Weese v. Sloan
Filing
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Memorandum Opinion and Order Adopting Report and Recommendation 8 dismissing 1 Petition for Writ of Habeas Corpus (2254). Judge Christopher A. Boyko on 2/16/2016. (R,D)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL R. WEESE,
Petitioner,
Vs.
BRIGHAM SLOANE, Warden,
Respondent.
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CASE NO. 1:15CV122
JUDGE CHRISTOPHER A. BOYKO
MEMORANDUM OF OPINION
CHRISTOPHER A. BOYKO, J:
This matter comes before the Court on Petitioner Michael R. Weese’s Petition
under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF
#1). For the following reasons, the Court accepts and adopts the Magistrate Judge’s
Report and Recommendation, and dismisses Petitioner’s Petition as time barred.
FACTS
The following is a factual synopsis of Petitioner’s claims. The Magistrate Judge’s
Report and Recommendation, adopted and incorporated, provides a more complete and
detailed discussion of the facts.
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In November of 2009, Petitioner was charged with one count of Aggravated
Burglary, one count of Aggravated Robbery and one count of Felonious Assault. On
January 21, 2010, Petitioner entered a plea of no contest to all charges in the
indictment. On April 5, 2010, the trial court sentenced Petitioner to maximum,
consecutive prison terms on each count, specifically, ten years in prison for Aggravated
Burglary, ten years in prison for Aggravated Robbery and eight years in prison for
Felonious Assault to be served consecutively, for an aggregate prison term of
twenty-eight years. Petitioner was also ordered to pay restitution in the amount of
$1,150.00
On April 27, 2010, Petitioner filed a Notice of Appeal with the Court of Appeals
for the Third Appellate District. On November 22, 2010, Petitioner’s conviction and
sentence were affirmed. On December 3, 2010, Petitioner filed an Application for
Reconsideration. Petitioner’s Application was denied via judgment entry dated
December 27, 2010.
On December 28, 2010, the State of Ohio filed a Notice of Appeal with the
Supreme Court of Ohio regarding the Court of Appeals’ reversal of one of the codefendant’s conviction for the separate offenses of Kidnaping and Aggravated Robbery.
On January 6, 2011, Petitioner filed a Notice of Cross-Appeal. He then filed a
Memorandum opposing the State’s Appeal and a Memorandum in Support of
Jurisdiction of his Cross-Appeal. On April 27, 2011, the Supreme Court of Ohio
declined jurisdiction to hear Petitioner’s Cross-Appeal, but did accept jurisdiction over
the State’s Appeal and vacated the portion of the Court of Appeals’ judgment with
respect to the co-defendant.
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On July 9, 2012, Petitioner filed a Motion to Withdraw his no-contest plea and a
Motion for Production of Transcripts. On August 22, 2012, Petitioner’s Motions were
denied. Petitioner did not appeal. On August 26, 2013, Petitioner filed a Delayed
Application to Reopen his Appeal pursuant to Ohio App. R. 26(B). The State moved to
dismiss the Application on the basis that it was untimely and Petitioner had failed to
demonstrate good cause for the delay. On September 13, 2013, Petitioner’s delayed
Application was denied. On October 28, 2013, Petitioner filed a Notice of Appeal with
the Supreme Court of Ohio. On January 22, 2014, the Supreme Court of Ohio declined
jurisdiction.
Petitioner filed the instant Petition on January 14, 2015, asserting two grounds
for relief. On January 28, 2015, this Court referred Petitioner’s Petition to the
Magistrate Judge for a Report and Recommendation. Respondent filed a Motion to
Dismiss the Petition as Time-Barred on March 12, 2015. Petitioner filed a Brief in
Opposition on April 1, 2015, to which Respondent replied on April 15, 2015. The
Magistrate Judge issued his Report and Recommendation on January 21, 2016. On
February 8, 2016, Petitioner filed an Objection to the Magistrate’s Judge’s Report and
Recommendation.
STANDARD OF REVIEW
When a federal habeas claim has been adjudicated by the state courts, 28
U.S.C. § 2254(d)(1) provides the writ shall not issue unless the state decision “was
contrary to, or involved an unreasonable application of, clearly established federal law
as determined by the Supreme Court of the United States.” Further, a federal court may
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grant habeas relief if the state court arrives at a decision opposite to that reached by the
Supreme Court of the United States on a question of law, or if the state court decides a
case differently than did the Supreme Court on a set of materially indistinguishable
facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). The appropriate measure of
whether or not a state court decision unreasonably applied clearly established federal
law is whether that state adjudication was “objectively unreasonable” and not merely
erroneous or incorrect. Williams, 529 U.S. at 409-411.
Pursuant to 28 U.S.C. § 2254(e)(1), findings of fact made by the state court are
presumed correct, rebuttable only by clear and convincing evidence to the contrary.
McAdoo v. Elo, 365 F. 3d 487, 493-494 (6th Cir. 2004). Finally, Rule 8(b)(4) of the
Rules Governing §2254 states:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the
court may accept, reject, or modify in whole or in part any
findings or recommendations made by the magistrate.
ANALYSIS
This case is governed by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 326-27, 337
(1997). The relevant provisions of AEDPA state:
(d)(1) A one year period of limitations shall apply to the
filing of 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
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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 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 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)(1) & (2).
The AEDPA establishes a general rule that there is a one-year statute of
limitations for filing a habeas petition in federal court for persons in custody pursuant to
the judgment of a state court. 28 U.S.C. § 2244(d)(1). See Mackey v. Warden, Lebanon
Correctional Institution, 2013 WL 1908890 at * 3 (6th Cir. May 9, 2013). Subsection
2244(d)(1)(A) indicates that the limitations period runs from the date on which the state
court judgment becomes final by conclusion of direct review or the expiration of the time
for seeking such review, whichever is later. The Sixth Circuit has found that, for
petitioners who seek review on direct appeal in the Supreme Court of Ohio, “the
one-year statute of limitations does not begin to run until the time for filing a petition for
a writ of certiorari for direct review in the United States Supreme Court has expired.”
Bronaugh v. Ohio, 235 F.3d 280, 282 (6th Cir. 2000). See also Ajumu v. Goodrich,
2014 WL 1236268 at * 1 (N.D. Ohio March 24, 2014); Pimental v. Hudson, 2008 WL
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4186922 at * 1 (N.D. Ohio Sept. 5, 2008).
The Court agrees with the Magistrate Judge that Petitioner’s Petition is untimely.
Petitioner’s conviction and sentence became “final” for purposes of § 2244(d)(1)(A) on
July 26, 2011, ninety days after the Ohio Supreme Court dismissed his appeal and the
time period for seeking a petition for writ of certiorari in the United States Supreme
Court expired. The limitations period commenced on July 27, 2011, and absent tolling,
would have expired one year later on July 27, 2012.
However, the AEDPA tolls the
one-year limitations period during the time “‘a properly filed application for State
postconviction or other collateral review . . . is pending.’ § 2244(d)(2).” Evans v. Chavis,
546 U.S. 189, 191 (2006); Carey v. Saffold, 536 U.S. 214 (2002); accord Matthews v.
Abramajtys, 319 F.3d 780, 787 (6th Cir. 2003).
The Magistrate Judge correctly determined that in this case Petitioner ‘s
conviction became final on July 26, 2011, and the limitations period began to run on
July 27, 2011. Petitioner filed his Motion to Withdraw Plea on July 9, 2012. The statute
was then tolled until the state trial court denied Petitioner’s Motion on August 22, 2012,
and began to run again on August 23, 2012. Petitioner did not appeal from the denial of
his Motion to Withdraw Plea. Therefore, the limitations period ran uninterrupted from
August 23, 2012 for seventeen days until it expired on September 9, 2012.
Petitioner filed a Delayed Application to Reopen his Appeal under Ohio App. R.
26(B) on August 26, 2013. However, Section 2244(d)(2)'s tolling provision “does not ...
‘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. Once the limitations period is expired, collateral petitions
can no longer serve to avoid a statute of limitations.” Vroman v. Brigano, 346 F.3d 598,
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602 (6th Cir. 2003). The Court agrees with the Magistrate Judge that because
Petitioner’s 26(B) application was filed well after the statutory limitations period expired,
it did not have any further tolling effect.
The Magistrate Judge further points out that although Petitioner’s Petition is
untimely, the AEDPA statute of limitations period is also subject to equitable tolling.
See Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010).
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). See also
Hall v. Warden, Lebanon Correctional Institution, 662 F.3d 745, 749 (6th Cir. 2011).
In order to be entitled to equitable tolling, a habeas petitioner must establish that
(1) he has been pursuing his rights diligently; and, (2) some extraordinary circumstance
stood in his way and prevented timely filing. Holland, 130 S.Ct. at 2565. Although
Petitioner contends that he is entitled to equitable tolling because he was unaware of
the result of his appeal, the Magistrate Judge found that Petitioner failed to exercise
reasonable diligence. Petitioner had stated in his 26(B) Application that he received
correspondence from his appellate counsel on July 1, 2010 stating his appeal had been
consolidated with the appeals filed by his co-defendants, but then waited nearly three
years, until April 30, 2013, before requesting that appellate counsel send him a copy of
his case file.
Clearly, Petitioner was aware of the progress of his appeal but still waited nearly
three months to file his August 26, 2013 26(B) Application. The Court agrees with the
Magistrate Judge’s calculations that the limitations period would have begun to run on
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May 31, 2013, and would have run until he filed his 26(B) Application on August 26,
2013, a total of eighty-seven days. The limitations period was then tolled until January
22, 2014, the date on which the Ohio Supreme Court declined to exercise jurisdiction
over Petitioner’s appeal from the denial of his 26(B) Application. Petitioner’s limitation
period began to run again the next day (January 23, 2014) and ran uninterrupted for
two-hundred seventy-eight days until it expired on October 28, 2014. Petitioner did not
deliver his Petition to prison authorities for mailing until January 14, 2015, more than
seventy days later.
Petitioner’s Objection to the Report and Recommendation does not provide the
Court with any additional information that would affect the calculation of tolling.
Petitioner simply restates that he pursued his rights diligently. Petitioner has not
asserted that he is actually innocent and thus he is not entitled to the actual innocence
exception. Therefore, the Court finds that Petitioner’s Petition is time-barred.
For the foregoing reasons, the Court ADOPTS and ACCEPTS the Magistrate
Judge’s well-reasoned Report and Recommendation, grants Respondent’s Motion to
Dismiss and dismisses Petitioner’s Petition Under 28 U.S.C. §2254 for Writ of Habeas
Corpus by a Person in State Custody as time barred.
The Court finds an appeal from this decision could not be taken in good faith. 28
U.S.C. § 1915 (a)(3). Since Petitioner has not made a substantial showing of a denial
of a constitutional right directly related to his conviction or custody, the Court declines to
issue a certificate of appealability. 28 U.S.C. § 2253 (c)(2); Fed. R. App. P. 22(b).
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IT IS SO ORDERED.
Date:2/16/2016
s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
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