Minifee v. Grafton Correctional Institution Warden

Filing 23

Memorandum of Opinion and Order Petitioner's Motion for Relief from Judgment (ECF No. 21 ) is denied. Petitioner's Objections to Magistrate's Report and Recommendation of 12/07/15 (ECF No. 21 -2) are deemed timely filed and are overruled. The Court's earlier ruling (ECF Nos. 18 , 19 ) adopting the Magistrate Judge's Report and Recommendation (ECF No. 16 ) and dismissing Petitioner Patrick Minefee's Petition for a Writ of Habeas Corpus (ECF No. 1 ) as time barred stands. Remand is unnecessary. 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 1/9/2017. (JLG)

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

PATRICK MINEFEE,
Petitioner,
v.
GRAFTON CORRECTIONAL
INSTITUTION WARDEN,
Respondent.

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CASE NO. 1:15CV1352

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 21]

Pending is a motion for relief from judgment filed by pro se Petitioner Patrick Minefee.
ECF No. 21. Respondent Grafton Correctional Institution Warden has filed a response. ECF
No. 22. The Court has been advised, having reviewed the record, the parties' briefs and the
applicable law. For the reasons that follow, Petitioner's motion is denied.
I. Background & Procedural History
Pro se Petitioner Patrick Minefee filed a Petition for a Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 (ECF No. 1), alleging two grounds for relief which challenge the constitutional
sufficiency of his state conviction (Cuyahoga County, Court of Common Pleas Case No. CR-12562160-C). On July 30, 2015, the case was referred to Magistrate Judge Greg White for
preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule
72.2(b)(2). On December 7, 2015, the magistrate judge submitted a report (ECF No. 16)
recommending that the petition be dismissed as time barred. Pursuant to Federal Rule of Civil

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Procedure 72(b)(2), objections to the Report and Recommendation were due within 14 days after
service. The Court granted Petitioner an extension of time until January 25, 2016 to file any
objection. See Order, Jan. 6, 2016.
A review of the docket indicates that no objections were filed with the Clerk of Court by
January 25, 2016. On February 29, 2016, the Court issued its Memorandum of Opinion and
Order, and contemporaneously entered final judgment, adopting the magistrate judge’s Report
and Recommendation and dismissing the petition for a writ of habeas corpus as time barred. See
ECF Nos. 18, 19. On March 18, 2016, Petitioner filed an appeal before the United States Court
of Appeals for the Sixth Circuit, Case No. 16-3260.1 The instant motion for relief from judgment
was subsequently filed on March 23, 2016. ECF No. 21. The Warden responded.2 ECF No. 22.
The matter is now ripe for adjudication.
II. Legal Standards
A. Standard of Review for Relief from Judgment
Federal Rule of Civil Procedure 60(a) provides, in relevant part, that “[t]he court may
correct a clerical mistake or a mistake arising from oversight or omission whenever one is found
in a judgment, order, or other part of the record. The court may do so on motion or on its own,

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The Sixth Circuit has held Petitioner’s appeal in abeyance pending the Court’s
decision on Petitioner’s motion for relief from judgment. See Ruling Letter Sent (Oct.
26, 2016), ECF No. 8 in Case No. 16-3260.
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Respondent correctly advises that the Court lacks jurisdiction to consider the
motion for relief, given the pending appeal, and that the Court may do no more than “note
for the record whether it would be inclined to grant [Petitioner’s] motion.” ECF No. 22
at PageID #: 421. Below, the Court explains why remand for further consideration of the
objections is not warranted.
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with or without notice.” The basic purpose of the rule is to authorize the court to correct errors
that are mechanical in nature and that arise from oversight or omission. In re Walter, 282 F.3d
434, 440-41 (6th Cir. 2002). The rule does not, however, authorize the court to revisit its legal
analysis or otherwise correct a substantive error in the judgment. Id.
Rule 60(b) permits a district court to grant a motion for relief from the judgment for any
of the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b); (3)
fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has been reversed
or vacated; or applying it prospectively is no longer equitable; or (6)
any other reason that justifies relief.
“As a prerequisite to relief under Rule 60(b), a party must establish that the facts of its case are
within one of the enumerated reasons contained in Rule 60(b) that warrant relief from judgment.”
Lewis v. Alexander, 987 F.2d 392, 396 (6th Cir. 1993).
Rule 60(b) does not permit parties to relitigate the merits of claims, or to raise new claims
that could have been raised during the litigation of the case or in the initial complaint. Rather,
the purpose of a Rule 60(b) motion is to allow a district court to reconsider its judgment when
that judgment rests on a defective foundation. The factual predicate of a Rule 60(b) motion,
therefore, deals with some irregularity or procedural defect in the procurement of the judgment
denying relief. See In re Abdur’Rahman, 392 F.3d 174, 179-80 (6th Cir. 2004) (overruled on
other grounds). It does not afford a defeated litigant a second chance to convince the court to

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rule in his favor by presenting new explanations, new legal theories, or proof. Jinks v.
AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001).
B. 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.
Fed. R. Civ. 72(b)(3). Near verbatim regurgitation of 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.

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III. Analysis
A. Filing of Petitioner’s Objections
Petitioner seeks relief from judgment pursuant to Rule 60(b) on grounds that the Court
issued its ruling without having first considered his objections to the Report and
Recommendation. He avers that his objections were completed and mailed in a timely manner.
ECF No. 21 at PageID #: 411. Petitioner also asserts that he was unaware that the Clerk of Court
did not receive the mailing. Id. Petitioner contends that “extraordinary circumstances beyond his
control exist[ed] where, somehow either the institutional mail room or the U.S. Postal [S]ervice
failed in the delivery process.” Id. at PageID # : 410-11. Petitioner’s motion also includes a duly
sworn affidavit attesting to his contention. See Affidavit of Petitioner (“Affidavit”), ECF No. 211. In addition, Petitioner attached to his motion a copy of a document entitled “Petitioner’s
Objections to Magistrate’s Report and Recommendation of 12/07/15 (Doc. # 16).” ECF No. 212. The document includes a Certificate of Service paragraph stating: “I hereby certify that a true
copy of the foregoing was sent to the office of Jerri L. Fosnaught, Assistant Ohio Attorney
General, 150 E. Gay St., Columbus, Ohio 43215, via regular U.S. Mail on this ____ day of
January, 2016.” Id. at PageID #: 417.
In the Affidavit, Petitioner states that he “mailed a copy of the attached [objections] to
counsel for the respondent, who upon inquiry, will, if truthful, acknowledge receipt thereof[.]”
ECF No. 21-1, ¶ 3. Petitioner also states that he “placed [the objections] in the outgoing
institutional mailbox in mid-January, 2016 with first class postage pre-paid, and addressed t[o]
the Clerk of this Court.” Id. at ¶ 2. Petitioner alleges that “the actual date of mailing is the same

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as that for the A[t]torney general, Ms. Fosnaught’s copy [of the objections.]” Id. at ¶ 3.
Petitioner also states that the copy of the objections attached to his motion is his “keep copy” that
is not dated or signed. Id. at ¶ 5.
In response, counsel for Respondent—Jerri L. Fosnaught, Assistant Attorney
General—acknowledges that counsel “received a copy of Minefee’s objections on January 8,
2016" and “[t]he copy attached to the motion for relief from judgment is similar to the copy
received[.]” ECF No. 22 at PageID #: 420. Counsel for Respondent further explains that “the
certificate of service indicated that the document was mailed on January 1, 2016.” Id.
Given counsel for Respondent’s acknowledgment that counsel timely received objections
resembling the document attached to Petitioner’s motion (ECF No. 21-2) on January 8, 2016, the
Court is inclined to deem Petitioner’s objections (ECF No. 21-2) as timely filed pursuant to
Rules 60(b) and 72(b)(2). Accordingly, the Court (in this writing) considers Petitioner’s
Objections to Magistrate’s Report and Recommendation of 12/07/15 (Doc # 16) (“Petitioner’s
Objections”), ECF No. 21-2, as if they had been timely filed.
B. Petitioner’s Objections
Petitioner raises two objections to the magistrate judge’s Report and Recommendation.
Both are related to the equitable tolling arguments Petitioner raised in his Traverse (after
Respondent argued that the petition was untimely). ECF No. 21-2. The Court finds that
Petitioner’s Objections are near verbatim regurgitation of arguments unsuccessfully made in
earlier filings, not true objections. Nevertheless, the “objections” are overruled as explained
below.

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i. Due Diligence
Petitioner objects to the magistrate judge’s Report and Recommendation on grounds that
the magistrate judge erred in finding that “Petitioner failed to demonstrate diligence relating to
the fact that he was subjected to an institutional transfer and had to send his paperwork home
pending the transfer[.]” ECF No. 21-2 at PageID #: 414. Petitioner contends that the magistrate
judge’s finding was erroneous because the finding failed to consider all of the relevant facts
“established in Petitioner’s pleadings.” Id. Specifically, Petitioner alleges that the magistrate
judge “overlook[ed]”:
[(1)] the fact that Petitioner was forced to send all of his paperwork
home, well before [his institutional] transfer was effected, thus
depriving him of the ability to even seek help to perfect the petition,
and the fact that there is no ability to predict when an institutional
transfer will occur, based upon basic security measures[; and (2)] the
‘difficulties inherent in the prison environment’ in figuring out the
parameters and/or obtaining competent assistance to perfect a habeas
petition.
Id.
Petitioner’s objection regarding his exercise of diligence for a finding of equitable tolling
pursuant to 28 U.S.C. § 2244(d)(1)(D) repeats the arguments he made in his Traverse (ECF No.
11). See ECF No. 11 at PageID # 362-64. This is not a true objection. Rather, it is a mere
restatement of the argument Petitioner set forth in his Traverse which was thoroughly addressed
by the magistrate judge in his Report and Recommendation. See ECF No. 16 at PageID #: 398401. Petitioner’s objection is, therefore, overruled.

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ii. Ignorance of the Law
Petitioner also “independently” raises an objection to the magistrate judge’s Report and
Recommendation on grounds that the magistrate judge erred by “recasting” Petitioner’s “misled
by state procedures” argument as an “ignorance of the law argument.” ECF No. 21-2 at PageID
#: 415-16. Petitioner contends that the magistrate judge’s finding was erroneous because it is
contrary to “the United States Supreme Court controlling precedent [in Pliler v. Ford, 542 U.S.
225 (2004)] . . . cited by Petitioner in his Traverse[.]” Id. at 415. Specifically, Petitioner alleges
that the magistrate judge “overlook[ed]” that “equitable tolling may be available where
procedural instructions may be misleading, or where the petitioner is misled by the court or the
state.” Id. Petitioner argues that his having been “misled by the state procedural rules []
warrant[s] equitable tolling of a four day period” because “[i]t is not unreasonable for a
prospective habeas petitioner to believe, however mistakenly, that, upon the timely filing of a
26(B) Application, his habeas limitations period would not yet then begin to run.” Id. at 416.
This objection repeats the arguments Petitioner made in his Traverse (ECF No. 11). See
ECF No. 11 at PageID # 362-64. It is not a true objection. Rather, this objection is also a mere
restatement of an unsuccessful argument Petitioner set forth in his Traverse. This argument, like
the last, was thoroughly addressed by the magistrate judge in his Report and Recommendation.
See ECF No. 16 at PageID #: 398-401. Petitioner’s objection is, therefore, overruled.
C. Equitable Tolling
Despite being under no legal obligation to do so, the undersigned has reviewed the
analysis of the magistrate judge relative to the equitable tolling arguments raised in Petitioner’s

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Traverse. The Court concurs with the magistrate judge’s finding that, absent the benefit of
equitable tolling, pro se Petitioner Patrick Minefee’s Petition for a Writ of Habeas Corpus (ECF
No. 1) is untimely and should be dismissed.
Petitioner raised an equitable tolling argument in his Traverse after Respondent argued
his petition was untimely. See ECF No. 11 at PageID #: 362-64. If applicable, Section 2244 tolls
the one-year limitations period for filing a petition for writ of habeas corpus until “the date on
which the factual predicate of the claim or claims presented could have been discovered through
the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). “Generally, a litigant seeking
equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). The Court finds that Petitioner has not demonstrated
that he has pursued his rights diligently and that some extraordinary circumstance stood in his
way. Petitioner merely cites cases that are factually distinct and offers conclusory assertions that
the Court should consider the difficulties inherent in the prison environment which were brought
upon by his impending institutional transfer.
Petitioner’s institutional transfer occurred on June 23, 2015. See ECF No. 14 at PageID
#: 384; Inmate Property Record-Disposition and Receipt MALE, ECF No. 11-1. The magistrate
judge found that the statute of limitations for filing a habeas petition expired on June 25, 2015.
ECF No. 16 at PageID #: 396. Petitioner concedes that he was advised of his institutional
transfer in April 2015. See Traverse - Declaration of Petitioner, ECF No. 11 at PageID #: 369, ¶
2. Petitioner also concedes that he delivered his habeas petition into the prison mailing system

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on June 29, 2015. Id. at PageID #: 360. The petition was filed four days late. The magistrate
judge did not err in finding that pro se Petitioner’s institutional transfer and waiting until the last
minute to file his petition does not warrant equitable tolling of the statute of limitations.
Petitioner’s circumstances were not extraordinary and Petitioner did not pursue his rights
diligently by waiting until the last minute to file his petition.
Pro se Petitioner’s reliance on the Supreme Court’s holding in Pliler v. Ford, 542 U.S.
225 (2004) is also unavailing. State procedures were not misleading. Rather, Petitioner
“reasonably relied upon” his mistaken belief that the state appellate court’s determination that his
26(B) Application was timely filed —a collateral review— meant that the limitations period
under 28 U.S.C. § 2244 had “not started to run, because his state court procedures were still
being pursued.” ECF No. 21-2 at PageID#: 415. Section 2244 tolls the one-year limitations
period for filing a petition for writ of habeas corpus during the time “a properly filed application
for State post-conviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2).
“The time that an application for state post[-]conviction review is ‘pending’ includes the period
between (1) a lower court’s adverse determination, and (2) the prisoner’s filing of a notice of
appeal, provided that the filing of the notice of appeal is timely under state law.” Evans v.
Chavis, 546 U.S. 189, 191 (2006).
The statute of limitations for Petitioner to file his habeas petition commenced forty-five
(45) days after the state appellate court affirmed his conviction and the time to file notice of

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appeal with the Supreme Court of Ohio expired.3 For reasons well articulated, the magistrate
judge generously found that, at the very least, pursuant to § 2244, the statute of limitations began
running on September 4, 2013. ECF No. 16 at PageID #: 394 n.1. The statute of limitations ran
for twenty-eight (28) days before it was tolled by Petitioner’s 26(B) Application to reopen his
appeal. The statute of limitations continued to toll until July 23, 2014 when the Ohio Supreme
Court declined to accept jurisdiction over Petitioner’s appeal from the denial of his 26(B)
Application. The limitations period expired on June 25, 2015—337 days later or after 365 days
(28 days + 337 days). Petitioner did not file his habeas petition until June 29, 2015.
Accordingly, Petitioner’s mistaken belief that the limitations period did not begin to run
provides no grounds for relief from the Court’s earlier judgment.
IV. Conclusion
Petitioner’s Motion for Relief from Judgment (ECF No. 21) is denied. Petitioner’s
Objections to Magistrate’s Report and Recommendation of 12/07/15 (ECF No. 21-2) are deemed
timely filed and are overruled. The Court’s earlier ruling (ECF Nos. 18, 19) adopting the
magistrate judge’s Report and Recommendation (ECF No. 16) and dismissing Petitioner Patrick
Minefee’s Petition for a Writ of Habeas Corpus (ECF No. 1) as time barred stands. Remand is
unnecessary.

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“The ‘standard’ start date for the one-year statute of limitations comes from 28
U.S.C. § 2244(d)(1)(A). Here, Minefee’s conviction became final forty-five days after
the Eighth District Court of Appeals affirmed his conviction, (Exhibit 11), or on
September 2, 2013. Absent any tolling, Minefee had one year from that date in which to
file his habeas petition. 28 U.S.C. § 2244(d)(1)(A).” See ECF No. 9 at PageID #: 35-36.
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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.

January 9, 2017
Date

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

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