Hall v. Litteral et al
Filing
33
MEMORANDUM OPINION & ORDER: IT IS ORDERED:1. Magistrate Judge's Recommended Disposition DE 14 is ADOPTED and INCORPORATED.2. Petition DE 1 is DENIED WITH PREJUDICE.3. Objections to Recommended Disposition DE 17 18 29 are OVERRULED.4. Certificate of Appealability SHALL NOT ISSUE.5. Judgment shall be entered contemporaneously. Signed by Judge Joseph M. Hood on 1/28/22.(JLC)cc: CORand Roger Dean Hall, Pro Se by US Mail
Case: 6:17-cv-00197-JMH-CJS Doc #: 33 Filed: 01/28/22 Page: 1 of 10 - Page ID#: 253
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
ROGER DEAN HALL,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
JAMES DAVID GREEN,
Warden,1
Defendant.
***
***
Civil No. 6:17-197-JMH
MEMORANDUM OPINION
and ORDER
***
***
This matter is before the Court on the Magistrate Judge’s
Recommended
Disposition
(DE
14)
and
Roger
Dean
Hall’s
objections (DE 17), as well as his “supplemental facts,” which
the Court construes as additional objections. (DE 18 & 29). On
July 14, 2017, Hall filed a petition for a writ of habeas corpus
pursuant
to
28
U.S.C.
§
2254.
(DE
1).
Pursuant
to
local
practice, this matter was referred to a United States Magistrate
Judge for review under 28 U.S.C. § 636(b)(1)(B). On August 20,
2019, Judge Candace Smith issued a Report and Recommendation,
recommending that Hall’s habeas petition be dismissed, both
When Hall originally filed his Petition for Writ of Habeas Corpus,
he was incarcerated at the Eastern Kentucky Correctional Complex
(EKCC), where Kathy Litteral was previously the Warden; however,
the Warden is now James David Green. The only proper respondent to
a habeas petition is the petitioner’s custodian. See Rule 2(a),
Rules Governing Section 2254 Cases in the United States District
Courts. The Court thus SUBSTITUTES James David Green, Warden, in
the case caption, whose substitution SHALL be recorded by the Court
Clerk on the case docket sheet.
1
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procedurally and on the merits. (DE 14). The Court then allowed
the
14-day
objection
period
to
pass
(see
id.,
at
15).
Thereafter, recognizing that Hall did not file any objections,
and upon review of the Report, the Court adopted the stated
findings and conclusions as the Opinion of the Court. (DE 15:
Memorandum Opinion; DE 16: Judgment). This same day, the Court
received Hall’s objections. (See DE 17).
Upon receiving Hall’s objections, Hall moved the Court to
substantiate
those
objections
with
additional
facts
and
authorities. (DE 18). Hall also asked the Court to amend, alter,
or
vacate
the
judgment
previously
entered
dismissing
his
petition. (DE 19). The Court admitted clear error of law by
failing to apply the prisoner mailbox rule,2 granted both
motions, and vacated its September 5, 2019 Opinion and Judgment
denying the § 2254 petition (DE 15 & 16) as requested. (DE 27).
Having now conducted a de novo review of the portions of
the Recommended Disposition to which Hall objects, the Court
ADOPTS the Magistrate Judge’s Report and Recommendation and
DENY Hall’s habeas petition under 28 U.S.C. § 2254. Moreover,
the Court REFUSES to issue a certificate of appealability.
While it was unclear to the Court when Hall received Judge
Smith’s Report and Recommendation (DE 14), the Court recognized
that the prisoner mailbox rule was not applied and would have
likely afforded him grace had it been applied in this case.
2
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I.
BACKGROUND
On July 17, 2017, Hall filed a habeas petition. Hall’s
habeas
petition
alleges
asserted
several
claims;
mainly,
however, he argued that his thirty-year sentence is in violation
of state law based on the Kentucky Supreme Court’s ruling in
McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010), and that
the Harlan Circuit Court abused its authority when it refused
to correct his unlawful sentence on review. (DE 1 at 7, DE 1-1
at 9-13). Hall asserted that his petition was timely. (DE 1 at
11). After reviewing Hall’s habeas petition and the applicable
law, the Magistrate Judge recommended that Hall’s petition be
dismissed upon initial review due to its untimely filing. (DE
14 at 3-9). The Magistrate Judge also addressed the merits of
Hall’s claims, recognizing that, even if the Court were to
disregard its untimeliness, the petition would
still fail on
the merits. Judge Smith determined that equitable tolling was
not
warranted
and
recommended
that
no
Certificate
of
Appealability be issued.
Hall
has
Recommended
filed
objections
Disposition.
(DE
to
17,
the
DE
Magistrate
18,
DE
29).
Judge’s
In
his
objections, Hall argues that the Magistrate Judge incorrectly
interpreted the law regarding the untimeliness of his petition,
and that there existed (and continues to exist) no firm deadline
for which to file a § 2254 petition. (DE 17 at 1). He also
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argues that he had no obligation to file a direct appeal. (Id.).
Hall further makes frivolous arguments regarding the state
court of appeals and state supreme court’s alleged conduct of
“making” laws, which is contrary to the authority granted to
them as judicial entities. (Id. at 2). Hall also firmly argues
that his sentence is void pursuant to the Kentucky Supreme
Court’s
decision
in
McClanahan,
and
thus
his
imprisonment
violates his rights under the Fifth, Fourteenth, and Eighth
Amendments. (Id. at 3-7). Finally, Hall voices disagreement
regarding
the
Magistrate
Judge’s
decision
to
forego
the
issuance of a certificate of appealability (“COA”). (DE 18).
Hall’s latest set of objections (DE 29) raises the same concern
regarding the lack of a COA.
This Court performs a de novo review of those portions of
the
Magistrate
Judge’s
Report
and
Recommendation
to
which
Defendant has objected. See 28 U.S.C. § 636(b). The Court
continues to find that Hall’s habeas petition must be dismissed.
II.
The
Court
recognizes
ANALYSIS
its
obligation
to
review
Hall’s
objections under a more lenient standard than the one applied
to attorneys because he is proceeding pro se. See Franklin v.
Rose, 765 F.2d 82, 84-85 (6th Cir. 1985). Under this more
lenient
construction,
some
of
Hall’s
objections
are
sufficiently definite to trigger the Court's obligation to
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conduct a de novo review. See 28 U.S.C. § 636(b)(1)(c). The
Court has satisfied its duty, reviewing the entire record. For
the following reasons, Hall’s objections (DE 17; DE 18; DE 29)
are OVERRULED and his habeas petition under § 2254 (DE 1) is
DISMISSED.
As an initial matter, the Court notes that most of Hall’s
objections
are
not
actual
objections,
but
instead
a
mere
restatement of the claims asserted in his petition. Further,
Hall displays disagreement with how the law was written and how
it has been interpreted and applied to his case. The Court is
under no obligation to rectify these concerns.
A person in custody pursuant to the judgment of a state
court has a one-year period to apply for a writ of habeas
corpus. 28 U.S.C. § 2244(d)(1). Under 28 U.S.C. § 2244(d)(1),
this one-year period of limitation begins to run from the latest
of four specified dates, one of which is relevant here: “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.
§
2244(d)(1)(A).
The
statute
of
limitations,
however, is not jurisdictional. Equitable tolling is warranted
under certain circumstances, Holland v. Florida, 560 U.S. 631,
645 (2010) (citing Day v. McDonough, 547 U.S. 198, 205 (2006)),
and should be applied by Courts sparingly. Vroman v. Brigano,
346 F.3d 598, 604 (6th Cir. 2003). The burden is on the
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petitioner to prove the applicability of equitable tolling. Id.
“Generally, a litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005).
As noted by the Magistrate Judge:
[] Petitioner’s judgment was entered by the
Harlan Circuit Court on November 9, 2009,
following the entry of his Alford plea. (R. 92, at 15). While Hall waived his right to
appeal within his plea agreement, “a defendant
may by direct appeal challenge the legality of
a sentence imposed pursuant to a guilty plea
because sentencing issues are considered
‘jurisdictional’ and cannot be waived.” Elmore
v. Commonwealth, 236 S.W.3d 623, 626 (Ky. Ct.
App. 2007). Out of an abundance of caution,
the Court will assume for purposes of the
present Petition that, because Petitioner is
challenging the legality of his sentence, he
would have been able to file a direct appeal
in his case. Under Kentucky law, Hall had
thirty days to appeal his sentence. See Ky.
RCr
12.04(3).
Therefore,
Petitioner’s
judgment became final on December 9, 2009. []
Petitioner’s one-year period under the AEDPA
expired
on
December
9,
2010,
and,
consequently, Petitioner’s pending § 2254
Petition filed in 2017 is barred by the
statute of limitations.
(DE 14 at 4).
In this case, Hall points to absolutely no evidence of
intentional misleading by Kentucky’s post-conviction process.
Nor does Hall state that he has been pursuing his rights
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diligently, or that some extraordinary circumstance stood in
his way. Instead, he merely claims that statute of limitations
do not exist, and thus, are inapplicable to bar his claims.
Construing the evidence in Hall’s favor, one could say that
his above statements boil down to a claim for equitable tolling
based on ignorance of the law. But “ignorance of the law alone
is not sufficient to warrant equitable tolling.” Ata v. Scutt,
662 F.3d 736, 743 n.7 (6th Cir. 2011) (quoting Griffin v.
Rogers, 399 F.3d 626, 637 (6th Cir. 2005)). Pro se status and
limited
educational
background
are
not
“exceptional
circumstances” justifying the application of equitable tolling.
United States v. Evans, No. 11- CR-43-JMH-REW, 2015 WL 3729332,
at *6 (E.D. Ky. June 15, 2015). And an individual’s lack of
legal training, poor education, or even his illiteracy does not
give a federal court a reason to toll the limitations period.
Id. “Indeed, as most pro se litigants are untrained in the law,
statutory limitations would be virtually unenforceable against
a pro se party if equitable tolling was applied in every
situation where an unrepresented party was ignorant of the law.”
Id. (quoting Tomlinson v. Hudson, No. 1:06-CV-687, 2007 WL
1831135, at *7 (N.D. Ohio June 25, 2007)). Hall’s petition is
untimely, and because equitable tolling does not apply, it
should be dismissed accordingly.
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As the Magistrate Judge explained in the Report, Hall did
not file a direct appeal. Rather, almost six years after his
state court judgment was entered, he sought to “Correct [his]
Invalid Sentence” in the Harlan Circuit Court under Kentucky
Rule of Criminal Procedure (“RCr”) 11.02 (see DE 1-2 at 13);
however,
because
the
former
rule
provides
no
relief
from
sentencing mistakes, the circuit court construed the motion as
one brought pursuant to RCr 11.42. (Id. at 7-8). The Harlan
Circuit Court denied the motion as untimely. (Id. at 8). On
April 15, 2016, the Kentucky Court of Appeals affirmed the
decision
of
the
Harlan
Circuit
Court,
finding
the
motion
untimely, and further, holding that Hall’s argument that his
sentence was invalid failed on the merits under Kentucky law.
(Id. at 5-6). On August 17, 2016, the Kentucky Supreme Court
denied discretionary review. (Id. at 1).
To the extent Hall holds firm that McClanahan is applicable
to his case,3 at the time that Hall signed his plea agreement and
agreed to a sentence higher than the statutory maximum, under
existing state law, when each of his sentences were imposed
consecutively, such agreements were legal at the time. See Myers
v.
Commonwealth,
42
S.W.3d
594
(Ky.
2001);
Johnson
v.
In McClanahan v. Commonwealth, 308 S.W.3d 694, 700-01 (Ky.
2010), the Supreme Court of Kentucky held that a sentence imposed
above the statutory limits allowed by KRS § 532.110(1)(c) is void
even when the defendant agreed to the sentence.
3
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Commonwealth, 90 S.W.3d 39, 44 (Ky. 2002). Moreover, Kentucky
Courts have found that the rule in McClanahan overruling Myers
and Johnson does not apply retroactively to Hall’s sentence, which
was imposed in 2009. Rothfuss v. Commonwealth, No. 2010-CA000117-MR, 2010 WL 3361769 (Ky. App. Aug. 27, 2010); Eads v.
Commonwealth, No. 2010-CA-001318-MR, 2012 WL 512487 (Ky. App.
Feb. 17, 2012); Hall v. Commonwealth, No. 2015-CA-001315-MR, 2016
WL 1558505 (Ky.
App. Apr. 15, 2016); Berry v. Commonwealth, No.
2015-CA-001897-MR, 2017 WL 4712777 (Ky. App. Oct. 20, 2017); and
Duncan v. Commonwealth, No. 2021-CA-0019-MR,
--- S.W.3d --, 2021
WL 5141753 (Nov. 5, 2021).
Finally,
the
Court
considers
Hall’s
argument
that
a
certificate of appealability should be granted. (DE 18, 29). Here,
because
Hall’s
instant
petition
is
rejected
on
procedural
grounds, in order for a COA to issue, Hall must demonstrate “that
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). As jurists of reason would
not
find
it
debatable
that
the
current
petition
is
wholly
untimely, the Court concludes that a COA should be denied. The
Court further CERTIFIES that any appeal from this action would
not be taken in good faith. FED. R. APP. P. 24.
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III. CONCLUSION
Based on the foregoing, the Court HEREBY ORDERS as follows:
(1)
The Magistrate Judge’s Recommended Disposition (DE 14)
is ADOPTED and INCORPORATED herein by reference;
(2)
Roger Dean Hall’s petition for a writ of habeas corpus
(DE 1) is DENIED WITH PREJUDICE;
(3)
Hall’s objections to the Recommended Disposition (DE
17; DE 18; DE 29) are OVERRULED;
(4)
A Certificate of Appealability SHALL NOT ISSUE; and
(5)
Judgment shall be entered contemporaneously with this
Order.
Dated this 28th day of January, 2022.
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