Tran v. Bogan

Filing 26

Memorandum of Opinion and Order: For the reasons discussed above and in the Report and Recommendation, which is incorporated herein by reference, the Report and Recommendation of Magistrate Judge Baughman recommending dismissal of Petitioner& #039;s pending Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is accepted. Because the petition is untimely, Magistrate Judge Baughman also correctly determined that Petitioner's Objection to Respondent's Filing of an Incomplete Record (Doc. 16 ) must be denied as moot. Furthermore, 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 Patricia A. Gaughan on 11/6/17. (LC,S) re 18

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

My Van Tran,
Petitioner,
Vs.
Ed Sheldon, Warden,

Respondent.

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CASE NO. 1:16 CV 637
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

INTRODUCTION
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge William H. Baughman, Jr. (Doc. 18), which recommends that this Court dismiss
Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) and deny as moot Petitioner’s Objection
to Respondent’s Filing of an Incomplete Record (Doc. 16). Petitioner has filed objections to the
Report and Recommendation. For the reasons that follow, the Report and Recommendation is
ACCEPTED.
STANDARD OF REVIEW
Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts

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provides that the district court reviews de novo those portions of a report of a magistrate judge to
which a specific objection is made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). The judge may
accept, reject, or modify any proposed finding or recommendation.
DISCUSSION
Magistrate Judge Baughman concluded that Petitioner filed his petition outside the oneyear statute of limitations for filing habeas petitions set forth in 28 U.S.C. § 2244(d) and that he
was not entitled to either statutory or equitable tolling. The Ohio appeals court affirmed
Petitioner’s conviction on direct appeal on May 1, 2014. Petitioner then had forty-five days, or
until June 16, 2014, to file an appeal to the Ohio Supreme Court, but he did not do so. Thus, the
statute of limitations on Petitioner’s federal habeas petition began running on June 17, 2014.
Keeling v. Warden, Lebanon Correctional Inst., 671 F.3d 452, 460 (6th Cir. 2012). Section
2242(d)(2) allows for statutory tolling of the limitations period during the pendency of properly
filed motions for state post-conviction relief or other collateral review. Petitioner, however, did
not file his motion for a delayed appeal with the Ohio Supreme Court until December 18, 2015,
several months after the statute of limitations had expired on June 17, 2015. See id. Magistrate
Judge Baughman, therefore, concluded that Petitioner is not entitled to statutory tolling.
Petitioner does not address this portion of the Report and Recommendation in his objections. For
the reasons stated herein and in the Report and Recommendation, the Court adopts the
Magistrate Judge’s conclusion that statutory tolling does not apply.
Magistrate Judge Baughman determined that Petitioner is not entitled to equitable tolling
because he did not show that he pursued his rights diligently or that some extraordinary
circumstance stood in his way that prevented timely filing. Specifically, Petitioner was aware of

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the Ohio appeals court decision denying his appeal in August of 2014 but did not file his delayed
appeal to the Ohio Supreme Court until more than a year later. Again, Petitioner does not address
this portion of the Report and Recommendation in his objections. The Court adopts the
Magistrate Judge’s conclusion that Petitioner did not meet the standard of diligence required for
equitable tolling.
Finally, Magistrate Judge Baughman determined that Petitioner is not entitled to
equitable tolling on the basis of actual innocence. This exception “allows for equitable tolling if
the petitioner presents evidence of innocence so strong that a court cannot have confidence in the
outcome of the trial.” Turner v. Romanowski, 409 Fed. App’x 922, 926 (6th Cir. 2011) (internal
quotations omitted). The exception only applies if it is “more likely than not that no reasonable
juror would have found [him] guilty beyond a reasonable doubt.” Id. A petitioner must present
“new reliable evidence ... that was not presented at trial” to raise a credible claim of actual
innocence. Souter v. Jones, 395 F.3d 577, 591 (6th Cir. 2005). On review of Petitioner’s
submissions, including his objections, the Court finds that the Magistrate Judge correctly
concluded that Petitioner has not submitted any new reliable evidence such that it is more likely
than not that no reasonable juror would have found him guilty beyond a reasonable doubt.
CONCLUSION
For the reasons discussed above and in the Report and Recommendation, which is
incorporated herein by reference, the Report and Recommendation of Magistrate Judge
Baughman recommending dismissal of Petitioner’s pending Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is accepted. Because the petition is untimely, Magistrate
Judge Baughman also correctly determined that Petitioner’s Objection to Respondent’s Filing of
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an Incomplete Record (Doc. 16) must be denied as moot. Furthermore, 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.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Court
Chief Judge
Dated: 11/6/17

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