Perkins v. Turner

Filing 11

Opinion & Order signed by Judge James S. Gwin on 12/19/16. The Court, for the reasons set forth in this order, adopts the Magistrate Judge's Report and Recommendation, dismisses petitioner Cory Perkins' habeas corpus petition, and g rants respondent's motion to dismiss. The Court further 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. (Related Docs. 1 , 6 , 8 , 9 , and 10 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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CORY A. PERKINS,
:
:
Petitioner,
:
:
vs.
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:
NEIL TURNER,
:
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Respondent.
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:
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Case No. 16-CV-627

OPINION & ORDER
[Resolving Doc. Nos. 1, 6, 8, 9, 10]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

Petitioner Cory Perkins seeks a writ of habeas corpus under 28 U.S.C. § 2254 to vacate
his conviction on three counts of rape.1 On November 3, 2016, Magistrate Judge George L.
Limbert recommended that this Court dismiss Perkins’ habeas corpus petition.2 Petitioner
objected to the Magistrate’s Report and Recommendation (“R&R”).3
This Court agrees with the Magistrate that Perkins’ petition is time-barred. Therefore, the
Court ADOPTS the Magistrate Judge’s R&R, DISMISSES Perkins’ habeas corpus petition, and
GRANTS Respondent’s motion to dismiss.

I. Background
This matter turns on whether the statute of limitations bars Petitioner Perkins federal
habeas petition.

16-cv-627 Doc. 1. A substantial portion of this case’s record is available in case number 14-cv-2572’s docket.
Therefore, the Court identifies each document it references by case number.
2
16-cv-627 Doc. 9.
3
16-cv-627 Doc. 10.
1

Case No. 16-cv-627
Gwin, J.
On January 11, 2013, a trial court sentenced Petitioner Perkins to an aggregate term of 21
years’ incarceration for rape.4 Subsequently, the Petitioner filed a series of motions and appeals
in Ohio state courts.5 The Ohio courts denied these motions.6
On November 9, 2014, Petitioner filed a federal habeas petition.7 After realizing he had
not exhausted his claim, Perkins received permission to dismiss his federal habeas petition
without prejudice.8
Petitioner Perkins then filed the instant federal habeas petition on March 1, 2016,9 and
Respondent Turner moved for its dismissal.10 Magistrate Judge George L. Limbert
recommended that this Court dismiss Petitioner Perkins’ petition as time-barred.11 Petitioner
objects to the R&R.12

II. Legal Standard
The Anti–Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets a one-year
statute of limitations for seeking federal habeas relief from a state court judgment.13 The
limitation period begins to run on the date the judgment becomes final “by conclusion of direct
review or the expiration of the time for seeking such review.”14 The limitation period may be
statutorily or equitably tolled.

4

14-cv-2572 Doc. 11-1at 21-26.
Id. at 27, 89, 180, 237; 16-cv-627 Doc. 6-1 at 1.
6
14-cv-2572 Doc. 11-1 at 133, 236, 277; 16-cv-627 Doc. 6-1 at 27.
7
14-cv-2572 Doc. 1.
8
14-cv-2572 Doc. 18.
9
16-cv-627 Doc. 1 at 21.
10
16-cv-627 Doc. 6.
11
16-cv-627 Doc. 9.
12
16-cv-627 Doc. 10.
13
28 U.S.C. § 2244(d).
14
Id., § 2244(d)(1)(A).
5

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Case No. 16-cv-627
Gwin, J.
The Federal Magistrates Act requires a district court to conduct a de novo review only of
those portions of an R&R to which the parties have made an objection.15 The parties must raise
specific objections to the R&R because a “general objection to the entirety of the magistrate’s
report has the same effects as would a failure to object.”16

III. Analysis
Perkins makes two objections to the R&R. First, he says that his habeas petition is
timely.17 Alternatively, he argues he received ineffective assistance of counsel, so this Court
should excuse the statute of limitations violation.18 Both arguments lose.

A. Perkins’ habeas petition is time-barred
Perkins failed to file his petition before AEDPA’s one-year statute of limitations expired.
The statute of limitations began to run on April 18, 2014.19 The clock paused on May 27,
2014, when the Petitioner filed his notice of appeal to the Ohio Supreme Court.20 The clock
resumed on July 10, 2014, the day after the Ohio Supreme Court rejected Petitioner’s appeal,21
and ran until March 1, 2016—the day Perkins filed this instant petition.22 In total, 639 days
ticked off the clock. Consequently, AEDPA’s one-year statute of limitations bars Perkins’
petition for habeas relief.

15

Id., § 636(b)(1).
Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
17
16-cv-627 Doc. 10 at 2.
18
Id.
19
The limitation period under § 2244(d) does not begin to run until “the latest of . . . the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for seeking such review. . . .” 28 U.S.C.
§ 2244(d)(1). Petitioner’s notice of appeal to the Ohio Supreme Court was due 45 days after the appeals court
affirmed his conviction on March 3, 2014. 14-cv-2572 Doc. 11-1 at 133; Ohio S.Ct. Prac. R. 7.01(A)(1)(a)(i).
Therefore, the AEDPA clock started running on April 18, 2014, the day after the 45 days expired.
20
14-cv-2572 Doc. 11-1 at 183.
21
Id. at 236.
22
16-cv-627 Doc. 1 at 21.
16

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Case No. 16-cv-627
Gwin, J.

Perkins says that the statute of limitations tolled when he filed his state habeas motion on
June 11, 2014.23 State habeas motions only toll the AEDPA statute of limitations when they are
“properly filed.”24 Here, the Ohio Appellate court expressly found Perkins’ Rule 26(B) appeal
“not properly filed.”25
Finally, Perkins also filed a federal habeas petition in 2014,26 which this Court dismissed
without prejudice.27 This filing predated the instant petition and did not toll the statute of
limitations.28 Petitioner Perkins’ instant federal habeas petition is time-barred.

B. Perkins’ ineffective assistance of counsel argument loses
Perkins asks this Court to excuse his procedural default because he received ineffective
assistance of counsel.29 He alleges his attorney failed to notify him when the Third District Court
of Appeals of Ohio denied his appeal. Perkins says his attorney’s failure caused him to delay
filing his appeal with the Ohio Supreme Court.
First, this Court agrees with the Magistrate Judge that the Petitioner failed to adequately
show he is entitled to equitable tolling.30 Second, even accepting Perkins’ version of events, the

23

16-cv-627 Doc. 10 at 4; 14-cv-2572 Doc. 11-1 at 237.
28 U.S.C. § 2244(d)(2). “[A]n application is ‘properly filed’ when its delivery and acceptance are in compliance
with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000).
25
14-cv-2572 Doc. 11-1 at 277. The Court found Perkins’ petition untimely and “far exceed[ing]” the page limit.
Id.
26
14-cv-2572 Doc. 1.
27
14-cv-2572 Doc. 18.
28
Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
29
16-cv-627 Doc. 10 at 2-3.
30
16-cv-627 Doc. 9 at 14-15. A habeas petitioner bears the burden of demonstrating he is entitled to equitable
tolling. See, e.g., McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003). To do so, the petitioner must show
that (1) “he has been pursuing his rights diligently,” and (2) that “some extraordinary circumstance stood in his way
and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 645 (2010). Here, Perkins did not satisfy his
burden.
24

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Case No. 16-cv-627
Gwin, J.
delay only accounted for 39 of the 639 days that elapsed before the Petitioner filed this habeas
petition. AEDPA has a one-year statute of limitations.
Perkins’ claim of ineffective assistance of counsel fails.

III. Conclusion
For the reasons stated in this opinion, the Court ADOPTS the Magistrate Judge’s R&R,
DISMISSES Perkins’ habeas corpus petition, and GRANTS Respondent’s motion to dismiss.
Further, 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 on which to issue a certificate of
appealability. Fed. R. App. P. 22(b); 28 U.S.C. § 2253.
IT IS SO ORDERED.

Dated: December 19, 2016

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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