Mavrakis v. Warden, Southern Ohio Correctional Facility

Filing 21

Order Adopting Report and Recommendation of Magistrate Judge Ruiz in its entirety and dismissing Mavrakis' Petition for Writ of Habeas Corpus. The court also certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this de cision could not be taken in good faith, and that there is no basis on which to issue a certificate of appealability. See Fed. R. App. P. 22 (b); 28 U.S.C. § 2253(c). Related documents 5 , 12 , 20 . Signed by Judge Solomon Oliver, Jr. on 8/28/2018. (R,Sh)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

TONY A. MAVRAKIS,

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Petitioner
v.
WARDEN, Southern Ohio
Correctional Facility,
Respondent

Case No.: 5:17 CV 2398

JUDGE SOLOMON OLIVER, JR.

ORDER

On November 4, 2017, Pro Se Petitioner Tony A. Mavrakis (“Petitioner” or “Mavrakis”)
filed a Petition for Writ of Habeas Corpus (“Petition”) (Pet., ECF No. 5, PageID# 55) pursuant to
28 U.S.C. § 2254 in the above-captioned case, challenging his conviction and sentencing for
aggravated burglary. On June 14, 2014, Mavrakis was found guilty of aggravated burglary,
vandalism, and two counts of aggravated menacing. (See State Ct. R., Ex. 3, ECF No. 12-1, PageID#
105–06.) On July 9, 2014, the trial court merged all counts of which Mavrakis was convicted with
the aggravated burglary conviction for the purpose of sentencing, and sentenced Mavrakis to a
mandatory term of seven (7) years in prison. (See id. at Ex. 9, Page ID# 187–89.)
In his Petition, Mavrakis argues that he is entitled to relief based on the following grounds
and supporting facts, verbatim:
GROUND ONE:

Defendant was denied effective assistance of counsel
in his direct appeal.

Supporting Facts:

In the direct appeal, appellate counsel failed to raise winning
issues. For example: At trial, it was discovered in crossexamination of state witness (Brandon Rutherford, TOP
277-282; Officer James Deeks, TOP 333–340), that several
witnesses engaged in illegal and fraudulent conduct related
to the proceedings. The prosecution did not disclose this
impeachment evidence despite having prior knowledge of its
existence. As a result, testimonies from deceptive witnesses
was used against me at sentencing, and resulted in additional
bias and prejudice. Trial counsel never objected or raised an
argument to this Brady violation. This violation (and several
others) was never raised in the direct appeal.

GROUND TWO:

The prosecution concealed exculpatory/intrinsic/
impeachment evidence, and engaged in other forms of
misconduct.

Supporting Facts:

At trial it was discovered in direct/cross-examination of
State witnesses, that the prosecution was aware, prior to trial
of her witnesses illegal and fraudulent conduct related to the
proceedings when they were withholding information from
Officers during the investigation but did not disclose the
impeachment evidence to the defense. During closing
argument the prosecution was vouching for the credibility of
these deceptive witnesses, and alluded to matters outside the
record or supported by admissible evidence; including the
realm of the jury.

GROUND THREE: Ineffective Assistance of Trial Counsel
Supporting Facts:

Counsel failed to object or argue an obvious discovery rule
violation by the prosecution; that the trial court failed to
comply with R.C. 2945.11; or that the prosecution was
vouching for deceptive witnesses, and invading the realm of
the jury, engaging in misconduct during closing argument;
at sentencing, the judge relied on acquitted
charges/testimony to support her decision making; judge
denied the jury transcripts during deliberation; a witness of
unsound mind testified without a competency hearing being
held for this witness for the State; failed to properly impeach
witnesses; failed to move for suppression of deceptive
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witness statements/testimony.

GROUND FOUR:

The trial judge did not perform judicial duties without bias
or prejudice, nor did she perform judicial duties fairly and
impartially.

Supporting Facts:

The record provides clear and convincing evidence that the
prosecution concealed material evidence of her witnesses
deceptive/corrupt behavior, and was vouching for their
credibility; manifesting bias and prejudice, because at
sentencing the judge relied on testimony from these
deceptive witnesses and acquitted charges to support her
decision making.

GROUND FIVE:

Insufficient evidence, conviction for agg. burglary against
manifest weight of evidence.

Supporting Facts:

The element of trespass was not met to support a conviction
for aggravated burglary. At trial, William “Billy” Fye
testified that I “knocked” on the door and he unlocked it
(TOP 202). I knocked – Billy got up from the couch –
unlocked the door – then sat back down – then I entered. If
that does not imply privilege – what does it imply – that I
should leave? This issue has been raised, but I can’t afford
Constitutional Rights.

(Pet., PageID# 41–64.)
On January 29, 2018, Respondent Warden for the Southern Ohio Correctional Institution
(“Respondent”) filed a Motion to Dismiss the Petition, arguing that it is time-barred because
Mavrakis did not file it within the one-year limitations period under 28 U.S.C. § 2244(d)(1)(A).1
1

Section 2244(d)(1)(A) provides, in relevant part, that, for petitions filed pursuant
to that section, “the limitation period shall run from the latest of the date on which
judgment became final by the conclusion of direct review or expiration of the time
for seeking such review.” This means that, for direct criminal appeals, the oneyear limitations period does not begin to run until all direct criminal appeals in the
state system are concluded, followed by either the completion or denial of
certiorari before the United States Supreme Court, or the expiration of the time
allowed (ninety days) for filing for certiorari. See Clay v. U.S., 537 U.S. 522, 528
n.3 (2003); Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002); Williams v.
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(ECF No. 12.) On March 15, 2018, Mavrakis filed his Opposition to the Motion to Dismiss, arguing
that he exercised due diligence in pursuing his claims, considering that, inter alia, the Ohio Supreme
Court’s judgment relating to his direct appeal was erroneously mailed to his former attorney, even
though, at that time, he was proceeding pro se, and that the clerk’s mistake constituted
“extraordinary circumstances,” which he needed to investigate in order to support his claim,
explaining why his Petition was delayed one hundred and forty-two (142) days. (See Opp’n Mot.
Dismiss 4–6.)
On July 26, 2018, Magistrate Judge David A Ruiz (“Magistrate Judge” or “Judge Ruiz”)
issued a Report and Recommendation (R & R, ECF No. 20), pursuant to Local Rule 72.2,
recommending that the Respondent’s Motion to Dismiss be granted, and the Petition be dismissed
as time-barred. First, Judge Ruiz determined that, absent any tolling, Mavrakis should have filed his
habeas petition no later than June 21, 2017, one year and ninety days after the Ohio Supreme Court’s
decision declining to accept jurisdiction of Mavrakis’ appeal. (See R & R 10.) However, Mavrakis
did not place his petition in the prison mailing system until November 4, 2017, more than four
months after the statute of limitations expired. (See id.) Second, Judge Ruiz found that Mavrakis’
Petition does not meet the requirements for tolling during state postconviction or other collateral
review under § 224(4(d)(2), because his petition for postconviction relief was filed and denied on
May 15, 2015, long before Mavrakis’ conviction became final. (See id.) Third, Judge Ruiz
determined Mavrakis’ delayed Rule 26(B) application also cannot provide him relief from the oneyear limitations requirement because that application was not “properly filed” within the meaning
of § 2244(d)(2). (See id. at 10–11.) Fourth, Judge Ruiz determined that there are no factual

Artuz, 237 F.3d 147, 151 (2d Cir. 2001).
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predicates to Mavrakis’ claims which could not have been discovered until sometime after June 22,
2016, when the statute of limitations began to run. (See id. at 11–12.) Fifth, Judge Ruiz concluded
that equitable tolling would not be appropriate because “it is absolutely clear that Mavrakis was well
aware of the deadline for filing his federal habeas petition. In his [O]pposition to the [M]otion to
[D]ismiss, he concedes as much.” (See id. at 12.) Sixth, Judge Ruiz determined that, “even if the
court equitably credits Mavrakis the three months and twenty-five days that elapsed between the date
of the state appellate court’s January 27, 2017 decision and the date Mavrakis allegedly learned
about the denial—May 22, 2017—his petition would still be untimely” because it was filed four
months and fourteen days late. (See id. at 13.) Finally, Judge Ruiz concluded that, even in
considering Mavrakis’ actual innocence, he “has failed to identify any new, reliable evidence
demonstrative of actual innocence.” (See id. at 14.) Moreover, to the extent Mavrakis is arguing that
there was insufficient evidence to convict him at trial, “there is nothing ‘new’ about trial testimony.”
(See id.) Accordingly, Judge Ruiz recommends that the Petition be dismissed as time-barred.
As of the date of this Order, Mavrakis has not filed objections to the R & R. When no
objections are filed, “the court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” See Fed. R. Civ. P. 72(b) advisory committee’s note
to 1983 addition; see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that
Congress intended to require the district court review of a magistrate[] [judge’s] factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those findings.”)
After careful review of Magistrate Judge Ruiz’s R & R, and all other relevant documents in
the record, the court finds no clear error. See Arn, 474 U.S. at 150. Accordingly, the court adopts
Judge Ruiz’s R & R in its entirety and hereby dismisses Mavrakis’ Petition for Writ of Habeas
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Corpus (ECF No. 5). The court also certifies that, pursuant to 28 U.S.C. § 1915(a)(3), 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. See Fed. R. App. P. 22(b); 28 U.S.C. § 2253(c).
IT IS SO ORDERED.
/s/ SOLOMON OLIVER, JR.
UNITED STATES DISTRICT JUDGE

August 28, 2018

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