Torres v. Turner

Filing 16

Order: Respondent's motion to dismiss (Doc. 7 ) be, and the same hereby is, granted with prejudice. Petitioner's motion for an evidentiary hearing (Doc. 11 ), be, and the same hereby is, denied as moot. No certificate of appealability will issue, as reasonable judges would agree that the petition is untimely. Judge James G. Carr on 5/2/17.(C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Erby Torres,

Case No. 3:16CV2157
Petitioner
v.

ORDER

Neil Turner, Warden,
Respondent

This is a state prisoner’s habeas case under 28 U.S.C. § 2254.
In 2009, the petitioner, Erby Torres, pleaded guilty in the Common Pleas Court of Putnam
County, Ohio, to two counts of rape involving a victim – Torres’s own daughter – who was less than
thirteen years old and three counts of rape involving the use or threatened use of force. See O.R.C.
§§ 2907.02(A)(1)(b) & 2907.02(A)(2). The trial court sentenced Torres to fourteen years’
imprisonment.
Torres did not take a direct appeal, nor did he launch a collateral attack on his conviction
until 2015. At that time he moved for postconviction relief and to withdraw his guilty plea, but the
trial court denied the motions. Further proceedings in the state appellate system came to naught.
Torres then filed his § 2254 petition on July 11, 2016. He appears to allege that his guilty plea
was involuntary. (Doc. 1 at 5, 15–18).

Pending are: 1) the respondent’s motion to dismiss the petition as untimely (Doc. 7); and 2)
Torres’s motion for an evidentiary hearing (Doc. 11). For the following reasons, I grant the motion
to dismiss and deny the motion for an evidentiary hearing as moot.
A. Timeliness
1. The Petition Is Untimely under § 2244(d)(1)(A)
Habeas petitions are subject to a one-year limitations period that runs from the latest of four
possible dates. 28 U.S.C. § 2244(d)(1)(A)–(D).
Under § 2244(d)(1)(A), which supplies the applicable start date,1 the statute begins to run on
“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)(A). A judgment of conviction becomes
final either “when th[e Supreme] Court affirms a conviction on the merits or denies a petition for
certiorari” or “when the time for pursuing direct review in th[e Supreme] Court, or in state court,
expires.” Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
Because Torres did not take a direct appeal, his judgment became final when the time to file
a notice of appeal expired. That was on November 9, 2010, thirty days after sentencing. See Ohio
R. App. 4(A); Ohio R. Crim P. 32(C). Torres’s federal petition was therefore due by November 9,
2010, but Torres did not file his petition until nearly six years later.
2. Torres Is Not Entitled to Tolling
Absent some basis to toll the limitations period, I must dismiss the petition as untimely. The
record provides no such basis, however.

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Torres’s claim involves events that occurred at or before he entered his guilty plea.
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a. Statutory Tolling
By the time Torres moved for state postconviction relief in 2015, the limitations period under
§ 2244(d)(1) had already expired. Torres’s postconviction petition thus had no tolling effect. Board
v. Bradshaw, 805 F.3d 769, 776 (6th Cir. 2015).
b. Equitable Tolling Based on Mental Incompetence
Nor has Torres shown that extraordinary circumstances beyond his control prevented a timely
filing. Torres suggests that the “unbelievable harmful effects of this sham process” – that is, his
supposedly wrongful conviction – “caused Petitioner a Mental Health breakdown,” and that it was
his diminished mental state that prevented him from filing his petition on time. (Doc. 14 at 12).
“[A] petitioner’s mental incompetence can constitute an extraordinary circumstance” that
warrants equitable tolling. Stiltner v. Hart, 657 F. App’x 513, 521 (6th Cir. 2016). Equitable tolling
on the basis of mental incompetence is appropriate if: 1) the petitioner is in fact “mentally
incompetent”; and 2) his mental incompetence caused the untimely filing. Id..
But “a blanket assertion of mental incompetence is insufficient to toll the statute of
limitations.” Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011). “Rather, a causal link between the
mental condition and untimely filing is required.” Id.
Here, Torres has not show either that he was mentally incompetent or that there was a causal
link between his mental state and the untimely filing.
For one thing, Torres’s alleged mental incompetence did not, in Torres’s own telling, set in
until August, 2011. (Doc. 14 at 12) (Torres alleges that he sought mental-health services on August
3, 2011). But Torres’s year to file expired in November, 2010, some nine months before the alleged

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mental breakdown. Accordingly, Torres’s mental state in 2011 could not have prevented a timely
filing between November, 2009, and November, 2010.
For another, Torres has introduced no evidence that he was or is mentally incompetent.
He has simply introduced his own summary of the mental-health records on file with the
prison. (Id. at 12–13). But those records reflect merely that Torres had experienced what he (rather
than a trained professional) called “extreme stress/depression,” that the legal process had
“completely depleted his energy,” and that Torres was “frustrated by his wrongful conviction.” (Id.
at 12, 13) (summary of mental-health records dated September 2, 2011, and January 3, 2012).
These records are insufficient to establish mental incompetence: they do not indicate any
formal diagnosis, prolonged (or even temporary or emergency) hospitalization, a prescribed course
of psychotropic or other mood-altering medication, or the like. Cf. Ata, supra, 662 F.3d at 743–45
(allegation that petitioner suffered lifelong paranoid schizophrenia that required, inter alia,
hospitalization and medication warranted evidentiary hearing on equitable-tolling question).
Finally, there is no causal link between Torres’s mental state and the late filing.
Despite experiencing “situational depression on emotional topics” – notably, depression
“without significant symptoms of suicidal relation,” – Torres “appear[ed]” to his mental-health
counselor “sincere and motivated to make positive use of his life.” (Doc. 14 at 12–13).
Indeed, according to this counselor, Torres “continues to try to figure out Angles of his sex
offense case.” (Id. at 14). And though the counselor noted Torres’s belief that “his County’s Justice
is corrupt,” the counselor concluded that Torres “does not seem to be able to bring a lot of evidence
concerning this.” (Id.).

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These records reflect that Torres was able to, and in fact was trying to, pursue his legal
claims. They do not show that Torres’s mental condition had so deteriorated that it was “impossible
to meet the filing deadline.” Stiltner, supra 657 F. App’x at 522.
c. Actual Innocence
Torres contends his case is a miscarriage of justice, but he does not point to any new, reliable
evidence that would support a finding that he is “actually innocent” of the rapes that he swore in
open court that he committed. Therefore, I cannot excuse his late filing under McQuiggin v. Perkins,
133 S. Ct. 1924 (2013).
B. Evidentiary Hearing
Torres’s request for an evidentiary hearing (Doc. 11) relates solely to his substantive claim
for relief and is therefore moot.
Conclusion
It is, therefore,
ORDERED THAT:
1.

Respondent’s motion to dismiss (Doc. 7) be, and the same hereby is, granted with
prejudice;

2.

Petitioner’s motion for an evidentiary hearing (Doc. 11), be, and the same hereby is,
denied as moot;

3.

No certificate of appealability will issue, as reasonable judges would agree that the
petition is untimely; and

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4.

In accordance with 28 U.S.C. § 1915(a)(3), I certify that an appeal from this decision
could not be taken in good faith, and none shall be allowed absent prepayment of the
filing fee.

So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

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