Bronson v. Warden, Warren Correctional Institution

Filing 12

REPORT AND RECOMMENDATIONS re 8 Respondent's Motion to Dismiss. IT IS RECOMMENDED THAT: (1) Respondent's motion to dismiss 8 be GRANTED, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 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; (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. Signed by Magistrate Judge Stephanie K. Bowman on 7/16/2018. (km)(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
DANIEL BRONSON,
Petitioner,

Case No. 1:17-cv-701
Black, J.
Bowman, M.J.

vs.
WARDEN, WARREN
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND
RECOMMENDATION

Petitioner, an inmate in state custody at the Warren Correctional Institution, has filed a
pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 3). This matter is
before the Court on respondent’s motion to dismiss (Doc. 8), to which petitioner has filed a
response in opposition (Doc. 9).
For the reasons stated below, the motion to dismiss should be granted.
I. PROCEDURAL HISTORY
State Trial Proceedings
On February 5, 2013, the Hamilton County, Ohio, grand jury returned a two-count
indictment charging petitioner with one count each of aggravated robbery and robbery. (Doc. 7,
Ex. 1). The aggravated robbery count included two firearm specifications.
On August 12, 2013, petitioner withdrew his prior plea of not guilty and entered a guilty
plea to robbery and one firearm specification. (See Doc. 7, Ex. 2). After accepting petitioner’s
guilty plea (Doc. 7, Ex. 3), on September 4, 2013 the trial court sentenced petitioner to a total
aggregate prison sentence of six years in the Ohio Department of Corrections. (Doc. 7, Ex. 5).
Petitioner did not file a direct appeal of his conviction and sentence.
Post-Conviction Petition
On June 25, 2014, the trial court appointed petitioner counsel. (Doc. 7, Ex. 6). On June

7, 2015, through appointed counsel, petitioner filed a petition for post-conviction relief and
motion to withdraw his guilty plea. (Doc. 7, Ex. 7, 8). Petitioner raised the following three
grounds for relief in his petition:
1. Bronson’s guilty plea is invalid on its face and was not made in a knowing and
voluntary, or intelligent frame of mind on the basis of several factors, all of
which were either plainly evident or caused by the trial court. Accordingly,
Bronson’s plea runs contrary to Ohio law and his state and federal constitutional
rights on several counts. Therefore, the trial court should never have accepted
Bronson’s guilty plea, or at a minimum the court should have vacated Bronson’s
guilty plea at the sentencing hearing.
2. Trial counsel provided constitutionally ineffective assistance of counsel in
violation of the Sixth Amendment through a series of omissions which: (1) left
Bronson uninformed about (a) the maximum sentence he faced for all charges
in the indictment, and (b) the nature and potential consequences of the charges
involved in the guilty plea and resulting convictions; and (2) resulted in the trial
court accepting (and not vacating) an invalid guilty plea.
3. The trial court failed to advise Bronson of his appellate rights on the record in
violation of his state and federal due process and equal protection rights.
(Doc. 7, Ex. 7). On July 1, 2015, the trial court denied the post-conviction petition, finding that
it had no jurisdiction to entertain the petition because petitioner failed to meet the requirements
for filing a late petition, as set forth in Ohio Rev. Code § 2953.23(A). 1 (Doc. 7, Ex. 11).
Petitioner, through counsel, filed a notice of appeal. (Doc. 7, Ex. 12). In his appellate
brief, petitioner raised the following four assignments of error:
1. The trial court erroneously determined that it lacked jurisdiction to consider
Bronson’s post-conviction petition, because Bronson satisfied the factors
delineated in ORC 2953.23(A). Therefore, the trial court should have
considered his petition and granted him relief, or at a minimum, granted him a
1

Under Ohio Rev. Code § 2953.23(A), petitioner was required to demonstrate that he was unavoidably prevented
from discovery of the facts upon which he must rely to present the claim for relief or that petitioner’s claim for relief
relies on a new, retroactive federal or state right recognized by the United States Supreme Court and that, but for the
constitutional error at trial, no reasonable fact finder would have found petitioner guilty of the offenses of which he
was convicted. See Ohio Rev. Code § 2953.23(A)(1)(a, b).

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hearing on the petition.
2. Bronson’s guilty plea is invalid on its face and was not made in a knowing and
voluntary, or intelligent frame of mind on the basis of several factors, all of
which were either plainly evident or caused by the trial court. Accordingly,
Bronson’s plea runs contrary to Ohio law and his state and federal constitutional
rights on several counts. Therefore, the trial court should never have accepted
Bronson’s guilty plea, or at a minimum the court should have vacated Bronson’s
guilty plea at the sentencing hearing.
3. Trial counsel provided constitutionally ineffective assistance of counsel in
violation of the Sixth Amendment through a series of omissions which: (1) left
Bronson uninformed about (a) the maximum sentence he faced for all charges
in the indictment, and (b) the nature and potential consequences of the charges
involved in the guilty plea and resulting convictions; and (2) resulted in the trial
court accepting (and not vacating) an invalid guilty plea.
4. The trial court failed to advise Bronson of his appellate rights on the record in
violation of his state and federal due process and equal protection rights.
(Doc. 7, Ex. 13). On October 5, 2016, the Ohio Court of Appeals found that the trial court
lacked jurisdiction to consider the post-conviction petition because petitioner failed to meet the
statutory requirements for filing a late petition, as set forth in Ohio Rev. Code § 2953.23(A).
The appeals court modified the trial court’s judgment to reflect a dismissal of the petition and
affirmed the judgment as modified. (Doc. 7, Ex. 15).
Petitioner, again through counsel, filed a notice of appeal to the Ohio Supreme Court.
(Doc. 7, Ex. 16). In his memorandum in support of jurisdiction, petitioner raised the following
six propositions of law:
1. A defendant who satisfies the factors in ORC 2953.23(A) for filing a postconviction petition beyond the 365-day timeframe outlined in ORC
2953.23(A)(2) based on proving the invalidity of his guilty plea, need not prove
his innocence, in addition to proving the invalidity of his guilty plea, in order
for the court to find that he has satisfied the jurisdictional requirement in ORC
2953.23(A)(1)(b) that “no reasonable fact finder would have found him guilty”
but for the Constitutional violation.
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2. A defendant satisfies the factors in ORC 2953.23(A) for failing to file a postconviction petition within the 365-day timeframe outlined in ORC
2953.23(A)(2) when clear and convincing evidence exists that: (1) the
petitioner undisputedly was never informed of his due process rights to appeal
his conviction and sentence and to have appellate counsel appointed; (2) his
grounds for relief warrant reversal.
3. A guilty plea is not made in a knowing, voluntary, or intelligent frame of mind
(thus invalidating the guilty plea) when: (1) in his presentence investigation
interview, the defendant makes a statement claiming innocence to an essential
element of the charge involved; (2) the defendant is unaware that he is pleading
guilty to a gun specification carrying a mandatory prison term; (3) the defendant
is unaware of the maximum potential sentence in the event he pursues a trial;
(4) the defendant has a history of mental health disorders; and (5) the defendant
exhibits trouble concentrating during his guilty plea hearing, PSI, and
sentencing. In these circumstances, the trial court should not accept the guilty
plea, or vacate the guilty plea at the sentencing hearing.
4. When a defendant claims actual innocence to an essential element of a charge,
the trial court must further inquire before accepting a guilty plea to the charge.
5. Trial counsel provides constitutionally ineffective assistance through a series of
omissions that: (1) leave the defendant uninformed about (a) the maximum
sentence he faced for all charges in the indictment, and (b) the nature and
potential consequences of the charges involved in the guilty plea and resulting
convictions; and (2) result in the trial court accepting (and not vacating) an
invalid guilty plea.
6. A trial court’s failure to advise a defendant of his appellate rights on the record
violates the defendant’s state and federal due process and equal protection
rights.
(Doc. 7, Ex. 17). On June 21, 2017, the Ohio Supreme Court declined jurisdiction over the
appeal. (Doc. 7, Ex. 18).
Federal Habeas Corpus
On October 20, 2017, petitioner, acting pro se, commenced the instant federal habeas

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corpus action. 2 (See Doc. 8 at PageID 88). Petitioner raises the following three grounds for
relief in the petition:
GROUND 1: Trial court failed to advise Bronson of his appellate rights on the
record in violation of his due protection (sic) rights
Supporting Facts: As demonstrated in Bronson transcripts the trial court failed to
inform him of his appellate rights on the record at his trial hearing. Bronson was
prejudiced by this stand-alone violation of his state and federal constitutional rights
to due process.
GROUND 2: Trial counsel provided constitutionally ineffective assistance of
counsel in Violation of Bronson’s Sixth Amendment. (sic).
Supporting Facts: 1 Failing to correctly inform Bronson of the maximum sentence
he could have faced for all charges in his indictment, such that he would properly
assess whether he wanted to accept a plea bargain. 2 Failing to ensure that Bronson
understood to what charges he was pleading guilty to along with the nature of the
charge and potential consequence of a conviction 3 Failing to ensure that Bronson
understood and was advised by trial court on the record of his appellate rights. (sic).
GROUND 3: Bronson guilty plea is invalid on its face and was not made in a
knowing, voluntary or intelligent frame of mind.
Supporting Facts: As seen in Bronson transcripts, trial counsel never explained
that Bronson’s guilty plea to his robbery charge was attached with a gunspecification. Also at Bronson plea hearing trial counsel never required Bronson to
acknowledge his gun-specification charge separate and apart from his original
charge on the record.
(Doc. 3).
Respondent has filed a motion to dismiss the petition on statute of limitations grounds.
(Doc. 8). Petitioner opposes the motion to dismiss. (Doc. 9).

2

Petitioner indicates that he placed his petition in the prison mailing system on October 23, 2017, however the
petition was received by the Court prior to that date, on October 20, 2017. (See Doc. 1; Doc. 3 at PageID 54).

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II. RESPONDENT’S MOTION TO DISMISS SHOULD BE GRANTED
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.
In this case, there is no evidence in the record in this case to suggest that the provisions
set forth in §§ 2244(d)(1)(B) through (D) apply to petitioner’s grounds for relief. Petitioner has
not alleged that a State created impediment prevented him from filing the instant petition or that
his claims are governed by a newly recognized constitutional right made retroactively applicable
to his case. Furthermore, petitioner’s grounds for habeas relief are based on alleged errors that
occurred during the trial court proceedings. Since petitioner was aware of the facts underlying
his claims by the close of the direct review, his grounds for relief are governed by the one-year
statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A), which began to run when
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petitioner’s conviction became final “by the conclusion of direct review or the expiration for the
time for seeking such review.”
Petitioner has raised in his first ground for relief the claim that the trial court neglected to
inform him of his right to appeal at trial. To the extent that petitioner may contend that this
constituted a state-created impediment to filing a timely habeas petition or that he was not aware
of the factual predicate until after the close of direct review, such an argument is unavailing.
Petitioner has not demonstrated that he could not have determined that he had the right to appeal
through the exercise of due diligence prior to the expiration of time to file his direct appeal. In
any event, even if the Court were to conclude that petitioner’s conviction did not become final
until June 25, 2014 (when the trial court appointed petitioner counsel) or June 7, 2015 (the date
on which petitioner filed his motion to withdraw guilty plea), the limitations period ended on
June 8, 2016 at the latest. Because, for the reasons stated below, petitioner is not entitled to
statutory or equitable tolling, the statute of limitations expired more than a year before petitioner
filed his October 20, 2017 petition.
Under § 2244(d)(1)(A), petitioner’s conviction became final on October 4, 2013, upon
expiration of the 30-day period for filing an appeal as of right from the trial court’s September 4,
2013 final judgment entry. See Ohio R. App. P. 4(A). The statute commenced running on
October 7, 2013, the next business 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
October 7, 2014, absent the 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 post7

conviction relief or other collateral review. See 28 U.S.C. § 2244(d)(2); see also Holland v.
Florida, 560 U.S. 631, 635 (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 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.
No statutory tolling applies under Section 2244(d)(2) to extend the limitations period in
this case. The statute of limitations had run for 608 days before petitioner filed his June 7, 2015
post-conviction petition. Because petitioner’s petition was filed after the one-year statute of
limitations had already expired, statutory tolling would not serve to extend the limitations period.
Vroman, 346 F.3d at 602. Furthermore, even if the motion was filed within the applicable
limitations period, the petition was untimely and therefore not properly filed. As noted above,
the trial court determined that petitioner failed to meet the statutory requirements for filing a late

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petition. Therefore, petitioner is not entitled to statutory tolling based on the untimely petition.
See Allen, 552 U.S. at 5-6; see also Pace, 544 U.S. at 413-14; Vroman, 346 F.3d at 603.
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)).
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 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 five-factor 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. 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 has not demonstrated that he is entitled to equitable tolling in this case. In
response to the motion to dismiss, petitioner argues that his conviction did not become final until
the Ohio Supreme Court declined jurisdiction over his appeal from the denial of his untimely
post-conviction petition. (See Doc. 9 at PageID 296). However, as noted above, petitioner’s
post-conviction petition does not restart the limitations period and petitioner’s conviction and
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sentence became final on October 4, 2013, more than four years before he filed his October 20,
2017 federal habeas petition. Petitioner has not otherwise demonstrated that he has been
pursuing his rights diligently or that an extraordinary circumstance prevented him from filing a
timely petition. The Sixth Circuit has indicated that the relevant inquiry in determining whether
equitable tolling applies is whether petitioner was diligent in pursuing federal habeas relief. In
this case, petitioner waited 1,213 days to file his habeas petition after he was appointed counsel
and was unquestionably aware of his right to appeal. (Doc. 7, Ex. 6). Petitioner’s decision to
proceed solely in the state courts demonstrates a lack of diligence. Vroman, 346 F.3d at 605
(finding that the petitioner’s decision to proceed solely in state court “rather than filing his
federal habeas petition and protecting his federal constitutional rights, demonstrates a lack of
diligence”). See also Wells v. Harry, No. 17-1476, 2017 WL 9248730, at *2 (6th Cir. Nov. 15,
2017) (noting that the Sixth Circuit has repeatedly held that a petitioner’s reliance on his attorney
is not ground for equitable tolling).
Finally, petitioner has neither argued nor otherwise demonstrated that the procedural bar
to review should be excused based on a colorable showing of actual innocence. “To invoke the
miscarriage of justice exception to AEDPA’s statute of limitations, . . . a petitioner ‘must show
that it is more likely than not that no reasonable juror would have convicted him in the light of . .
. new evidence.’” McQuiggin v. Perkins,

U.S.

, 133 S.Ct. 1924, 1935 (2013) (quoting

Schlup v. Delo, 513 U.S. 298, 327 (1995)). No such showing has been made in this case.
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.
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IT IS THEREFORE RECOMMENDED THAT:
1. Respondent’s motion to dismiss (Doc. 8) be GRANTED, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (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 any of the claims for
relief alleged in the petition, which this Court has concluded are 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. 3
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
Stephanie K. Bowman
United States Magistrate Judge

3

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
DANIEL BRONSON,
Petitioner,

Case No. 1:17-cv-701
Black, J.
Bowman, 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).

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