STEPHANIE K. BOWMAN, Magistrate Judge.
Petitioner, an inmate in state custody at the Chillicothe Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before the Court on respondent's motion to dismiss, to which petitioner has not responded. (Doc. 7).
On March 2, 1994, the Hamilton County, Ohio, grand jury returned a seven-count indictment charging petitioner with three counts of felonious sexual penetration, three counts of gross sexual imposition, and one count of illegal use of a minor in nudity-oriented material or performance. (Doc. 6, Ex. 1). The grand jury subsequently issued a second indictment charging petitioner with seventeen additional charges: three counts of corruption of a minor, five counts of illegal use of a minor in nudity-oriented material or performance, three counts of felonious sexual penetration, four counts of gross sexual imposition, and two counts of rape. (Doc. 6, Ex. 2). The trial court consolidated the two cases. (Doc. 6, Ex. 4).
On June 9, 1994, petitioner entered a guilty plea to three counts of felonious sexual penetration and one count of illegal use of a minor in nudity-oriented material performance, as charged in the first indictment. (Doc. 6, Ex. 5). Petitioner pleaded guilty to nine charges in the second indictment, including two counts of gross sexual imposition, one count of corruption of a minor, two counts of illegal use of a minor in nudity-oriented material or performance, three counts of felonious sexual penetration, and one count of rape. (Doc. 6, Ex. 8). The remaining counts in the indictments were dismissed. (Doc. 6, Ex. 7, 9).
On July 13, 1994, petitioner was sentenced to concurrent terms of 10-25 years for each of his felonious sexual penetration convictions and 5-15 years for illegal use of a minor in nudity oriented material or performance, to be served consecutively. (Doc. 6, Ex. 10). For the convictions stemming from the second indictment, petitioner was sentenced to an aggregate indefinite sentence of 15-120 years and a total definite sentence of six years. (Doc. 6, Ex. 12).
Petitioner failed to appeal his conviction or sentence to the Ohio Court of Appeals.
On July 11, 2007, thirteen years later, petitioner filed a motion for production of records. (Doc. 6, Ex. 14). On August 8, 2008, petitioner also filed a motion for production of transcripts. (Doc. 6, Ex. 15).
On March 28, 2011, petitioner filed a motion to enforce plea deal. (See Doc. 6, Ex. 16-18). Petitioner argued that his trial counsel has negotiated a 15 year sentence and the court imposed a 15 year sentence. On March 30, 2011, the trial court denied petitioner's motion for production of records, production of transcripts, and to enforce the plea deal. (Doc. 6, Ex. 19-23).
On May 9, 2011, petitioner filed a notice of appeal to the Ohio Court of Appeals. (Doc. 6, Ex. 24). Petitioner raised the following single assignment of error in his brief:
(Doc. 6, Ex. 25 at PageID 103). On December 21, 2011, the Ohio Court of Appeals found that the trial court properly declined to grant the relief sought in the motion, but that the trial court should have struck the motion because petitioner's memorandum was illegible and therefore did not comply with Crim. R. 47 and Loc. R. 14(A). (Doc. 6, Ex. 27). The appeals court modified the entry overruling the motion to reflect a judgment striking the motion and affirmed the judgment as modified.
Petitioner did not appeal to the Ohio Supreme Court.
On July 24, 2012, petitioner filed a "motion to correct clerical error," alleging that sentence was not properly reflected in the journalized judgment entry. (Doc. 6, Ex. 28). On July 2, 2013, the trial court overruled the motion. (Doc. 6, Ex. 29).
On May 19, 2014, petitioner filed a motion for specific performance or to allow him to withdraw his allegedly invalid plea. (Doc. 6, Ex. 31). Petitioner raised the following three "assignments of errors:"
(Id. at PageID 134). Petitioner also requested transcripts of his competency, plea, and sentencing hearings, as well as his competency evaluations in connection with the motion. (See Doc. 6, Ex. 30).
On October 23, 2014, petitioner filed a motion to correct sentence. (Doc. 6, Ex. 32). The motion was denied by the trial court on October 28, 2014. (Doc. 6, Ex. 33, 34).
On April 21, 2015, petitioner filed a motion for leave to file a delayed appeal from the trial court's judgment denying his motion, which was granted by the appeals court. (Doc. 6, Ex. 35, 36). Petitioner subsequently filed a motion for the preparation of transcripts at the state's expense. (Doc. 6, Ex. 37). The Ohio Court of Appeals denied the motion, noting that the "appeal arises from a petition for postconviction relief, which is a civil proceeding." (Doc. 6, Ex. 38). Petitioner filed a motion for reconsideration, which was denied. (Doc. 6, Ex. 39, 40). On August 10, 2015, the court of appeals sua sponte dismissed petitioner's appeal for petitioner's failure to comply with the Ohio Rules of Appellate Procedure. (Doc. 6, Ex. 41).
Petitioner filed an appeal to the Ohio Supreme Court on September 4, 2015. (Doc. 6, Ex. 42). In his memorandum in support of jurisdiction, petitioner raised the following two propositions of law:
(Doc. 6, Ex. 43). On December 2, 2015, the Ohio Supreme Court declined jurisdiction over the appeal. (Doc. 6, Ex. 44).
On November 25, 2016, petitioner commenced the instant federal habeas corpus action.
(Id. at PageID 6-11).
Respondent has filed a motion to dismiss the petition, arguing that the petition is timebarred. (Doc. 7). Although petitioner was granted an extension of time up to and including July 7, 2016 to file a response, petitioner has failed to respond to the motion. (See Doc. 8).
Under 28 U.S.C. § 2244(d)(1), as amended by § 101 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, a person in custody pursuant to the judgment of a state court must file an application for a writ of habeas corpus within one year from the latest of:
28 U.S.C. § 2244(d)(1). Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled during the pendency of a properly filed application for state post-conviction relief or other collateral review.
There is no evidence in the record in this case to suggest that the provisions set forth in §§ 2244(d)(1)(B) through (D) apply to petitioner's grounds for relief. Petitioner has not alleged that a State created impediment prevented him from filing the instant petition or that his claims are governed by a newly recognized constitutional right made retroactively applicable to his case. Furthermore, petitioner's grounds for habeas relief are based on alleged errors that occurred at sentencing. Since petitioner was aware of the facts underlying his claims by the close of the direct review, his grounds for relief are governed by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A), which began to run when petitioner's conviction became final "by the conclusion of direct review or the expiration for the time for seeking such review."
In this case, petitioner's conviction became final on August 12, 1994, when the 30-day period expired for filing a timely appeal to the Ohio Court of Appeals from the trial court's July 13, 1994 sentencing. See Ohio R. App. P. 4(A). However, because petitioner's conviction became final prior to the effective date of the AEDPA, petitioner was entitled to a one-year grace period running from April 24, 1996, the act's effective date. Cook v. Stegall, 295 F.3d 517, 519 (6th Cir. 2002). Accordingly, the limitations period expired on April 24, 1997 absent the application of the statutory tolling provision set forth in 28 U.S.C. § 2244(d)(2) or any other applicable tolling principles. Fed. R. Civ. P. 6(a); Bronaugh v. Ohio, 235 F.3d 280, 285 (6th Cir. 2000). Petitioner's habeas corpus petition was filed on November 25, 2016, over nineteen years after the statute of limitations had expired. Therefore, unless the limitations period is tolled by statute or otherwise, the petition is time-barred.
During the one-year limitations period, petitioner was entitled to tolling of the statute under 28 U.S.C. § 2244(d)(2) based on any pending "properly filed" applications for state postconviction relief or other collateral review. See 28 U.S.C. § 2244(d)(2); see also Holland v. Florida, 560 U.S. 631, 635 (2010); Allen v. Siebert, 552 U.S. 3, 4 (2007) (per curiam); Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003). "The tolling provision does not, however, `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, 346 F.3d at 602 (quoting Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998)). Once the limitations period is expired, state collateral review proceedings can no longer serve to avoid the statute-of-limitations bar. Id.
It is well-settled that a state application for post-conviction relief is "properly filed" within the meaning of § 2244(d)(2) "when its delivery and acceptance are in compliance with the applicable laws and rules governing filings," such as those prescribing the time limits for filing. Artuz v. Bennett, 531 U.S. 4, 8 (2000). State post-conviction or collateral review applications rejected by the state courts on timeliness grounds are not "properly filed" and, therefore, are not subject to statutory tolling under § 2244(d)(2). See Allen, 552 U.S. at 5-6; see also Pace v. DiGuglielmo, 544 U.S. 408, 413-14 (2005); Vroman, 346 F.3d at 603.
No statutory tolling applies under Section 2244(d)(2) to extend the limitations period in this case. The statute of limitations had run for 3,730 days before petitioner filed his July 11, 2007 motion to correct clerical error, the first of his post-conviction motions. (See Doc. 6, Ex. 14). Because petitioner's motions were all filed after the one-year statute of limitations had already expired statutory tolling does not serve to extend the limitations period. Vroman, 346 F.3d at 602.
The AEDPA's statute of limitations is subject to equitable tolling, see Holland, 130 S.Ct. at 2560, "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)). Equitable tolling is granted "sparingly." Id. (quoting Robertson, 624 F.3d at 784). A habeas petitioner is entitled to equitable tolling only if he establishes that (1) "he has been pursuing his rights diligently;" and (2) "some extraordinary circumstance stood in his way and prevented timely filing." Id. (quoting Holland, 130 S.Ct. at 2562 (internal quotations omitted)); see also Pace, 544 U.S. at 418. Although the Sixth Circuit previously utilized a five-factor approach in determining whether a habeas petitioner is entitled to equitable tolling, Holland'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)). "With Holland now on the books, the `extraordinary circumstances' test, which requires both reasonable diligence and an extraordinary circumstance, has become the law of this circuit." Id.; see also Patterson v. Lafler, 455 F. App'x 606, 609 n.1 (6th Cir. 2012).
Petitioner has not demonstrated that he is entitled to equitable tolling in this case. Petitioner has not responded to the motion to dismiss, nor has he offered any explanation for his failure to file the habeas petition prior to the expiration of the limitations period in the petition. (See Doc. 1 at PageID 14). Finally, petitioner has neither argued nor otherwise demonstrated that the procedural bar to review should be excused based on a colorable showing of actual innocence. "To invoke the miscarriage of justice exception to AEDPA's statute of limitations, . . . a petitioner `must show that it is more likely than not that no reasonable juror would have convicted him in the light of . . . new evidence.'" McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1935 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). No such showing has been made in this case.
Accordingly, in sum, the undersigned concludes that the instant federal habeas corpus petition is barred from review by the one-year statute of limitations governing habeas corpus actions brought pursuant to 28 U.S.C. § 2254. Under the applicable provision set forth in 28 U.S.C. § 2244(d)(1)(A), the statute of limitations expired on April 24, 1997, more than nineteen years before petitioner filed his federal habeas corpus petition. Equitable tolling principles do not apply to further extend the limitations period or otherwise avoid the statute-of-limitations bar to review in this case. Therefore, respondent's motion to dismiss (Doc. 7) should be
1. Respondent's motion to dismiss (Doc. 7) be
2. A certificate of appealability should not issue with respect to any of the claims for relief alleged in the petition, which this Court has concluded are barred from review on a procedural ground, because under the first prong of the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), "jurists of reason" would not find it debatable whether the Court is correct in its procedural ruling.
3. With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and therefore
Pursuant to Fed. R. Civ. P. 72(b),