(d)(2) "when its delivery and acceptance are in compliance with the applicable laws and rules governing filings," such as those prescribing the time limits for filing. Artuz v. Bennett, 531 U.S. 4, 8 (2000). State post-conviction or collateral review applications rejected by the state courts on timeliness grounds are not "properly filed" and, therefore, are not subject to statutory tolling under § 2244(d)(2). See Allen, 552 U.S. at 5-6; see also Pace v. DiGuglielmo, 544 U.S. 408, 413-14 (2005); Vroman, 346 F.3d at 603.
No statutory tolling applies under Section 2244(d)(2) to extend the limitations period in this case. The statute of limitations had run for 1,898 days before petitioner filed his January 22, 2014 motion to vacate, the first of his post-conviction motions. Because petitioner's post-conviction motions were all filed after the one-year statute of limitations had already expired, statutory tolling would not serve to extend the limitations period. Vroman, 346 F.3d at 602. Therefore, petitioner is not entitled to statutory tolling based on the untimely application. See Allen, 552 U.S. at 5-6; see also Pace, 544 U.S. at 413-14; Vroman, 346 F.3d at 603.
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 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, 560 U.S. at 649 (internal quotations omitted)); see also Pace, 544 U.S. at 418. 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).
Petitioner is not entitled to equitable tolling in this case. Petitioner states that "I don't know the law and that's why it's so hard for me to do the things that I need to do," in explaining the timeliness of the petition. (Doc. 1 at PageID 34). He also claims that he had trouble obtaining legal advice and materials in his petition and response to the motion to dismiss. (Id. at PageID 34; Doc. 10 at PageID 153). However, it is well-settled in the Sixth Circuit that petitioner's pro se status, lack of legal knowledge, or lack of access to legal materials are not sufficient to warrant equitable tolling. See, e.g., Hall, 662 F.3d at 750-51 (rejecting the petitioner's argument that he was entitled to equitable tolling because of his lack of access to the trial transcript, as well as his pro se status and limited law-library access); Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004) (quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991)) ("this court has repeatedly held that `ignorance of the law alone is not sufficient to warrant equitable tolling'"); Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002) ("an inmate's lack of legal training, his poor education, or even his illiteracy does not give a court reason to toll the statute of limitations"); Lacking v. Jenkins, No. 2:15cv3069, 2016 WL 4505765, at *4 (S.D. Ohio Aug. 29, 2016) (Report & Recommendation) ("A prisoner's pro se incarcerated status, lack of knowledge regarding the law, and limited access to the prison's law library or to legal materials do not provide a sufficient justification to apply equitable tolling of the statute of limitations."), adopted, 2016 WL 6125683 (S.D. Ohio Oct. 19, 2016), appeal filed, No. 16-4291 (6th Cir. Nov. 10, 2016); Boyd v. Tibbals, No. 2:13cv611, 2014 WL 1400978, at *3 (S.D. Ohio Apr. 10, 2014) (Report & Recommendation) (and numerous cases cited therein) ("A prisoner's pro se incarcerated status, lack of knowledge regarding the law, and limited access to the prison's law library or to legal materials together or alone do not provide a sufficient justification to apply equitable tolling of the statute of limitations."), adopted, 2014 WL 2931475 (S.D. Ohio June 30, 2014).
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. In this case, petitioner waited more than ten years—from November 10, 2008 until January 6, 2019—to file his habeas petition after his conviction and sentence became final. Accordingly, petitioner has not demonstrated that he was diligent in pursuing his federal rights. Vroman, 346 F.3d at 605 (finding that the 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"). Petitioner is therefore not entitled to equitable tolling.
Finally, petitioner has neither argued nor otherwise demonstrated that the procedural bar to review should be excused based on a colorable showing of actual innocence. "To invoke the miscarriage of justice exception to AEDPA's statute of limitations, ... a petitioner `must show that it is more likely than not that no reasonable juror would have convicted him in the light of ... new evidence.'" McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). No such showing has been made in this case.
Accordingly, in sum, the undersigned concludes that the instant federal habeas corpus petition is barred from review by the one-year statute of limitations governing habeas corpus actions brought pursuant to 28 U.S.C. § 2254. Under the applicable provision set forth in 28 U.S.C. § 2244(d)(1)(A), petitioner's conviction and sentence became final on November 10, 2008. The limitations period ran for 365 days and expired on November 11, 2009. Statutory or equitable tolling principles do not apply to extend the limitations period or otherwise avoid the statute-of-limitations bar to review in this case. Therefore, petitioner's habeas corpus petition, filed on January 6, 2019, is time-barred.
1. The motion to dismiss (Doc. 9) be
2. A certificate of appealability should not issue with respect to any of the claims for relief alleged in the petition, which this Court has concluded are 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
Pursuant to Fed. R. Civ. P. 72(b),
