Rose v. Kelly

Filing 12

Memorandum Opinion: Petitioner's objections are overruled and the Report and Recommendation (Doc. No. 9 ) is accepted. Respondent's motion to dismiss the habeas petition as untimely (Case 2, Doc. No. 6 ) is granted. The petition is dismissed with prejudice. Further, the Court certifies that an appeal from this decision could not be taken in good faith and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. Sections 1915(a)(3), 2253(c); Fed. R. App. P. 22(b). Judge Sara Lioi on 3/2/2012. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

GREGORY D. ROSE,
PETITIONER,
vs.
BENNIE KELLY,

RESPONDENT.

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CASE NO.

1:10CV2940 (“Case 2”)
1:09CV2084 (“Case 1”)

JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court are petitioner’s objections, as amended (Case 2, Doc. No. 11) to
Magistrate Judge George J. Limbert’s Report and Recommendation (“R&R”) (Case 2, Doc. No.
9), which recommends that the petition for writ of habeas corpus be denied and the case
dismissed. The Court has conducted its de novo review of the matters raised in the objections.1
Fed. R. Civ. P. 72(b)(3). For the reasons discussed below, petitioner’s objections are overruled
and the R&R is accepted. Respondent’s motion to dismiss is GRANTED and the case is
dismissed with prejudice.
Also before the Court is petitioner’s motion for relief from the judgment. (Case 1,
Doc. No. 16.) That motion is DENIED.

1

The respondent filed no response to petitioner’s objections.

I. BACKGROUND
The complete factual and procedural history of this case was accurately set forth
in the R&R, with no objections. Therefore, that background is adopted. For purposes of
petitioner’s objections, the following facts are relevant.
Following petitioner’s direct appeal in the state courts from his conviction and
sentence relating to two counts of felonious assault against police officers and one count of
having a weapon under a disability, he had until December 9, 2009 to file his habeas petition,
absent any tolling.2
Petitioner filed Case 1 on September 9, 2009. However, on August 10, 2010, this
Court dismissed the petition without prejudice because it was a “mixed petition,” that is, a
petition containing unexhausted claims. The Court had first issued an order on July 23, 2010
(Case 1, Doc. No. 12) granting petitioner leave until August 9, 2010 to state in writing that he
was willing to waive his unexhausted claim of ineffective assistance of counsel. The Court
indicated in its July 23rd order that, should petitioner fail to waive the claim, the Court would
dismiss the petition without prejudice, which is what transpired.
On October 5, 2010, despite the dismissal, petitioner filed a “Notice of
Exhaustion of Remedies” in Case 1.3 On October 8, 2010, the Court issued an order (Case 1,
Doc. No. 15) acknowledging the notice but indicating that it was improperly filed since the case
was closed. Petitioner was advised to proceed with any successfully exhausted claims by filing a
new petition for habeas corpus.

2

The Ohio Supreme Court declined petitioner’s appeal on September 10, 2008. He had ninety days within which to
petition the United States Supreme Court for a writ of certiorari. Therefore, his direct appeal became final on
December 9, 2008. Absent a reason for tolling, he had one year thereafter to file his habeas petition under § 2244(d).

3

Petitioner asserted that, on September 2, 2010, he filed a motion to reopen his direct appeal in state court. That
motion was denied as untimely on September 29, 2010. Therefore, all his state remedies were exhausted.

2 

On December 30, 2010, petitioner filed Case 2. On May 24, 2011, respondent
moved to dismiss the petition as untimely. (Case 2, Doc. No. 6.) Petitioner opposed the motion.
(Case 2, Doc. No. 8.) On September 22, 2011, Magistrate Judge George L. Limbert issued an
R&R recommending dismissal. (Case 2, Doc. No. 9.) Petitioner filed objections, as amended.
(Case 2, Doc. No. 11.)
On September 7, 2011, petitioner filed in Case 1 a motion for relief from
judgment, asserting that his “former counsel, Margaret Amer Robey” had never received the
August 10, 2010 dismissal order in Case 1 and that, “[u]pon later learning of the dismissal,
attorney Margaret Amer Robey immediately filed a subsequent petition (Case No. 1:10CV2930
[sic], Doc. 1.).” (Case 1, Doc. No. 16.)
II. DISCUSSION
A.

Applicable Law and Standard of Review
Under Fed. R. Civ. P. 72(b)(3), “[t]he district judge must determine de novo any

part of the magistrate judge’s disposition that has been properly objected to.” In this case, de
novo review requires the Court to apply the provisions of the Antiterrorism and Effective Death
Penalty Act, Pub. L. 104-132, 110 Stat. 1214 (“AEDPA”) and the cases construing AEDPA.
A state prisoner seeking habeas relief under AEDPA must comply with the statute
of limitations set forth in 28 U.S.C. § 2244:
(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;

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(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 by 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 during which a properly filed application for State postconviction 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.
Section 2244(d)(2) provides for tolling of the 1-year limitation period during the
time that a “properly filed” post-conviction or other collateral proceeding is pending in state
court.4
[A]n application is “properly filed” when its delivery and acceptance are in
compliance with the applicable laws and rules governing filings. These usually
prescribe, for example, the form of the document, the time limits upon its
delivery, the court and office in which it must be lodged, and the requisite filing
fee. [...] But in common usage, the question whether an application has been
“properly filed” is quite separate from the question whether the claims contained
in the application are meritorious and free of procedural bar.
Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (citations and footnote omitted) (emphases in original).
The Sixth Circuit has also recognized “a new period of mandatory equitable
tolling for petitioners who filed their federal habeas petitions within the statute of limitations but
were forced to return to state court to exhaust certain claims.” Griffin v. Rogers, 399 F.3d 626,
635 (6th Cir. 2005) (citation omitted). In Griffin, the Court explained:

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Pending federal habeas petitions, however, do not toll the limitations period. Duncan v. Walker, 533 U.S. 167, 18182 (2001).

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In Palmer v. Carlton, 276 F.3d 777 (6th Cir.2002), this Court adopted a
stay and abeyance procedure for habeas petitions that raise both exhausted and
unexhausted claims. The exhausted portions of these petitions were to be stayed
while the petitioner returned to state court. These stays were to be conditioned
upon the petitioner’s pursuing state court remedies within a brief interval,
normally 30 days, after the stay is entered and returning to federal court within a
similarly brief interval, normally 30 days after state court exhaustion is
completed. Also, in Palmer, this Court determined that it would be appropriate to
apply these stays retroactively to petitioners like Griffin, whose claims were
dismissed rather than stayed.
399 F.3d at 628.5 Thus, under Palmer and Griffin, courts are to consider refiled habeas petitions
timely filed where the petitioner returned to state court with his unexhausted claims within 30
days of a stay or dismissal by the federal court and then returned to federal court within 30 days
of any final ruling by the state court.
The Supreme Court has also held that § 2244(d) is subject to principles of general
equitable tolling in appropriate cases. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). “The
doctrine of equitable tolling allows courts to toll a statute of limitations when ‘a litigant’s failure
to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant’s
control.’ ” Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010) (quoting GrahamHumphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000)). “The
party seeking equitable tolling bears the burden of proving he is entitled to it.” Id. at 785. “[A]
petitioner is entitled to equitable tolling [only] if he shows (1) that he has been pursuing his

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The problem for this narrow group of petitioners was recognized by Justice Stevens, with whom Justice Souter
joined, concurring in Duncan v. Walker, 533 U.S. 167, 182 (2001). He proposed the stay-and-abeyance procedure,
which was soon after adopted by the Second Circuit in Zarvela v. Artuz, 254 F.3d 374 (2d. Cir. 2001) and was later
found “eminently reasonable” by the Sixth Circuit in Palmer. 276 F.3d at 781.

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rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.” Holland, 130 S.Ct. at 2562 (citation and internal quotation marks omitted).6
B.

Analysis of the Recommendations of the Magistrate Judge
1.

AEDPA’s 1-Year Statute of Limitations
The R&R concluded that, absent tolling, Case 2 was not timely because it was

filed on December 30, 2010, well after AEDPA’s 1-year limitations period had expired on
December 9, 2009. There has been no objection to this conclusion. It is the correct conclusion
and is, therefore, accepted by the Court.
2.

Statutory Basis for Tolling the Statute of Limitations
The R&R then examined whether there is any statutory basis to toll the limitations

period and concluded there is not. First, petitioner’s motion for post-conviction relief as well as
his motion to reopen his appeal had both been denied by the state courts because they had not
been timely filed. Therefore, under 28 U.S.C. § 2244(d)(2), they were not “properly filed” and
could not toll the AEDPA statute of limitations. Nor could his previously-filed habeas petition
(Case 1) result in any tolling since AEDPA only provides for tolling during the pursuit of state,
not federal, remedies. There has been no objection to this conclusion. This, too, is a correct
conclusion and is, therefore, accepted by the Court.
3.

Mandatory and/or General Equitable Tolling
The R&R next examined whether there was any basis for applying mandatory

equitable tolling under Griffin or general principles of equitable tolling under Holland. The R&R
concluded that, although petitioner technically met the time requirements of Griffin, a number of

6

Prior to Holland, the Sixth Circuit considered the five factors set forth in Andrews v. Orr, 851 F.2d 146, 151 (6th
Cir. 1998) when deciding whether to apply equitable tolling. However, the two-part test articulated in Holland is
now the applicable test. Robinson v. Easterling, 424 Fed. App’x 439, 442 n.1 (6th Cir. 2011).

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additional facts prompted the recommendation that neither mandatory equitable tolling nor
general equitable tolling should be applied.
First, the R&R noted that petitioner did not comply with this Court’s July 23,
2010 Order in Case 1 that he indicate in writing by August 9, 2010 his willingness to waive his
unexhausted state claim or face dismissal of his entire petition without prejudice.7 Although
petitioner’s counsel claimed not to have received the Court’s August 10, 2010 Order (dismissing
Case 1 without prejudice for lack of exhaustion) or the October 8, 2010 Order (acknowledging
petitioner’s notice of exhaustion filed in Case 1 but directing him to file a new habeas petition),
counsel has never denied receiving the July 23, 2010 Order.
Second, the R&R pointed out (1) that petitioner has two attorneys representing
him; (2) that all orders have been delivered electronically to the email addresses of record for
both attorneys; (3) that although Attorney Margaret Amer Robey claims to have not received
certain orders (not including the July 23rd order) because her email address has changed,8
Attorney Gregory Robey, who also asserts he did not receive the October 8, 2010 Order, has not
claimed any email change; and (4) that it is the continuing duty of all counsel to keep the Clerk
of Court informed as to changes in their contact information and to monitor the docket of their
client’s case.

7

 The July 23, 2010 Order adopted an R&R (Case 1, Doc. No. 11) recommending dismissal without prejudice unless
petitioner would elect to waive his unexhausted claim of ineffective assistance of appellate counsel and proceed only
with his exhausted claims. Petitioner never filed any objections to the R&R and, therefore, the Court “assume[d] that
petitioner [was] satisfied with the Magistrate Judge’s recommendation[]” and set a deadline of August 9, 2010 for
petitioner to indicate his intentions with respect to waiver of his unexhausted claim. The order stated that, absent the
waiver, the case would be dismissed without prejudice. (Case 1, Doc. No. 12.) There was no waiver and dismissal
without prejudice followed.   
8

In a motion for relief from judgment filed on behalf of petitioner by Attorney Gregory Robey on September 7,
2011 in Case 1, there is a suggestion that Margaret Amer Robey is petitioner’s “former counsel.” However, as
properly pointed out by the R&R, Margaret Amer Robey has never withdrawn her representation as counsel for
petitioner and the record reflects no such withdrawal.

7 

Third, the R&R concludes that petitioner was at fault for filing Case 2 well over
two months after the order responding to his notice of exhaustion and directing him to file a new
habeas petition and, further, for waiting until September 7, 2011 to file a Rule 60(b) motion in
Case 1. For all of these reasons, the R&R concludes that petitioner is not entitled to any form of
equitable tolling.
C.

Petitioner’s Objections
Petitioner filed objections, as amended,9 asserting two objections.10
1.

R&R failed to properly apply the principles of mandatory equitable tolling
(Doc. No. 11 at 3, citing Griffin, supra and Palmer, supra)
Petitioner asserts: “Under Griffin and Palmer, if the district court fails to grant a

stay, a petitioner is entitled to mandatory equitable tolling of the AEDPA period if he/she files in
state court within 30 days of the federal court dismissal, and also returns to the federal court no
later than 30 days following state court exhaustion. See Palmer, 276 F.3d at 781-82.” (Case 2,
Doc. No. 11 at 3.)
Petitioner argues, correctly, that he filed his motion to reopen his direct appeal on
September 2, 2010, within 30 days of this Court’s August 10, 2010 dismissal order. He further
argues that, after his motion to reopen was denied on September 29, 2010, he returned to federal

9

The original objections purported to be the objections of “defendant” to “the pre-sentence report.” (Case 2, Doc.
No. 10.) The amended objections still purport to be objections of “defendant” rather than “petitioner,” but corrected
the document being objected to. (Case 2, Doc. No. 11.)
10

The amended objections also request a hearing under Jackson v. Denno, 378 U.S. 368 (1964). In Jackson, the
Court stated that:
a federal habeas corpus court, in the face of the unreliable state court procedure [which submitted
to the jury, along with other issues in the case, for a single verdict, the question of voluntariness of
a confession on which evidence was in conflict], would not be justified in disposing of the petition
solely upon the basis of the undisputed portions of the record. At the very least, Townsend v. Sain,
372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, would require a full evidentiary hearing to determine
the factual context in which Jackson’s confession was given.
378 U.S. at 392. The Court finds absolutely no reason to apply Jackson to the instant case. To the extent the
amended objections can be construed as a motion for a hearing, the motion is denied.

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court by filing his notice of exhaustion on October 5, 2010. (Case 1, Doc. No. 14.) He argues
that, by not accepting this notice as a proper “return to federal court,” the R&R “place[s] form
over function.” (Case 2, Doc. No. 11 at 4.)
The Court disagrees with petitioner’s characterization. The fact is that petitioner
failed to respond to the Court’s July 23, 2010 order to indicate by August 9, 2010 whether he
would waive his unexhausted claim. The Court had placed petitioner on notice that failure to
waive would result in dismissal without prejudice. On August 10, 2010, having not received any
waiver from petitioner, the Court dismissed Case 1 without prejudice. Therefore, when petitioner
filed his notice on October 5, 2010, Case 1 was already closed and, as soon as counsel entered
the case number to file the notice, the electronic filing system would have displayed the message
“(closed 08/10/2010).” Petitioner’s argument that his counsel never received the August 10, 2010
dismissal order and did not know that Case 1 was closed is, therefore, to no avail. Moreover,
there is no assertion that the July 23, 2010 order was not received; yet there was no response to
that order, which informed petitioner that his case would be dismissed without prejudice if he
failed to waive his unexhausted claim. As a result, petitioner’s “return to federal court” should
have happened within 30 days of September 29, 2010 and should have been by way of a new
habeas petition. That did not happen.
For these reasons, with respect to mandatory equitable tolling, petitioner’s
objection is overruled and the R&R is accepted.

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2.

R&R failed to properly apply the principles of general equitable tolling (Doc.
No. 11 at 4, citing Andrews, supra and Holland, supra)
Petitioner argues that the R&R fails to properly apply Andrews and Holland. The

Court first notes that Andrews is no longer the applicable case law. (See, n.6, supra.) Holland
establishes the two-part test for whether to apply general equitable tolling.
Petitioner argues that he “could not have done more than he did in a good faith
attempt to assure timeliness of his petition.” (Case 2, Doc. No. 11 at 4.) The Court disagrees.
First, petitioner could have avoided dismissal of Case 1 and enjoyed the benefits
of a stay if he had merely responded to the Court’s July 23, 2010 order. Second, after the Court
issued its dismissal order in Case 1 on August 8, 2010, petitioner should have known that his
case was closed and, once his claim was exhausted, he would be required to file a new habeas
case. Third, when petitioner was informed (again) by order dated October 8, 2010 that a new
habeas petition was necessary, there was still time within the 30-day window to do so; but
petitioner did not file his new petition until December 30, 2010. (Case 2, Doc. No. 1.)
Petitioner asserts (1) that his “primary counsel, Margaret Amer Robey,” never
received the August 8, 2010 order; (2) that Ms. Robey “suffers from multiple sclerosis [which]
often flares up and requires [that she] take days off from work [...] to recover from associated
symptoms and extreme fatigue[;]” (3) that “[a]lthough Attorney Gregory S. Robey is also listed
as attorney of record in this matter, he was secondary to Margaret Amer Robey on this file, as he
is a trial lawyer who has a very busy criminal practice[.]” (Case 2, Doc. No. 11 at 5.) All of these
assertions are made without any affidavits to support them.

10 

In fact, the record and the electronic filing system both refute the first and third
assertions.11 First, Gregory Robey, not Margaret Amer Robey, filed every document filed by
petitioner in Case 1, although both counsel are listed on the docket as “Attorney to be noticed.”
Ms. Robey’s email address is currently shown as “[e-mail];” however, the only
electronic receipt on the entire docket that was delivered to her at that email address is the final
document on the docket, petitioner’s motion for relief from judgment filed by Gregory Robey on
September 7, 2011. (Case 1, Doc. No. 16.)
In Case 2, as in Case 1, Gregory Robey, who is listed as “Lead Attorney,” has
filed all but one of petitioner’s documents. A formal notice of appearance by Margaret Amer
Robey was filed on January 4, 2011. She is listed as “Attorney to be noticed.” After that
appearance, the electronic receipts show delivery to her at the “[e-mail]” email
address, as well as delivery to Gregory Robey at “[e-mail],” which is the email
address that both Margaret Amer Robey and Gregory Robey used in Case 1.
The electronic filing system “Attorney Case Query” shows that Gregory Robey’s
login was created on January 31, 2004 and updated on August 15, 2011. His last login was
February 2, 2012. However, Margaret Amer Robey’s login was not created until December 30,

11

“An attorney’s incapacitation for medical reasons may constitute sufficient extraordinary circumstances to warrant
equitable tolling of the limitations period, if the incapacity affected the petitioner’s ability to file a timely habeas
petition.” Westerfield v. Rapelje, No. 2:10-CV-13189, 2011 WL 3511512, at *3 (E.D. Mich. Aug. 11, 2011) (citing
Robertson v. Simpson, supra, 624 F.3d at 785). Here, petitioner has asserted no more than vague allegations that
Margaret Amer Robey suffers from a medical condition that sometimes requires her to take off work. Although the
Court has no reason to doubt the truth of that assertion, there is nothing specific in the record to support a finding
that Ms. Robey was, in fact, actually suffering in that manner at the exact time the petition was due. Further, as
indicated by the discussion herein, it is not even clear that Ms. Robey was representing petitioner for purposes of
filing documents prior to January 4, 2011. Moreover, two attorneys represented petitioner and, if Ms. Robey was
unable to file the petition, there is no reason why Gregory Robey could not have performed the very task of filing,
which the record shows was routinely his to perform.

11 

2010 and has not been updated. Her last login was June 23, 2011. On that date, she filed in Case
2, a motion for extension of time to respond to the motion to dismiss. (Case 2, Doc. No. 7.)12
Clearly, the record does not support the assertions made in petitioner’s objections
that counsel has not received orders and that Gregory Robey is not lead counsel. Further, if
Margaret Amer Robey is lead counsel and has not received emails, it is because she did not have
a correct email address until December 30, 2010 when her login was created. Even so, the Court
would have not used that address until January 4, 2011, when she made her first official
appearance in Case 2.
Petitioner’s assertion that he “could not have done more [...] to assure the
timeliness of his petition” simply does not pass muster. “[M]istakes of counsel are constructively
attributable to the client, at least in the postconviction context.” Holland, 130 S. Ct. at 2566
(Alito, J., concurring in part and concurring in the judgment) (citing Lawrence v. Florida, 549
U.S. 327, 336 (2007), for the proposition that “[a]ttorney miscalculation is simply not sufficient
to warrant equitable tolling, particularly in the postconviction context where prisoners have no
constitutional right to counsel”). Justice Alito pointed out that the rationale of Lawrence “fully
applies to other forms of attorney negligence.” Id. at 2567. Since “the error of an attorney is
constructively attributable to the client[,] [it] thus is not a circumstance beyond the litigant’s
control.” Id. (collecting cases).

12

It is highly likely that, in Case 1, Margaret Amer Robey and Gregory Robey, who were both identified as
petitioner’s counsel on the petition, were assigned the same email address when the manually-submitted petition was
filed by the Clerk because they were both listed as from the firm “Robey & Robey,” whose email address in the
electronic system is “[e-mail].” Contrary to the requirements of LR 10.1, the petition itself did not
supply this information (nor did the petition in Case 2). LR 10.1 provides, in relevant part, “Signatures on all
documents submitted to the Court shall include the typewritten name, address, telephone number, facsimile number,
e-mail address and the attorney’s Ohio Bar Registration Number, if applicable.”

12 

Here, counsel could have complied with their duty to keep the Clerk informed of
any changes in their contact information as well as their duty to regularly monitor the docket of
their client’s case. This is the “reasonable diligence” required under Holland. Further, there is
nothing in the factual and procedural scenario of this case that constitutes “extraordinary
circumstances” outside petitioner’s control.
Accordingly, this objection is overruled and the R&R is accepted with respect to
application of the principles of general equitable tolling.
III. CONCLUSION
For the reasons discussed above, petitioner’s objections are overruled and the
Report and Recommendation is accepted. Respondent’s motion to dismiss the habeas petition as
untimely (Case 2, Doc. No. 6) is GRANTED. The petition is dismissed with prejudice. Further,
the Court certifies that an appeal from this decision could not be taken in good faith and that
there is no basis upon which to issue a certificate of appealability. 28 U.S.C. §§ 1915(a)(3),
2253(c); Fed. R. App. P. 22(b).

IT IS SO ORDERED.

Dated: March 2, 2012
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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