Opinion
Case No. 3:04CV7514.
July 6, 2005
REPORT AND RECOMMENDATIONM
This matter is before the Court on a petition for a writ of federal habeas corpus filed by Larry Taylor ("Petitioner") pursuant to 28 U.S.C. § 2254. ECF Dkt. #1. For the following reasons, the undersigned recommends that the Court DISMISS the grounds for relief in the instant petition.
I. BACKGROUND AND PROCEDURAL HISTORY
A jury in Erie County Ohio, found Petitioner guilty of one count of kidnaping, three counts of rape, two counts of felonious sexual penetration, and one count of felonious assault. ECF Dkt. #20, p. 2. On October 26, 1995, the Erie County Court sentenced Petitioner to serve consecutive terms of 10 to 25 years on each count, except on the charge of felonious assault which carried a term of 8 to 15 years. Id. On November 15, 1996, the Ohio Court of Appeals affirmed the judgment of the trial court. ECF Dkt. #20, Exhibit 3. Petitioner did not appeal to the Ohio Supreme Court.
On October 21, 1997, Petitioner, pro se, filed a motion to reopen his appeal pursuant to App. R. 26(B). ECF Dkt. #20, Exhibit 4. On November 6, 1997, the Ohio Court of Appeals denied his application as untimely. ECF Dkt. #20, Exhibit 5. On February 18, 1998, the Ohio Supreme Court dismissed his appeal. ECF Dkt. #20, Exhibit 6.
On May 3, 2001, Petitioner filed a motion for relief from judgment pursuant to Rule 60(B) of the Ohio Rules of Civil Procedure. ECF Dkt. #20, Exhibit 7. On June 25, 2001, the Ohio Court of Appeals denied the motion for lack of jurisdiction. ECF Dkt. #20, Exhibit 8.
On November 7, 2001, Petitioner filed a motion for new trial pursuant to Ohio Crim. R. 33(B) alleging newly discovered evidence. ECF Dkt. #20, Exhibit 9. On October 17, 2002, the trial court denied Petitioner's motion on the basis of res judicata and untimely filing. ECF Dkt. #20, Exhibit 10. On October 31, 2003, the Ohio Court of Appeals denied his appeal and Petitioner did not appeal to the Ohio Supreme Court. ECF Dkt. #20, Exhibit 11.
In the meantime, on March 18, 2003 Petitioner filed a federal habeas corpus petition. See Taylor v. Wolfe, Case No. 3:03cv7128 (N.D. Ohio 2003). Simultaneously, Petitioner also filed a motion to dismiss his petition in order for him to exhaust his state remedies and requested that the court find that equitable tolling applies to his case. See id. The Court granted Petitioner's motion to dismiss and declined to rule on the applicability of equitable tolling. Id. On June 10, 2003, Petitioner filed a second federal habeas corpus petition and a motion to stay. Taylor v. Wolfe, Case. No. 3:03cv7281 (N.D. Ohio 2003). However, on June 23, 2004, the Court dismissed his petition for failure to exhaust state court remedies. Id.
On August 10, 2004, Petitioner executed the instant petition and on August 17, 2004, filed the instant federal habeas corpus petition. ECF Dkt. #1. Petitioner alleges the following nineteen grounds for relief:
1. [P]etitioner was denied his right(s) of appeal, when the Ohio Appeals Court [found] that the mere signing of Miranda gives up any and all other constitutional guarantees in violation of U.S.C.A Const. Amends., 5,6, 8 and 14; Ohio Const. Art., I, Section 2, 10 and 16[.]
2. Petitioner was denie[d] his right to effective counsel at critical stages of the proceedings by the Appeals Court ruling, in violation of U.S.C.A[.] Const. Amends., 5,6, 8 and 14; Ohio [Constitution] Article I, Section 2, 10 and 16[.]
3. Petitioner was denied his [right] to a fair hearing by the trial courts, and the Ohio [appellate] process in violation of U.S.C.A. Const. Amends., 5,6, and 14; Ohio Const. Article I, Section(s) 2, 10 and 16.
4. [Petitioner] was denied his right to present a defense, when the state refused to give petitioner the warrant in a timely manner before any pre-trial hearings were held, in violation of U.S.C.A. Const. Amends., 5,6, and 14; Ohio Const. Art. I, Sect.,2, 10, 16[.]
5. Petitioner [was] denied the right to effective assistance of counsel, when both Huron County and Erie County counsels failed to investigate petitioner['s] claim that he was under custodial custody and that he had asked for counsel, three times.
6. Petitioner was denied his right to the effective assistance of counsel on appeal as secured to him by the Sixth Amendmentto the United States [C]onstitution.
7. [Pe]titionerwas prejudiced by the prosecutor's misconduct. U.S.C.A. Const. Amends., 5,6, 8 and 14, Ohio Constitution ArticleI, Sec. 2, 16[.]
8. Petitioner was denied his constitutional right of effective assistanceof counsel secured to him by the Sixth Amend. to the United States and Ohio Constitution(s). U.S.C.A. 5,6,8 and 14: OHIO CONST. AMENDS., Article I, Section(s) 2,10, 16.
9. Petitioner was prejudiced by the prosecutor's misconduct[.] U.S.C.A. Const. Amends., 5,6,8 and 14; Ohio Constitution Article I, Sec. 2, 16.
10. Petitioner was prejudiced by the prosecutor's misconduct in switching its position on issues that have been presented. U.S.C.A[.] Const. Amends. 5,4,8 and 14; Ohio Constitution Article I, Section 2, 16.
11. Petitioner was and is being prejudiced by both counsels in the denial of decisions by the appeals courts. U.S.C.A. 5,6,8 and 14: Ohio Const. Article I, Section 2, 10, 16.
12. Petitioner[']s Sixth and Fourteenth Amendments rights under the United States Constitution and federal law, were violated when the Huron County judge refused to accept petitioner[']s claims and assertion that he was under arrest and custodial interrogation at his residence.
13. Petitioner was denied the effective assistance of counsel as secured to him by the Sixth Amendment to the United States Constitution, which prejudiced petitioner.
14. Petitioner was denied his right(s) of appeal, when the Ohio Appeals courts ignored petitioner's affidavits and evidence, AND ALL OTHER CONSTITUTIONAL guarantees in violation of U.S.C.A. Const. Amends., 3,6, 8 and 14; Ohio Const. Art. I, Section(s) 2, 10, 16.
15. The Ohio Appeals Courts have ignored many of its own holdings and rulings of case law, rules of court and procedural rules to the prejudice of petitioner. U.S.C.A. 5,6, 14; Ohio Const. Art. I, Section(s) 2, 10, 16.
16. Petitioner was prejudiced by the Huron County Judges, relieving the public defender of its duty under the constitution to represent his client.by U.S.C.A. 5, 6, and 14, Ohio Const. Art. I, Section 2,10, 16.
17. Ohio courts of appeals have effectively converted Ohio's post-conviction procedure into a meaningless ritual, rather than a statutorily mandated process for those convicted [of] a criminal offense to obtain redress for violations of their rights under the Ohio Constitution and the Constitution of the United States.
18. By the Ohio court of Appeal's including the Supreme Court of Ohio, [denying] an indigent petitioner/defendant counsel for a challenge of ineffective assistance of counsel under Murnahan26(B), has prejudiced petitioner in denying him effective assistance of counsel on direct appeal.
19. Petitioner prejudice is unknown because he was denied counsel at at critical stages of the proceedings. U.S.C.A, 5,6,8, 14; Ohio Const. Article I, Section(s) 2, 10, 16[.]
ECF Dkt. #1 [sic]. Petitioner also filed a motion for appointment of counsel which was denied. ECF Dkt. #s 4, 18.
On January 31, 2005, Petitioner filed an unopposed motion to supplement the record which was granted. ECF Dkt. #s 13, 15. On March 2, 2005, Petitioner filed a motion to amend his habeas corpus petition and moved for permission to amend the record. ECF Dkt. #s 16, 17. On April 6, 2005, Petitioner filed a motion to stay the state court proceedings. ECF Dkt. #19.
On April 14, 2005, Defendant filed a motion to dismiss asserting that Petitioner's petition was time-barred. ECF Dkt. #20. On May 9, 2005, Petitioner filed a motion in opposition. ECF Dkt. #26. On the same date, Petitioner filed a motion for default judgment and Defendant subsequently filed a response. ECF Dkt. #s 27, 29. Petitioner also filed motions for an extension of time to show cause and for an order to show cause and to expand the record. ECF Dkt. #s 21, 22. Defendant filed a motion in opposition thereof and Petitioner filed a reply. ECF Dkt. #s 25, 28. Petitioner also requested and was granted a motion to correct the record. ECF Dkt. #s 23, 24. On June 27, 2005, Petitioner filed a reply to Defendant's brief in response to Petitioner's motion for default judgment and a motion for contempt against Defendant's for failure to timely send Petitioner parts of the record. ECF Dkt. #s 30, 31.
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which was enacted on April 24, 1996, added a statute of limitation for petitions for a federal writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d); Israfil v. Russell, 276 F.3d 768, 770-71 (6th Cir. 2001). Petitioner filed his § 2254 petition on or about August 10, 2004, well after the AEDPA was enacted; therefore, the AEDPA governs the analysis. See Caldwell v. Bell, 9 Fed. Appx. 472, 476 (6th Cir. 2001). In relevant part, the statute of limitation states:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(1)-(2).
The United State Supreme Court has held that an application for post-conviction or other collateral review is "properly filed" when its delivery and acceptance are in compliance with the applicable laws and rules governing filings, e.g., requirements concerning the form of the document, the court and office in which it must be lodged, payment of a filing fee, and applicable time limits upon its delivery. Israfil, 276 F.3d at 771 (citing Artuz v. Bennett, 531 U.S. 4, 121 S. Ct. 361, 363-365 (2000) and Austin v. Mitchell, 200 F.3d. 391, 393 (6th Cir. 1991), overruled on other grounds by Cowherd v. Million, 380 F.3d 909, 914 (6th Cir. 2004)). The Sixth Circuit has explained that 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. Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations." Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (quoting Rashid v. Khulmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998)).
The one-year statute of limitations under Section 2244 is also subject to equitable tolling. Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir. 2001). The petitioner bears the ultimate burden of persuading the court that he or she is entitled to equitable tolling. Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002).
III. ANALYSIS
For the following reasons, the undersigned recommends that this Court grant Defendant's motion to dismiss the instant petition for writ of habeas corpus because Petitioner filed his petition outside the period of limitation set forth in 28 U.S.C. § 2244(d)(1).
A. Statute of Limitations
Petitioner was required to file his petition within one year of the date on which the judgment of his conviction became final. See 28 U.S.C. § 2244(d)(1)(A). In this case, the Court of Appeals affirmed his conviction on November 15, 1996. Petitioner's conviction became final after the 45 days ended in which he could have appealed his conviction to the Ohio Supreme Court. See OHIO R.S. CRT. P. 2, § 2 (A)(1)(a). Thus, for purposes of the AEDPA, Petitioner's conviction became final on December 30, 1996. See 28 U.S.C. § 2244(d)(1)(A); Lucas v. Carter, 46 F. Supp.2d 709, 712 (N.D. Ohio 1999). Accordingly, the AEDPA statute of limitations began to run on December 30, 1996, giving Petitioner until December 30, 1997 to file a petition for federal habeas corpus relief.
Petitioner filed the instant petition for federal habeas corpus relief on August 10, 2004, almost seven years after the statute of limitations ended. However, before ordering that the instant petition be dismissed as untimely, this Court must consider whether, pursuant to the provisions of § 2244(d)(2), any of the state post-conviction proceedings filed by Petitioner served to toll the period of limitation enough to render the instant petition timely. For the following reasons, it is recommended that this Court adopt the undersigned's finding that the period of limitation has not been sufficiently tolled in this matter.
For purposes of this analysis it is irrelevant whether Petitioner's petition was "filed" on the date that he signed it (August 10, 2004) or on the date that it was "filed" with the clerk of courts (August 17, 2004) because as it will be explained herein, either date is well beyond the AEDPA statute of limitations.
Petitioner made his first application for state collateral review some 295 days into the one-year deadline, when he filed his Civil Rule 26(B) application to reopen his appeal on October 21, 1997. ECF Dkt. #20, Exhibit 4. However, the Ohio Court of Appeals denied his application as untimely. ECF Dkt. #20, Exhibit 5. On February 18, 1998, the Ohio Supreme Court subsequently dismissed his appeal because it did not contain any substantial constitutional question. ECF Dkt. #20, Exhibit 6. The United States Supreme Court has recently held that a state post-conviction petition rejected by the state court as untimely is not "properly filed" and is therefore not subject to statutory tolling under § 2244(d)(2). Pace v. DiGuglielmo, 125 S. Ct. 1807, 2005 WL 957194 (2005); see Pitts v. Roe, 2005 U.S. App. LEXIS 8569, 4-5 (9th Cir. 2005). States are the final authority on state law and here, the Ohio appellate court determined that Petitioner's 26(B) motion was untimely under Ohio law. See Hutchison v. Marshall, 744 F.2d 44, 46 (6th Cir. 1984). Moreover, "Federal courts . . . defer to a state court's judgment on issues of state law and, more particularly, on issues of state procedural law." Israfil, 276 F.3d at 771; Vroman, 346 F.3d at 603 (quoting Israfil); see also Engle v. Isaac, 456 U.S. 107, 128-29 (1982) (finding that comity requires federal courts to defer to a state's judgment on issues of state procedural law). Therefore, because the Ohio court determined that Petitioner's 26(B) motion was untimely, the period between the filing of his 26(B) motion and the final denial by the Ohio Supreme Court did not toll the AEDPA statute of limitations period.
However, even if his 26(B) petition did toll the limitations period for the 200 days while the petition remained in the state court system, Petitioner did not file any subsequent state collateral challenges until 2001, well beyond the statute of limitations period, even with the added 200 days. If a state petition or application is filed following the expiration of the period of limitation, it cannot possibly toll the period because there is "no period remaining to be tolled." Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000); see Thomas v. Johnson, 211 F.3d 1270 (6th Cir. 2000), citing Webster v. Moore). Therefore, all of Petitioner's subsequent state collateral challenges to his conviction do not serve to toll the AEDPA statute of limitations. Petitioner's two previous federal petitions for habeas corpus also have no bearing on the outcome of the instant petition because they were likewise filed far after the statute of limitations period ended. Based on the foregoing, the undersigned recommends that the Court find the instant petition for federal habeas corpus relief was filed well after the AEDPA statute of limitations ran, thereby necessitating dismissal of the instant petition as untimely.
B. Equitable Tolling
The remaining issue is whether Petitioner qualifies for equitable tolling. Equitable tolling applies to the one-year limitation period for habeas corpus petitions. Dunlap v. United States, 250 F.3d 1001, 1003 (6th Cir. 2001). However, "federal courts sparingly bestow equitable tolling. Typically, equitable tolling applies only when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control." Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000) (citations omitted). When determining whether equitable tolling is appropriate, courts must consider: "(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim." Dunlap, 250 F.3d at 1008.
Petitioner does not claim that he lacked notice or constructive knowledge of the statute of limitations, and prejudice to the respondent may be considered only if the other factors of the test are met. Dunlap, 250 F.3d at 1009. The issue, therefore, is whether Petitioner was diligent in pursuing his claims. Petitioner did not file his 26(B) motion to reopen his appeal for over nine months after his conviction became final. He also waited three years after the state courts concluded their review of his 26(B) motion before filing any other collateral challenges and he waited over 6 years from the denial of his 26(B) motion to file a federal petition for habeas corpus.
Petitioner argues that through no fault of his own, he learned of the outcome of his final appeal after the time for seeking habeas review expired and he claims actual innocence. ECF Dkt. #26, p. 10-11. Petitioner also wrote extensively concerning the ineffectiveness of his appellate counsel, although he expressly states that he does not claim ineffective assistance of counsel as a remedy for his untimely filing. ECF Dkt. #26, p. 11. Absent Petitioner's bare assertions of ignorance of his own case and purposeful neglect by counsel, Petitioner offers no credible evidence of either allegation. He has presented no evidence that suggests equitable tolling can be applied to his case. Based on the foregoing, the undersigned concludes that Petitioner did not "act with reasonable diligence throughout the period he seeks to toll." See Smith v. Jones, 2002 U.S. Dist. LEXIS 24613, 12 (D. Mich., 2002) (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)). Therefore, the undersigned finds Petitioner's arguments insufficient to qualify for equitable tolling.
In his response to Defendant's motion to dismiss, Petitioner also makes many substantive criminal law arguments which have no bearing on the tolling issues herein because as explained, the instant petition is untimely.
C. Actual Innocence
Finally, Petitioner contends that his claims should still be considered because he is actually innocent of the crimes charged. ECF Dkt. #26. The actual-innocence exception "requires petitioner to `show that it is more likely than not' that no reasonable juror would have found [him] guilty beyond a reasonable doubt in light of all the evidence." Allen, 233 F.3d at 406 (internal citations omitted); Bousley v. United States, 523 U.S. 614 (1998). To support a claim of actual innocence, Petitioner is required "to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness account, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). Furthermore, actual innocence means "factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623. If a petitioner is "unable to demonstrate that he was actually innocent of the charges for which he was convicted[,]" then there is no need to explore the issue of whether an actual innocence exception exists to the AEDPA's statute of limitations. Allen v. Yukins, 366 F.3d 396, 406 (6th Cir., 2004), cert. denied, 160 L. Ed. 2d 109, 125 S. Ct. 200 (2004) (quoting Whalen v. Randle, 37 Fed. Appx. 113 (6th Cir. 2002) (unpublished opinion)); but see Holloway v. Jones, 166 F. Supp. 2d 1185, 1190 (E.D. Mich. 2001) (finding that an actual innocence exception does apply).
In the present case, Petitioner argues that the charge of attempted murder was added to prejudice him, the victim described an assailant that does not match the description of Petitioner, the prosecution failed to prove that the victim was actually raped, the prosecution failed to prove that the burns on the victim were made with malicious intent, a DNA test has been hindered in the state courts, and he alleges the misconduct by the police, counsel and the prosecutor at various stages of the proceedings. ECF Dkt. #26. Petitioner, however, does not submit any evidence at all to support his allegations that the state trial and appellate court decisions were mistaken. He provides no support whatsoever for any of his claims beyond his plain assertions of error. On federal habeas review, a federal court has to presume that the state court's factual findings are correct unless the petitioner shows otherwise by clear and convincing evidence. 28 U.S.C. § 2254(e); Williams v. Jones, 117 Fed. Appx. 406, 412 (6th Cir. 2004) (unpublished). Petitioner has not made such a showing. In light of the foregoing, the undersigned concludes that a reasonable juror could easily find beyond a reasonable doubt that Petitioner was guilty of the crimes charged.
IV. CONCLUSION AND RECOMMENDATION
Upon review of Respondent's motion to dismiss and the applicable law, the undersigned finds that Petitioner has failed to timely file his § 2254 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2244(d). ECF Dkt. #20. For the foregoing reasons, it is recommended that this Court grant Respondent's motion to dismiss the instant petition as untimely. In addition, based on the foregoing, the undersigned DENIES Petitioner's motions to amend his habeas corpus petition, to amend the record, for an order to stay, for an extension of time to show cause, for an order to show cause, and for default judgment. ECF Dkt. #s 16, 17, 19, 21, 22, 27, 30, 31.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of service of this notice. Failure to file objection within the specified time WAIVES the right to appeal the Magistrate Judge's recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).