Black v. Warden, Lebanon Correctional Institution

Filing 13

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Lonnie Black, 6 MOTION to Dismiss filed by Warden, Lebanon Correctional Institution: that respondent's motion to dismiss (Doc. 6) be GRANTED; and petition be DISMISSED with prejudice; a certificate of appealability SHOULD NOT ISSUE; and IFP DENIED. Objections to R&R due by 8/5/2013. Signed by Magistrate Judge Stephanie K. Bowman on 7/19/13. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

LONNIE BLACK,
Petitioner,

vs

WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.

Case No. 1:12-cv-821

Black, J.
Bowman, M.J.

REPORT AND
RECOMMENDATION

Petitioner, an inmate in state custody at the Lebanon Correctional Institution in Lebanon,
Ohio, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 (Doc. 1).
This matter is before the Court on respondent’s motion to dismiss on the ground that the petition
is time-barred under 28 U.S.C. § 2244(d). (Doc. 6). Petitioner’s counsel has filed a brief on
petitioner’s behalf opposing respondent’s motion, and respondent has filed a brief in reply to
petitioner’s opposition memorandum. (Docs. 11, 12).
I. PROCEDURAL HISTORY
State Trial Proceedings
On May 27, 2009, the Hamilton County, Ohio, grand jury returned a nine-count
indictment in Case No. B-0903419 charging petitioner with two counts of trafficking in cocaine in
violation of Ohio Rev. Code § 2925.03(A)(2) (Counts 1 and 3); two counts of possession of

1

Although petitioner was proceeding pro se when he prepared and filed his petition with the Court, he is
now represented by counsel, who entered an appearance in the case on January 16, 2013. (See Docs. 1, 7).

cocaine in violation of Ohio Rev. Code § 2925.11(A) (Counts 2 and 4); one count of trafficking in
heroin in violation of Ohio Rev. Code § 2925.03(A)(2) (Count 5); one count of possession of
heroin in violation of Ohio Rev. Code § 2925.11(A) (Count 6); one count of trafficking in
marijuana in violation of Ohio Rev. Code § 2925.03(A)(2) (Count 7); one count of aggravated
possession of drugs in violation of Ohio Rev. Code § 2925.11(A) (Count 8); and one count of
having weapons while under disability in violation of Ohio Rev. Code § 2923.13(A)(3) (Count 9).
(Doc. 6, Ex. 1). A firearm specification was attached to the drug trafficking and possession
charges set forth in Counts 1 through 7, and a “Major Drug Offender” specification was attached
to the cocaine trafficking and possession charges set forth in Counts 1 and 2. (Id.). As alleged in
the indictment, the charges stemmed from an incident that occurred “on or about” May 5, 2009.
(See id.).
Soon thereafter, on June 5, 2009, the Hamilton County grand jury returned another
indictment in Case No. B-0903822 charging petitioner with one count of trafficking in cocaine in
violation of Ohio Rev. Code § 2925.03(A)(2) and one count of possession of cocaine in violation
of Ohio Rev. Code § 2925.11(A), with a “Major Drug Offender” specification attached to both
counts. (See id., Ex. 3). The separate incident forming the basis for the additional charges
occurred “on or about” May 13, 2009. (See id.).
The two cases were joined for trial purposes. The matter proceeded to trial before a jury,
which found petitioner guilty as charged for all the underlying criminal offenses. (Id., Ex. 14).
The jury acquitted petitioner on the firearm specification attached to Counts 1 and 2 of the
indictment in Case No. B-0903419, but found him guilty of the remaining firearm specifications.
(See id.). The trial court also found petitioner guilty of the “Major Drug Offender” specifications
2

charged in the two cases. (Id., Ex. 15). On May 20, 2010, the trial court issued final judgment
entries sentencing petitioner to an aggregate prison term of twenty-one (21) years in Case No. B0903419 and an aggregate prison term of twenty (20) years in Case No. B-0903822. (Id., Ex. 16).
The sentences imposed in the two cases were to be served consecutively for a combined sentence
of forty-one (41) years. (See id.).
State Appeal Proceedings
With the assistance of new counsel for appeal purposes, petitioner filed timely notices of
appeal to the Ohio Court of Appeals, First Appellate District. (Doc. 6, Exs. 17-18). The appeals
were consolidated and placed on the court’s accelerated calendar. (See id., Ex. 19). In his
appellate brief, petitioner presented seven assignments of error:
1. The court abused its discretion in allowing unfairly prejudicial evidence of prior
convictions.
2. The trial court erred to the prejudice of the Defendant-Appellant as there was
insufficient evidence to convict.
3. The trial court erred to the prejudice of the Defendant-Appellant because the
verdict was against the manifest weight of the evidence.
4. The Defendant received ineffective assistance of trial counsel.
5. The Defendant-Appellant was denied due process of law and subject to cruel and
unusual punishment when the court sentenced him to a 41 year sentence.
6. The trial court erred when it failed to merge the Major Drug Offender
specifications.
7. The Defendant-Appellant[’]s right to a fair trial was compromised by cumulative
error.
(Id., Ex. 20).
On March 23, 2011, the Ohio Court of Appeals overruled the assignments of error and
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affirmed the trial court’s judgment. (Id., Ex. 22).
Thereafter, petitioner apparently contacted the Ohio Public Defender’s Office requesting
the assistance of counsel in the preparation and filing of an appeal to the Ohio Supreme Court. In
a letter dated April 14, 2011 from the Ohio Public Defender’s Chief Appellate Counsel, petitioner
was informed that the Ohio Public Defender’s Office would not assist him in any appeal to the
Ohio Supreme Court. (See Doc. 11, Ex. A). The letter further provided in pertinent part:
If you wish to take your case to the Ohio Supreme Court, you will have to
represent yourself, or obtain other counsel. If you are going to represent yourself,
you will be responsible for complying with the court’s rules of practice. A copy of
the relevant portions of those rules is enclosed. Also enclosed is a copy of a pro se
packet that should be helpful to you in preparing the necessary documents for a
timely appeal. According to the supreme court’s rules, you need to file a notice of
appeal, a memorandum in support of jurisdiction, an affidavit of indigency, and the
appropriate number of copies in the Ohio Supreme Court on or before May 9,
2011. If you cannot meet that deadline, you must file a motion for delayed appeal.
See Rule 2.2(A)(4)(a). Enclosed is a copy of a pro se packet that should be helpful
to you in preparing the necessary documents for a delayed appeal.
(Id.).
Petitioner apparently attempted to file a timely pro se appeal to the Ohio Supreme Court.
However, petitioner’s “notice of appeal and memorandum in support were not filed” and returned
to him by letter dated May 9, 2011 from the Office of the Clerk of the Ohio Supreme Court. (See
id., Ex. B). In the letter, petitioner was informed that he had failed to “meet the requirements of
the Rules of Practice of the Supreme Court of Ohio” because he “did not tender the $100.00 filing
fee required by Rule 15.1 to be paid before a case is filed, or an affidavit of indigency in lieu of
the fee in accordance with Rule 15.3(A).” (Id.). The letter also provided:
To timely appeal a March 23, 2011 court of appeals decision, your notice of
appeal, memorandum in support of jurisdiction, and $100.00 filing fee or affidavit
of indigency were all due in the Clerk’s Office no later than May 9, 2011. If your
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case involves a felony, please see the provision for delayed appeal under Rule
2.2(A)(4) of the enclosed copy of the Rules of Practice.
For additional guidance, please find enclosed a blank affidavit of indigency that
will meet the filing requirements if you state the reasons you are unable to pay the
filing fee and have the document notarized, and our Pro Se Guide to Filing an
Appeal in the Supreme Court.
(Id.).
Approximately three months later, in August 2011, petitioner apparently unsuccessfully
attempted to file a delayed appeal with the Ohio Supreme Court on two occasions. In a letter
dated August 9, 2011 from the Office of the Clerk of the Ohio Supreme Court, petitioner was
notified that his documents were not filed and were being returned for failure to comply with the
Ohio Supreme Court’s Rules of Practice because (1) petitioner’s affidavit in support of his motion
for delayed appeal was not notarized, and (2) petitioner had not attached a “copy of the court of
appeals judgment entry and opinion as required by Rule 2.2(A)(4)(a).” (Id., Ex. C). Petitioner
was advised that he could resubmit his documents “once they have been corrected” and to refer to
“the provisions for filing a delayed appeal under Rule 2.2(A)(4) of the Rules of Practice and page
19 of the Pro Se Guide” that had previously been mailed to him on May 9, 2011. (Id.). In a
second letter dated August 11, 2011 from the clerk’s office, petitioner was again notified that his
“enclosed documents were not filed because they do not comply with the Rules of Practice of the
Supreme Court of Ohio.” (Id., Ex. D). Petitioner was advised to refer to the letters sent to him on
May 9 and August 9, 2011, as well as to “the provisions for filing a delayed appeal under Rule
2.2.(A)(4) of the Rules of Practice and page 19 of the Pro Se Guide” that had previously been
mailed to him. (Id.).

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Petitioner apparently took no further action to challenge the Ohio Court of Appeals’ direct
appeal decision until over two months later when he finally successfully filed a motion for leave
to file a delayed appeal to the Ohio Supreme Court on October 24, 2011. (See Doc. 6, Ex. 23;
Doc. 11). On December 21, 2011, the Ohio Supreme Court denied petitioner’s motion for
delayed appeal and dismissed the cause without opinion. (Doc. 6, Ex. 26).
Federal Habeas Corpus Petition
The instant federal habeas action commenced on October 23, 2012. (See Doc. 1).
However, for statute of limitations purposes, it is presumed that petitioner’s habeas petition was
filed on October 5, 2012, the date that petitioner claims he placed the pleading in the prison
mailing system for submission to this Court. (See Doc. 1, p. 18).2 In the petition, petitioner
alleges as grounds for relief the same seven claims that he asserted as assignments of error on
direct appeal to the Ohio Court of Appeals. (Id., pp. 9, 10, 12, 13, 14; see also Doc. 6, Ex. 20).
In the motion to dismiss filed in response to the petition, respondent contends that the
petition is subject to dismissal with prejudice because it is barred from review by the applicable
one-year statute of limitations governing federal habeas petitions, which is set forth in 28 U.S.C. §
2244(d). (Doc. 6, Brief, pp. 9-14). Petitioner has filed a brief in opposition to respondent’s
motion, in which he essentially contends that the petition was timely filed within the applicable
one-year limitations period and that, in any event, he is entitled to equitable tolling of the

2

The filing date of a federal habeas corpus petition submitted by a pro se prisoner is the date on which the
prisoner provides his papers to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266 (1988); see also
Miller v. Collins, 305 F.3d 491, 497-98 (6th Cir. 2002); Goins v. Saunders, 206 F. App’x 497, 499 n.1 (6th Cir.
2006). The rule applies in this case because petitioner was proceeding pro se when he commenced this action.

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limitations period. (Doc. 11). Respondent has filed a brief responding to specific arguments
made by petitioner in his opposition memorandum. (Doc. 12).
II. RESPONDENT’S MOTION TO DISMISS (DOC. 6) SHOULD BE GRANTED
BECAUSE THE PETITION IS TIME-BARRED
Under 28 U.S.C. § 2244(d)(1), as amended by § 101 of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, a person in custody
pursuant to the judgment of a state court must file an application for a writ of habeas corpus
within one year 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;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled during the
pendency of a properly filed application for state post-conviction relief or other collateral review.
The provision contained in 28 U.S.C. § 2244(d)(1)(A) applies to the seven claims that are
asserted as grounds for relief in the instant action. The alleged errors occurred during the trial
proceedings and were raised as assignments of error on direct appeal to the Ohio Court of
Appeals before petitioner’s conviction became final within the meaning of that provision.
Therefore, as respondent has argued in the motion to dismiss, the limitations period began to run
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under § 2244(d)(1)(A) when the challenged judgment of conviction and sentence was rendered
“final” by the conclusion of direct review or the expiration of time for seeking such review.
Here, as both the Ohio Public Defender’s Office and the Ohio Supreme Court clerk’s
office indicated in letters to petitioner (see Doc. 11, Exs. A, B), petitioner’s conviction and
sentence became final on May 9, 2011, when the 45-day period expired for filing a timely appeal
to the Ohio Supreme Court from the Ohio Court of Appeals’ March 23, 2011 decision affirming
the trial court’s final judgment entries of conviction and sentence.3 See Ohio S.Ct.Prac.R.
6.01(A)(1).
Petitioner has contended in his memorandum in opposition to the motion to dismiss that
his “conviction did not become final until the conclusion of his Motion for Delayed Appeal before
the Ohio Supreme Court.” (Doc. 11, p. 3). However, contrary to petitioner’s contention, it is
well-settled that unsuccessful motions for leave to file a delayed appeal, such as the one filed by
petitioner in this case, do not restart the running of the statute under § 2244(d)(1)(A), but rather
only can serve to toll an unexpired limitations period under § 2244(d)(2). See, e.g., Taher v.
Warden, Warren Corr. Inst., No. 1:12cv400, 2013 WL 485789, at *6 (S.D. Ohio Feb. 6, 2013)
(Litkovitz, M.J.) (Report & Recommendation), adopted, 2013 WL 811867 (S.D. Ohio Mar. 5,
2013) (Bertelsman, J.) (and numerous cases cited therein); Sayles v. Warden, London Corr. Inst.,
No. 1:11cv524, 2012 WL 3527226, at *5 n.1 (S.D. Ohio July 17, 2012) (Wehrman, M.J.) (Report
& Recommendation) (and numerous cases cited therein), adopted, 2012 WL 3527140 (S.D. Ohio
3

It is noted that the 45-day period actually expired on May 7, 2007, which fell on a Saturday. Under Ohio
S.Ct.Prac.R. 3.03(A)(1), “[i]f the last day of the period is a Saturday, Sunday, or legal holiday, the period runs until
the end of the next day that is not a Saturday, Sunday, or legal holiday.” Therefore, the 45-day appeal period
extended in this case through the next business day, which fell on Monday May 9, 2011.

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Aug. 15, 2012) (Dlott, J.); see also Applegarth v. Warden, North Cent. Corr. Inst., 377 F. App’x
448, 449-50 (6th Cir. 2010) (and Sixth Circuit cases cited therein). Cf. Little v. Warden, Warren
Corr. Inst., No. 1:10cv468, 2011 WL 2358565, at *4 n.2 (S.D. Ohio May 16, 2011) (Litkovitz,
M.J.) (Report & Recommendation) (noting that although the Supreme Court held in Jimenez v.
Quarterman, 555 U.S. 113, 120-21 (2009), that the granting of a delayed appeal motion restores
the pendency of the direct appeal, thereby rendering the conviction non-final under §
2244(d)(1)(A), a delayed appeal motion that is denied does not restart the limitations period),
adopted, 2011 WL 2293316 (S.D. Ohio June 9, 2011) (Bertelsman, J.). See generally Gonzalez v.
Thaler,

U.S.

, 132 S.Ct. 641, 653-54 (2012) (distinguishing Jimenez, where the Court had

adopted “the out-of-time appeal’s date of finality over the initial appeal’s date of finality,” in
holding that the petitioner’s state conviction became final under § 2244(d)(1)(A) “when his time
for seeking review with the State’s highest court expired”). Therefore, the statute commenced
running on May 10, 2011, one day after petitioner’s conviction became final within the meaning
of § 2244(d)(1)(A), and expired one year later absent application of statutory or equitable tolling
principles.
During the one-year limitations period commencing on May 10, 2011, petitioner was
entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) based on any pending “properly filed”
applications for state post-conviction relief or other collateral review. See 28 U.S.C. §
2244(d)(2); see also Holland v. Florida,

U.S.

, 130 S.Ct. 2549, 2554 (2010); Allen v. Siebert,

552 U.S. 3, 4 (2007) (per curiam); Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003). “The
tolling provision does not, however, ‘revive’ the limitations period (i.e., restart the clock at zero);
it can only serve to pause a clock that has not yet fully run.” Vroman, 346 F.3d at 602 (quoting
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Rashid v. Khulmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998)). Once the limitations period is
expired, state collateral review proceedings can no longer serve to avoid the statute of limitations
bar. Id.
It is well-settled that a state application for post-conviction relief is “properly filed” within
the meaning of § 2244(d)(2) “when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings,” such as those prescribing the time limits for filing.
Artuz v. Bennett, 531 U.S. 4, 8 (2000). State post-conviction or collateral review applications
rejected by the state courts on timeliness grounds are not “properly filed” and, therefore, are not
subject to statutory tolling under § 2244(d)(2). See Allen, 552 U.S. at 5-6; see also Pace v.
DiGuglielmo, 544 U.S. 408, 413-14 (2005); Vroman, 346 F.3d at 603.
In this case, petitioner suggests in his memorandum in opposition to the motion to dismiss
that the limitations period was tolled while he unsuccessfully attempted to file a timely appeal
with the Ohio Supreme Court by May 9, 2011 and while he unsuccessfully attempted to
commence delayed appeal proceedings with the court in August 2011. (See Doc. 11). However,
because petitioner was unable to perfect a timely appeal to the Ohio Supreme Court and his initial
attempts to file a delayed appeal were rejected as a result of his failure to comply with the Ohio
Supreme Court’s Rules of Practice, no motion was actually filed and pending before the state
court to toll the limitations period under § 2244(d)(2) until petitioner finally succeeded in filing a
motion for delayed appeal on October 24, 2011. Therefore, the statute of limitations, which
commenced running on May 10, 2011, was not tolled and ran for 167 days before petitioner filed
his unsuccessful delayed appeal motion.

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An argument can be made that petitioner’s delayed appeal motion also was not “properly
filed” within the meaning of § 2244(d)(2) because the Ohio Supreme Court’s unexplained entry
denying petitioner leave to file a delayed appeal was presumably based on petitioner’s failure “to
demonstrate adequate reasons for his failure to file a timely notice of appeal.” See Bonilla v.
Hurley, 370 F.3d 494, 497 (6th Cir. 2004) (per curiam). The Sixth Circuit has indicated that such
a ruling is a “procedural decision” by the state supreme court, which “would preclude tolling.”
See Hall v. Warden, Lebanon Corr. Inst., No. 1:08cv75, 2009 WL 857979, at *3, *8 (S.D. Ohio
Mar. 25, 2009) (Barrett, J.; Hogan, M.J.) (and cases cited therein) (quoting DiCenzi v. Rose, 452
F.3d 465, 469 (6th Cir. 2006), which in turn cited Bonilla, 370 F.3d at 497, as “distinguishing
between the denial of a motion to file a delayed appeal in the Ohio Supreme Court, a state
procedural decision that would preclude tolling, and the granting of the motion to file the appeal
but subsequent dismissal on the jurisdictional merits of the case, a decision on the merits that
would not preclude tolling”), aff’d on other grounds, 662 F.3d 745 (6th Cir. 2011), cert. denied,
133 S.Ct. 187 (2012); see also Brown v. Ohio, No. 5:11cv162, 2011 WL 6012428, at *3 n.5 (N.D.
Ohio Nov. 8, 2011) (noting that under DiCenzi and Bonilla, the “statute of limitations is not tolled
by a motion for delayed appeal in the Ohio Supreme Court unless that court grants the motion”),
adopted, 2011 WL 6019181 (N.D. Ohio Dec. 1, 2011). Cf. Taher, supra, 2013 WL 485789, at *7
(involving denial of motion for delayed appeal to Ohio Supreme Court); Howard v. Warden,
Lebanon Corr. Inst., No. 1:11cv4, 2011 WL 2940389, at *4 (S.D. Ohio June 27, 2011) (Bowman,
M.J.) (Report & Recommendation), adopted, 2011 WL 2848211 (S.D. Ohio July 19, 2011)
(Beckwith, J.) (involving denial of delayed reopening application).

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Nevertheless, in light of Sixth Circuit precedents, which have not been overruled and
which hold that delayed appeal motions serve to toll unexpired limitations periods, see, e.g.,
Searcy v. Carter, 246 F.3d 515, 518-19 (6th Cir. 2001); Stevenson v. Howes, 407 F. App’x 881,
884 (6th Cir. 2011) (per curiam), the undersigned will assume in petitioner’s favor that the oneyear statute of limitations was tolled during the pendency of the delayed appeal motion before the
Ohio Supreme Court. The limitations period was tolled from October 24, 2011 through
December 21, 2011, when the Ohio Supreme Court issued its final ruling denying petitioner leave
to file a delayed appeal. (See Doc. 6, Exs. 23, 26). Under 28 U.S.C. § 2244(d)(2), the tolling
period does not include the ninety days in which a petitioner could have sought certiorari review
in the United States Supreme Court. See Lawrence v. Florida, 549 U.S. 327, 333-34 (2007).
Therefore, the statute commenced running again on December 22, 2011, one day after the Ohio
Supreme Court issued its decision, and expired 198 days later on or about July 9, 2012,4 absent
any further tolling of the limitations period.
The AEDPA’s statute of limitations is subject to equitable tolling, see Holland, 130 S.Ct.
at 2560, “when a litigant’s failure to meet a legally-mandated deadline unavoidably arose from
circumstances beyond the litigant’s control.” Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745,
749 (6th Cir. 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)), cert.
denied, 133 S.Ct. 187 (2012). Equitable tolling is granted “sparingly.” Id. (quoting Robertson,
624 F.3d at 784). A habeas petitioner is entitled to equitable tolling only if he establishes that (1)
“he has been pursuing his rights diligently;” and (2) “some extraordinary circumstance stood in
4

The 198-day expiration date actually fell on July 7, 2012, which was a Saturday. Therefore, the
undersigned assumes in petitioner’s favor that he had until Monday, July 9, 2012 in which to file a timely habeas
petition.

12

his way and prevented timely filing.” Id. (quoting Holland, 130 S.Ct. at 2562 (internal quotations
omitted)); see also Pace, 544 U.S. at 418. Although the Sixth Circuit previously utilized a fivefactor approach in determining whether a habeas petitioner is entitled to equitable tolling,
Holland’s two-part test has replaced the five-factor inquiry as the “governing framework” to
apply. Hall, 662 F.3d at 750 (citing Robinson v. Easterling, 424 F. App’x 439, 442 n.1 (6th Cir.),
cert. denied, 132 S.Ct. 456 (2011)). “With Holland now on the books, the ‘extraordinary
circumstances’ test, which requires both reasonable diligence and an extraordinary circumstance,
has become the law of this circuit.” Id.; see also Patterson v. Lafler, 455 F. App’x 606, 609 n.1
(6th Cir. 2012).
Petitioner contends in his brief in opposition to the motion to dismiss that he is entitled to
equitable tolling of the limitations period because (1) he was reasonably diligent, albeit initially
unsuccessful, in his attempts to file an appeal with the Ohio Supreme Court after the Ohio Court
of Appeals issued its direct appeal decision in March 2011; and (2) “extraordinary circumstances
stood in the way of his timely filing.” (See Doc. 11, pp. 6-7). However, as respondent has
persuasively argued in reply to petitioner’s opposition memorandum (see Doc. 12, pp. 3-4),
petitioner was not reasonably diligent in pursuing an appeal to the state’s highest court to the
extent that although he was provided the requisite instructions for both perfecting a timely appeal
and filing a motion for delayed appeal with the Ohio Supreme Court, first by the Ohio Public
Defender’s Office prior to the expiration of the 45-day appeal period and, thereafter, by the Ohio
Supreme Court clerk’s office, he failed to comply with those instructions. (See Doc. 11, Exs. AD). In addition, petitioner waited three months after his initial attempt to perfect a timely appeal
failed before submitting delayed appeal documents to the Ohio Supreme Court, and after those
13

attempts also failed, he took no further action to challenge the Ohio Court of Appeals’ direct
appeal decision until over two months later when he finally succeeded in filing a motion for
delayed appeal with the state’s highest court. Perhaps most damaging to petitioner’s position is
the fact that after the Ohio Supreme Court denied petitioner’s delayed appeal motion in December
2011, petitioner waited again for over nine months before filing his petition for federal habeas
relief.
Finally, petitioner has not shown that he was prevented by some extraordinary
circumstance from seeking federal habeas relief in a timelier manner. In his memorandum in
opposition to respondent’s motion to dismiss, petitioner has only asserted that as an inmate in an
“overpopulated” prison system with “insufficient resources to meet the legal needs of all the
individuals house[d] therein,” he “had inadequate access to legal materials, the law library and
counsel to access the information necessary to properly perfect his appeal” to the Ohio Supreme
Court. (See Doc. 11, p. 7). As an initial matter, and as discussed above, petitioner’s argument
that he lacked adequate access to the necessary resources and legal materials to properly perfect
an appeal is belied by the record, which shows that petitioner in fact was provided on numerous
occasions with the information he needed to both perfect a timely appeal and to file a motion for
delayed appeal with the Ohio Supreme Court. (See Doc. 11, Exs. A-D). In any event, it is wellsettled that neither lack of knowledge of the law nor the inability to obtain legal assistance
constitutes an extraordinary circumstance sufficient to excuse the statute-of-limitations bar to
review. Cf. Hall, 662 F.3d at 751-52; see also Johnson v. United States, 544 U.S. 295, 311 (2005)
(in a case where the defendant defended his delay in challenging a state conviction on the basis of
his pro se status and lack of “sophistication” in understanding legal procedures, the Court stated:
14

“[W]e have never accepted pro se representation alone or procedural ignorance as an excuse for
prolonged inattention when a statute’s clear policy calls for promptness.”). Petitioner’s
conclusory assertions regarding his alleged inability to perfect an appeal in the Ohio Supreme
Court, or to file a timely petition with this Court after the Ohio Supreme Court denied his delayed
appeal motion in December 2011, is simply insufficient to demonstrate that petitioner was
prevented by an extraordinary circumstance beyond his control to file a federal habeas petition by
the statute-of-limitations deadline date of July 9, 2012.
Accordingly, in sum, the undersigned concludes that the instant federal habeas corpus
petition is barred from review by the one-year statute of limitations governing habeas corpus
actions brought pursuant to 28 U.S.C. § 2254. Under the applicable provision set forth in 28
U.S.C. § 2244(d)(1)(A), the statute of limitations commenced running on May 10, 2011, one day
after the 45-day period expired for filing a timely appeal to the Ohio Supreme Court from the
Ohio Court of Appeals’ March 23, 2011 direct appeal decision. Assuming in petitioner’s favor
that the statute was tolled while petitioner’s motion for leave to file a delayed appeal was pending
before the Ohio Supreme Court from October 24, 2011 through December 21, 2011, the statute
began to run again on December 22, 2011 and expired on or about July 9, 2012. Neither statutory
nor equitable tolling principles apply to further extend the limitations period or otherwise avoid
the statute of limitations bar to review in this case. Therefore, respondent’s motion to dismiss
(Doc. 6) should be GRANTED on the ground that the instant habeas corpus petition, filed on
October 5, 2012, nearly three months after the statute of limitations had run its course, is timebarred.

15

IT IS THEREFORE RECOMMENDED THAT:
1. Respondent’s motion to dismiss (Doc. 6) be GRANTED, and petitioner’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DISMISSED with prejudice on
the ground that the petition is time-barred under 28 U.S.C. § 2244(d).
2. A certificate of appealability should not issue with respect to any of the claims for
relief alleged in the petition, which this Court has concluded is barred from review on a
procedural ground, because under the first prong of the applicable two-part standard enunciated in
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), “jurists of reason” would not find it debatable
whether the Court is correct in its procedural ruling.5
3. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting
this Report and Recommendation would not be taken in “good faith,” and therefore DENY
petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R.
App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

/s/ Stephanie K. Bowman
United States Magistrate Judge

5

Because the first prong of the Slack test has not been met, the Court need not address the second prong of
Slack as to whether “jurists of reason” would find it debatable whether petitioner has stated a viable constitutional
claim in his time-barred grounds for relief. See Slack, 529 U.S. at 484.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

LONNIE BLACK,
Petitioner,

Case No. 1:12-cv-821
Black, J.
Bowman, M.J.

vs
WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
cbc

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