KAREN L. LITKOVITZ, 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. 4). This matter is before the Court on respondent's motion to dismiss (Doc. 8) and petitioner's response in opposition. (Doc. 11). For the reasons stated below, the undersigned recommends that the motion to dismiss be granted and petition be dismissed on the ground that it is time-barred pursuant to 28 U.S.C. § 2241(d)(1).
In May 2003, the Scioto County, Ohio, grand jury returned a four-count indictment charging petitioner with four counts of rape of a child under the age of thirteen, with each count carrying force and sexually violent predator specifications. (Doc. 7, Ex. 1). Petitioner entered a not guilty plea. (Doc. 7, Ex. 2).
Petitioner subsequently filed a plea of not guilty by reason of insanity. (Doc. 7, Ex. 3). The trial court ordered the evaluation of petitioner's mental condition at the time of the commission of the offense, as well as his competence to stand trial. (Doc. 7, Ex. 4, 5). On November 26, 2003, following a hearing on the matter, the trial court found petitioner competent to stand trial. (Doc. 7, Ex. 6).
After plea negotiations, petitioner withdrew his former not-guilty plea and entered a plea of guilty to three counts of rape and one of the sexually violent predator specifications. (Doc. 7, Ex. 7). On February 23, 2004, the trial court accepted petitioner's guilty plea and sentenced him to a total aggregate prison sentence of 30 years to life in the Ohio Department of Corrections. (Doc. 7, Ex. 8).
Petitioner failed to file a direct appeal of his convictions and sentence.
On November 18, 2016, more than twelve years after sentencing, petitioner filed a pro se "verified motion to correct sentence." (Doc. 7, Ex. 9). On January 4, 2017, the trial court denied petitioner's motion. (Doc. 7, Ex. 10).
Petitioner filed a notice of appeal to the Ohio Court of Appeals. (Doc. 7, Ex. 11). Petitioner raised the following single assignment of error in his merit brief:
(Doc. 7, Ex. 12). On September 18, 2017, the Ohio Court of Appeals overruled petitioner's assignment of error and affirmed the judgment of the trial court. (Doc. 7, Ex. 14).
Petitioner filed a notice of appeal to the Ohio Supreme Court. (Doc. 7, Ex. 15). In his memorandum in support of jurisdiction, petitioner raised the following two propositions of law:
(Doc. 7, Ex. 16). On January 31, 2018, the Ohio Supreme Court declined to accept jurisdiction of the appeal. (Doc. 7, Ex. 18).
On February 15, 2019, petitioner commenced the instant federal habeas corpus action.
(Doc. 4 at PageID 53-58).
Respondent has filed a motion to dismiss the petition on the ground that it is time-barred. (Doc. 8), which petitioner opposes. (Doc. 11).
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 during sentencing. Because petitioner was aware of the facts underlying his claims or the claims could have been discovered through the exercise of due diligence 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."
Petitioner does claim that the Ohio Supreme Court's 2016 decision in State v. Williams, 71 N.E. 3d. 234 (Ohio 2016), "expanded and clarified the void sentencing doctrine." (Doc. 11 at PageID 309). However, to the extent that petitioner contends that he is entitled to a later start date under 28 U.S.C. § 2244(d)(1)(D), his claim is without merit. Section 2244(d)(1)(D) concerns the discovery of new facts, not changes in substantive law. "Changes in substantive law, like the enactment of a statute, generally are not facts supporting a claim." Goble v. Taylor, No. 14-58-ART-REW, 2015 WL 770389, at *3 (E.D. Ky. Feb. 19, 2015). See also Lo v. Endicott, 506 F.3d 572, 576 (7th Cir. 2007) (finding that "a state court decision modifying substantive law" does not constitute a factual predicate under § 2244(d)(1)(D)); Shannon v. Newland, 410 F.3d 1083, 1088 (9th Cir. 2005) ("If a change in (or clarification of) state law, by a state court, in a case in which [the petitioner] was not a party, could qualify as a `factual predicate,' then the term `factual' would be meaningless.").
Petitioner also states in his response that he was "deceived by jail-house lawyers, acting as de-facto agents for the government, who trick[ed] a low educated individual, suffering from mental health issues, into a nightmare of years worth of addition[al] legal consequences." (Doc. 11 at PageID 311). He also claims that he was unable to obtain legal assistance from the public defender. (Id.). However, petitioner's pro se status or his inability to obtain legal assistance do not constitute state-created impediments to filing a timely habeas petition. See Harvey v. Addison, 390 F. App'x 840, 842 (10th Cir. 2010) (holding that meaningful legal assistance from prison law clerks was not a state-created impediment, noting that "[t]he Constitution does not guarantee prisoners `an abstract, freestanding right to a law library or legal assistance,' but only a `right of access to the courts'") (quoting Lewis v. Casey, 518 U.S. 343, 350-51 (1996)).
Under § 2244(d)(1)(A), petitioner's conviction became final on March 24, 2004, when the 30-day period expired for filing a timely appeal to the Ohio Court of Appeals from the trial court's February 23, 2004 sentencing. See Ohio R. App. P. 4(A). The statute commenced running on March 25, 2004, the next business day after petitioner's conviction became final, see Fed. R. Civ. P. 6(a); Bronaugh v. Ohio, 235 F.3d 280, 285 (6th Cir. 2000), and expired one year later on March 25, 2005, absent the application of statutory or equitable tolling principles.
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 post-conviction 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 4,621 days before petitioner filed his November 18, 2016 motion to correct sentence. Because petitioner's application was filed after the one-year statute of limitations had already expired, statutory tolling would not serve to extend the limitations period. Vroman, 346 F.3d at 602. Therefore, petitioner is not entitled to statutory tolling based on the untimely application. See Allen, 552 U.S. at 5-6; see also Pace, 544 U.S. at 413-14; Vroman, 346 F.3d at 603.
The AEDPA's statute of limitations is subject to equitable tolling, see Holland, 560 U.S. at 645, "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, 560 U.S. at 649 (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 is not entitled to equitable tolling in this case. As justification for his failure to exhaust his grounds for relief, petitioner claims that he was misinformed by trial counsel that he was not allowed to file an appeal or seek redress of the issues raised in the petition. Petitioner claims that "I was later told years later that the information my attorney gave me on my right to appeal was not true; which facilitated my motion to correct sentence." (Doc. 4 at PageID 53). Although petitioner argues he diligently pursued his claims by subsequently filing a motion to correct sentence, the Sixth Circuit has indicated that the relevant inquiry in determining whether equitable tolling applies is whether petitioner was diligent in pursuing federal habeas relief. In this case, petitioner waited more than twelve years to file his habeas petition after his conviction and sentence became final. Moreover, petitioner waited more than a year to file his habeas petition after the Ohio Supreme Court denied his appeal from the denial of his motion to correct sentence.
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, 569 U.S. 383, 399 (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), petitioner's conviction and sentence became final on March 24, 2004. The limitations period ran for one year and expired on March 25, 2005, more than twelve years before petitioner filed his habeas petition. Because statutory or 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, the petition is time-barred.
1. Respondent's motion to dismiss (Doc. 8) 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),
