Davenport v. Warden, Warren Correctional Institution

Filing 12

REPORT AND RECOMMENDATION that respondent's 9 MOTION to Dismiss be Granted, and petitioner's 1 Petition for Writ of Habeas Corpus be Dismissed with prejudice on the ground that the petition is time-barred. A certificate of appealabili ty should not issued in this matter. Any appeal of this matter would not be taken in good faith, and therefore Deny petitioner leave to appeal in forma pauperis. Objections to R&R due by 12/16/2016. Signed by Magistrate Judge Karen L. Litkovitz on 11/29/2016. (art)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ROBERT DAVENPORT,
Petitioner,

Case No. 1: l 6-cv-493

Black, J.
Litkovitz, M.J.

vs.

WARDEN, WARREN
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND
RECOMMENDATION

Petitioner, an inmate in state custody at the Warren Correctional Institution (WCI) in
Lebanon, Ohio, has filed a prose petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. (See Docs. 1, 3). This matter is before the Court on respondent's motion to dismiss filed
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July 18, 2016. (Doc. 9). Although petitioner was granted an extension of time in which to file a
response to the motion to dismiss, he failed to do so by the extended deadline date of October 11,
2016. (See Docs. 10-1 I). Therefore, it appears that the matter is now ripe for disposition.
I. PROCEDURAL HISTORY

A. State Proceedings
Trial Proceeding
In May 2010, the Hamilton County, Ohio, grand jury returned an indictment in Case No.
B-1002888 charging petitioner with one count of aggravated murder in violation of Ohio Rev.
1

Respondent has separately filed 9 exhibits obtained from the underlying state-court record as support for
the motion to dismiss. (See Doc. 8).

Code§ 2903.0I(B) (Count I); one count of murder in violation of Ohio Rev. Code§ 2903.02(B)
(Count 2); one count of aggravated robbery in violation of Ohio Rev. Code§ 2911.0l(A)(l)
(Count 3); and one count of having weapons while under disability in violation of Ohio Rev.
Code§ 2923.13(A)(3) (Count 4). A three-year firearm specification was attached to the
aggravated murder, murder and aggravated robbery charges. (See Doc. 8, Ex . 7, at PAGEID#:
156, 162); see also State v. Davenport, No. C-130307, 2014 WL 2925434, at *5 (Ohio Ct. App.
June 27, 2014).
In May 2013 , the matter proceeded to trial before a jury, which found petitioner guilty as
charged. (See Doc. 8, Ex. 7, at PAGEID#: 158); see also State v. Davenport, supra, 2014 WL
2925434, at *7. On May 24, 2013, following a sentencing hearing, the trial court issued a
Judgment Entry sentencing petitioner to an aggregate prison term of thirty-six (36) years to life,
which consisted of the following consecutive sentences: life with parole eligibility after 30 years
for the aggravated murder offense charged in Count 1; a three-year prison term for the firearm
specification attached to Count 1, which was to be served prior to the sentence imposed for the
underlying offense; and a three-year prison term for the weapons offense charged in Count 4.
(Doc. 8, Ex. 1).2

Direct Review And Resentencing
With the assistance of new counsel for appeal purposes, petitioner timely appealed to the
Ohio Court of Appeals, First Appellate District. (See Doc. 8, Exs. 2, 8). In the appellate brief
filed by counsel on his behalf, petitioner presented the following assignments of error:
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No sentence was imposed for the murder and aggravated robbery offenses charged in Counts 2 and 3, as
well as their attached firearm specifications, because those charges were merged with the aggravated murder offense
and accompanying firearm specification set forth in Count I . (See Doc. 8, Ex. I).

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1. The trial court erred to the prejudice of the Defendant-Appellant by granting
the state' s certification of non-disclosure of the names and addresses of all
civilian witnesses, in violation of Defendant-Appellant's Due Process Rights
and right to a fair trial pursuant to the Fifth and Sixth Amendments to the
United States Constitution and Section I, Article 10 of the Ohio Constitution.
2. The prosecutor committed error prejudicial to Appellant ' s right to due process
and a fair trial under the United States and Ohio Constitutions during trial and
closing argument.
3. The trial court abused its discretion in denying the motion for mistrial in the
face of a violation of Mr. Davenport' s Sixth Amendment Right to compulsory
process.
4. Appellant was deprived of his right to the effective assistance of counsel at
trial.
5. The trial court erred in denying the Defendant' s motion for acquittal under
Crim. R. 29.
6. The jury erred to the prejudice of Appellant by finding him guilty, as those
findings were not supported by sufficient evidence.
7. The trial court erred to the prejudice of the Appellant by finding him guilty, as
those findings were contrary to law.
8. The trial court erred in sentencing Appellant to consecutive prison terms.
(Id. , Ex. 2).

On June 27, 2014, the Ohio Court of Appeals issued a decision sustaining the eighth
assignment of error challenging petitioner's sentence, but overruling the seven remaining
assignments of error and affirming " the trial com1' s judgment in all other respects." State v.
Davenport, supra, 2014 WL 2925434, at *15-16. The court vacated petitioner's sentence and

remanded the matter "to the trial court to determine whether consecutive sentences are
appropriate." Id. , at * 16.
In July 2014, the trial court held a resentencing hearing in accordance with the Ohio Court
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of Appeals' remand order. (See Doc. 8, Ex. 7, at PAGEID#: 157). On July 31, 2014, the trial
court issued a Judgment Entry resentencing petitioner to the same terms of imprisonment that had
previously been imposed, for an aggregate prison term of 36 years to life, after "consider[ing] and
ma[king] the necessary findings as mandated by R.C. 2929.14(C)(4), on the record and as
evidenced by [the] exhibit ... attached [to] and incorporated by reference as part of the Judgment
Entry." (Id., Ex. 6). Respondent states that petitioner did not pursue an appeal from the
resentencing decision. (Doc. 9, p. 10, at PAGEID#: 177).
However, petitioner's appellate counsel did pursue a timely appeal to the Ohio Supreme
Court from the Ohio Court of Appeals' June 27, 2014 decision affirming the trial court' s
judgment except for the matter that was remanded for resentencing. (See Doc. 8, Ex. 5 & Ex. 8,
at PAGEID#: 164). In the memorandum in support of jurisdiction filed by counsel on petitioner's
behalf, petitioner asserted as propositions of law the first four assignments of error that he had
presented on direct appeal to the Ohio Court of Appeals. (See id., Ex. 5). On December 3, 2014,
the Ohio Supreme Court declined to accept jurisdiction of the appeal. (Id., Ex. 9, at PAGEID#:
167); see also State v. Davenport, 140 Ohio St.3d 1522, 20 N.E.3d 730 (Table), 2014-0hio-5251
(Ohio Dec. 3, 2014).
B. Federal Habeas Corpus Petition

The instant federal habeas action commenced on April 23, 2016, the date petitioner's
original incomplete petition was scanned and emailed to the Court from WCI and stamped as
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"filed" by the Court. (See Doc. 1). Because petitioner failed to state any ground for relief in the

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It is well-settled that the filing date of a federal habeas corpus petition submitted by a prose prisoner is the
date on which the prisoner provides his papers to prison authorities for mailing. See Houston v. lack, 487 U.S. 266

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original petition, the undersigned issued a Deficiency Order on April 29, 2016, requiring
petitioner "to submit a completed habeas corpus petition or show cause why this action should not
be dismissed for failure to state a claim." (Doc. 2). On May 14, 2016, petitioner complied with
the Deficiency Order by filing a complete habeas petition containing the following grounds for
relief:
Ground One: The trial court erred to the prejudice of the defendant by granting
the [S]tate' s certification [of] non-disclosure of the names and addresses of all the
civi[li]an witnesses, in violation of defendant's due process rights and rights to fair
trial pursuant to the Fifth and Sixth Amendments to the United States and Ohio
Constitutions.
Ground Two: The prosecutor committed error pr[elju[d]icial to defendant 's
rights to due process and a fair trial under the United States and Ohio Constitutions
during trial and closing argument.
Ground Three: The trial court abused its discretion in denying the motion for
mistrial in the face of a violation of Mr. Davenport's Sixth Amendment right to
compulsory process.
Ground Four: Defendant was deprived of his right to the effective assistance of
counsel at trial.
Ground Five: The trial court erred to the prejudice of the defendant by finding
him guilty, as those findings were not supported by suffi[]cient evidence.
Ground Six: The trial court erred in sentencing defendant to consecutive prison
terms.
Ground Seven: The trial court erred in denying the petition[e]r's motion for
acquittal under Crim. R. 29.
(Doc. 3, at PAGEID#: 17-21 ).

( 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. l (6th Cir. 2006). In this case, petitioner indicated in the original petition that he had signed the pleading on " Dec.
I, 2015," over four months before it was filed with the Court. (See Doc. I, at PAGEID# : 13). However, the date that
the petition was allegedly signed is not the presumptive date of filing because petitioner utilized the same-day scanand-email procedure for transmitting his petition to the Court for filing. (See id., at PAGEID#: I, 3).

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Respondent has filed a motion to dismiss the petition. (Doc. 9). Respondent contends that
the petition is subject to dismissal with prejudice because it is barred from review by the
applicable one-year statute oflimitations set forth in 28 U.S.C. § 2244(d). (Id., pp. 13-21, at
PAGEID#: 180-87). Petitioner has not filed any response to the motion to dismiss even though he
was granted an extension of time in which to do so. (See Docs. 10-11 ).

II. RESPONDENT'S MOTION TO DISMISS (DOC. 9) SHOULD BE GRANTED
BECAUSE THE PETITION IS TIME-BARRED
Under 28 U.S.C. § 2244(d)(l), as amended by § 101 of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. l 04-132, 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)(l). 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.
It appears from the record presented that the one-year statute of limitations set forth in 28
U.S.C. § 2244(d)(l)(A) governs the claims that are asserted as grounds for relief in the instant
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action. The alleged errors occurred during the trial proceedings and were either known or
discoverable through the exercise of due diligence before the conclusion of direct review. Indeed,
all of petitioner's claims for habeas relief were raised as assignments of error by petitioner's
counsel on appeal to the Ohio Court of Appeals before petitioner's conviction became final within
the meaning of§ 2244(d)( l)(A). (See Doc. 8, Ex. 2). Therefore, as respondent has contended in
the motion to dismiss (see Doc. 9, p. 15, at PAGEID#: 182), and in the absence of evidence
suggesting that another limitations period should apply here, the statute began to run under §
2244(d)(l )(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.
As respondent has recognized (see Doc. 9, p. 16, at PAGEID# : 183), petitioner's
conviction became "final " within the meaning of§ 2244(d)( l )(A) on March 3, 20 15, when the 90day period expired for filing a petition for writ of certiorari to the United States Supreme Court
from the Ohio Supreme Court's December 3, 2014 final entry in the direct review proceedings.

(See Doc. 8, Ex. 9); see also Lawrence v. Florida, 549 U.S. 327, 333-34 (2007) (citing Clay v.
United States, 537 U. S. 522, 527-28 (2003), as support for the conclusion that in contrast to the
tolling provision set forth in 28 U.S.C. § 2244(d)(2), "direct review" for purposes of determining
finality under§ 2244(d)(l)(A) includes the time for seeking review in the United States Supreme
Court).4 Therefore, absent application of tolling principles, the statute of limitations commenced

4

It is noted that petitioner was resentenced on July 3 1, 2014. (See Doc. 8, Ex. 6). Generally, when a
defendant is resentenced, the j udgment becomes " final" for statute of limitations purposes "after direct review of the
new sentence." Rashad v. Lafler, 675 F.3d 564, 568-69 (6th C ir. 2012) (citing Burton v. Stewart, 549 U.S. 14 7
(2007) (per curiam)). Here, however, petitioner did not appeal the resentencing decis ion, which mea ns his conviction
would have become final on September l , 20 14, when the 30-day period expired for fili ng a ti me ly appeal to the
Ohio Court of Appeals fro m that entry. See Ohio R. App. P. 4(A). Because petitioner's appeal to the Ohio Supreme
Court was pending at that time, the undersigned agrees with respondent's position, which also favors petitioner, that

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running on March 4, 2015, one day after petitioner's conviction became final, see Fed. R. Civ. P.
6(a); Bronaugh v. Ohio, 235 F.3d 280, 285 (6th Cir. 2000), and expired one year later on March 4,
2016 absent application of statutory or equitable tolling principles.
During the one-year limitations period, petitioner was entitled to tolling of the statute
under 28 U.S.C. § 2244(d)(2) based on any pending "properly filed " applications for state postconviction relief or other collateral review. See 28 U.S.C. § 2244(d)(2); see also Holland v.
Florida, 560 U.S. 631 , 635 (201 O); 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 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.
In this case, statutory tolling principles do not apply because petitioner did not seek state
post-conviction relief or other collateral review of his conviction and sentence before
commencing the instant action for federal habeas relief
The AEDP A' s statute of limitations is also subject to equitable tolling, see Holland v.
Florida, 560 U.S. 631 , 645 (2010), "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)). Equitable tolling is granted "sparingly." Id. (quoting Robertson, 624 F.3d at

petitioner's conviction did not become " final" for statute of limitations purposes until the 90-day period expired for
seeking Supreme Court certiorari review of the Ohio Supreme Court's December 3, 2014 final direct-review entry.

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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 his way
and prevented timely filing." Id. (quoting Holland, 560 U.S. at 649 (internal quotations omitted));

see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Although the Sixth Circuit previously
utilized a five-factor approach in determining whether a habeas petitioner is entitled to equitable
tolling, Holland's two-part test has replaced the fi ve-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.l (6th
Cir. 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).
In this case, petitioner has not argued, nor does the record show, that he was diligent in
pursuing his rights or prevented by "extraordinary circumstances" from filing a timely habeas
petition before the expiration of the limitations period on March 4, 2016. To the extent that
petitioner may argue that he is entitled to equitable tolling due to his pro se status or lack of legal
knowledge or access to legal materials, it is well-settled in the Sixth Circuit that those arguments
are not sufficient to warrant equitable tolling. See, e.g., Hall, 662 F.3d at 750-51 (rejecting the
petitioner's argument that he was entitled to equitable tolling because of his lack of access to the
trial transcript, as well as his prose status and limited law-library access); Allen v. Yukins, 366
F.3d 396, 403 (6th Cir. 2004) (quoting Rose v. Dole, 945 F.2d 1331 , 1335 (6th Cir. 1991)) ("this
court has repeatedly held that ' ignorance of the law alone is not sufficient to warrant equitable
tolling"'); Cobas v. Burgess, 306 F.3d 441 , 444 (6th Cir. 2002) ("an inmate's lack of legal
training, his poor education, or even his illiteracy does not give a court reason to toll the statute of
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limitations"); Lacking v. Jenkins, No. 2:15cv3069, 2016 WL 4505765 , at *4 (S.D. Ohio Aug. 29,
2016) (Report & Recommendation) ("A prisoner' s prose incarcerated status, lack of knowledge
regarding the law, and limited access to the prison 's law library or to legal materials do not
provide a sufficient justification to apply equitable tolling of the statute of limitations."), adopted,
2016 WL 6125683 (S.D. Ohio Oct. 19, 20 16), appeal.filed, No. 16-4291 (6th Cir. Nov. 10, 2016);

Boydv. Tibbals, No. 2:13cv61I , 20 14 WL 1400978, at *3 (S.D. Ohio Apr. 10, 201 4) (Report &
Recommendation) (and numerous cases cited therein) ("A prisoner's prose incarcerated status,
lack of knowledge regarding the law, and limited access to the prisons' law library or to legal
materials together or along do not provide a sufficient justification to apply equitable tolling of
the statute of limitations."), adopted, 2014 WL 293 1475 (S.D. Ohio June 30, 20 14).
Finally, no showing has been made that the procedural bar to review should be excused
based on a colorable showing of actual innocence. See McQuiggin v. Perkins,_ U.S. _, 133
S.Ct. 1924, 1935(2013) (quoting Schlup v. Delo, 513 U.S . 298, 327 (I 995)).
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)(I )(A), the statute of limitations began to run on March 4, 20 15 and expired on
March 4, 20 16. 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. 9) should be GRANTED on the ground that the

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petitioner's habeas corpus petition filed on April 23, 2016 is time-barred. 5

IT IS THEREFORE RECOMMENDED THAT:

1. Respondent's motion to dismiss (Doc. 9) be GRANTED, and petitioner's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner has set forth his grounds
for relief (Doc. 3) 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 the claims for relief
alleged in the complete petition (Doc. 3), which this Court has concluded is barred from review
on procedural statute-of-limitations grounds, because under the first prong of the applicable twopart standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), "j urists of reason"
would not find it debatable whether the Court is correct in its procedural ruling. 6
3. With respect to any application by petitioner to proceed on appeal informa pauperis,
5

In the motion to dismiss, respondent contends that because the original petition was " fatally defective" in
that it failed to set forth any grounds for relief, the filing date for statute-of-limitations purposes was actually May 14,
2016, when petitioner filed his complete habeas petition with the Court in compliance with a Deficiency Order. (See
Doc. 9, pp. 16-18, at PAGEID#: 183-85; see also Doc. 3). As support for that argument, respondent cites Adams v.
Director, TDCJ-CID, No. I: 10cv360, 2012 WL 1444777, at *3-4 (E.D. Tex. Mar. 2, 2012)(Report &
Recommendation), adopted, 2012 WL 1448115 (E.D. Tex. Apr. 26, 2012), wherein the court held in an analogous
case that the petitioner's "b lank" complaint did "not serve to commence the ... habeas action," and that the action
instead could "only be considered to be filed . .. when the ... amended petition [sening forth the petitioner's grounds
for relief] was received by the court." The undersigned need not address that argument because it is clear from the
record that petitioner's original petition filed on April 23, 2016 was fi led over a month too late.
6

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-barTed grounds for relief. See Slack, 529 U.S. at 484. It is noted, however, that petitioner faces an
additional procedural hurdle to review of claims that he failed to raise to the Ohio Supreme Court. Moreover, it
appears that the sentencing-error claim alleged in Ground Six involves an issue of state-law only and thus does not
state a cognizable ground for federal habeas relief. See 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41
( 1984); see also Estelle v. McGuire, 502 U.S. 62, 67-68 ( 1991) ("it is not the province of a federal court to reexamine
state-court determinations on state-law questions"). In any event, it appears that the claim is moot because the Ohio
Court of Appeals sustained the claim of error on direct appeal, and the trial court corrected the error in the
resentencing hearing held in July 2014 in accordance with the Ohio Court of Appeals' remand order. (See Doc. 8,
Ex. 6); see also State v. Davenport, supra, 2014 WL 2925434, at* 15-16.

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the Court should certify pursuant to 28 U.S.C. § l 9 I 5(a)(3) that an appeal of any Order adopting
thi s 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).

Date:

~;<~
Karen L. Litkovitz
United States Magistrate Judge

12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. 1: l 6-cv-493

ROBERT DAVENPORT,
Petitioner,

Black, J.
Litkovitz, M.J.

vs
WARDEN, WARREN
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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