May v. LaRose

Filing 20

Memorandum of Opinion and Order For the reasons set forth herein, Petitioner's objections (ECF No. 19 ) are overruled. The Report and Recommendations (ECF No. 20 ) of the magistrate judge are hereby adopted and Respondent's motio n to dismiss (ECF No. 9 ) is granted. The Petition for a Writ of Habeas Corpus is dismissed as time-barred by 28 U.S.C. § 2244. Petitioner's Motion for leave to amend his petition (ECF No. 12 ) and request for an order directing the Warde n to "file a proper answer" to the petition (ECF No. 13 ) are hereby denied. 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 5/29/2015. (JLG)

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

GLEN F. MAY,
Petitioner,
v.
CHRISTOPHER LAROSE,
Respondent.

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CASE NO. 1:14CV01786

JUDGE BENITA Y. PEARSON

ORDER
[Resolving ECF Nos. 9, 12, and 13]

Pending before the Court is Petitioner Glen F. May’s Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Respondent filed a Motion to Dismiss the
petition as time-barred. ECF No. 9. United States Magistrate Judge William H. Baughman, Jr.
prepared a report in accordance with 28 U.S.C. § 636(b)(1)(B) and recommended that
Respondent’s Motion to Dismiss be granted. ECF No. 16. Petitioner also filed a motion for
leave to amend his petition (ECF No. 12) and motion for an order directing the Respondent to
“file a proper answer” to the petition. ECF No. 13. Respondent opposed both motions. ECF
Nos. 14 and 15. The magistrate judge recommended denying Petitioner’s motions. Petitioner
filed objections to the magistrate judge’s report and its recommendations. ECF No. 19. 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 objections, adopts the report and
its recommendations, grants Respondent’s Motion to Dismiss, and denies Petitioner’s motions.

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I. Factual and Procedural History
A. Underlying Facts, Indictment, and Conviction
The Ohio Court of Appeals for the Eighth Appellate District established the facts of this
case on direct appeal:
Prior to 2007, appellant moved in with his then girlfriend, R.W. and her
three children. R.W.’s eldest daughter, D.L., had just turned 12 in the fall of
2007. She [D.L.] described an incident in where appellant invited her into his
bedroom and made her watch a pornographic movie. He instructed her to mimic
the people in the video by placing her mouth on his penis. He grabbed her hair
and made her go back and forth on his penis. D.L. testified that this episode
ended with appellant ejaculating on her face.
D.L. described the next incident, which took place in the winter of 2007,
where appellant attempted to engage in anal sex with her while she was washing
dishes. She testified that appellant “tried to stick his private part in me but it
didn’t go.” After the incident was over, D.L. went to the bathroom and cleaned
blood from her rectum.
After moving to a new apartment on Central Avenue, D.L. had a sleepover
with her close friend, S.B. (age 13), during the winter of 2007-2008. D.L.
testified that appellant made her “suck his private part,” then asked her to get S.B.
to do the same. D.L. and S.B. both testified that the two went down to the kitchen
and that appellant made S.B. place her mouth on his penis. S.B. also testified that
appellant put his penis in her vagina. The girls differ as to the location in the
house where S.B. performed oral sex and whether D.L. encouraged S.B. to do it,
as S.B. testified. D.L. testified to a second sleepover where appellant made the
two girls touch and lick each other’s breasts while he watched. According to
D.L., appellant also put his mouth on the girls’ breasts, and orally penetrated the
girls’ vaginas. S.B. testified that these acts occurred, but that it was not during a
sleepover. She testified that there was only one sleepover where appellant
performed sexual acts on her, but that there were two separate incidents where
appellant inappropriately touched the girls.
In April 2008, D.L.’s behavior and grades in school caused R.W. and
appellant to discipline her. During the ensuing argument, D.L. blurted out that
appellant had been molesting her. D.L. also told her cousin K and her teachers,
Ms. Reynolds and Ms. McMillan. D.L.’s teachers reported the allegations to the
appropriate authorities, and the Cuyahoga County Department of Children and
Family Services (“CCDCFS”) became involved.
After an investigation by the Cleveland Metropolitan Housing Authority
(“CMHA”) police, the Cleveland police, and CCDCFS, appellant was indicted in
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two criminal cases, which were consolidated for trial. Appellant faced charges of
rape involving a child under the age of 13, rape, gross sexual imposition,
kidnapping, and disseminating matter harmful to juveniles. Trial concluded with
a finding of guilty on all counts, and appellant was sentenced to a total of 25 years
to life in prison.
ECF No. 9-1, Ex. 17, PageID #: 137-39. In a habeas corpus proceeding instituted by a person in
custody pursuant to the judgment of a state court, factual determinations made by the state courts
are presumed correct. 28 U.S.C. § 2254(e)(1); see also House v. Bell, 283 F.3d 37 (6th Cir.
2002).
B. Petitioner’s Appeals in State Court
On September 1, 2009, Petitioner, pro se, filed a notice of appeal. ECF No. 9-1, Ex. 54,
PageID #: 305. The appellate court dismissed the appeal as untimely. ECF No. 9-1, Ex. 54,
PageID #: 305. On October 14, 2009, Petitioner, pro se, filed a motion for leave to file a delayed
appeal. ECF No. 9-1, Ex. 13, PageID #: 81. The appellate court granted Petitioner’s motion.
ECF No. 9-1, Ex. 14, PageID #: 86. The appellate court overruled Petitioner’s stated
assignments of error, but concluded that the matter should be remanded for re-sentencing on a
kidnapping conviction that should have merged and so that Petitioner could be properly informed
of the terms of post-release control. ECF No. 9-1, Ex. 17, PageID #: 152. On October 23, 2009,
while his appeal was pending, Petitioner filed, pro se, a petition to vacate or set aside his
judgment of conviction or sentence. ECF No. 9-1, Ex. 18, PageID #: 155. On November 5,
2009, the court denied the petition to vacate. ECF No. 9-1, Ex. 19, PageID #: 159.
After petitioner presented several motions to the trial court prior to re-sentencing (ECF
No. 9-1, Exs. 20-25, PageID #: 160-69), on January 19, 2011, the trial court held a re-sentencing

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hearing at which it rejected Petitioner’s motions and, after merging several counts, imposed the
same aggregate sentence. ECF No. 9-1, Exs. 26-28, PageID #: 170. Petitioner, through counsel,
appealed the re-sentencing. ECF No. 9-1, Ex. 28, PageID #:173. On December 22, 2011, the
appeals court overruled two of Petitioner’s assignments of error, but, in sustaining the remaining
assignment of error, ordered the trial court “to correct the sentencing journal entry to reflect the
proper period of mandatory postrelease control, i.e., five years, along with the consequences for
violating provisions of postrelease control.” ECF No. 9-1, Ex. 38, PageID #: 233. Petitioner
failed to file an appeal of the decision with the Supreme Court of Ohio, and on February 28,
2012, the Cuyahoga County Court of Common Pleas issued the corrected journal entry pursuant
to the remand of the Court of Appeals. ECF No. 9-1, Ex. 29, PageID #: 236.
On May 16, 2012, Petitioner, proceeding pro se, filed a Rule 26(B) application to reopen
his appeal. ECF No. 9-1, Ex. 40, PageID #: 237. On July 2, 2012, the appeals court denied
Petitioner’s application as untimely. ECF No. 9-1, Ex. 43, Page ID #: 255-59.1 On July 11, 2012,

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The appeals court stated:

App.R.. 26(B)(1) and (2)(b) require applications claiming ineffective
assistance of appellate counsel to be filed within 90 days from
journalization of the decision unless the applicant shows good cause for
filing at a later time. In the present case, this court journalized its decision
on December 22, 2011, and [Petitioner] did not file his application for
reopening until May 16, 2012. Therefore, because the period between this
court’s journalization and the filing of the application totals 146 days, the
application is untimely on its face. . . . [Petitioner makes no effort in his
application for reopening pursuant to App.R. 26(B) to show good cause
for failure to file his application within the time limit set by the rule.
ECF No. 9-1, Ex. 44, PageID #: 257-58.
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Petitioner sought reconsideration of this decision (ECF No. 9-1, Ex. 45, PageID #: 261), which
the appeals court denied on February 25, 2013. ECF No. 9-1, Ex. 46, PageID #: 264. On March
12, 2013, Petitioner appealed that decision to the Ohio Supreme Court (ECF No. 9-1, Ex. 47,
PageID #: 265-66), which was denied. ECF No. 9-1, Ex. 49, PageID #: 282. On June 14, 2013,
Petitioner sought reconsideration from the Supreme Court of Ohio (ECF No. 9-1, Ex. 50, PageID
#: 283-85), which was denied. ECF No. 9-1, Ex. 51, Page ID#: 286.
C. Federal Habeas Petition
On August 12, 2014, Petitioner filed the instant petition for habeas relief. Petitioner
raised the following grounds for relief:
GROUND ONE: The petitioner was prejudicially deprived of his Sixth
Amendment Right to assistance of appellate counsel in not raising ineffective
[assistance] of trial counsel in the first instance on direct appeal of right.
GROUND TWO: The petitioner was prejudicially deprived of his Federal law,
Supreme [sic] law, and Fifth and Fourteenth Amendment Right, regarding the
indictments. They were identical and undifferentiated counts.
GROUND THREE: The petitioner was prejudicially deprived of his Due Process
of Law, Federal Law and Supreme Law were, [sic] ineffective Assistance of
Counsel was major. The Summons, was mailed U.S. Mail, to wrong address.
Counsel never argued. There were police statements that did not match up.
Counsel never argued. Also there were continuances granted, no reason for them,
on the journal entry, or docket sheet. Counsel never argued. Record statements
were never argued.
GROUND FOUR: The petitioner was prejudicially deprived of the Complaint
form. To this day petitioner still don’t know what did the State of Ohio take to
the Grand Jury. There were hand written statements, signed and dated and both
was different.
ECF No. 1.

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D. Respondent’s Motion to Dismiss
On January 21, 2015, Respondent filed a Motion to Dismiss Petitioner’s habeas petition
as time-barred. ECF No. 9. Respondent argues that Petitioner’s conviction became final on
March 31, 2012, thirty days after the Ohio trial court issued the corrected sentencing entry
following the February 28, 2012 decision of the Ohio appeals court. Absent any tolling,
therefore, Respondent argues that Petitioner was required to file any federal habeas petition by
March 31, 2013. Petitioner filed his habeas petition on August 14, 2014.
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.
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(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. AEDPA Standard of Review
“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
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 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.

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(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.
Under 28 U.S.C. § 2244(d)(2), the running of the limitations is tolled during the pendency
of a properly filed application for state post-conviction relief or other collateral review. A state
application for post-conviction relief is “properly filed” within the meaning of § 2244(d)(2)
“when its delivery and acceptance are in compliance with the applicable laws and rules
governing filings,” such as those prescribing the time limits for filing. Artuz v. Bennett, 531 U.S.
4, 8 (2000). State post-conviction or collateral review applications rejected by the state courts on
timeliness grounds are not “properly filed” and, therefore, are not subject to statutory tolling
under § 2244(d)(2). See Allen v. Seibert, 552 U.S. 3, 5-6 (2007) (per curiam); see also Pace v.
DiGuglielmo, 544 U.S. 408, 413-14 (2005); Vroman v. Brigano, 346 F.3d 598, 603 (6th Cir.
2003) (citation omitted). Once the limitations period is expired, state collateral review
proceedings can no longer serve to avoid the statute of limitations bar. Id. (“The tolling
provision does not, however, ‘revive’ the limitations period (i.e., restart the clock at zero); it can
only serve to pause a clock that has not yet fully run”).
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

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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.
IV. Discussion
Petitioner objects to the magistrate judge’s finding that he has not shown an extraordinary
circumstance entitling him to equitable tolling. Petitioner argues that he was unaware of the legal
assistance available to him in prison and lacks legal knowledge. Neither a petitioner’s pro se status
nor his ignorance of the law justifies equitable tolling of the limitations period for filing a federal
habeas petition. See Griffin v. Rogers, 399 F.3d 626, 637 (6thCir. 2005) (quoting Rose v. Dole, 945
F.2d 1331, 1335 (6th Cir. 1991). Lack of actual notice or “ignorance of the law, even for an
incarcerated pro se petitioner generally does not excuse [late] filing.” Fisher v. Johnson, 174 F.3d
710, 714-15 (5th Cir. 1999); see also United States v. Baker, 197 F.3d 211, 218 (6th Cir. 1999); Rose
v. Dole, 945 F.2d 1331, 1335 (6th Cir.1991); Johnson v. United States, 544 U.S. 295, 311 (2005)
(“[w]e have never accepted pro se representation alone or procedural ignorance as an excuse for
prolonged inattention when a statute’s clear policy calls for promptness[.]”)
Petitioner performed no actions tolling his one-year limitation period to file for habeas relief
after his conviction became final on February 28, 2012. His untimely Rule 26(B) filing and appeals

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from its denial had no effect on the limitations period because that application was not properly filed.
Five months passed between the December 2011 decision of the appeals court before Petitioner
sought to re-open that appeal. He waited more than two years after that court denied his Rule 26(B)
application in July 2012 to file for habeas relief. As Respondent argued, Petitioner could have filed
his habeas petition while attempting to exhaust his state remedies related to his 26(B) application,
but he chose not to do so. Ultimately, Petitioner was not diligent in pursuing his rights.
Petitioner argues that he would be extremely prejudiced should the Court deny his petitioner
because of his claim of actual innocence. “[A] credible showing of actual innocence may allow a
prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a
procedural bar to relief.” McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013). Petitioner has failed,
however, to produce any new or reliable evidence of actual innocence. Petitioner merely argues that
the victims’ statements contained inconsistencies that serve as exculpatory evidence. Putative
impeachment evidence is insufficient to justify invoking the fundamental miscarriage of justice
exception to the procedural default rule. See Malcum v. Burt, 276 F.Supp. 2d 664, 677 (E.D. Mich.
2003); see also In re Byrd, 269 F.3d 561, 571 (6th Cir. 2001). Based on the record presented,
Petitioner is not entitled to equitable tolling. Therefore, Petitioner’s failure to comply with the
statute of limitations precludes a merits review of his petition.
V. Conclusion
Petitioner’s objections (ECF No. 19) are overruled. The Report and recommendations (ECF
No. 20) of the magistrate judge are hereby adopted and Respondent’s motion to dismiss (ECF No.
9) is granted. The Petition for a Writ of Habeas Corpus is dismissed as time-barred by 28 U.S.C.

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§ 2244. Petitioner’s Motion for leave to amend his petition (ECF No. 12) and request for an order
directing the Warden to “file a proper answer” to the petition (ECF No. 13) are hereby denied.
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.

May 29, 2015
Date

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

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