McWain v. Haddix

Filing 14

MEMORANDUM OPINION & ORDER, 1) adopting 10 REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Brandon Heath McWain. 2) denying 11 MOTION for Order for belated appeal by Brandon Heath McWain 3) McWain's petition under 2254 for writ of habeas corpus is DENIED 4) that no certificate of appealability shall issue. Signed by Judge Joseph M. Hood on 2/13/17.(SMT)cc: COR, McWainvia USMail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
BRANDON MCWAIN,

)
)
)
)
)
)
)
)
)
)

Petitioner,
v.
MERV HADDIX, WARDEN,
Respondent.

Civil Case No.
0:16-cv-36-JMH-JGW

MEMORANDUM OPINION & ORDER

***
This

matter

Recommendation

of

is

before

United

the

States

Court

upon

Magistrate

the
Judge

Report
J.

and

Gregory

Wehrman [DE 10], wherein he recommends that Petitioner Brandon
McWain’s Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus
by a Person in State Custody [DE 1] be denied as time-barred.

Also

before the Court is McWain’s Motion for Belated Appeal [DE 11].
Both of these matters are ripe for review.
I.
On March 7, 2016, Petitioner Brandon McWain filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
concerning his conviction in Kentucky state court for first-degree
arson and second-degree burglary [DE 1]. Although this action was
originally filed in the United States District Court for the
Western District of Kentucky, on March 30, 2016, it was transferred
1

to this Court [DE 6].

Consistent with local practice, this matter

was referred to Magistrate Judge J. Gregory Wehrman pursuant to 28
U.S.C. § 636(b).
On April 18, 2016, the Magistrate Judge filed his Report and
Recommendation, recommending that McWain’s § 2254 petition be
dismissed as having been untimely filed [DE 10].
the

Magistrate

Judge

noted

that,

although

the

Specifically,
judgment

of

conviction is not in the record, McWain asserts that he was
sentenced in October 2008 [DE 10, p. 2, FN1].

Thus, under the one

year limitation period provided by 28 U.S.C. § 2244(d), McWain had
one year from November 2008 (the date that McWain’s judgment became
final under Kentucky Rule of Criminal Procedure (RCr) 12.04(3)) in
which to timely file a federal petition for writ of habeas corpus
[DE 10 at p. 2].

Because McWain’s § 2254 petition was not filed

until March 7, 2016, it was simply filed too late.
The Magistrate Judge further noted that 28 U.S.C. § 2244(d)(2)
provides for tolling of the limitations period while a properly
filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending
[DE 10 at p. 2-3].

In March 2010, McWain filed a motion to vacate,

set aside or correct sentence pursuant to Kentucky Rule of Criminal
Procedure (RCr) 11.42 in the Rowan Circuit Court [DE 1.

See also

DE 10, citing McWain v. Commonwealth, 2012 WL 5969629, at *1
2

(Ky.App. Nov. 30, 2012)].1 However, the Magistrate Judge concluded
that, because this tolling provision does not revive a limitations
period that has already expired, this provision does not help
McWain, who filed his petition for post-conviction relief in state
court after the expiration of the limitations period for federal
habeas relief [DE 10, citing Colbert v. Tambi, F.Supp.2d 927, 934
(S.D. Ohio 2007)].
Although

McWain

did

not

file

formal

objections

to

the

Magistrate Judge’s Report and Recommendation, on April 29, 2016,
McWain filed a “Motion for Belated Appeal,” explaining that he
first attempted to file a Writ of Habeas Corpus in this Court on
approximately December 13, 2013 [DE 11].

However, according to

McWain, his subsequent efforts to follow up with the Clerk of Court
regarding the status of this 2013 petition revealed that this
petition was apparently never received by the Court [Id.].

Thus,

McWain requests the Court’s permission to file a belated appeal on
the grounds that his right to appeal should not be frustrated
because of matters that are not his fault, such as Clerk error or
mishandling of mail [Id.].

1
This motion was denied in June 2010 [Id.]. McWain appealed to the Kentucky
Court of Appeals, which affirmed the Rowan Circuit Court’s decision in November
2010 [Id.]. The Kentucky Supreme Court denied discretionary review in September
2013 [Id.].

3

Generally, this Court must make a de novo determination of
those portions of the Magistrate Judge’s Report and Recommendation
to which objection is made.

28 U.S.C. § 636(b)(1)(C).

Here,

McWain does not object to any particular finding or recommendation
made by the Magistrate Judge.

Rather, McWain’s Motion requests

that the Court excuse his untimely § 2254 petition based on
McWain’s assertion that the delay in filing his petition was due
to matters beyond his control.

Regardless, to the extent that

McWain’s Motion makes an overall objection to the Magistrate
Judge’s conclusion that his petition should be dismissed, this
objection will be considered by the Court.
The Court has reviewed the Magistrate Judge’s conclusion that
McWain’s

§

2254

petition

is

Magistrate Judge is correct.

time

barred

and

finds

that

the

“[D]istrict courts are permitted,

but not obliged, to consider, sua sponte, the timeliness of a state
prisoner’s habeas petition,” Day v. McDonough, 547 U.S. 198, 209
(2006), so long as the parties are provided “fair notice and an
opportunity to present their positions.”

Id. at 210.

Here, the

Report and Recommendation issued by the Magistrate Judge provided
McWain with notice of the untimeliness of his petition.

McWain

also received an opportunity to present his position via the
opportunity to file objections to the Magistrate Judge’s Report

4

and Recommendation.

Thus, the Court finds that these requirements

are satisfied.
Under 28 U.S.C. § 2244(d)(1), an application for a writ of
habeas corpus made by a person in custody pursuant to the judgment
of a State court is subject to a 1-year period of limitation.
28 U.S.C. § 2244(d)(1).

See

Absent circumstances not present in this

case, this limitation period begins on “the date on which the
judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.”

Id. at §

2244(d)(1)(A)(emphasis added).
As noted by the Magistrate Judge, McWain was sentenced in
October 2008.2

Pursuant to Kentucky Rule of Criminal Procedure

(RCr) 12.04(3), McWain had thirty days after the entry of the
judgment of conviction within which to file an appeal.
Rule of Criminal Procedure (RCr) 12.04(3).

Kentucky

Thus, McWain’s one-

year period to file a timely federal habeas petition began to run
in November 2008 and expired in November 2009.

Accordingly, by

the time he filed his § 2254 habeas petition in March 2016, he was
already over six years too late.

2

Indeed, even if the Court were

Although the judgment of conviction was not in the record before the Magistrate
Judge, McWain attached a copy of the judgment as an exhibit to his Motion for
Belated Appeal [DE 11-1]. According to the copy provided by McWain, the judgment
of conviction was entered on October 8, 2008 [Id.].

5

to construe McWain’s § 2254 petition as having been filed in 2013,
as urged by McWain, his petition would still be untimely.
The Court also agrees with the Magistrate Judge that McWain’s
motion for post-conviction relief filed in March 2010 pursuant to
Kentucky Rule of Criminal Procedure (RCr) 11.42 did not have an
effect on his already expired time for seeking federal habeas
review.

Even if McWain’s motion for post-conviction relief was

timely filed under RCr 11.42, the federal limitations period for
habeas review had already expired before McWain’s RCr 11.42 motion
was

filed.

In

such

circumstances,

even

a

properly

filed

application for state post-conviction or collateral review cannot
restart a fully expired clock.

See Vroman v. Brigano, 346 F.3d

598, 602 (6th Cir. 2003)(Section 2244(d)(2)’s 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.

Once the limitations period is expired,

collateral petitions can no longer serve to avoid a statute of
limitations.”)(quoting Rashid v. Khulmann, 991 F.Supp. 254, 259
(S.D.N.Y.

1998)).

Thus,

McWain’s

state

post-conviction

proceedings filed in March 2010 did not restart the clock on the
limitations period during which he could timely file a federal
habeas petition.

6

The Court is also in agreement that McWain is not entitled to
relief under the doctrine of equitable tolling, as McWain has
failed to show that he exercised due diligence in preserving his
legal rights, but that his failure to timely seek federal habeas
relief was due to circumstances beyond his control.

See Vroman,

346 F.3d at 604 (explaining that equitable tolling is to be applied
sparingly and only in situations where “a litigant’s failure to
meet

a

legally

mandated

deadline

unavoidably

arose

from

circumstances beyond that litigant’s control.”)(quoting GrahamHumphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552,
560-61 (6th Cir. 2000)(citations omitted)).

Although McWain’s

Motion for Belated Appeal [DE 11] describes McWain’s efforts to
file a federal habeas petition beginning in December 2013, by this
time the clock on the limitations period had already expired. Even
if the Court were to consider McWain’s current § 2254 petition to
have been filed in December 2013, the date McWain purports to have
first attempted to file it, McWain’s petition would still be
untimely, as the limitation period expired in November 2009.

For

these reasons, McWain’s Motion for Belated Appeal [DE 11] will be
denied.
For all the reasons set forth above, this Court adopts the
well-articulated

and

detailed

reasoning

7

set

forth

in

the

Magistrate Judge’s Report and Recommendation as to McWain’s Motion
as its own.
II.
Next,

the

Court

turns

to

whether

a

certificate

of

appealability should issue in this matter with respect to those
claims

raised

under

28

U.S.C.

§

2254.

“A

certificate

of

appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”
U.S.C.

§

2253(c)(2).

In

order

for

a

certificate

to

28

issue,

Defendant must be able to show that reasonable jurists could find
in

his

favor,

and

the

“question

is

the

debatability

of

the

underlying federal constitutional claim, not the resolution of
that debate.”

Miller-El v. Cockrell, 537 U.S. 322, 342 (2003).

Again, having carefully considered the matter, the undersigned
concludes that no certificate should issue as McWain cannot make
a substantial showing of the denial of a constitutional right.
Accordingly, IT IS ORDERED:
(1)

that the Magistrate Judge=s Report and Recommendation [DE
10] is ACCEPTED and ADOPTED over Defendant’s objections;

(2)

the McWain’s Motion for Belated Appeal [DE 11] is DENIED;

(3)

that McWain’s Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus by a Person in State Custody [DE 1] is
DENIED; and
8

(4)

that no certificate of appealability shall issue.

This the 13th day of February, 2017.

9

10

11