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 Robert Law ("Law" or "Petitioner"), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Law is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Law, Medina County Court of Common Pleas Case No. 13CR0201.
Before the Court is Respondent Mary Potter's Motion to Dismiss the Petition as Time-Barred. (Doc No. 8.) For the reasons that follow, it is recommended that Respondent's Motion be GRANTED and the Petition be DISMISSED as time-barred.
In April 2013, a Medina County Grand Jury charged Law with three counts of Rape with the victim being less than thirteen years of age, in violation of Ohio Rev. Code ("O.R.C.") § 2907.02(A)(1)(b) (Counts One through Three); one count of Complicity to Commit Rape with the victim being less than thirteen years of age, in violation of O.R.C. § 2923.03(A)(2) and § 2907.02(A)(1)(b) (Count Four); and one count of Gross Sexual Imposition ("GSI") in violation of O.R.C. § 2907.05(A)(4) with the specification that the victim suffered physical harm during the commission of the offense pursuant to O.R.C. § 2941.14.3 (Count Five). (Doc. No. 8-1, Exh. 1.) The three Rape counts charged that the offenses occurred between June and August 1994 (Count One), June and August 1996 (Count Two), and June and August 1997 (Count Three). (Id.) The Complicity to Commit Rape count (Count Four) alleged conduct occurring between June and August 1997, while the GSI count alleged conduct occurring between June and August 1989. (Id.) Law pled not guilty. (Doc. No. 8-1, Exh. 2.)
On April 30, 2013, Law filed a Motion for a Geriatric Assessment "due to his age and infirmity." (Doc. No. 8-1, Exh. 3.) The state trial court granted Law's motion. (Doc. No. 8-1, Exh. 4.) On October 22, 2013, the state trial court issued a Judgment Entry indicating as follows: "Dr. Satinerpal Sandhu of Summa Health Systems has determined that the defendant is competent to stand trial. Defense counsel and the State of Ohio stipulated to the authenticity and admissibility of the report." (Doc. No. 8-1, Exh. 5.)
On November 27, 2013, the state trial court conducted a change of plea hearing. (Doc. No. 8-1, Exh. 6.) At that time, the State moved to amend the indictment by dismissing Counts One, Three, and Four and amending Count Two to delete reference to the age of the victim, conditioned upon Law entering a plea of guilty to the indictment as amended. (Id.) The state trial court conditionally granted the State's motion, at which time Law entered a plea of guilty to the amended indictment; i.e. one count of Rape (Count Two), as amended to delete reference to the age of the victim, and one count of GSI (Count Five) with a physical harm specification. (Id.) The trial court then unconditionally granted the State's motion, accepted Law's plea, and found him guilty. (Id.)
On February 5, 2014, the trial court conducted a sentencing hearing, at which time Law was sentenced to consecutive prison terms of 10 years for Rape (Count Two) and 4 to 10 years for Gross Sexual Imposition (Count Five). (Doc. No. 8-1, Exh. 7.) The court further determined Law was a Tier III Sexually Oriented Offender and subject to five years mandatory post-release control. (Id.) The trial court's Judgment Entry of Sentence was journalized on February 11, 2014. (Id.)
Law did not file a direct appeal.
On June 29, 2015, Law filed a pro se motion in the state trial court captioned "Limitation of Sentence 2901.13(A)(1)(a), Period of Sentence, Evidence Review" and "Sentence Contrary to Law." (Doc. No. 8-1, Exh. 8.) The trial court characterized Law's motion as follows:
(Doc. No. 8-1, Exh. 9.)
On July 1, 2015, the trial court denied Law's motion. (Id.) The court first found "the arguments raised in the motion could have been raised on appeal" and "res judicata applies and Law's sentence in this matter is not void or contrary to law." (Id.) The trial court then rejected Law's statute of limitations arguments on the merits and, further, found "Law pleaded guilty to the offenses and waived any arguments with respect to statute of limitations." (Id.) Finally, the trial court noted that, even if construed as a petition for post-conviction relief, Law's motion was "untimely by almost a year" and "no exceptions warranting an extension of the 180 time frame exist." (Id.)
On October 19, 2015, Law, proceeding pro se, filed a notice of appeal in the Ninth District Court of Appeals of Ohio ("state appellate court"). (Doc. No. 8-1, Exh. 10.) The State filed a Motion to Dismiss Appeal and Strike Brief of Appellant on October 23, 2015. (Doc. No. 8-1, Exh. 11.)
On November 25, 2015, the state appellate court dismissed Law's appeal as untimely, explaining as follows:
(Doc. No. 8-1, Exh. 12.)
On December 14, 2015, Law filed a motion for reconsideration. (Doc. No. 8-1, Exh. 13.) The state appellate court denied the motion as untimely. (Doc. No. 8-1, Exh. 14.) Law then filed another motion for reconsideration on January 14, 2016, which was denied by the state appellate court on February 5, 2016. (Doc. No. 8-1, Exhs. 15, 16.)
On May 20, 2016, Law filed a pro se notice of appeal from the state appellate court's November 25, 2015 Order, as well as a motion for delayed appeal, in the Supreme Court of Ohio. (Doc. No. 8-1, Exhs. 17, 18.) On July 27, 2016, Law's motion for delayed appeal was denied. (Doc. No. 8-1, Exh. 19.)
On December 6, 2016,
(Doc. No. 1.)
Respondent filed a Motion to Dismiss the Petition as Time-Barred on March 6, 2017. (Doc. No. 8.) Law did not file a Brief in Opposition or otherwise respond.
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, Law's sentence was journalized by the state trial court on February 11, 2014. (Doc. No. 8-1, Exh. 7.) Law then had thirty (30) days to appeal to the state appellate court pursuant to Ohio App. R. 4(A), but failed to do so. Based on this sequence of events, Respondent argues Law's conviction and sentence became "final" for purposes of § 2244(d)(1)(A) on March 13, 2014, thirty (30) days after Law was sentenced and the time to file a timely notice of appeal with the state appellate court expired. (Doc. No. 8 at 8.)
Law does not challenge Respondent's assertion that § 2244(d)(1)(A) is the applicable provision or that his Petition is untimely thereunder. Based on its own review of the record, the Court agrees Law's conviction and sentence became "final" for purposes of § 2244(d)(1)(A) on March 13, 2014, thirty (30) days after Law was sentenced and the time to file a timely notice of appeal with the state appellate court expired. Accordingly, the Court further finds the limitations period commenced on March 14, 2014 and, absent tolling, expired one year later on March 14, 2015.
However, as Respondent correctly notes, 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 Law made no filings between February 11, 2014 (the date the state trial court sentencing entry was journalized) and March 14, 2015 (the date the AEDPA statute of limitations expired.) Law did, however, file (1)a pro se post-conviction motion captioned "Limitation of Sentence 2901.13(A)(1)(a), Period of Sentence, Evidence Review " and "Sentence Contrary to Law" in the state trial court, on June 29, 2015; (2) a notice of appeal to the state appellate court, on October 29, 2015; (3) two motions for reconsideration in the state appellate court, on December 14, 2015 and January 14, 2016; and (4) a notice of appeal and motion for leave to file a delayed appeal in the Ohio Supreme Court, on May 20, 2016. (Doc. No. 8-1, Exhs. 8, 10, 13, 15, 17-18.) 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 Law's pro se post-conviction motions and notices of appeal were all filed well after the statutory limitations period expired, they did not have any further tolling effect.
As the statutory limitations period expired on March 14, 2015 and Law did not file his habeas petition until December 6, 2016, the Court finds the Petition is over a year and a half late and is untimely under § 2244(d)(1)(A). Therefore, unless equitable tolling is appropriate, Law's Petition should be dismissed as time-barred.
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 that 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 (6
Here, Law has not argued he is entitled to equitable tolling. He offers no explanation for his failure to timely appeal his sentencing entry in state trial court, nor does he articulate any reason why he waited nearly sixteen (16) months after sentencing to pursue post-conviction relief. Moreover, there is nothing on the face of the Petition that would suggest any basis for Law's failure to either file a timely direct appeal or diligently pursue post-conviction remedies. Thus, the Court finds Law 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 Law'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 expressly 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 Law 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 Law 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, ___ U.S. ___, 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, Law does not identify any new, reliable evidence of his actual innocence. Accordingly, and for all the reasons set forth above, the Court finds Law has not demonstrated he is entitled to the actual innocence exception.
For the foregoing reasons, it is recommended the Court find that 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.
