Cannon v. Sloan

Filing 10

Order Vacating Prior Order & Judgment Entry and Adopting Report and Recommendation. For the reasons stated in the Order, the Court OVERRULES Cannon's Objection, Doc #: 9 , ADOPTS the Magistrate Judge's R & R, Doc. # 6 , and DISMISSES the Petition, Doc #: 1 . Signed by Judge Dan Aaron Polster on 8/15/2016. (K,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

NEIL CANNON,
Petitioner,
vs.
BRIGHAM SLOAN,
Respondent.

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CASE NO. 3:15-cv-00717-DAP
JUDGE DAN AARON POLSTER
ORDER VACATING PRIOR ORDER
& JUDGMENT ENTRY and
ADOPTING REPORT AND
RECOMMENDATION

I. Order Vacating Prior Order and Judgment Entry
On June 28, 2016, Magistrate Judge Nancy A. Vecchiarelli issued a Report and
Recommendation (the “R & R”), Doc #: 6. On July 20, the R & R was mailed to Neil Cannon.
The R & R recommended the dismissal of Cannon’s 18 U.S.C. § 2254 petition, and
twenty-one days later, on August 10, 2016, the Court—having not received any
objections—issued an Order adopting the unopposed R & R and dismissing the petition. Doc ##:
7, 8. However, on August 11, the Court received Cannon’s Objections, Doc #: 9.
Accordingly, the Court VACATES Order Adopting Report and Recommendation, Doc #:
7, and Judgment Entry, Doc #: 8.

II. Order Adopting Report and Recommendation
The Court again considers the Report and Recommendation of Magistrate Judge Nancy
A. Vecchiarelli (“R & R”), Doc #. 6, which recommends that the Court dismiss Petitioner
Cannon’s Petition because it is time-barred.
A. Cannon’s Objection Is Untimely
“[T]he filing date for a prisoner's document is the actual date on which the prisoner
submits his papers to prison authorities for mailing.” Wampler v. Mills, 60 F. App'x 594, 596 (6th
Cir. 2003).
Cannon’s Objection was received and docketed on August 11, 2016. The date of mailing
on Cannon’s Objection is left blank. Objection 3, Doc #: 9 (“I declare . . . that this Objection to
the Magistrate's Report and Recommendation was placed in the prison mailing system on
August, ___ 2016.”). However, the Certificate of Service at the bottom of the Objection
indicates that the Objection was mailed to Respondent “[o]n this 10 day of August, 2016.” Id.
(the “10 ” is handwritten). Because Cannon could not have mailed the Objection to the Court
before the August 10 date written on the Certificate, and because the Objection was received by
the Court on August 11, the Court finds the Objection was filed on August 10, 2016.
Under the relevant statute,
Within fourteen days after being served with a copy, any party may
serve and file written objections to such proposed findings and
recommendations as provided by rules of court. 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.
28 U.S.C. § 636(b)(1).

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A copy of the R & R was mailed to Cannon on July 20, 2016, 2016. Thus, any Objection
was due by August 3. Cannon’s August 10 Objection is therefore untimely.
However, despite the untimeliness the Court will still review the R & R with
consideration given to the arguments raised in Cannon’s Objection.
B. Cannon’s 18 U.S.C. § 2254 Petition is Untimely and Must be Dismissed
The R & R includes a detailed analysis calculating the timeliness of Cannon’s § 2254
Petition. The magistrate judge determined that Cannon’s § 2254 Petition was filed on March 24,
2015, a total of 512 days (accounting for all applicable tolling periods) after the one-year statute
of limitations, established by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), began to run. See 28 U.S.C. § 2244(d). Cannon does not object to the calculation
in the R & R, and the Court adopts the magistrate judge’s calculation it in full. Cannon also does
not object to the R & R’s conclusion that equitable tolling in inapplicable. And again, the Court
adopts this finding in full.
However, Cannon does object to the application of the AEDPA’s one-year statute of
limitations to this petition, on the basis that the statute of limitations is inapplicable because his
conviction is void because the state court was without jurisdiction to convict him such a
jurisdictional issue may be raised at any time. After a report and recommendation has been
issued, the district court reviews de novo “those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Accordingly,
the Court reviews this objection de novo and holds Cannon’s argument is without merit.
First, matters of state court jurisdiction are non-cognizable under 18 U.S.C. § 2254. See
Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976) (“Federal habeas corpus relief can be
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granted only for violation of the Constitution or laws of the United States. The constitutional
provision relied upon by Wills appears in the Constitution of Michigan, not the Constitution of
the United States. Determination of whether a state court is vested with jurisdiction under state
law is a function of the state courts, not the federal judiciary.” (citations omitted)).
Second, to the extent such a question could be raised on a habeas petition, it would be
subject to AEDPA’s one-year statute of limitations. The case, In re Lewis, that Cannon relies on
to support his contention that “[t]he existence of jurisdiction maybe raised at any time,”
Objection 2, is inapposite. In re Lewis says, “[t]he existence of subject matter jurisdiction may
be raised at any time, by any party, or even sua sponte by the court itself.” 398 F.3d 735, 739
(6th Cir. 2005) (emphasis added). While Cannon’s misreading is understandable, “subject matter
jurisdiction” in this context refers to a federal court’s ability to hear a case, and does not support
Cannon’s broad contentions regarding state court jurisdiction. No exception to the AEDPA
statute of limitations applies.
C. Conclusion
In short, the Court has considered Cannon’s Objection, re-reviewed the R & R, and
agrees with the magistrate judge that Cannon filed his Petition after the mandatory and applicable
AEDPA time limitations had expired and is not entitled to equitable tolling. Accordingly, the
Court OVERRULES Cannon’s Objection, Doc #: 9, ADOPTS the Magistrate Judge’s R & R,
Doc. # 6, and DISMISSES the Petition, Doc #: 1.
IT IS SO ORDERED.
/s/ Dan A. Polster Aug. 15, 2016
DAN AARON POLSTER
UNITED STATES DISTRICT JUDGE
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