Taylor v. Eppinger
Filing
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Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's Objections (ECF No. 10 ) are overruled and the Report and Recommendation (ECF No. 8 ) of the Magistrate Judge is hereby adopted. Respondent's Motion to Dismiss (ECF No. 5 ) is granted. Edward Taylor's Petition for a Writ of Habeas Corpus is dismissed as barred by 28 U.S.C. § 2244's statute of limitations. 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 9/30/2016. (JLG)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
EDWARD TAYLOR,
Petitioner,
v.
LaSHANN EPPINGER, Warden,
Respondent.
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CASE NO. 1:15CV1743
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF Nos. 5 and 10]
Petitioner Edward Taylor, an Ohio prisoner proceeding pro se, filed a Petition for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1), alleging one (1) ground for relief
which challenges the constitutional sufficiency of his conviction and sentence for one count of
aggravated murder and one count of attempted murder in Cuyahoga County, Ohio Court of
Common Pleas Case No. CR-07-502904-A.
On September 18, 2015, the case was referred to Magistrate Judge George J. Limbert for
preparation of a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule
72.2(b)(2).
After Respondent filed a Motion to Dismiss (ECF No. 5), the Magistrate Judge
submitted a Report and Recommendation (ECF No. 8) on April 28, 2016 recommending that the
motion be granted and the petition be dismissed as barred by 28 U.S.C. § 2244’s statute of
limitations. Petitioner filed Objections to the magistrate judge’s Report (ECF No. 10). This
Court, after reviewing the objections, hereby adopts the Report.
(1:15CV1743)
I. Facts
On May 26, 2009, Petitioner pleaded guilty to aggravated murder and attempted murder.
ECF No. 5-1 at PageID #: 65. In exchange for the plea, the state, inter alia, dismissed capital
murder specifications, and the court imposed an agreed life sentence with parole eligibility after
30 years.
In May 2012, the state court of appeals affirmed the trial court’s decision denying
Petitioner’s pro se motion to “void his plea contract.” State v. Taylor, No. 97690, 2012 WL
1650164 (Ohio App. 8th Dist. May 10, 2012) (ECF No. 5-1 at PageID #: 221-26). On September
26, 2012, the appeal was not accepted for review by the Supreme Court of Ohio. State v. Taylor,
132 Ohio St.3d 1534 (2012) (ECF No. 5-1 at PageID #: 258).
On December 3, 2014, Petitioner, proceeding pro se, filed an application to reopen his
appeal pursuant to Ohio App. Rule 26(B) (ECF No. 5-1 at PageID #: 259-67). He asserted that
his appellate counsel was ineffective because he did not argue that the trial court, during the
guilty plea hearing, failed to advise Petitioner of his right to compulsory process. The state
appellate court denied the application as untimely. State v. Taylor, No. 94569, 2015 WL 114758
(Ohio App. 8th Dist. Jan. 7, 2015) (ECF No. 5-1 at PageID #: 278-82).
On or about August 25, 2015, Petitioner filed the instant Petition for a Writ of Habeas
Corpus (ECF No. 1).1 It was received by the Court on August 28, 2015.
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Under Sixth Circuit precedent, the petition is deemed filed when handed to
prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th
Cir. 2002). Petitioner dated his petition on December 26, 2011. The petition states it was
placed in the prison mailing system on August 25, 2015. ECF No. 1 at PageID #: 13. For
(continued...)
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(1:15CV1743)
II. Standard of Review for a Magistrate Judge’s Report and Recommendation
Where 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.
Accordingly, this Court has conducted a de novo review of the portions of the magistrate
judge’s Report to which Petitioner has properly objected.
III. Law & Analysis
Petitioner’s application is subject to the Antiterrorism and Effective Death Penalty Act’s
(“AEDPA”) one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1). Under § 2244(d)
(1)(A), the one-year limitations period runs from “the date on which the judgment became final
by the conclusion of direct review or the expiration of the time for seeking such review.”
Petitioner had until August 13, 2013 in which to file his federal habeas corpus petition.
The intervening application to reopen his appeal pursuant to Ohio App. Rule 26(B), filed on
December 3, 2014 (ECF No. 5-1 at PageID #: 259-67), tolls nothing because the one-year
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purposes of this opinion, the Court has given Petitioner the benefit of the earliest possible
filing date. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date
the prisoner signs the document is deemed under Sixth Circuit law to be the date of
handing to officials) (citing Goins v. Saunders, 206 Fed.Appx. 497, 498 n. 1 (6th Cir.
2006) (per curiam)).
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(1:15CV1743)
limitations period had expired by that point in time. The tolling provision of 28 U.S.C. §
2244(d)(2) “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.”
Baublitz v. Hoffner, No. 14-10768, 2015 WL 400910, at * 3 (E.D. Mich. Jan. 28, 2015) (quoting
Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998). Petitioner’s application to reopen
and subsequent appeal from the state appellate court’s decision on his application did not revive
the limitations period or re-start the clock at zero. Vroman v. Brigano, 346 F.3d 598, 602 (6th
Cir. 2003) (quoting Rashid, 991 F.Supp. at 259); Hargrove v. Brigano, 300 F.3d 717, 718 n. 1
(6th Cir. 2002).
Petitioner filed his Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
(ECF No. 1) on or about August 25, 2015. Obviously, he filed more than one year after the time
for direct review expired. Thus, absent tolling, his application is time-barred. Petitioner,
however, does not makes a meritorious demonstration of equitable tolling for the reasons fully
articulated by the magistrate judge. ECF No. 8 at PageID #: 426-27. The Report (ECF No. 8)
carefully and correctly sets out the law governing the issues raised and articulates the reasons
underlying the recommendation.
IV. Conclusion
Plaintiff’s Objections (ECF No. 10) are overruled and the Report and Recommendation
(ECF No. 8) of the Magistrate Judge is hereby adopted. Respondent’s Motion to Dismiss (ECF
No. 5) is granted. Edward Taylor’s Petition for a Writ of Habeas Corpus is dismissed as barred
by 28 U.S.C. § 2244’s statute of limitations. The Court certifies, pursuant to 28 U.S.C. §
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(1:15CV1743)
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.
September 30, 2016
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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