McKinney v. Eberlin

Filing 12

Report and Recommendation for a finding that this petition, filed years after the expiration of the statutory time limit, is time-barred and the dismissal of this petition with prejudice for that reason (Related Doc # 3 ). Objections to R&R due by 5/29/2008. Referral Terminated. Signed by Magistrate Judge William H. Baughman, Jr. on 05/15/2008. (G,GS)

M c K i n n e y v. Eberlin

D o c . 12

IN THE UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF OHIO E A S T E R N DIVISION

T O N Y RANDALL McKINNEY, P e t i t io n e r , v. M IC H E L E EBERLIN, Warden, R e sp o n d e n t.

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C A S E NO. 1:06 CV 3019 J U D G E DAN AARON POLSTER M A G IS T R A T E JUDGE W IL L IA M H. BAUGHMAN, JR. R E P O R T & RECOMMENDATION

B e f o re me by referral1 is the pro se petition of Tony Randall McKinney for a writ of h a b e a s corpus pursuant to 28 U.S.C. § 2254.2 McKinney, in 2001, pled guilty in Medina C o u n ty Common Pleas Court to one count of rape and was released in April, 2008 from the B e lm o n t Correctional Institution after serving a seven-year sentence for that offense to begin a two-year period under the supervision of the Ohio Adult Parole Authority.3 T h e State has moved that McKinney's petition be dismissed as barred by the a p p lic a b le statute of limitations, arguing that its filing in December, 2006, was more than o n e year after his conviction was affirmed by an Ohio appellate court in 2002.4 Subsequent to this motion by the State, McKinney has unsuccessfully sought to expand the record and

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ECF # 3. ECF # 1.

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See, w w w .d r c .s ta te .o h .u s . (website of the Ohio Department of Rehabilitation and C o r r e c t io n ) .
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ECF # 7.

Dockets.Justia.com

rec eive an evidentiary hearing.5 He has not, however, directly responded to the State's m o tio n to dismiss or filed a traverse. F o r the reasons that follow, I recommend finding that the State's motion to dismiss th is petition as untimely filed is well-taken, and the petition should be dismissed. T h e relevant facts are not in dispute. McKinney pled guilty to one count of rape.6 As a result of the plea, he was sentenced to serve a seven-year term in prison, such sentence to b e served concurrently with a previously imposed sentence from a Stark County, Ohio co n v iction .7 He was found to be a sexual predator.8 R e p re se n te d by new counsel, McKinney timely appealed his conviction and s e n te n c in g , raising only issues challenging his classification as a sexual predator.9 On

ECF # 8 (motion to expand the record and file a traverse), ECF # 9 (State's o p p o sitio n ), denied by non-document entry on July 14, 2007 without prejudice to r e c o n s i d e r a tio n with a response to State's motion to dismiss, such response to be filed by A u g u s t 24, 2007; ECF # 10 (motion for an evidentiary hearing), ECF # 11 (State's o p p o s itio n ), denied by non-document entry on August 30, 2007 without prejudice to being r e c o n s id e r e d in review of the merits.
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ECF # 7, Ex. 4. Id., Ex. 5. Id.

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Id. McKinney asserts in his habeas petition that no arguments were raised against h is conviction or plea, despite his failed assertion to the trial court that his speedy trial rights w e re violated, because his appellate counsel neglected to order a transcript of the hearing at w h ic h the speedy trial claim was raised and denied. See, ECF # 1 at 2. -2-

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J a n u a ry 9, 2002, the Ohio appeals court affirmed the trial court's finding that McKinney was a sexual predator.1 0 McKinney did not appeal that decision to the Supreme Court of Ohio.1 1 M c K i n n e y took no further action in his case for more than four years. Then, on M a rc h 24, 2006, he filed a delayed petition for post-conviction relief and a motion to w ith d ra w his guilty plea.1 2 Both matters were denied by the trial court.1 3 McKinney a p p e ale d ,1 4 and the State responded in opposition.1 5 On October 16, 2006, the Ohio court of a p p e a ls affirmed the decisions of the trial court, holding that McKinney did not timely file h is motion to withdraw the guilty plea or his petition for post-conviction relief and failed to s h o w cause to excuse his lengthy delay.1 6 As with his original appeal, McKinney elected not to appeal this judgment to the Ohio Supreme Court.

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ECF # 7, Ex. 8. ECF # 7 at 2. Id.; see also, ECF # 1 at 3. ECF # 7, Ex. 11. ECF # 7, Ex. 12 ECF # 7, Ex. 13. ECF # 7, Ex. 14. -3-

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H o w e v e r, in a separate action, McKinney had filed a pro se petition for state habeas relief with the Ohio Supreme Court on August 1, 2006.1 7 That Court dismissed McKinney's p e titio n sua sponte on October 4, 2006.1 8 M c K i n n e y thereupon filed the present petition for federal habeas relief on D e c em b e r 19, 2006, alleging as its single ground for relief that "[t]he trial court lacked ju ris d ic tio n to accept a guilty plea to a void indictment pursuant to speedy trial limitations u n e q u iv o c a lly elapsing." 1 9 The State, as noted, moved to dismiss this petition as untimely f ile d .2 0 Despite making other motions to expand the record, for an evidentiary hearing, and f o r more time to file a traverse, McKinney, as previously stated, has not responded to the S ta te 's motion to dismiss by the date mandated by this Court, nor has he filed a traverse. In itia lly, I note that although McKinney has been released from custody upon serving h is full seven-year sentence, he remains under the supervision of the Ohio Adult Parole A u th o rity. As such, this Court retains jurisdiction over his petition for habeas relief.2 1 N o n e th e le s s , as the State correctly observes in its motion to dismiss, 28 U.S.C. § 2244(d)(1)(A) provides that a one-year period of limitation shall apply to the filing of

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ECF # 7, Ex. 15. ECF # 7, Ex. 16. ECF # 1 at 4. ECF # 7. Spencer v. Kemna, 523 U.S. 1, 13-14 (1998). -4-

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a n y federal habeas petition, such period to run from "the date on which the judgment b e c am e final by conclusion of direct review or the expiration of the time for seeking such re v ie w ." 2 2 The federal limitations statute further provides that the "time during which a p ro p e r l y filed application for State post-conviction or other collateral review" will toll the f e d era l one-year limitations period.2 3 H e re , the plain facts are that McKinney's conviction became final, and the statute of lim itatio n began to run, 45 days after the Ohio appeals court affirmed the trial court's d e c isio n to find McKinney a sexual predator. Ohio law requires a criminal defendant to file a n y appeal from an appellate judgment within 45 days.2 4 And, as the Sixth Circuit has c o n c lu d e d , a conviction becomes final for purposes of § 2244 when direct state review co n clud es, not when a petitioner has exhausted all state remedies.2 5 In addition, McKinney's f ilin g for state post-conviction relief over four years after the conclusion of his direct appeal d id nothing to restart the federal limitations period that had already expired.2 6

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28 U.S.C. § 2244(d)(1)(A). 28 U.S.C. § 2244(d)(2).

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Rule II, Section 2(A)(1)(a), Rules of Practice of the Supreme Court of Ohio. Had M c K in n e y timely appealed to the Supreme Court of Ohio, the federal limitations period w o u ld have been further extended by the 90 days from any decision of the Ohio Supreme C o u rt to permit a petition for a writ of certiorari with the United States Supreme Court. See, B ro n a u g h v. Ohio, 235 F.3d 280, 283-84 (6th Cir. 2000).
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Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001).

Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001); Pratts v. Hurley, N o . 04cv1875, 2007 WL 1577794, at **3-4 (N.D. Ohio, May 31, 2007). -5-

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A c c o rd in g ly, I recommend a finding that this petition, filed years after the expiration o f the statutory time limit, is time-barred and the dismissal of this petition with prejudice for th a t reason.

D ated : May 15, 2008

s / William H. Baughman, Jr. U n ite d States Magistrate Judge

O b je c tio n s A n y objections to this Report and Recommendation must be filed with the Clerk of C o u rts within ten (10) days of receipt of this notice. Failure to file objections within the sp ec ified time waives the right to appeal the District Court's order.2 7

See, United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also, Thomas v. A r n , 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986). -6-

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