Daniels v. Clipper

Filing 16

Memorandum of Opinion and Order For the reasons set forth herein, the Court hereby overrules Petitioner's Objection (ECF No. 15 ) and adopts the Report and Recommendation (ECF No. 14 ) of the Magistrate Judge. Accordingly, Respondent&# 039;s motion to dismiss (ECF No. 10 ) is granted, and Dexter J. Daniels' Petition for a Writ of Habeas Corpus is dismissed as time-barred.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 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 2/29/2016. (JLG)

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

DEXTER J. DANIELS,
Petitioner,
v.
KIMBERLY CLIPPER,
Respondent.

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CASE NO. 1:14CV01460

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF Nos. 10 and 15]

Pro se Petitioner Dexter J. Daniels (“Petitioner”) filed a Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (“Petition”), asserting four grounds for relief which
challenge his conviction in the Cuyahoga County Court of Common Pleas. ECF No. 1. The case
was referred to Magistrate Judge James R. Knepp, II for a Report and Recommendation pursuant
to 28 U.S.C. § 636 and Local Rule 72.2(b)(2). Respondent Warden Kimberly Clipper
(“Respondent”) filed a motion to dismiss (ECF No. 10). Petitioner filed an opposition to
Respondent’s motion to dismiss (ECF No. 13). The Magistrate Judge subsequently issued a
Report and Recommendation (ECF No. 14). In his report, the Magistrate Judge recommends that
the Court dismiss the petition as time-barred under 28 U.S.C. § 2244. Petitioner timely filed an
Objection to the Magistrate Judge’s Report (ECF No. 15). After reviewing the objection, the
Court hereby adopts the Report and grants Respondent’s motion to dismiss (ECF No. 10), for the
reasons that follow.

(1:14CV01460)

I. Factual and Procedural Background
On August 1, 1989, Petitioner, represented by counsel, retracted his former not guilty plea
and pled guilty to aggravated murder with felony murder specifications as charged in the first and
fifth counts of the indictment, and as to aggravated burglary with felony murder specifications as
charged in the third and seventh counts of the indictment. The prosecution entered a nolle
prosequi to counts two, four, six, and eight. On that same day, Petitioner was sentenced to a
term of life imprisonment with 20 years of incarceration before parole possibility for the
aggravated burglary, and to a term of life imprisonment with 30 years of incarceration for the
aggravated murder to be served consecutively along with other terms of incarceration to be
served concurrently. Petitioner’s aggregate sentence is life with 50 years of incarceration before
parole eligibility. ECF No. 10-2 at PageID #: 98-99.
According to the docket, nothing of litigative pertinence occurred from August 1, 1989,
when Petitioner pled guilty and was sentenced, until May 29, 2004, when certain fees were
collected. See id. at PageID #: 102. Similarly, nothing of litigative pertinence occurred until
February 21, 2014, when Petitioner filed a pro se motion for counsel and notice of appeal. See
id. at PageID #: 102. The appeal was dismissed sua sponte three days later on February 24,
2014. See id. at PageID #: 102. The time between August 1, 1989, when Petitioner pled guilty
and was sentenced, and February 21, 2014, when Petitioner filed his motion for appointment of
counsel and pro se notice of appeal, is 8,869 days or 24 years, six months, and nineteen days.

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A. Motion for Delayed Appeal
On February 21, 2014, Petitioner, pro se, filed an appeal and a motion for delayed appeal
of his August 1, 1989 conviction. ECF No. 10-2 at PageID #: 107, 112. As his reason for failing
to timely file an appeal, Petitioner stated in the motion for delayed appeal that “[t]he trial court
failed to inform Defendant-Appellant of his appellate rights under Rules of Criminal Procedure,
Rule 32, including the right to counsel.” Id. at PageID #: 115. Petitioner claims he “did not even
become aware that he had a right to appeal, and a right to appellate counsel, until an inmate law
clerk worker infor[m]ed him of this right [] on or about November 6, 2013.” Id. at PageID #:
116. Three days after filing the appeal, on February 24, 2014, the Eighth District Court of
Appeals denied Petitioner’s motion for a delayed appeal and dismissed the appeal sua sponte. Id.
at PageID #: 120-21. On April 22, 2014, Petitioner filed a motion for a date-stamped copy of the
court of appeals’ judgment. Id. at PageID #: 123. The court of appeals denied the motion,
stating that “[t]he post card mailed by the clerk’s office is sufficient and [sic] notification of this
court’s ruling. The court does not issue separate date-stamped copies of its rulings.” Id. at
PageID #: 124.
There is no record of an appeal to the Ohio Supreme Court. See id. at PageID #: 125-28.
B. Post-Conviction Relief
On March 21, 2014, Petitioner, pro se, filed with the Cuyahoga County Court of
Common Pleas a petition for post-conviction relief and requested an evidentiary hearing. ECF
No. 10-2 at PageID #: 129-32. In this petition to vacate or set aside judgment of conviction or
sentence, Petitioner set forth the following claim:
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Claim Number One
Statement of constitutional claim: During sentencing the trial court failed to inform
petitioner that he had a constitutional right to appeal, and a constitutional right to
appointment of appellate counsel during said appeal, under Crim.R.32(B).
Short statement of facts supporting the claim: Petitioner had a total lack of knowledge of
his right to file a direct appeal: until very recently informed by this by an inmate law
clerk: whereas petitioner then immediately filed a "Motion for Leave to File Delayed
Appeal" on February 21, 2014 – the court of appeal denied such on February 28, 2014.
ECF No. 10-2 at PageID #: 131. The State filed a motion for summary judgment in response to
the petition. Id. at PageID#: 137-142. On May 2, 2014, the trial court denied Petitioner’s
petition to vacate or set aside judgment of conviction or sentence as untimely filed. Id. at PageID
#: 143.
II. Petition for Federal Habeas Corpus
On July 2, 2014, Petitioner filed the instant Petition for a Writ of Habeas Corpus
challenging his 1989 judgment of conviction by raising the following grounds for relief:
GROUND ONE: Convicted Defendant wasn’t given his right to appeal.
Supporting Facts: Defendant’s Constitutional Rights under the sixth and
fourteenth amendments were violated when he was not given the right to appeal
by reason of his lack of knowledge of his right and the failure to his counsel or the
court to advise him of his right to appeal with the aid of counsel.
GROUND TWO: Convicted Defendant’s right to file a Jurisdictional Appeal to the
State’s highest court was dwarfed when the court of appeals refused to provide pro se
appellant with the required: date stamped copy of the court of appeals opinion and
judgment entry being appealed, containing the panels’ signatures.
Supporting Facts: Defendant filed a timely ‘Jurisdictional Appeal . . .’ with the
only post-card dated copy of the court of appeals opinion’ provided: but the Ohio
Supreme Court refused to accept said for filing because said opinion did not
contain a file date stamp.
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GROUND THREE: Convicted Defendant was deprived of his right to due process under
the Fourteenth Amendment to the United States Constitution when the trial court
accepted defendant’s plea of guilty before informing defendant of the constitutional rights
defendant would be waiving by entering a guilty plea.
Supporting Facts: The trial court failed to inform defendant of his constitutional
right to have witnesses testify in his own defense, and that he would be
waiving that right by entering a guilty plea. Because had defendant been made
aware of his right he would have not entered [sic] a guilty plea and would have
elected to have a jury trial: where defendant would have had witnesses called, and
subpoenaed if necessary, to testify about defendant’s family
history of epilepsy and major bouts of schizophrenia.
GROUND FOUR: Convicted Defendant was denied effective assistance of trial counsel
where attorney failed to adequately investigate his history of mental illness prior to
pressuring the defendant into entering a guilty plea.
Supporting Facts: Defendant, and members of defendant’s family, has a long
history of schizophrenia and epilepsy. And defendant had been proscribed [sic],
and was taking, psychotropic drugs at the time of his alleged participation of the
crimes that he was induced to plead guilty to and also at the time that he changed
his plea from not guilty to guilty.
ECF No. 1. The Magistrate Judge issued a Report recommending dismissal of the Petition as
time-barred. ECF No. 14.
III. Standard of Review for a Magistrate Judge’s Report and Recommendation
A district court reviews de novo objections to a Magistrate Judge’s Report and
Recommendation. Fed. R. Civ. P. 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.
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IV. Law and Analysis
Petitioner lodges specific objections only as to the Magistrate Judge’s disposition of
ground one of his Petition—that he was not informed of his right to an appeal and to have the aid
of counsel on appeal. See Jones v. Moore, No. 3:04CV7584, 2006 WL 903199, at *7 (N.D. Ohio
April 7, 2006) (“general objections” do not serve the purposes of Fed. R. Civ. P. 72(b)). He
contends that “the [M]agistrate [Judge] failed to properly determine the legal aspect(s) pertaining
to several [] constitutional mandates involving the knowing, voluntary, intelligent waiver.” ECF
No. 15 at PageID #: 189. Petitioner argues that “the [Magistrate Judge improperly] . . . focused
his attention on the fact(s) that (1) [the] [P]etition was filed beyond the one-year limitation period
prescribed by 28 U.S.C. § 2244(d)(1); (2) [Petitioner]’s lack of due diligence rendered a merits
determination impossible.” ECF No. 15 at PageID #: 15.
Petitioner’s argument is unpersuasive because the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) required the Magistrate Judge to assess the timeliness of the
Petition before reaching the merits of Petitioner’s claims. The Court now analyzes the timeliness
of the Petition de novo.
A. AEDPA Statute of Limitation
The AEDPA provides that a one-year statute of limitation applies to a state prisoner’s
federal habeas petition. 28 U.S.C. § 2244(d). The limitation period runs from the latest of the
following:
(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.
Id.
Petitioner’s conviction became final at the expiration of the time for seeking direct review
(i.e., within 30 days after his conviction), on September 1, 1989. However, “[f]or a prisoner
whose judgment became final before AEDPA was enacted, the one-year limitations period runs
from the AEDPA’s effective date: April 24, 1996.” Wood v. Milyard, 132 S.Ct. 1826, 1831
(2012). Therefore, Petitioner’s time for filing a federal habeas petition began to run on the date
of the AEDPA’s enactment, April 24, 1996, and expired on April 24, 1997. Petitioner did not
file the instant Petition until July 2, 2014, more than seventeen years after the statute of limitation
expired.
Petitioner is unable to satisfy § 2244(d)(1)(A).
(i) Discovery of the Factual Predicate
The Court turns to the only other applicable provision of this threshold AEDPA
inquiry—§ 2244(d)(1)(D). Pursuant to this section, the AEDPA’s one-year statute of limitation
“runs from ‘the date on which the factual predicate of the claim . . . could have been discovered,’
but only if the petitioner through due diligence alleges newly discovered evidence.” Scarber v.
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Palmer, 808 F.3d 1093, 1097 (6th Cir. 2015). “[T]he petitioner bears the burden of proving that
he exercised due diligence.” Johnson v. United States, 457 Fed.App’x. 462, 468 (6th Cir. 2012).
Petitioner asks the Court to believe that he did not become aware of his right to a direct
appeal until 2013—more than 24 years after his conviction and sentencing—when an inmate law
clerk informed of this right. Aside from the implausibility of this claim, “[t]he time commences
under § 2244(d)(1)(D) when the factual predicate for a habeas petitioner’s claim could have been
discovered through the exercise of due diligence, not when it was actually discovered by a given
petitioner.” Hibbler v. Romanowski, 2015 WL 1954477, at *3 (E.D. Mich. April 29, 2015)
(emphasis added); see also McSwain v. Davis, 287 Fed.App’x. 450, 454 (6th Cir. 2008) (reading
the requirement of due diligence under § 2244(d)(1)(D) to mean “reasonable diligence”). Had
Petitioner conducted a reasonable investigation, he would have discovered a right as basic as that
to a direct appeal long before more than two decades in state custody had passed.
Furthermore, as Respondent properly notes, it is questionable whether this predicate is
indeed factual. See ECF No. 10 at PageID #: 73 (“The proposition [Petitioner] seeks to advance
is a legal proposition that he could have learned about on the day of his sentencing with due
diligence. Villanueva v. Anglin, 719 F.3d 769, 774 (7th Cir. 2013) (“Regardless of when Serrano
and Villanueva assert they learned of the MSR [(mandatory supervised release)], they could have
learned of it on the day they were sentenced had they used due diligence.”).”).
Petitioner is unable to satisfy § 2244(d)(1)(D).

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B. Equitable Tolling
The equitable tolling doctrine “may serve to save an otherwise untimely petition if ‘a
litigant’s failure to meet a legally-mandated deadline unavoidably arose from circumstances
beyond the litigant’s control’ . . . .” Eberle v. Warden, Mansfield Correctional Inst., 532
Fed.App’x. 605, 612 (6th Cir. 2013). To be eligible for equitable tolling, a petitioner must show
“‘(1) that he has been pursing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010).
Also, in the extremely rare case, a petitioner can prove he is entitled to equitable tolling by
making a credible showing of actual innocence. Cleveland v. Bradshaw, 693 F.3d 626, 631 (6th
Cir. 2012) (citation omitted).
The length of time between Petitioner’s conviction and his attempt to appeal
demonstrates that he did not act with diligence in pursuing his rights. Petitioner presents no
argument that some “extraordinary circumstance” prevented a timely appeal. Petitioner does not
attempt to make a showing of actual innocence. As the magistrate judge notes, Petitioner merely
challenges the information provided to him when he pled guilty. ECF No. 14 at PageID#: 184.
Petitioner is not eligible for equitable tolling.
Petitioner’s contention that “all perceived delay and lack of diligence must be fully
imputed to the State of Ohio” (ECF No. 15 at PageID #: 189) is unsupported. The AEDPA
clearly imposes a duty on those in custody to act diligently in attempting to address alleged
constitutional violations underlying their convictions. Furthermore, as the Respondent states,
Petitioner’s failure to pursue his claims with diligence has rendered a merits determination
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impossible. See ECF No. 10 at PageID #: 78 (“[R]espondent is advised that the transcript [of
Petitioner’s guilty plea] is probably not available because of the lapse of time since Petitioner’s
guilty plea in 1989 and because Petitioner never appealed in the first instance.”).
V. Conclusion
For the reasons stated above, the Court hereby overrules Petitioner’s Objection (ECF No.
15) and adopts the Report and Recommendation (ECF No. 14). Accordingly, Respondent’s
motion to dismiss (ECF No. 10) is granted, and Dexter J. Daniels’ Petition for a Writ of Habeas
Corpus is dismissed as time-barred.
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 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.

February 29, 2016
Date

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

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