West v. LaRose

Filing 24

Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's Objection to the Report and Recommendation (ECF No. 23 ) is overruled. The Report and Recommendation (ECF No. 20 ) of the Magistrate Judge is hereby adopte d and Respondent's Motion to Dismiss (ECF No. 6 ) is granted. Terrell West's Petition for a Writ of Habeas Corpus is dismissed as time-barred by 28 U.S.C. § 2244. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), 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. § 2253(c); Fed. R. App. P. 22(b). Judge Benita Y. Pearson on 3/24/2015. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

TERRELL WEST,
Petitioner,
v.
CHRISTOPHER LAROSE,
Respondent.

)
)
)
)
)
)
)
)
)

CASE NO. 1:14cv316

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 23]

Pending before the Court is pro se Petitioner Terrell West’s Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. United States Magistrate James R. Knepp II
prepared a report in accordance with 28 U.S.C. § 636(b)(1)(B) and recommended that the habeas
petition be denied. ECF No. 20. Petitioner timely filed an Objection to the report and its
recommendations. ECF No. 23. The Court has reviewed the above filings, the relevant portions
of the record, and the governing law. For the reasons provided below, the Court overrules
Petitioner’s Objection, adopts the report and its recommendation, and denies the habeas petition.
I. Factual and Procedural History
On August 28, 2006, a Cuyahoga County Grand Jury indicted Petitioner with five counts
of rape, five counts of kidnapping, one count of felonious assault, and one count of gross sexual
imposition. ECF No. 6-1 at 4–16. Petitioner pleaded not guilty and proceeded to trial. At the
conclusion of the prosecution’s case-in-chief, Petitioner successfully moved to dismiss the

(1:14cv316)
felonious assault charge. Id. at 21. The trial court denied Petitioner’s motion as to all other
charges. ECF No. 6-1 at 21. A jury returned a guilty verdict on all remaining counts, and
Petitioner was sentenced to five consecutive life sentences. Id. at 22–23.
Petitioner timely appealed the trial court’s decision. Id. at 24. The state appellate court
sustained one of Petitioner’s twenty assignments of error and remanded the case for a new trial.
Id. at 150. During Petitioner’s second trial, the jury was unable to reach a verdict. Id. at 179.
On March 30, 2010, the prosecution amended the indictment to narrow the time in which
Petitioner had committed the charged offenses. Id. at 180. Petitioner, now represented by
Attorney Carolyn Kaye Ranke, proceeded to trial a third time. On April 21, 2010, the jury found
Petitioner guilty of rape, kidnapping, and gross sexual imposition. Id. at 182. The trial court
sentenced Petitioner to five consecutive life sentences on May 28, 2010. Id. at 183.
Petitioner filed a timely notice of appeal on June 25, 2010. Id. at 185. Petitioner’s
attorney then filed a series of motions seeking to extend the time in which to file assignments of
error. See id. at 338–39 (granting extensions on August 31st, October 1st, November 4th, and
December 8th, 2010). Counsel requested the leave in connection with her treatment for cancer.
Although counsel had informed Petitioner of the diagnosis, she did not request leave for
withdrawal from representing Petitioner. ECF No. 23-1 at 2. Counsel did not comply with the
appellate court’s final extension, and the appeal was dismissed sua sponte on December 17, 2010
for failure to file an appellate brief. ECF No. 6-1 at 338. Ranke was later suspended from
practice in the state of Ohio for similar misconduct on September 22, 2011. Disciplinary
Counsel v. Ranke, 956 N.E.2d 288, 292 (Ohio 2011) (suspending Ranke’s license indefinitely

2

(1:14cv316)
because attorney misused client trust account, failed to file appellate brief in [an unrelated]
criminal appeal, and failed to cooperate in disciplinary investigation).
On January 26, 2012, Attorney Tyresha Brown-O’Neal entered an appearance on behalf
of Petitioner and moved the state appellate court to reconsider its sua sponte dismissal. ECF No.
6-1 at 338. The appellate court granted Petitioner’s motion to reconsider, but ultimately affirmed
Petitioner’s conviction and sentence on July 12, 2012. Id. at 260. Petitioner did not file a
discretionary appeal with the Ohio Supreme Court at this time; therefore, Petitioner’s conviction
became final for AEDPA purposes on August 26, 2012 when Petitioner failed to file an appeal
within forty-five days of the appellate court’s entry of judgment. Sup. Ct. Prac. R. 7.01(A)(1)(a).
Petitioner, proceeding pro se, filed a delayed notice of appeal with the Ohio Supreme
Court on December 5, 2012. ECF No. 6-1 at 278. The Ohio Supreme Court denied Petitioner’s
motion on January 23, 2013. Id. at 305. Over one year later, on February 13, 2014, Petitioner,
proceeding pro se, filed the present federal habeas petition. ECF No. 1. Respondent filed a
motion to dismiss. ECF No. 6. Petitioner opposed. ECF No. 19. United States Magistrate
Judge James R. Knepp II issued a report and recommendation in accordance with 28 U.S.C. §
636(b)(1)(B), in which he recommended that the Court grant Respondent’s motion to dismiss, as
the petition is time-barred. ECF No. 20 at 10. Specifically, the magistrate judge found that
Petitioner had failed to file a petition before the expiration of the one-year statute of limitations,
and that Petitioner had failed to demonstrate either an extraordinary circumstance or actual
innocence justifying equitable tolling. Petitioner timely filed an objection. ECF No. 23.

3

(1:14cv316)
II. Standard of Review for a Magistrate Judge’s Report and Recommendation
When objections have been made to a magistrate judge’s Report and Recommendation,
the district court’s standard of review is de novo. Fed. R. Civ. 72(b)(3). A district judge:
must determine de novo any part of the magistrate judge’s disposition that has
been properly objected to. The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.
Id. Near verbatim regurgitation of the arguments made in earlier filings are not true objections.
When an “objection” merely states disagreement with the magistrate judge’s suggested
resolution, it is not an objection for the purposes of this review. Cvijetinovic v. Eberlin, 617
F.Supp. 2d 620, 632 (N.D. Ohio 2008), rev’d on other grounds, 617 F.3d 833 (6th Cir. 2010).
Such “general objections” do not serve the purposes of Fed. R. Civ. P. 72(b). See Jones v.
Moore, No. 3:04CV7584, 2006 WL 903199, at *7 (N.D. Ohio April 7, 2006). “A party who files
objections to a magistrate [judge]’s report in order to preserve the right to appeal must be
mindful of the purpose of such objections: to provide the district court ‘with the opportunity to
consider the specific contentions of the parties and to correct any errors immediately.’” Id.
(citing U.S. v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981)). The Supreme Court upheld this
rule in Thomas v. Arn, 474 U.S. 140, 144 (1985), a habeas corpus case.
III. Law and Analysis
“Procedural barriers, such as statutes of limitations and rules concerning procedural
default and exhaustion of remedies, operate to limit access to review on the merits of a
constitutional claim.” Daniels v. United States, 532 U.S. 374, 381 (2001); see also United States
v. Olano, 507 U.S. 725, 731 (1993) (observing that constitutional rights may be forfeited by the
4

(1:14cv316)
failure to make a timely assertion of the right). In general, a state prisoner seeking habeas corpus
relief pursuant to 28 U.S.C. § 2254 must comply with the statute of limitations period set forth in
28 U.S.C. § 2244, which provides:
(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.
(d)(2) The time during 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).
The statute of limitations is tolled for any period of time in which a properly filed petition
for post-conviction relief is pending before the state courts. Jurado v. Burt, 337 F.3d 638, 640
(6th Cir. 2003) (quoting 28 U.S.C. § 2244(d)). The tolling provision does not reset the
limitations period, however; “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
5

(1:14cv316)
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)).
Under limited circumstances, AEDPA’s statute of limitations may be subject to equitable
tolling. Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011) (citing Holland
v. Florida, 560 U.S. 631, 646 (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) (internal quotation marks omitted). The doctrine is one that is used
sparingly. Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th
Cir. 2000). Equitable tolling is limited to those extraordinary circumstances when a habeas
petitioner can establish he is entitled to equitable tolling. In order to carry this burden, a
petitioner must show that he has been pursuing his or her rights diligently, but some
extraordinary circumstance has prevented timely filing. Holland, 560 U.S. at 646 The diligence
required to satisfy petitioner’s burden needs to be “reasonable,” not “maximum feasible.” Id. at
653.
Petitioner objects to the magistrate judge’s finding that he had not shown an exceptional
circumstance entitling him to equitable tolling. Petitioner argues that ineffective assistance of
counsel is a structural error that entitles him to equitable tolling. According to Petitioner,
Attorney Ranke was ineffective because her representation as both trial and appellate counsel
constitutes “silent waiver of possible ineffective assistance of trial retained counsel, [with
Attorney Ranke] being the same in both instances.” ECF No. 23 at 3. Petitioner also argues that

6

(1:14cv316)
all appearances entered by Ranke, including the multiple continuances, the notice of appeal, and
referrals are “void ab initio” due to her failure to “disclose a suspension to practice law in Ohio.”
ECF No. 23 at 3–4.
Petitioner’s assertions, even if accepted as true,1 do not satisfy the standard for equitable
tolling. Ranke’s (allegedly) deficient performance during direct appeal in state-court
proceedings does not impact Petitioner’s ability to pursue federal post-conviction relief in a
timely manner. Holland, 560 U.S. at 650 (“Equitable tolling . . . asks whether federal courts may
excuse a petitioner’s failure to comply with federal timing rules, an inquiry that does not
implicate a state court’s interpretation of state law.”) (emphasis added). The docket reflects that
Petitioner had obtained new counsel by, at latest, January 26, 2012. ECF No. 6-1 at 302.
AEDPA’s statute of limitations did not begin to run until August 26, 2012, the date by when
Petitioner was required, pursuant to Sup. Ct. Prac. R. 7.01(A)(1)(a), to file a notice of appeal
with the Ohio Supreme Court. See 28 U.S.C. § 2244(d)(1)(A) (setting the date of “the expiration
of the time for seeking [direct] review” as a starting point for AEDPA’s statute of limitations).
Accordingly, Ranke’s involvement with Petitioner’s direct appeal terminated prior to the time
when AEDPA’s statute of limitations began to run. There are no facts in the record that suggest
Ranke’s performance as counsel prevented Petitioner from filing his petition in a timely manner.

1

Petitioner’s assertion that Ranke was not licensed to practice in Ohio during her
representation of Petitioner is indisputably untrue. Ranke’s representation of Petitioner ceased
when the state appellate court sua sponte dismissed Petitioner’s appeal on December 17, 2010.
ECF No. 6-1 at 338. Ranke’s license was not suspended until September 22, 2011, a full nine
months later. Disciplinary Counsel v. Ranke, 956 N.E.2d 288 (Ohio 2011). Ranke could
practice law in Ohio prior to the date of her suspension, including the time when she was
representing Petitioner in his direct appeal.
7

(1:14cv316)
Cf. Holland, 560 U.S. at 653–54 (remanding case to lower court in order to determine whether
counsel’s failure to file a timely petition for a writ of habeas corpus was “extraordinary” when
petitioner repeatedly mailed counsel to remind him of AEDPA’s statute of limitations that
counsel had incorrectly ignored). Petitioner’s Objection is overruled.
IV. Conclusion
Plaintiff’s Objection (ECF No. 23) is overruled and the Report and Recommendation
(ECF No. 20) of the magistrate judge is hereby adopted and Respondent’s motion to dismiss is
granted. Terrell West’s Petition for a Writ of Habeas Corpus is dismissed as time-barred by 28
U.S.C. § 2244. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), 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. § 2253(c); Fed. R. App. P. 22(b).

IT IS SO ORDERED.

March 24, 2015
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

8