THOMAS M. PARKER, Magistrate Judge.
Currently before the court is the petition of Richard W. Gibbs, Ohio Inmate A530-087 for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was initially referred for report and recommendation to Magistrate Judge Greg White, who has since retired. Subsequently, by minute order entered on March 29, 2016 — under the authority of General Order 2016-3 — the matter was referred to the undersigned for report and recommendation.
Gibbs was convicted of six counts of gross sexual imposition under Ohio Rev. Code § 2907.05(A)(3) on May 18, 2007, following the entry of a plea of guilty on February 26, 2007.
Gibbs' petition raises three grounds for relief.
For the reasons set forth below, it is recommended that the petition be dismissed with prejudice as untimely filed.
Gibbs was indicted on ten counts of gross sexual imposition against a victim under the age of thirteen (his son) in violation of Ohio Rev. Code § 2907.05(A)(3) on July 11, 2006.
In February 2010, Gibbs filed a motion to vacate what he characterized as a void sentence on the ground that he'd not been afforded proper notice of post release control at the time he entered his plea or at sentencing.
On June 4, 2010 Gibbs filed a motion to "correct" what he again contended was a void sentence.
On March 29, 2012 Gibbs filed a petition for a state writ of habeas corpus.
Defendant moved to dismiss his 2006 indictment on August 30, 2012.
On October 11, 2012 (within what would have been his appeal period to challenge the ruling on his motion to dismiss the indictment) Gibbs filed a motion to withdraw his guilty plea.
Gibbs appealed the decision overruling his motion to withdraw his plea. On March 31, 2014 the Ohio Eleventh District Court of Appeals affirmed the decision of the trial court.
Gibbs requested the right to appeal the Eleventh District Court of Appeals decision to the Ohio Supreme Court.
On January 21, 2014 Gibbs filed a motion for relief from judgment, challenging the application of the Adam Walsh Act sexual predator classification to him as a result of a hearing conducted on May 16, 2007 (the date of his original sentencing).
On April 22, 2014 Gibbs filed a notice of appeal from the judgment of conviction entered on May 17, 2007.
The court of appeals denied Gibbs the right to pursue a delayed appeal on December 31, 2014.
On February 3, 2015 Gibbs filed a notice of appeal and a memorandum in support of jurisdiction in order to have the denial of his request for delayed appeal reviewed by the Ohio Supreme Court. The memorandum in support of jurisdiction asserted that the court should decide whether a convicted person had a constitutional right to appellate review and whether his conviction was void because of a misapplication of Ohio sentencing law (involving the characterization of an earlier Pennsylvania conviction that Gibbs had received).
Gibbs filed a motion for relief from judgment under Ohio Civil Rule 60(B)(5) on April 22, 2014.
Gibbs appealed the denial of his Rule 60(B) motion on June 9, 2014. By entry dated December 31, 2014 the court of appeals affirmed the decision of the trial court.
Gibbs once again moved to vacate his allegedly void sentence by a motion filed on September 10, 2014.
On September 29, 2014 Gibbs filed a reply to the state's brief opposing the motion to vacate the allegedly void sentence (the reply was filed five days after the trial court ruled on the motion to vacate).
The state moved to strike that brief given that the motion had already been decided.
On January 28, 2015 the trial court ordered Gibbs' reply brief in opposition to the state's brief opposing Gibbs' motion to vacate void sentence stricken from the record on the ground that the reply in opposition was filed after the court had already ruled on the motion to vacate.
On October 10, 2014 Gibbs filed a third motion to vacate void sentence, again challenging the propriety of his sentence on the same grounds he had asserted in his prior filings (that he should have received a shorter definite sentence rather than an indefinite sentence of longer duration).
Gibbs filed a notice of appeal on February 19, 2015 concerning denial of the third motion to vacate his allegedly void sentence, and he appealed the trial court's conclusion that it lacked jurisdiction to consider a motion for judgment on the pleadings with respect to that motion. The notice also challenged the trial court's January 28, 2015 ruling revoking his In Forma Pauperis status.
Gibbs filed his fourth and fifth motions to vacate his allegedly void sentence on August 20, 2015 and October 6, 2015.
On December 17, 2015 Gibbs filed
28 U.S.C. § 2254(a) authorizes this court to entertain an application for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court." Plainly, Gibbs fits this classification as he is in custody at an Ohio penal institution pursuant to the judgment of the Geauga County, Ohio common pleas court in case number 06 C 000077, issued on May 18, 2007.
There is a dispute as to whether defendant's petition was timely filed under the provisions of 28 U.S.C. § 2244(d)(1). The state's motion to dismiss, as indicated above, asserts that the petition is untimely because the one year limitation period expired at some point in June 2008.
Gibbs has not requested an evidentiary hearing or the appointment of counsel to represent him at a hearing.
The state has moved to dismiss the petition on the ground that it is time-barred under applicable law. Under 28 U.S.C. § 2244(d)(1), as amended by § 101 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
Subsection (A) is regarded as the principal statute of limitations for pursuit of habeas petitions under AEDPA. Subsections (B), (C) and (D) assign later statute of limitations commencement dates under the specified conditions.
This petition arises from Gibbs' May 18, 2007 conviction — after a guilty plea — to six counts of gross sexual imposition in violation of Ohio Rev. Code § 2907.05(A)(3), as it existed at the time of the offenses in 1987-1989.
Although Gibbs was advised at the time of sentencing of his right to appeal the sentence,
Gibbs has asserted that his petition was timely filed because his underlying conviction was void. In essence, Gibbs argues that a void action of a court is a nullity and cannot, as a result, trigger the running of a statute of limitations. He ostensibly asserts that a void judgment of conviction means he was never actually, properly convicted. This contention will be addressed in the discussion of equitable tolling below. Further, Gibbs points to the Ohio Court of Appeals' denial of his motion to pursue a delayed appeal and the trial court's denial of his motion to withdraw his guilty plea as events that triggered his right to seek federal habeas relief. He contends his Section 2254 petition was filed within one year of final state court review of those motions.
Gibbs has not argued, nor is there evidence in the record to suggest, that the provisions of 28 U.S.C. §§ 2244(d)(1)(B) through (D) apply to establish a later commencement date for the statute of limitations. He has not alleged that a State-created impediment prevented him from filing the instant petition or that he filed within one year of the removal of such an impediment.
Regarding 28 U.S.C. § 2244(d)(1)(D), even though Gibbs asserts a right to habeas relief under Section 2254 to free him from the effect of an allegedly void judgment of conviction, he has not contended that he was unaware of the factual predicate for that claim from his date of sentencing. Indeed, all of facts pertaining to Gibbs' allegedly void sentence were known to him as of his sentencing date: he was aware at that time he had been indicted without (i) a specification of prior offenses or (ii) a specification for an indefinite prison term for being convicted a second time with a qualifying offense of violence; and he was aware that he was sentenced to indefinite terms of incarceration of 4 to 10 years on each of six counts for an aggregate indefinite sentence of 12 to 30 years. The fact that one contends his conviction is void does not by its own power negate the conviction. And such a contention does not mean a habeas petitioner is freed from the Section 2244 statute of limitations. See, e.g. Keeling, 673 F.3d at 461 (petitioner's federal habeas petition time barred even though he contended his conviction was void).
Because of the absence of grounds to apply the provisions in 28 U.S.C. §§ 2244(d)(1)(B)(C) or (D), each of Gibbs' asserted grounds for relief is governed by 28 U.S.C. § 2244(d)(1)(A). As noted above, that period expired on June 19, 2008 unless the provision of 28 U.S.C. § 2244(d)(2) statutorily tolled the limitations period or unless he was entitled to argue for equitable tolling. Keeling, 673 F.3d at 460.
28 U.S.C. § 2244(d)(2) "provides for statutory tolling of the limitations period during the pendency of properly filed motions for state post-conviction relief, or other collateral review." Keeling, Id. As detailed in the court's summarization of Gibbs' case history above, Gibbs filed numerous post-conviction motions or petitions with the Geauga County Court of Common Pleas, the Hocking County Court of Common Pleas, the Ohio Court of Appeals, the Ohio Supreme Court and the United States Supreme Court after the first of them was filed on February 22, 2010.
Gibbs contends his application for a writ of habeas corpus was filed within one year of the date(s) on which direct review of his motion to pursue delayed appeal and his motion to withdraw his guilty plea was complete in the state court system. In effect, Gibbs is arguing for the reinitiation of his statute of limitations to commence a Section 2254 claim. This sort of contention was expressly rejected by the Sixth Circuit in Keeling v. Warden. The Eleventh Circuit decision in Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) succinctly stated why the argument now made by Gibbs cannot succeed:
Accord, Jurado v. Burt, 337 F.3d 638, 641 (6th Cir. 2003)("[A] motion for state post-conviction review that is filed following the limitations period for seeking federal habeas relief cannot toll that period because there is no period remaining to be tolled"); Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001)(motion for delayed appeal had no effect on the AEDPA limitations period); Winkfield v. Bagley, 66 F. App'x 578, 582 (6th Cir. 2003)( application to reopen petitioner's appeal also has no effect on the AEDPA limitations period after period has expired).
Though the Ohio state courts are free to entertain motions to permit delayed appeals and motions to withdraw guilty pleas whenever in their discretion they conclude an imprisoned person has made the requisite showings to be granted relief, the filing of such motions has no effect upon the statute of limitations for seeking relief under Section 2254 once the statute of limitations has expired. In other words, there is no new right to seek federal habeas relief in order to challenge in federal court the propriety of state court rulings after the federal habeas statute of limitations has expired.
Under the current situation, the court should conclude that Gibbs did not file his petition for federal habeas relief within the time limits established in 28 U.S.C. § 2244.
The court's conclusion that the statute of limitations to file a Section 2254 petition has expired does not end the analysis of whether Gibbs' petition is fully time-barred. The AEDPA's statute of limitations is subject to equitable tolling, "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)), cert. denied, 133 S.Ct. 187 (2012). See also, Holland v. Florida, 560 U.S. 631, 649 (2010)(the statute of limitations for habeas petitions is "subject to equitable tolling in appropriate cases."). But equitable tolling is granted "sparingly." Hall, 662 F.3d at 749 (quoting Robertson, 624 F.3d at 784).
Although the Sixth Circuit previously used a five-factor approach in determining whether a habeas petitioner is entitled to equitable tolling, Holland v. Florida'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), cert. denied, 132 S.Ct. 456 (2011)). Therefore, a habeas petitioner is entitled to equitable tolling only if he meets his burden to demonstrate that (1) "he has been diligent in pursuing his rights;" and (2) that "an extraordinary circumstance caused his untimely filing." Hall, 662 F.3d at 750; see also, Pace, 544 U.S. at 418.
Gibbs bears the burden of establishing that he is entitled to equitable tolling. McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003). The petitioner must point to extraordinary circumstance that prevented timely filing. A petitioner's pro se status and his unawareness of the law provide no basis for equitable tolling. The 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 See Lattimore v. DuBois, 311 F.3d 46, 55 (1st Cir. 2002); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000).
Applying these principles to Gibbs' case should lead the court to the conclusion that equitable tolling cannot be applied to extend his statute of limitations by the seven and one-half years that would be required to render his petition timely. First, Gibbs has not argued for the application of equitable tolling. The state filed its motion to dismiss on statute of limitations grounds. Gibbs did not file a traverse or other pleading to assert the applicability of equitable tolling. Because Gibbs bears the burden to establish the applicability of the doctrine, his failure to demonstrate that he meets the requisite criteria empowers the court to give no further consideration to the issue.
Second, a review of Gibbs' grounds for relief reveals his contention that his claims for relief are timely, because he asserts violations of his constitutional rights arising from the denial of his motion to pursue a delayed appeal and the overruling of his motion to withdraw his guilty plea.
Third, the case history plainly reveals a petitioner who has become increasingly aware of his legal rights over the passage of time. He pled guilty in February 2007 and was ordered in May 2007 to serve indefinite aggregate prison terms of 12 to 30 years. He didn't bring any issue to any court until 2010 (nearly two years after the expiration of his time limit to seek federal habeas review), when he requested a determination that his sentence was void because he'd not received proper notification of his post release control obligation. After that issue was resolved, he returned to court seeking a declaration that his sentence was void because he'd not been given a proper notice regarding court costs. These motions demonstrated that Gibbs knew how to bring issues of concern to the attention of the court. For reasons unexplained, he never came to federal court until the end of 2015.
Further, while Gibbs has filed dozens of motions and briefs since 2010, and has been diligent about seeking state court review of adverse decisions in those instances, he has been silent about why he didn't come to federal court in regard to his contention that his original conviction was void and imposed in violation of his constitutional rights. In other words, he hasn't met his burden to demonstrate that he has been diligent in pursuing his rights.
For all of the foregoing reasons, the court should conclude that equitable tolling is inapplicable in this case.
In McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1928, 185 L. Ed. 2d 1019 (2013), the Supreme Court held that actual innocence, if proved, 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; rather, it is a request for an equitable exception to § 2244(d)(1). Id. at 1931. The Supreme Court explained, however, that "tenable actual-innocence gateway pleas are rare." McQuiggin, 133 S.Ct. at 1928. In such cases, 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). Here, Gibbs has not argued that he is actually innocent. Absent a contention supported by sufficient evidence, the court need not make any further analysis of the application of the exception.
Based upon the foregoing analysis, the Court should find Gibbs' petition for writ of habeas corpus to be time-barred.
As amended by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2253(c)(1) provides that a petitioner may not appeal a denial of an application for a writ of habeas corpus unless a judge issues a certificate of appealability. The statute further provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
Although the statute does not define what constitutes a "substantial showing" of a denial of a constitutional right, the burden on the petitioner is obviously less than the burden for establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the courts that have considered the issue have concluded that "`[a] substantial showing requires the applicant to "demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement to proceed further.'"" Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999) (quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996)(quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)); accord Slack v. McDaniel, 529 U.S. 473, 483-484 (2000). The statute requires that certificates of appealability specify which issues are appealable. 28 U.S.C. § 2253(c)(3).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a), 28 U.S.C. foll. § 2254. The rule tracks the requirement of § 2253(c)(3) that any grant of a certificate of appealability "state the specific issue or issues that satisfy the showing required by § 2253(c)(2)," Rule 11(a). In light of the Rule 11 requirement that the Court either grant or deny the certificate of appealability at the time of its final adverse order, a recommendation regarding the certificate of appealability issue is included here.
Where, as here, a petition is to be dismissed on a procedural basis, the inquiry under § 2253(c) is two-fold. In such cases, a certificate of appealability "should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 485 (emphasis added). As the Court explained, "[w]here a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted." Id. at 486.
If the Court accepts the foregoing recommendation, Gibbs cannot show that the Court's ruling on the procedural question is reasonably debatable. As noted above, Gibbs' habeas application is untimely by a number of years, and he has provided no basis for concluding that he is entitled to a delayed starting of the limitations period under § 2244(d)(1)(B), (C) or (D), that he is entitled to statutory tolling under § 2244(d)(2), or that he is entitled to equitable tolling. Neither the importance nor merit of Gibbs' claim provides a basis for overcoming the limitations bar. Thus, the resolution of the limitations issue is not reasonably debatable, and the Court should conclude that Gibbs is not entitled to a certificate of appealability.
In view of the foregoing, I recommend that the Court conclude that petitioner's application for a writ of habeas corpus is time-barred under 28 U.S.C. § 2244. Accordingly, the Court should grant the State of Ohio's motion and dismiss the petition with prejudice. If the Court accepts this recommendation, the Court should also deny the certificate of appealability.
