Houston v. Warden, Warren Correctional Institution
REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends that the Petition herein be dismissed with prejudice as barred by the statute of limitations. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 1/26/2018. Signed by Magistrate Judge Michael R. Merz on 1/12/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
- vs -
Case No. 1:17-cv-218
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
CHAE HARRIS, Warden,
Warren Correctional Institution
REPORT AND RECOMMENDATIONS
This is a habeas corpus case brought pro se by Petitioner Raj Houston to obtain relief from
his conviction in the Hamilton County Common Pleas Court for kidnapping. Robbery, aggravated
robbery, theft of a motor vehicle, and having weapons while under a disability (Petition, ECF No.
1, PageID 1, ¶ 5.) Houston pleads two grounds for relief.
Ground One: Ineffective Assistance of Appellate Counsel
Supporting Facts: Appellate and trial counsel were both ineffective
due to failing to raise several major issues in my case. Appellate counsel
failed to object to defendant/appellant being viewed by the jury in
jailhouse clothes while handcuffed and shackled denying
defendant/appellants right to due process and fair trial. Also Appellate
counsel failed to raise trial counsels ineffectiveness for failing to object to
improper jury instructions and for failing to object to Prosecutorial
Misconduct for a Brady Violation, rendering Appellants trial
fundamentally unfair in violation of the constitutions of Ohio and United
States. Lastly Appellate counsel failed to raise trial counsels
ineffectiveness for failing to properly prepare for trial by failing to obtain
a full discovery, denying appellant the right to notice
and decide if he is going to proceed to trial or consider the plea offered by
Ground Two: The trial court erred in imposing on Mr. Houston
consecutive maximum sentences.
Supporting Facts: Double jeopardy and allied offenses forbades [sic] the
law from sentencing Mr. Houston to the maximum on all charges.
(Petition, ECF No. 1, PageID 5-6).
The case is before the Court on Respondent’s Motion to Dismiss (ECF No. 10). Mr.
Houston has filed a Response in Opposition (ECF No. 11).
The Warden argues the Petition is barred by the habeas corpus statute of limitations, 28
U.S.C. § 2244(d). He also argues consideration of the merits of Houston’s claims is barred by his
procedural default in presenting them to the state courts. Houston disagrees with both defenses.
The habeas corpus statute of limitations, 28 U.S.C. § 2244(d), provides:
(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;
(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
(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
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.
Respondent calculates the running of the statute of limitations as follows: the Ohio
Supreme Court denied review on direct appeal on December 24, 2014. Therefore the judgment
became final on direct review when the time for seeking review in the United States Supreme
Court ninety days later on March 24, 2015, and would expire one year after that on March 25,
2016, absent one or more tolling events.
Respondent concedes that the running of the statute was tolled from September 16, 2015,
when Houston filed a state court petition for writ of habeas corpus and continued to be tolled until
the Ohio Supreme Court dismissed that petition on November 10, 2015 (Motion, ECF No. 10,
PageID 133). By the time of that filing, the statute had already run for 175 days; after the dismissal,
it began again to run until it expired May 18, 2016.
The day the Ohio Supreme Court dismissed his state habeas petition, Houston filed a
federal petition in Case No. 1:15-cv-722. However, the filing and pendency of a federal habeas
petition does not toll the statute of limitations. Duncan v. Walker, 533 U.S. 167 (2001). Houston
claims he was forced to file that petition but does not say why. After he filed the Petition, he
moved for a stay, stating in conclusory fashion without any detail that “Petitioner’s intended
grounds for relief are still pending in the state courts.” He gave no indication of what remedies he
had sought and what he had pending. (ECF No. 11 in Case No. 1:15-cv-722). This Motion was
filed in response to the State’s argument that the Petition in the prior case should be dismissed as
a mixed petition because it included claims of ineffective assistance of appellate counsel and
Houston had not exhausted his remedy of an application for delayed reopening of the direct appeal
under Ohio R. App.P. 26(B). In recommending dismissal, the Magistrate Judge concluded that all
the asserted deficiencies in appellate counsel’s performance had been discoverable by July 26,
2014, but no 26(B) application had yet been filed almost two years later (Report, ECF No. 12 in
Case No. 1:15-cv-722, PageID 273). Magistrate Judge Wehrman’s Report was adopted and the
prior case dismissed September 15, 2016.
On October 20, 2016, Houston filed his 26(B) Application (State Court Record, ECF No.
9, PageID 88-89). The sole ground stated therein to excuse the delay was the failure of appellate
counsel to provide Houston with the trial transcript. The First District Court of Appeals found that
excuse unavailing, finding that, even assuming the transcript was necessary for a 26(B)
application, Houston had made no showing of any effort on his part to obtain the transcript before
the ninety-day deadline for filing had expired. (State v. Houston, Case No. C-130429 (1st Dist.
Jan. 12, 2017)(unreported; copy at ECF No. 9, PageID 105-06).
Because the 26(B) Application was not properly filed, i.e. it was not timely under Ohio
law, its pendency does not toll the statute of limitations under 28 U.S.C. § 2244(d)(2). Houston
claims the First District did not timely serve him with a copy of its decision on the 26(B)
Application, but that fact, if true, would not retroactively make the application “properly filed.”
Houston requests that his time to file be equitably tolled because he alleges he “has
diligently tried to obtain justice.” (Response, ECF No. 11, PageID 151). The one-year statute of
limitations in 28 U.S.C. § 2244 is subject to equitable tolling. Holland v. Florida, 560 U.S. 631,
645 (2010). A petitioner is “‘entitled to equitable tolling’ only if he shows ‘(1) that he has been
pursuing his rights diligently and (2) that some extraordinary circumstance stood in his way’ and
prevented timely filing.” Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct. 750,
193 L. Ed. 2d 652(2016); Ata v. Scutt, 662 F.3d 736 (6th Cir. 2011), quoting Holland, 130 S. Ct. at
2562, quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). “[T]he second prong of the
equitable tolling test is met only where the circumstances that caused a litigant’s delay are both
extraordinary and beyond its control.” Menominee Indian Tribe, 136 S. Ct. at 756, citing Holland
Houston has not demonstrated his entitlement to equitable tolling. Nothing in his Response
rebuts the finding of the First District Court of Appeals that he did nothing to try to obtain his trial
transcript within ninety days of First District’s ruling on direct appeal on July 16, 2014. He has
done nothing to rebut Judge Wehrman’s finding that he would have known even before that date
of the claims his appellate attorney did not raise. Even if he required a trial transcript to
demonstrate that he was compelled to appear in court in shackles and jail clothing, he did not need
the transcript to know and to assert that his appellate attorney had failed to raise that claim.
Aside from equitable tolling, Houston asserts that the statute of limitations has not yet even
begun to run because the trial court entered a “New Judgment Nunc Pro Tunc Entry November 23,
2016” which it had not yet served on Houston as of August 29, 2017. Houston offers no proof that
such an entry exists and no authority for restarting the statute of limitations upon the filing of a
nunc pro tunc entry.
Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition herein be dismissed with prejudice as barred by the statute of limitations. Because
reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate
of appealability and the Court should certify to the Sixth Circuit that any appeal would be
objectively frivolous and therefore should not be permitted to proceed in forma pauperis.
January 12, 2018.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days
because this Report is being served by mail. .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 Recommendations are based in whole or in part upon matters occurring of 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 fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
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