JONATHAN D. GREENBERG, Magistrate Judge.
This matter has been referred to the undersigned United States Magistrate Judge for preparation of a Report and Recommendation pursuant to Local Rule 72.2(b)(2). Before the Court is the Petition of Daniel Oberacker ("Oberacker" or "Petitioner"), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Oberacker is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Oberacker, Cuyahoga County Court of Common Pleas Case No. CR-96-342242.
Currently pending is Respondent Jeffrey B. Noble's Motion to Dismiss the Petition as Time-Barred. (Doc No. 8.) For the reasons that follow, it is recommended Respondent's Motion be GRANTED and the Petition be DISMISSED as time-barred.
In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the facts underlying Oberacker's conviction as follows:
See State v. Oberacker, 2003 WL 125277 at * 1-5 (Ohio App. 8th Dist. Jan 16, 2003).
In August 1996, a Cuyahoga County Court of Common Pleas issued an Indictment charging Oberacker with thirty (30) counts of rape in violation of Ohio Rev. Code § 2907.02. (Doc. No. 8-1, Exh. 1.) Fifteen (15) of these counts alleged rape of a minor under the age of thirteen. (Id.) Oberacker retained counsel and pled not guilty. (Doc. No. 8-1, Exh. 2.)
On February 16, 2000, Oberacker withdrew his not guilty plea and entered a plea of guilty to two counts of rape (Counts 1 and 26) in violation of Ohio Rev. Code § 2907.02. (Doc. No. 8-1, Exh. 3.) All remaining counts were nolled. (Id.) The state trial court accepted Oberacker's plea and found him guilty. (Id.)
On April 6, 2000, the trial court sentenced Oberacker to two consecutive sentences of eight (8) to twenty-five (25) years imprisonment, for an aggregate prison term of sixteen (16) to fifty (50) years. (Doc. No. 8-1, Exh. 4.) Several days prior to sentencing, on March 31, 2000, the state trial court determined Oberacker was a sexual predator pursuant to Ohio Rev. Code § 2950.09(A) and notified him of his registration duties. (Doc. No. 8-1, Exh. 5.)
On April 19, 2000, Oberacker, proceeding pro se, filed a notice of appeal to the Eighth District Court of Appeals of Ohio (hereinafter "state appellate court"). (Doc. No. 8-1, Exh. 6.) He also filed a Motion for Appointment of Counsel and Transcript at State's Expense, which was granted. (Doc. No. 8-1, Exh. 7.)
On August 10, 2000, Oberacker, through counsel, filed an appellate brief, raising the following three grounds for relief:
(Doc. No. 8-1, Exh. 8.) The State filed a brief in response, in which it conceded "no notice of the sexual predator classification hearing was given to Appellant prior to the sentencing hearing." (Doc. No. 8-1, Exh. 9 at Page ID# 150.) The State requested the matter be remanded to the trial court for an additional sexual predator hearing pursuant to the notice requirement of Ohio Rev. Code § 2950.09. (Id.)
In an opinion filed April 11, 2001, the state appellate court reversed and remanded, as follows:
(Doc. No. 8-1, Exh. 11.)
On remand, the state trial court conducted a sexual predator classification hearing. (Doc. No. 8-1, Exh. 12.) On January 30, 2002, the trial court issued a Journal Entry, noting it had "provided the Defendant with notice of this House Bill 180 hearing" and stating "Defense stipulates to the sufficiency of notice and waives any defects." (Id.) The trial court took the matter under advisement. (Id.)
On February 7, 2002, the state trial court issued a Journal Entry finding Oberacker was "automatically classified as a sexual predator pursuant to R.C. 2950.09(A)." (Doc. No. 8-1, Exh. 13.)
On March 28, 2002, Oberacker, through new counsel, filed a notice of appeal and Motion for Leave to file Delayed Appeal in the state appellate court. (Doc. No. 8-1, Exh. 14, 15.) Therein, Oberacker asserted the state trial court failed to notify counsel he was appointed to represent him on appeal until after the filing due date. (Doc. No. 8-1, Exh. 15.) On April 17, 2002, the state appellate court granted Oberacker's Motion for Leave to file Delayed Appeal. (Doc. No. 8-1, Exh. 16.)
In his merit brief, Oberacker raised the following grounds for relief:
(Doc. No. 8-1, Exh. 17.) The State filed a brief in response, in which it conceded error only with regard to Oberacker's second ground for relief. (Doc. No. 8-1, Exh. 18.) Specifically, the State "concede[d] that an entry stating Appellant was [automatically] classified under R.C. 2950.09(A) is in error and should be corrected by a nunc pro tunc entry by this Court." (Id.)
On January 27, 2003, the state appellate court issued a decision, affirming in part and remanding. (Doc. No. 8-1, Exh. 19.) Therein, the state appellate court overruled Oberacker's first assignment of error, finding in relevant part as follows:
(Id.) The court, however, sustained Oberacker's second assignment of error, noting "it is obvious the trial court was mistaken in determining that Oberacker was `automatically' a sexual predator pursuant to R.C. 2905.09(A)." (Id. at Page ID# 248.) Accordingly, the state appellate court "remanded to the trial court for the preparation and entry of a judgment entry nunc pro tunc, as and for February 7, 2002, deleting the word `automatically' from the original entry of February 7, 2002." (Id. at Page ID#249.)
On February 10, 2003, the state trial court issued a Journal Entry as ordered by the state appellate court deleting the word "automatically" from its previous journal entry. (Doc. No. 8-1, Exh. 20.)
On March 11, 2003, Oberacker filed a notice of appeal and Memorandum in Support of Jurisdiction with the Supreme Court of Ohio. (Doc. No. 8-1, Exh. 37.) The State filed a Memorandum in Response on April 7, 2003. (Id.) On May 16, 2003, the Supreme Court of Ohio denied leave to appeal and dismissed Oberacker's appeal as not involving any substantial constitutional question. (Doc. No. 8-1, Exh. 21.)
Over thirteen years later, on November 21, 2016, Oberacker, proceeding pro se, filed a Petition for Writ of Habeas Corpus in the Ohio Court of Appeals for the Twelfth District.
(Id.) In the Petition, Oberacker asserted his "direct appeal included the conviction, [sexual predator] classification, and sentence." (Id. at Page ID#264.) Therefore, he argued, when the state appellate court issued its April 11, 2001 decision reversing and remanding, his conviction was reversed and the trial court was required to schedule a new trial. (Id. at Page ID#263-264.) Because the trial court failed to do so, Oberacker argued he was entitled to immediate release. (Id.)
The State filed a Motion for Summary Judgment on December 5, 2016. (Doc. No. 8-1, Exh. 23.) Therein, the State argued "Oberacker filed a direct appeal wherein he challenged only his classification as a sexual predator, asserting that the hearing had been conducted without mandatory notification pursuant to R.C. 2950.09, insufficient evidence to sustain the sexual predator classification, and ineffective counsel for failing to challenge said classification without notice." (Id. at PageID# 283.) Thus, the State maintained the appellate court "never reversed Oberacker's conviction or sentence because Oberacker never challenged either in his direct appeal." (Id. at PageID# 288.) The State noted that, "if [Oberacker] wanted to challenge his conviction and/or sentence, he should have done so in his direct appeal. But he didn't, and now, he can't." (Id.)
Oberacker thereafter filed a Reply, in which he asserted his direct appeal "did include the conviction and sentence and not just the classification as the State argues." (Doc. No. 8-1, Exh. 24 at PageID# 311.)
On January 12, 2017, the Ohio Court of Appeals for the Twelfth District issued an Entry dismissing Oberacker's habeas petition. (Doc. No. 8-1, Exh. 25.) Therein, that court found (in relevant part) as follows:
(Id.) As of the date of this Order, it does not appear Oberacker appealed the above decision to the Supreme Court of Ohio.
Several months later, on April 6, 2017, Oberacker, proceeding pro se, filed an Ohio App. R. 26(B) Application for Reopening in the state appellate court. (Doc. No. 8-1, Exh. 26.) Therein, he claimed appellate counsel was ineffective for failing to raise the following grounds for relief on direct appeal:
(Id.) Oberacker acknowledged his Application was untimely but argued "appellate counsel's inadequacy and failure to appeal the conviction or sentence and Appellant's inability to identify such errors caused the delay." (Id.) He also maintained the delay was due to the fact he "was under extreme duress and in fear for his life due to abuse from a state paired cellmate." (Id.) Oberacker asserted that, due to these factors, he "only recently became aware that appellate counsel never appealed the conviction or sentence as the pro se request to appeal specified." (Id.)
The State filed a Memorandum in Opposition (Doc. No. 8-1 at Page ID#427-431), to which Oberacker replied. (Doc. No. 8-1, Exh. 28.)
On July 5, 2017, the state appellate court found Oberacker had failed to establish "good cause" for his untimely Application and, further, that his Application exceeded the ten-page limitation set forth in Ohio App. R. 26(B)(4). (Doc. No. 8-1, Exh. 29.) See also State v. Oberacker, 2017 WL 2875707 (Ohio App. 8th Dist. July 5, 2017). The state appellate court explained as follows:
Id.
On July 27, 2017, Oberacker, proceeding pro se, filed a notice of appeal in the Supreme Court of Ohio. (Doc. No. 8-1, Exh. 30.) In his Memorandum in Support of Jurisdiction, Oberacker raised the following Propositions of Law:
(Doc. No. 8-1, Exh. 31.)
On November 1, 2017, the Supreme Court of Ohio declined to accept jurisdiction of the appeal pursuant to S.Ct. Prac. R. 7.08(B)(4). (Doc. No. 8-1, Exh. 33.)
On November 27, 2017,
(Doc. No. 1.)
Respondent filed a Motion to Dismiss the Petition as Time-Barred on February 28, 2018. (Doc. No. 8.) Oberacker filed a Response on March 26, 2018. (Doc. No. 9.)
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides a one-year limitations period in a habeas action brought by a person in custody pursuant to the judgment of a State court. Under 28 U.S.C. § 2244(d)(1), the limitation period runs from the latest of—
28 U.S.C. § 2244(d)(1).
Pursuant to § 2244(d)(1)(A), the AEDPA's one year period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Here, Oberacker was sentenced on April 6, 2000 and timely appealed on April 19, 2000. (Doc. No. 8-1, Exhs. 4, 6.) On April 11, 2001, the state appellate court reversed and remanded for a sexual predator classification hearing that complied with the relevant notice provisions set forth in Ohio Rev. Code 2905.09(B)(1). (Doc. No. 8-1, Exh. 11.) On remand, the state trial court conducted a sexual predator classification hearing after providing notice to Oberacker and his counsel, and issued a Journal Entry on February 7, 2002 finding he was "automatically classified as a sexual predator pursuant to R.C. 2905.09(A)." (Doc. No. 8-1, Exh. 13.)
Oberacker filed a motion for delayed appeal, which was granted by the state appellate court on April 17, 2002. (Doc. No. 8-1, Exhs. 14, 15, 16.) On January 27, 2003, the state appellate court issued a decision, affirming in part and remanding for issuance of a nunc pro tunc sentencing entry. (Doc. No. 8-1, Exh. 19.) On February 10, 2003, the state trial court issued a nunc pro tunc Journal Entry as ordered by the state appellate court. (Doc. No. 8-1, Exh. 20.) Oberacker filed a notice of appeal to the Supreme Court of Ohio, which denied leave to appeal and dismissed Oberacker's appeal as not involving any substantial constitutional question on May 16, 2003. (Doc. Nos. 8-1, Exh. 21, 37.)
Based on this sequence of events, Respondent argues Oberacker's conviction and sentence became "final" for purposes of § 2244(d)(1)(A) on August 14, 2003, ninety (90) days after the Supreme Court of Ohio declined jurisdiction over his direct appeal and the time to file a timely petition for writ of certiorari in the United States Supreme Court expired. (Doc. No. 8 at 9.) See Lawrence v. Florida, 549 U.S. 327, 333, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007); Giles v. Beckstrom, 826 F.3d 321 (6th Cir. 2016); Cope v. Warden, Ross Correctional Inst., 2017 WL 4402581 at * 4 (S.D. Ohio Oct. 2, 2017). Respondent then asserts the limitations period commenced on August 15, 2003 and, absent tolling, would have expired one year later on August 15, 2004. Id.
As Respondent correctly notes, however, the AEDPA tolls the one-year limitations period during the time "`a properly filed application for State postconviction or other collateral review . . . is pending.' § 2244(d)(2)." Evans v. Chavis, 546 U.S. 189, 191, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006); Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002); accord Matthews v. Abramajtys, 319 F.3d 780, 787 (6th Cir. 2003). "The time that an application for state post-conviction review is `pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law." Id.
Only "properly filed" applications for post-conviction relief or collateral review toll the statute of limitations, and "a state post-conviction petition rejected by the state court as untimely is not `properly filed' within the meaning of § 2244(d)(2)." Allen v. Siebert, 552 U.S. 3, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007); Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ("time limits, no matter their form, are `filing' conditions, and a state postconviction petition is therefore not `properly filed' if it was rejected by the state court as untimely"); Monroe v. Jackson, 2009 WL 73905 at *2 (S.D. Ohio Jan. 8, 2009). A timely filed state post-conviction matter, however, cannot serve to toll a statute of limitations which has already expired before the motion was filed. See Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003). Section 2244(d)(2)'s tolling provision "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, 346 F.3d at 602 (citation omitted). Further, if a state court ultimately denies a petition as untimely, that petition was neither properly filed nor pending and a petitioner would not be entitled to statutory tolling. See Monroe at *2; Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007).
A review of the record shows Oberacker made no filings between May 16, 2003 (the date the Supreme Court of Ohio's opinion dismissing his direct appeal was journalized) and August 15, 2004 (the date the AEPA statute of limitations expired.) Oberacker did file (1) state court habeas Petitions on August 26, 2016 and November 21, 2016; and (2) a 26(B) Application for Reopening on April 6, 2017. (Doc. No. 8-1, Exhs. 22, 26.) However, as noted above, state collateral review proceedings can no longer serve to avoid the statute of limitations bar once the limitations period is expired. See Vroman, 346 F.3d at 602. Because Oberacker's state habeas Petitions and 26(B) Application were filed well after the statutory limitations period expired, they did not have any further tolling effect.
Thus, the Court finds Oberacker's conviction and sentence became "final" for purposes of § 2244(d)(1)(A) on August 14, 2003, ninety (90) days after the Supreme Court of Ohio declined jurisdiction over his direct appeal and the time to file a timely petition for writ of certiorari in the United States Supreme Court expired. Accordingly, the Court finds the limitations period commenced on August 15, 2003 and, absent a later start date or equitable tolling, expired one year later on August 15, 2004. Id.
Oberacker argues, however, the statute of limitations was never triggered (and, therefore, has not expired) because the state appellate court did not issue a decision regarding his conviction and sentence. (Doc. No. 9 at 4.) He maintains there are "two distinctively separate rights of appeal" at issue in this case: (1) a "civil" appeal from his sexual predator classification, and (2) a "criminal" appeal from his conviction and sentence. (Id. at 5-6.) Oberacker asserts he properly filed a pro se notice of direct appeal on April 19, 2000 but, against his wishes, appointed appellate counsel only pursued a "civil" appeal from his sexual predator classification and "forfeited" Oberacker's allegedly separate and independent "criminal" appeal from his conviction and sentence. (Id. at 4-6, 9.) Oberacker maintains that, because counsel failed to appeal his conviction and sentence, and the state appellate court never issued a judgment relating thereto, the "one-year federal AEDPA clock [was prevented] from ever starting." (Id. at 15.) Respondent does not address this issue.
For the following reasons, the Court finds this argument to be without merit. The Court recognizes the Ohio Supreme Court has found Ohio's sexual classification statute (Ohio Revised Code Chapter 2950) to be remedial rather than punitive, and, therefore, sexual predator proceedings are considered to be "civil in nature." See State v. Wilson, 113 Ohio St.3d 382, 389 (2007); State v. Cook, 83 Ohio St.3d 404, 422 (1998); State v. Durant, 2017 WL 5197254 at * 2 (Ohio App. 8th Dist. Nov. 9, 2017); Shie v. Voorhies, 2009 WL 1212473 at * 15 (N.D. Ohio Apr. 30, 2009). However, the Court is not persuaded Oberacker therefore had "two distinctively separate" rights of appeal, one "civil" and the other "criminal." To the contrary, Ohio courts' determination that the underlying purpose of its sexual classification statute is remedial in nature is a separate and distinct matter from its rules and procedures governing appeals. Indeed, Oberacker has cited no authority that Ohio's sexual classification statute gives rise to a bifurcated appeal process where, as here, a criminal defendant's sentence and sexual predator classification determination were conducted contemporaneously and as part of the same underlying criminal proceedings.
Moreover, to the extent Oberacker is arguing the habeas statute of limitations did not begin to run due to an alleged defect in the state appellate court's 2001 and/or 2003 direct appeal decisions, this argument is without merit. This Court has previously rejected arguments that a void state court judgment means the habeas clock has simply never started. See, e.g., Alford v. Goodrich, 2014 WL 359996 at * 8 (N.D. Ohio Jan.31, 2014); Hackett v. Bradshaw, 2012 WL 6869833 at * 6 (N.D. Ohio, Dec.4, 2012). In Frazier v. Moore, 2007 WL 3037256 at * 4 (6th Cir. Oct.15, 2007), the Sixth Circuit found that a defective state court judgment "does not lead to the conclusion that there was no judgment for the purpose of [AEDPA]'s one year statute of limitations. Many of the petitions cognizable on federal habeas review challenge the validity of the underlying state court judgment. The fact that the state court judgment may have been procured in violation of state or federal law does not, however, render the judgment null under § 2244(d) [of the AEDPA]." Id. at * 5-6. As noted by the Frazier court, "[i]f a judgment that was procured by a procedure that violated federal constitutional rights were sufficient to render a petitioner not in custody `pursuant to the judgment of a state court' for the purpose of §§ 2244(d) and 2254, then the habeas regime embodied in these provisions would be substantially undermined." Id. at * 5.
Accordingly, Oberacker's argument the habeas statute of limitations "simply never started" is without merit.
As the statutory limitations period expired on August 15, 2004 and Oberacker did not file his habeas petition until November 27, 2017, the Court finds the Petition is over thirteen years late and is untimely under § 2244(d)(1)(A). Therefore, unless equitable tolling is appropriate or Oberacker is entitled to begin calculating the statute of limitations from an alternative date, the Petition should be dismissed as time-barred.
Pursuant to § 2244(d)(1)(B), the statute of limitations may commence later than the date upon which a petitioner's conviction and sentence becomes final if the petitioner demonstrates he was prevented from filing his federal habeas petition because of an impediment created by State action in violation of the Constitution or federal law. Here, Oberacker argues his appellate counsel's failure to challenge his conviction and sentence on direct appeal, coupled with the state appellate court's failure to require counsel to file an Anders brief,
Respondent does not directly address Oberacker's claim that appellate counsel's ineffectiveness constituted a State created impediment that prevented him from timely filing his federal habeas Petition. However, Respondent does dispute Oberacker's claim he was not aware for nearly sixteen years that appellate counsel failed to challenge his conviction, asserting such a claim is "belied by the record." (Doc. No. 8 at 12.) In this regard, Respondent notes "the appellate court's decision in his 2001 direct appeal expressly set forth that nothing in appellant's merit brief or reply brief made any argument that his plea was unlawful and, further, the court saw `nothing in the proceedings that would cause us to doubt the validity of [his] guilty plea.'" (Id.) Respondent further notes the state appellate court's 2001 direct appeal decision was issued "before Oberacker's conviction became final, and before he actively participated in the 2002 sexual predator classification hearing pursuant to the court's remand in this same decision." (Id.)
To invoke the limitations provision set forth in § 2244(d)(1)(B), a habeas 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.'" Glenn v. Coleman, 2014 WL 4983661 at * 12 (N.D. Ohio Oct. 6, 2014) (quoting Neff v. Brunsman, 2007 WL 912122 at *7 (S.D. Ohio March 23, 2007)). See also Montgomery v. Jeffreys, 2011 WL 2784168 at *4 (S.D. Ohio July 6, 2011.) Interpreting this provision, the Sixth Circuit has found that "[t]he ineffective assistance of . . . initial appellate counsel constitutes state action." Winkfield v. Bagley, 2003 WL 21259699 at *4 (6th Cir. May 28, 2003). However, the court emphasized "Section 2244(d)(1)(B) requires a causal relationship between the unconstitutional state action and being prevented from filing the [habeas] petition." Id. See also Webb v. United States, 2017 WL 655774 at * 5 (6th Cir. Feb. 17, 2017); Heid v. Warden, Ross Correctional Inst., 2017 WL 2225458 at * 7 (S.D. Ohio May 22, 2017) (collecting cases). Relying on Winkfield, several courts have found § 2244(d)(1)(B) to apply in cases where the petitioner alleged facts indicating his counsel was ineffective in perfecting an appeal or pursuing an appeal requested by him, and such ineffectiveness actually prevented him from filing a timely habeas petition. See e.g. Waldron v. Jackson, 348 F.Supp.2d 877, 882-886 (N.D. Ohio 2004); Woods v. Jackson, 2006 WL 746293 at *5-7 (S.D. Ohio March 22, 2006).
The Court finds Oberacker's argument he was prevented from timely filing his federal habeas Petition due to the ineffectiveness of his appellate counsel is without merit for the following reasons. As noted above, courts within this Circuit have found that ineffectiveness of appellate counsel rises to the level of a State created impediment, and applied § 2244(d)(1)(B), where appellate counsel failed to perfect a timely appeal and/or failed to apprise petitioner of the status of his appeal. See e.g., Waldron, 348 F.Supp.2d at 882-886 (finding failure of counsel to perfect a first appeal of right constituted a state-created impediment, justifying the tolling of the statute of limitations pursuant to § 2244(d)(1)(B)); Woods, 2006 WL 746293 at * 5-7 (same). Here, however, the record reflects appellate counsel did, in fact, perfect direct appeals, both from Oberacker's April 2000 sentencing entry and the state trial court's February 2002 determination on remand that Oberacker constituted a sexual predator. The state appellate court issued direct appeal decisions in April 2001 and again in January 2003 as a result of these appeals. Notably, Oberacker has not asserted his appellate counsel failed to promptly apprise him of the fact the state appellate court issued direct appeal decisions in 2001 and 2003.
Rather, Oberacker argues he did not know until 2016 that his appellate counsel failed to challenge his conviction and prison sentence on direct appeal. (Doc. No. 9 at 12.) Or, stated conversely, Oberacker states he mistakenly believed, as of 2003, that his direct appeal encompassed both his conviction, prison sentence, and sexual predator classification. (Doc. No. 9 at 6.) He asserts appellate counsel's failure to challenge his conviction and sentence on direct appeal (as well as his failure to clearly advise Oberacker that he had failed to challenge his conviction and sentence) constitutes a State-created impediment, justifying statutory tolling of the statute of limitations under § 2244(d)(1)(B).
This argument fails for several reasons. First, Oberacker does not explain how his mistaken belief that his direct appeal encompassed his conviction and prison sentence prevented him from timely filing a federal habeas petition at the conclusion of direct appeal proceedings.
Notwithstanding the above, and assuming, arguendo, his appellate counsel was ineffective for failing to challenge Oberacker's conviction and sentence on direct appeal, the Court finds Oberacker has failed to demonstrate this alleged ineffectiveness prevented him from timely filing the instant habeas Petition. Although Oberacker claims he did not become aware until 2016 that counsel failed to challenge his conviction and sentence on direct appeal, the Court notes the state appellate court's 2001 and 2003 direct appeal decisions are both clearly confined to the issue of Oberacker's sexual predator classification and do not address any challenges to his underlying conviction or prison sentence. See State v. Oberacker, 2001 WL 280180 (Ohio App. 8th Dist. March 22, 2001); State v. Oberacker, 2003 WL 125277 (Ohio App. 8th Dist. Jan. 16, 2003). Indeed, in the 2001 decision, the state appellate court expressly rejected Oberacker's argument that "his claim of ineffective assistance of counsel went beyond counsel's failure to object to the lack of notice [of the sexual predator classification hearing] and encompassed a failure to protect defendant's due process rights." State v. Oberacker, 2001 WL 280180 at *1.
Oberacker nonetheless claims he "could not and did not see" the state appellate court's 2001 decision until 2016 due to "personal safety reasons beyond his control." (Doc. No. 9 at 12.) In his 26(B) Application, Oberacker explains he was "in fear for his life due to abuse from a state paired cellmate" and, as a result, was placed in a mental health unit and "not able to receive court documents." (Doc. No. 8-1, Exh. 26 at PageID# 347.) Oberacker does not, however, explain how he was prevented (throughout this entire time period) from monitoring his appeals by other means, such as directly contacting the state court clerk's office or conducting legal research. Moreover, as Respondent correctly notes, after the state appellate court issued its 2001 decision, Oberacker returned to the state trial court for his sexual predator classification hearing, where he was represented by counsel. (Doc. No. 8-1, Exh. 12.) Oberacker does not explain why he did not (or could not) have discussed the status, nature, and scope of his direct appeal with counsel at that time.
Thus, even assuming, arguendo, appellate counsel was ineffective for failing to challenge his conviction and prison sentence on direct appeal and, further, that said ineffectiveness constituted a state-created impediment, Oberacker has not demonstrated it prevented him from filing his federal habeas Petition for over a decade. Because he has not shown "a causal relationship between the unconstitutional state action and being prevented from filing the [habeas] petition." the Court finds he is not entitled to a later start date under § 2244(d)(1)(B). See Winkfield, 2003 WL 21259699 at *4; Webb, 2017 WL 655774 at * 5; Heid, 2017 WL 2225458 at * 7.
Although the Petition herein is untimely, the AEDPA statute of limitations period is also subject to equitable tolling. See Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010). Equitable tolling "allows courts to toll a statute of limitations when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control." Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010). See also Hall v. Warden, Lebanon Correctional Institution, 662 F.3d 745, 749 (6th Cir. 2011). However, the equitable tolling doctrine is granted by courts only "sparingly." See Robertson, 624 F.3d at 784. Moreover, "although `the party asserting statute of limitations as an affirmative defense has the burden of demonstrating that the statute has run,' the petitioner bears the ultimate burden of persuading the court that he or she is entitled to equitable tolling." Ata v. Scutt, 662 F.3d 736, 741 (6th Cir.2011)(quoting Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002)).
In order to be entitled to equitable tolling, a habeas petitioner must establish that (1) he has been pursuing his rights diligently; and, (2) some extraordinary circumstance stood in his way and prevented timely filing. Holland, 130 S.Ct. at 2565. See also Hall, 662 F.3d at 749; Griffin, 308 F.3d at 653. "The diligence required for equitable tolling purposes is reasonable diligence, not maximum diligence." Holland, 130 S.Ct. at 2565. That being said, the Sixth Circuit has held that excessive delays in filing lack appropriate diligence. See e.g. Keeling v. Warden, 673 F.3d 452, 463-64 (6th Cir. 2012); Vroman, 346 F.3d at 605 (stating a court should be "much less forgiving . . . where the claimant failed to exercise due diligence in preserving his legal rights"); Henson v. Warden, London Correctional Inst., 620 Fed. Appx. 417, 419 (6th Cir. 2015).
Here, Oberacker argues he is entitled to equitable tolling because he was "unaware and had no reason to suspect his criminal appeal was ignored." (Doc. No. 9 at 16.) He maintains he did not realize his appellate counsel failed to challenge his conviction and sentence, until the state appellate court denied his state habeas Petition in January 2017. (Id.) Oberacker claims he then diligently pursued his rights by (1) filing his 26(B) Application only eighty four (84) days later, on April 6, 2017; (2) timely appealing the denial of his 26(B) Application to the Ohio Supreme Court; and (3) promptly filing his federal habeas Petition thirty six (36) days after the Ohio Supreme Court declined jurisdiction over his appeal from the denial of his 26(B) Application. (Id.)
Respondent argues equitable tolling is not appropriate because Oberacker "was woefully dilatory in the pursuit of his claims before the state courts and before this federal habeas Court." (Doc. No. 8 at 12.) He notes Oberacker "did have a direct appeal from his conviction — in fact he had two," arguing "his appellate attorney's strategic choice to challenge his sexual predator classification alone does not equate to the complete denial of direct review of his conviction." (Id.) Respondent also disputes Oberacker's claim he was not aware his appellate counsel failed to challenge his conviction and sentence for sixteen years. (Id.) Finally, Respondent argues "neither Oberacker's pro se status, nor claimed lack of knowledge of his own direct appeal are an `extraordinary circumstance' that can excuse his `prolonged inattention' by some 13 years to his federal habeas deadline." (Id. at 14.)
The Sixth Circuit has found that "[b]oth ineffective assistance of counsel and `a substantial, involuntary delay in learning about the status of their appeals' may constitute extraordinary circumstances sufficient to warrant" equitable tolling. Keeling, 673 F.3d at 462 (quoting Robinson v. Easterling, 2011 WL 1977272 at * 3 (6th Cir. May 20, 2011)). However, "petitioners who receive delayed notification of a state court judgment due to clerical or attorney errors may not seek equitable tolling if they `passively await decision.'" Robinson, 2011 WL 1977272 at * 3 (quoting Miller v. Collins, 305 F.3d 491, 496 (6th Cir. 2002)). Rather, to obtain equitable tolling, a petitioner "must demonstrate that he exercised a reasonable diligence in protecting his appellate rights." Id.
In Keeling, for example, the Sixth Circuit rejected an argument for equitable tolling based on a petitioner's failure to monitor his case and his appellate counsel's representations:
673 F.3d at 463. Like the petitioner in Keeling, the Court finds Oberacker failed to exercise reasonable diligence in either monitoring his appeal or protecting his federal habeas rights. Over thirteen years elapsed between the Ohio Supreme Court's dismissal of his direct appeal (May 16, 2003) and the date he filed his state habeas Petition (November 21, 2016). As set forth below, Oberacker has failed to provide a sufficient explanation for his failure to take any action, throughout this lengthy time period, to protect his rights.
First, the Court is not persuaded equitable tolling is appropriate on the basis Oberacker was allegedly not aware until 2016 that counsel failed to challenge his conviction and sentence on direct appeal. As discussed supra, the state appellate court's 2001 and 2003 direct appeal decisions are both clearly confined to the issue of Oberacker's sexual predator classification and do not address any challenges to his underlying conviction or prison sentence. A careful reading of these decisions should have immediately alerted Oberacker to the fact his direct appeal did not challenge his conviction and/or prison sentence. This, in turn, should have prompted him to timely file a 26(B) Application to address appellate counsel's alleged ineffectiveness. Instead, Oberacker waited over thirteen years, until April 2017, to do so.
Moreover, Oberacker's claim he "could not and did not see" the state appellate court's direct appeal decisions until 2016 is unavailing. As noted above, Oberacker states he was "in fear for his life due to abuse from a state paired cellmate" and, as a result, was "not able to receive court documents." (Doc. No. 8-1, Exh. 26 at PageID# 347.) Oberacker does not, however, explain why he was unable to monitor his appeals by other means, such as directly contacting the state court clerk's office or conducting legal research. Additionally, after the state appellate court issued its 2001 decision, Oberacker returned to the state trial court for his sexual predator classification hearing, where he was represented by counsel. (Doc. No. 8-1, Exh. 12.) Oberacker does not explain why he did not (or could not) have discussed the status, nature, and scope of his direct appeal with counsel at that time.
Thus, and for all the reasons set forth above, the Court finds Oberacker has failed to demonstrate he has been reasonably diligent in pursuing his rights. See e.g., Vroman, 346 F.3d at 605 (finding petitioner's decision to proceed solely to the Ohio Supreme Court rather than filing his federal habeas petition and protecting his federal constitutional rights shows a lack of diligence); Robinson, 424 Fed. App'x at 442 ("[t]his Court has never granted equitable tolling to a petitioner who sat on his rights for a year and a half, and we decline to do so here"); Dudley v. Clipper, 2014 WL 6896080 at * 8-9 (N.D. Ohio Dec. 8, 2014).
The Court also rejects any suggestion that Oberacker's pro se status and/or ignorance of the law constitute "extraordinary circumstances" warranting equitable tolling. The Sixth Circuit has repeatedly held that "ignorance of the law alone is not sufficient to warrant equitable tolling." Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991). See Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004); Allen v. Bell, 250 Fed. Appx. 713, 716 (6th Cir. 2007); Taylor v. Palmer, 623 Fed. Appx. 783, 789 (6th Cir. 2015). See also Johnson v. United States, 544 U.S. 295, 311, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005) ("[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"); Patrick v. Bunting, 2015 WL 10488878 at * 9 (N.D. Ohio Dec. 29, 2015). Moreover, courts within this Circuit have found a petitioner's pro se status, lack of legal training, poor education, and/or limited law-library access, standing alone, are similarly insufficient. See e.g., Hall, 662 F.3d at 751 (petitioner's pro se status, limited law-library access and lack of access to trial transcript were not sufficient to warrant equitable tolling); Keeling, 673 F.3d at 464 ("Keeling's pro se status and lack of knowledge of the law are not sufficient to constitute an extraordinary circumstance and to excuse his late filing"); Burden v. Bunting, 2016 WL 5417834 at * 6 (N.D. Ohio July 15, 2016) ("Courts have uniformly held that neither a prisoner's pro se status nor his lack of knowledge of the law constitute extraordinary circumstances justifying equitable tolling"); Johnson v. LaRose, 2016 WL 5462635 at * 10 (N.D. Ohio July 8, 2016) ("A petitioner's pro se status and his unawareness of the law provide no basis for equitable tolling"). Accordingly, and under the circumstances presented, the Court finds Oberacker has failed to demonstrate his pro se status, limited education, and/or lack of legal training constitute extraordinary circumstances justifying equitable tolling.
In sum, because Oberacker failed to exercise his rights diligently and no extraordinary circumstance prevented him from filing the instant Petition, the Court finds equitable tolling is not warranted in this case.
In McQuiggin v. Perkins, 569 U.S. 383, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013), the United States Supreme Court held that actual innocence, if proven, may overcome the expiration of AEDPA's one-year statute of limitations. The Court noted that a claim of actual innocence is not a request for equitable tolling but, rather, a request for an equitable exception to § 2244(d)(1). Id. at 1931.
For the actual innocence exception to apply, a petitioner must "support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). The Supreme Court explained, however, that "tenable actual-innocence gateway pleas are rare" and "`[a] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" McQuiggin, 133 S.Ct. at 1928 (quoting Schlup, 513 U.S. at 329). In making this assessment, "`the timing of the [petition]' is a factor bearing on the `reliability of th[e] evidence' purporting to show actual innocence." Id. (quoting Schlup, 513 U.S. at 332).
Here, Oberacker asserts, summarily, he is "not guilty of the crime in which he's already served now nearly eighteen (18) years." (Doc. No. 9 at 19.) Oberacker, however, does not identify any new, reliable evidence of his actual innocence; i.e., exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence that was not available to him at the time of his underlying criminal proceedings. See Schlup, 513 U.S. at 324. Accordingly, the Court finds Oberacker has not demonstrated he is entitled to the actual innocence exception.
For the foregoing reasons, it is recommended the Court find the instant Petition is time-barred under § 2244(d)(1). It is further recommended Respondent's Motion to Dismiss (Doc. No. 8) be GRANTED and the Petition be DISMISSED.
