Buchanan v. Warden, Chillicothe Correctional Institution

Filing 5

ORDER adopting Report and Recommendations re 2 Report and Recommendation dismissing 1 Petition for Writ of Habeas Corpus. Signed by Judge Michael R. Barrett on 8/2/13. (Attachments: # 1 Certified Mail Receipt) (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Jackie Buchanan,
Petitioner,

Case No. 1:12cv353

v.

Judge Michael R. Barrett

Warden,
Chillicothe Correctional Institution,
Respondent.
ORDER
This matter is before the Court upon the Magistrate Judge’s August 24, 2013,
Report and Recommendation (“R&R”) dismissing Petitioner’s pro se habeas petition.
(Doc. 2). The parties were given proper notice, pursuant to 28 U.S.C. § 636(b)(1)(C),
including notice that the parties would waive further appeal if they failed to file
objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d 947
(6th Cir. 1981).

Petitioner filed timely Objections to the R&R.

(Doc. 4).

For the

following reasons this Court overrules Petitioner's objections and adopts the Magistrate
Judge's R&R.
Petitioner Jackie Buchanan is a prisoner in state custody at the Chillicothe
Correctional Institution in Chillicothe, Ohio. On May 3, 2012, Petitioner filed a pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, to vacate or set aside
his state conviction and sentence.
On January 11, 2008, in the Brown County Court of Common Pleas, a jury
convicted Petitioner of one count of gross sexual imposition and one count of forcible

rape of a child under the age of ten. (Doc. 1 at 32-4). The trial court sentenced
Petitioner to life imprisonment on the count of forcible rape of a child under ten, and
three years on the count of gross sexual imposition. State v. Buchanan, No. CA200804-001, 2009 WL 3808519 at *1 (Ohio Ct. App. Dist. 12, Nov. 16, 2009). Petitioner
appealed his conviction based on ineffective assistance of counsel. Id. The Ohio Court
of Appeals, Twelfth District, reversed and remanded the case to the trial court. Id. at 6.
Following remand, Petitioner changed his original plea from “not guilty” to “guilty,”
apparently as a result of a plea bargain, which reduced Petitioner’s counts to one count
of sexual battery and one count of gross sexual imposition. (Doc. 1 at 22). On January
13, 2012, Petitioner was sentenced to eight years of mandatory imprisonment for the
count of sexual battery, and two years of mandatory imprisonment for the count of gross
sexual imposition. Id.
In the R&R, the Magistrate Judge concludes that pursuant to 28 U.S.C. §
2244(d)(2), the petition was untimely filed. (Doc. 2). The Magistrate Judge noted that
Petitioner did not file any applications for state post-conviction or other collateral review
that would toll the statute of limitations. (Doc. 2); see also 28 U.S.C. § 2244(d)(2). The
Magistrate Judge explained that Petitioner’s judgment became final thirty days after it
was entered because that is when the time to appeal under Ohio Appellate Rule 4
expired. (Doc. 2).
In his Objections, Petitioner argues that his petition is not untimely because he
received two judgments under the same trial number, and therefore the judgments are
not final. Petitioner states that his second conviction, following remand and pursuant to
a plea agreement, is “an absolute nullity.” Petitioner argues that he was not issued a

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new trial number on remand, and thus his commitment papers and judgment are void;
explaining that “no defendant can go to a jury trial and be convicted by a jury and sign a
plea agreement on the exact same trial no. 2006-2332 without a different statute. . .”
(Doc. 4, at 1). In support, Petitioner cites § 25 of the First Judiciary Act of 1789. In
addition, Petitioner states that he is innocent of all charges and the State of Ohio forced
him to sign a plea agreement. (Id. at 2).
Under the Antiterrorism and Effective Death Penalty Act of 1996, a one-year
statute of limitations applies to all applications seeking a writ of habeas corpus under 28
U.S.C. § 2254. The statute provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of—
(A) 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). As the Magistrate Judge explained, the judgment became final
on February 12, 2010. Petitioner did not file his petition until May 3, 2012, which is well
outside the one-year statute of limitations. The one-year period of limitations is tolled
for that amount of time in which “a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending.” 28
U.S.C. § 2244(d)(2). However, there is no record that Petitioner filed any applications
for state post-conviction or other review. 1

Therefore, Petitioner’s claims are time-

barred.

1

In his petition, Petitioner states that he did not raise any of the issues in his petition in
post-conviction proceedings.

3

Petitioner claims that he is actually innocent of the crimes to which he plead
guilty.

The Sixth Circuit has held that equitable tolling of the one-year statute of

limitations period in habeas cases may be available upon a “credible showing of actual
innocence.” Souter v. James, 395 F.3d 577, 602 (6th Cir. 2005). However, in order to
demonstrate actual innocence, “a petitioner must show that it is more likely than not that
no reasonable juror would have found petitioner guilty beyond a reasonable doubt.”
Schlup v. Delo, 513 U.S. 298, 327 (1995). Petitioner has not provided any support for
his claim that he is actually innocent. Therefore, the Court concludes that Petitioner’s
petition is DISMISSED.
Before a petitioner may appeal a denial of his habeas petition, he must first
obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A).

A certificate of

appealability may issue only if the applicant has made a substantial showing of the
denial of a “constitutional right.” 28 U.S.C. § 2253(c)(2). However, when a district court
denies habeas relief on procedural grounds without reaching the prisoner’s underlying
constitutional claims, a certificate may issue if the prisoner shows that (1) a reasonable
jurist would find it debatable whether the petition states a valid claim of the denial of a
constitutional right, and (2) that a reasonable jurist would find it debatable whether the
district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 48485 (2000). In order for a certificate to issue when habeas relief is denied on a
procedural ground, both prongs of this test must be satisfied. Id.
Petitioner has not met this burden. Reasonable jurists would not find it debatable
as to whether this Court was correct in its procedural ruling that the petition was
untimely and petitioner was not entitled to equitable tolling. “Where a plain procedural

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bar is present and the district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district court erred in dismissing the
petition or that the petitioner should be allowed to proceed further.” Id. Therefore, this
Court declines to issue a certificate of appealability.
For the same reasons that the Court dismisses the habeas petition as timebarred by the statute of limitation, the Court further finds there is no good-faith basis for
an appeal from this decision. The Court will certify pursuant to 28 U.S.C. § 1915(a)(3)
and Fed. R.App. P. 24(a) that any appeal from this decision by Petitioner would be
frivolous and not taken in good faith.
Based on the foregoing, it is hereby ORDERED that:
1. Petitioner's objections to the Report and Recommendation (Doc. 4) are not
well-taken and are OVERRULED;
2. The Court ADOPTS the Report and Recommendation (Doc. 2);
3. Petitioner's petition for a writ of habeas corpus (Doc. 1) is DISMISSED WITH
PREJUDICE;
4. A certificate of appealability will not issue with respect to this order under the
two-part standard established in Slack v. McDaniel, 529 U.S. 473, 484–85
(2000). Petitioner remains free to request issuance of the certificate of
appealability from the Court of Appeals. See 28 U.S.C. § 2253(c) and Fed.
R.App. P. 22(b);
5. With respect to any application by Petitioner to proceed on appeal in forma
pauperis, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an
appeal of this order would not be taken in good faith. Therefore, Petitioner is
DENIED leave to appeal in forma pauperis. See Fed. R.App. P. 24(a);
Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir.1997); and
6. This matter shall be CLOSED and TERMINATED from the docket of this
Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
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JUDGE MICHAEL R. BARRETT

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