NORAH McCANN KING, Magistrate Judge.
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, ECF 1, Respondent's Return of Writ, ECF 7, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge
This case involves Petitioner's June 1986 Indictment by the Franklin County grand jury on two counts of aggravated murder and one count of robbery with death penalty specifications related to the murder of William McKinney. Exhibit 1 to Return of Writ. Petitioner waived his right to a jury and, pursuant to his negotiated Plea Agreement, pleaded guilty to aggravated murder and aggravated robbery, with specifications. Exhibits 5, 6 to Return of Writ. On April 24, 1987, a three judge panel sentenced Petitioner to terms of imprisonment of thirty years to life on the aggravated murder charge and ten to twenty-five years on the aggravated robbery charge, the terms of imprisonment to be served concurrently. Exhibits 7, 8 to Return of Writ. The State dismissed the other aggravated murder charge. Exhibit 9 to Return of Writ. Petitioner did not file an appeal from that conviction.
On April 23, 2005, Petitioner filed a Motion to Reduce Sentence asking the state trial court reduce his sentence from a thirty year minimum to a twenty year minimum. Exhibit 11 to Return of Writ. On December 14, 2011, Petitioner filed a Motion to Impose a Valid Sentence. On January 26, 2012, the trial court construed both motions as post-conviction actions and denied those motions. Exhibit 15 to Return of Writ. Petitioner filed a timely appeal from that decision. Exhibit 16 to Return of Writ.
The Ohio Tenth District Court of Appeals dismissed Petitioner's appeal, reasoning as follows:
State v. Tucker, 12AP-158, 2012 WL 3133093, at *(Ohio App. 10th Dist. Aug. 2, 2012). On August 2, 2012, the appellate court affirmed the judgment of the trial court. On November 28, 2012, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Tucker, 133 Ohio St.3d 1492 (2012).
On February 11, 2013, Petitioner filed the pro se Petition. He alleges that he is in the custody of the Respondent in violation of the Constitution of the United States because the trial court failed to follow Ohio's statutory requirements in imposing sentence, rendering his sentence void (claim one); the trial court abused its discretion in denying his motion to reduce sentence (claim two); his sentence is void under State v. Baker, 2008-Ohio-3330 (claim three); and because he was denied the effective assistance of counsel (claim four).
As noted by Respondent, this action is plainly time-barred. Alternatively, the Petition fails to present a basis for federal habeas corpus relief.
In claim two, Petitioner alleges that the trial court abused its discretion when it denied his motion to reduce sentence. In claim three, Petitioner alleges that his sentence violates State v. Baker, 119 Ohio St.3d 197 (2008)(holding that a judgment of conviction is a single document that need not include the plea entered at arraignment). Both of these claims present issues based exclusively on an alleged violation of state law and, for that reason, these claims fail to present a basis for federal habeas corpus relief.
A federal court may review a state prisoner's habeas petition only for challenges to confinement premised on alleged violations of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). Thus, a federal court may not issue a writ of habeas corpus "on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th Cir. 1988). A federal habeas court does not function as an additional state appellate court reviewing a state trial court's ruling on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988). Instead, when considering habeas petitions, "`federal courts must defer to a state court's interpretation of its own rules of evidence and procedure.'" Id. (quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)). It is only where the error resulted in the denial of fundamental fairness that habeas relief will be granted. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). Here, Petitioner has failed to demonstrate that the errors alleged in claims two and three resulted in a denial of fundamental fairness.
Claims two and three lack merit.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which became effective on April 24, 1996, imposes a one-year statute of limitations on the filing of habeas corpus petitions. 28 U.S.C. § 2244(d) provides as follows:
Antiterrorism and Effective Death Penalty Act (hereinafter AEDPA), Petitioner had one year from the effective date of the AEDPA, i.e., April 24, 1997, in which to file his habeas corpus petition. See Brown v. O'Dea, 187 F.3d 572, 577 (6th Cir. 1999), vacated on other grounds, 530 U.S. 1257 (2000). Petitioner waited more than fifteen years, until February 11, 2013, to file this habeas corpus petition. His April 2005 state court post-conviction petition did not toll the running of the statute of limitations under 28 U.S.C. § 2244(d), because the statute of limitations had already long since expired. "The 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." Vroman v. Brigano, 346 F.3d 598, 601 (6th Cir. 2003) (quoting Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998)); see also Winkfield v. Bagley, 66 Fed. Appx. 578 (unpublished), 2003 WL 21259699 (6th Cir. May 28, 2003) (same). Further, Petitioner has failed to allege any extraordinary circumstances that would justify the equitable tolling of the statute of limitations for the period at issue. See Holland v. Florida, 560 U.S. ___, 130 S.Ct. 2549, 2560 (2010) (statute of limitations may be equitably tolled only in extraordinary circumstances).
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
