JAMES G. CARR, District Judge.
This is a habeas corpus case under 28 U.S.C. § 2254.
On October 26, 2018, Magistrate Judge Limbert filed a Report and Recommendation recommending that I dismiss Carlos Valdez's petition as time-barred. (Doc. 10). Thereafter, on November 13, 2018, petitioner filed what he styled a "Responsive Pleading" that does not address the Magistrate Judge's timeliness ruling but argues the merits of his fourth claim for relief. (Doc. 11).
Even assuming that the "Responsive Pleading" amounts to an objection to the Magistrate Judge's R&R,
On January 12, 1989, an Ashland County, Ohio, jury convicted the petitioner on two counts of rape. Following affirmance by the Fifth District Court of Appeals and the Ohio Supreme Court's ensuing refusal to hear a discretionary appeal, petitioner's conviction became final on May 29, 1990, when the time to file a certiorari petition expired.
Because that date predates enactment of the Anti-Terrorism and Effective Death Penalty Act, petitioner had one year after enactment of that statute in which to seek habeas relief. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001).
That period expired without a filing on April 24, 1997.
Confronted with the AEDPA one-year limitations bar, the petitioner contended that the petition was timely because he filed it within one year of the Ohio Supreme Court's dismissal, in February, 2018, of a state habeas petition that he had filed in December, 2017.
However, as the Magistrate Judge correctly pointed out, a state prisoner cannot breathe new life into long-dead federal claims simply by filing an unsuccessful state court challenge after the federal limitations period has expired. To hold otherwise, as the Magistrate Judge also noted, would neuter the AEDPA limitations period and thereby frustrate the congressional intent and mandate to bar stale § 2254 claims.
Finally, the Magistrate Judge found no basis to toll the AEDPA limitations period, and I likewise perceive none.
That being said, there is no merit to the petitioner's objection that seeks to address several other issues, but does not speak to the determinative issue here: namely, the untimeliness, by roughly twenty years, of his petition. That is a doorway that he must, but cannot, pass through before this court can give any consideration to the merits of his petition. Not having gotten through the limitations barrier, he cannot prevail on his objection or his petition.
It is, accordingly,
ORDERED THAT:
So ordered.
This matter is before the undersigned on a motion to dismiss filed by Warden Lashann Eppinger ("Respondent"), Warden of the Grafton Correctional Institution, on April 16, 2018. ECF Dkt. #8. Petitioner Carlos O. Valdez filed his federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on January 5, 2018.
The Fifth District Court of Appeals, Ashland County, Ohio, set for the facts of this case on direct appeal. These binding factual findings "shall be presumed to be correct," and Petitioner has "the burden of rebutting the presumption by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6
State v. Valdez, 5
On November 7, 1988, Petitioner was indicted by the Ashland County Grand Jury on four counts of rape in violation of Ohio Revised Code § 2907.02(A)(2). ECF Dkt. #8-1 at 3. The jury found Petitioner guilty on the third and fourth counts and not guilty on the first and second counts. Id. at 10. On January 13, 1989, the trial court sentenced Petitioner to consecutive sentences of eight to twenty-five years on each count. Id. at 11.
Petitioner filed a timely notice of appeal in the Fifth District Court of Appeals on January 31, 1989. ECF Dkt. #8-1 at 14. On November 13, 1989, the Fifth District Court of Appeals affirmed the judgment of the trial court. Id. at 117. Petitioner then filed an appeal to the Supreme Court of Ohio. Id. at 212. On February 28, 1990, the Supreme Court of Ohio dismissed Petitioner's appeal sua sponte for failure to raise a substantial constitutional question. Id.
Petitioner filed a petition to vacate or set aside his sentence on December 13, 1991. ECF Dkt. #8-1 at 124. On December 31, 1991, the trial court dismissed Petitioner's motion on the basis of res judicata because the issues raised therein were identical to the issues raised on direct appeal. Id. at 155. Petitioner did not appeal the dismissal of his motion.
On October 20, 2016, Petitioner filed a petition for relief asserting that he was wrongfully convicted and imprisoned, and seeking monetary relief. ECF Dkt. #8-1 at 165. The trial court overruled and dismissed Petitioner's petition for relief on February 22, 2017. Id. at 188. On March 15, 2017, Petitioner filed a motion requesting that the court remand the decision issued on February 22, 2017, so that he could re-file the case as a civil action. Id. at 189. The trial court denied Petitioner's motion on May 15, 2017. Id. at 195. Petitioner did not appeal these decisions.
Petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Ohio on December 19, 2017. ECF Dkt. #8-1 at 197. On February 14, 2018, the Supreme Court of Ohio sua sponte dismissed Petitioner's habeas petition. Id. at 205.
Petitioner filed his federal habeas petition pursuant to 28 U.S.C. § 2254 on January 5, 2018. ECF Dkt. #1. In the habeas petition, Petitioner asserts the following grounds for relief:
Id. at 5-10. Petitioner did not include any supporting facts for his first three grounds for relief. Id. at 5-8. In the supporting facts portion of the habeas petition for ground four Petitioner states "[n]ot given Interpreter." Id. at 10.
A petitioner must overcome several procedural barriers before a court will review the merits of a petition for a writ of federal habeas corpus. As Justice O'Connor noted in Daniels v. United States, "[p]rocedural barriers, such as statutes of limitations and rules concerning procedural default and exhaustion of remedies, operate to limit access to review on the merits of a constitutional claim." 532 U.S. 374, 381 (2001); see also United States v. Olano, 507 U.S. 725, 731 (1993).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") statute of limitations period for filing a petition for a writ of federal habeas corpus is one year, and it begins to run from the latest of:
28 U.S.C. § 2244(d)(1).
As a general rule, a state prisoner must exhaust all possible state remedies or have no remaining state remedies before a federal court will review a petition for a writ of habeas corpus. 28 U.S.C. § 2254(b) and (c); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004). The exhaustion requirement is satisfied "once the federal claim has been fairly presented to the state courts." Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987). To exhaust a claim, a petitioner must present it "to the state courts under the same theory in which it is later presented in federal court." Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); see also McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). General allegations of the denial of rights to a "fair trial" and "due process" do not "fairly present" claims that specific constitutional rights were violated. McMeans, 228 F.3d at 681 (citing Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2nd Cir. 1984)).
In order to have fairly presented the substance of each of his federal constitutional claims to the state courts, the petitioner must have given the highest court in the state in which he was convicted a full and fair opportunity to rule on his claims. Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). A petitioner fairly presents the substance of his federal constitutional claim to the state courts by: (1) relying upon federal cases that use a constitutional analysis; (2) relying upon state cases using a federal constitutional analysis; (3) phrasing his claim in terms of constitutional law or in terms sufficiently particular to allege the denial of a specific constitutional right; or (4) alleging facts that are obviously within the mainstream of constitutional law. Clinkscale v. Carter, 375 F.3d 430, 437 (6th Cir. 2004) (quoting Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003)); see also Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993), cert. denied, 509 U.S. 907 (1993). In Harris v. Lafler, the Sixth Circuit laid out the options that a district court may pursue in dealing with a petition that contains unexhausted claims:
553 F.3d 1028, 1031-32 (6th Cir. 2009). The Supreme Court has held that "the petitioner has the burden ... of showing that other available remedies have been exhausted or that circumstances of peculiar urgency exist." Darr v. Burford, 339 U.S. 200, 218-19 (1950), overruled in part on other grounds, Fay v. Noia, 372 U.S. 391 (1963). A petitioner will not be allowed to present claims never before presented in the state courts unless he can show cause to excuse his failure to present the claims in the state courts and actual prejudice to his defense at trial or on appeal, or that he is actually innocent of the crime for which he was convicted. Coleman v. Thompson, 501 U.S. 722, 748 (1991).
The procedural default doctrine serves to bar review of federal claims that a state court has declined to address when a petitioner does not comply with a state procedural requirement. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In these cases, "the state judgment rests on independent and adequate state procedural grounds." Coleman, 501 U.S. at 730. For purposes of procedural default, the state ruling with which the federal court is concerned is the "last explained state court judgment." Munson v. Kapture, 384 F.3d 310, 314 (6th Cir. 2004) (citing Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991)) (emphasis removed). When the last explained state court decision rests upon procedural default as an "alternative ground," a federal district court is not required to reach the merits of a habeas petition. McBee v. Abramajtys, 929 F.2d 264, 265 (6th Cir. 1991). In determining whether a state court has addressed the merits of a petitioner's claim, federal courts must rely upon the presumption that there are no independent and adequate state grounds for a state court decision absent a clear statement to the contrary. Coleman, 501 U.S. at 735.
Applying this presumption, the Sixth Circuit established a four-pronged analysis to determine whether a claim has been procedurally defaulted under Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Under the first prong of Maupin, there must be a firmly established state procedural rule applicable to the petitioner's claim and the petitioner must not have complied with the rule. Ford v. Georgia, 498 U.S. 411, 423-24 (1991). Under the second prong, the last state court to which the petitioner sought review must have invoked the procedural rule as a basis for its decision to reject review of the prisoner's federal claims. Coleman, 501 U.S. at 729-30; Richey v. Mitchell, 395 F.3d 660 at 678 (2005) (holding that "a lapsed claim survives if the state court overlooked the default and decided the claim anyway"); Baze v. Parker, 371 F.3d 310, 320 (6th Cir. 2004) (holding that if a state court does not expressly rely on a procedural deficiency, then a federal court may conduct habeas review); Gall v. Parker, 231 F.3d 265, 310 (6th Cir. 2000) (holding that even if the issue is not raised below, where state supreme court clearly addresses the claim, no procedural bar arises). Under the third prong, a state judgment invoking the procedural bar must rest on a state law ground that is both independent of the merits of the federal claim and is an adequate basis for the state court's decision. Munson v. Kapture, 384 F.3d at 313-14. Under the fourth prong, a claim that is procedurally defaulted in state court will not be reviewable in federal habeas corpus unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 751. "Cause" is a legitimate excuse for the default, and "prejudice" is actual harm resulting from the alleged constitutional violation. Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984), cert. denied, 490 U.S. 1068 (1985). If a petitioner fails to show cause for his procedural default, the reviewing court need not address the issue of prejudice. Smith v. Murray, 477 U.S. 527 (1986).
Simply stated, a federal court may review federal claims:
Bonnell v. Mitchel, 301 F.Supp.2d 698, 722 (N.D. Ohio 2004).
If Petitioner's claims overcome the procedural barriers of time limitation, exhaustion, and procedural default, the AEDPA governs this Court's review of the instant case because Petitioner filed the instant § 2254 federal habeas corpus petition well after the AEDPA's effective date of April 26, 1996. Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997), cert. denied, 522 U.S. 1112 (1998). Under § 2254, a state prisoner is entitled to relief if he is held in custody in violation of the United States Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(d).
The AEDPA sets forth the standard of review for the merits of a petition for the writ of habeas corpus. The AEDPA provides:
28 U.S.C. § 2254(d). In Williams v. Taylor, the Supreme Court clarified the language of 28 U.S.C. § 2254(d) and stated:
529 U.S. 362, 412-13 (2000). Furthermore, the Supreme Court declared that "a federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. Elaborating on the term "objectively unreasonable," the Court stated that "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.; see also Bailey v. Mitchell, 271 F.3d 652, 655-56 (6th Cir. 2001).
The Sixth Circuit offers the following guidelines for applying the AEDPA limitations:
Bailey, 271 F.3d at 655-56 (6th Cir. 2001) (internal citations omitted).
Finally, a reviewing federal court is bound by the presumption of correctness, under which the federal court is obligated to "accept a state court's interpretation of the state's statutes and rules of practice." Hutchinson v. Marshall, 744 F.2d 44, 46 (6th Cir. 1984), cert. denied, 469 U.S. 1221 (1985); see also Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986). The presumption of correctness is set forth in 28 U.S.C. § 2254(e), which provides:
28 U.S.C. § 2254(e). The presumption of correctness applies to basic primary facts, and not to mixed questions of law and fact. Levine, 986 F.2d at 1514. The presumption also applies to "implicit findings of fact, logically deduced because of the trial court's ability to adjudge the witnesses' demeanor and credibility." McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997). Furthermore, a reviewing federal court is not free to ignore the pronouncement of a state appellate court on matters of law. See Central States, Southeast & Southwest Areas Pension Fund v. Howell, 227 F.3d 672, 676, n.4 (6th Cir. 2000). Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
In the motion to dismiss, Respondent asserts that Petitioner's habeas petition is barred by the AEDPA statute of limitations. ECF Dkt. #8 at 6. Specifically, Respondent states that Petitioner's conviction became final on May 29, 1990, after the experation of the ninety-day period allowed for an appeal. Id. at 7. Respondent states that if granted the one-year "grace period" given to prisoners whose convictions became final prior to enactment of the AEDPA, Petitioner should have filed his habeas petition before April 24, 1997. Id.
Continuing, Respondent avers that statutory tolling cannot render Petitioner's habeas petition timely as no filings were made that would toll the expiration of the statute of limitations. Id. at 7-8. Respondent also states that Petitioner is not entitled to equitable tolling because he was not diligent in filing his habeas petition and Petitioner has not cited any reasonable circumstances outside of his control explaining why he failed to file his federal habeas petition in a timely manner. Id. at 10. Additionally, Respondent asserts that Petitioner's ignorance of the law, lack of legal training, poor education, or potential illiteracy do not entitle him to equitable tolling. Id. at 10-11 (citing Cobas v. Burgess, 306 F.3d 444 (6
In his traverse, Petitioner briefly responds to Petitioner's motion to dismiss. ECF Dkt. #9 at 6. Before arguing the merits of his habeas petition, Petitioner states that it has been less than one year since the Supreme Court of Ohio entered a decision dismissing his state habeas petition and thus the AEDPA statute of limitations has not expired. Id.
Petitioner's argument is without merit. Granting him the one-year "grace period" afforded to prisoners who were convicted prior to the enactment of the AEDPA, Petitioner was required to file his habeas petition on April 24, 1997. See Payton v. Brigano, 256 F.3d 405, 408 (6
For the foregoing reasons, the undersigned RECOMMENDS that the Court GRANT Respondent's motion to dismiss (ECF Dkt. #8) and DISMISS Petitioner's habeas petition (ECF Dkt. #1) in its entirety with prejudice.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within fourteen (14) days of service of this notice. Fed. R. Crim. P. 59. Failure to file objections within the specified time constitutes a WAIVER of the right to appeal the Magistrate Judge's recommendation. Id.
