Clark v. Warden, Warren Correctional Institution

Filing 17

REPORT AND RECOMMENDATIONS - IT IS RECOMMENDED THAT: (1) Respondent's motion to dismiss 7 be GRANTED and Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 3 be DISMISSED with prejudice; 2. Petitioner� 39;s motions to amend 5 and to stay proceedings 14 be DENIED; (3) A certificate of appealability should not issue with respect to any of Petitioner's time-barred claims; (4) 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 for ma pauperis upon a showing of financial necessity. Objections to R&R due by 2/15/2019. Signed by Magistrate Judge Stephanie K. Bowman on 2/1/2019. (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
TERRY CLARK,
Petitioner,

Case No. 1:18-cv-263
Barrett, J.
Bowman, M.J.

vs.
WARDEN, WARREN
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND
RECOMMENDATION

Petitioner, an inmate currently in state custody at the Ross Correctional Institution (see
Doc. 16), 1 in Chillicothe, Ohio, has filed a pro se petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254. This matter is before the Court on respondent’s motion to dismiss. (Doc. 7).
Also before the Court are petitioner’s motions to amend the amount of damages requested in the
petition (Doc. 5) and to stay proceedings to allow him to exhaust a motion to vacate judgment
and conviction currently pending in the state courts (Doc. 14).
I.

PROCEDURAL HISTORY
State Convictions and Sentences
In 2013, the Hamilton County, Ohio, grand jury returned an indictment charging

petitioner with one count of murder, in violation of Ohio Rev. Code § 2903.02(A), with
specifications (Count One), one count of murder, in violation of Ohio Rev. Code § 2903.02(B),
with specifications (Count Two), one count of felonious assault, in violation of Ohio Rev. Code
§ 2903.11(A)(2), with specifications (Count Three), one count of felonious assault, in violation
of Ohio Rev. Code § 2903.11(A)(1), with specifications (Count Four), one count of having
weapons while under disability, in violation of Ohio Rev. Code § 2923.13(A)(2) (Count Five),

1

As reflected in the case caption, petitioner was incarcerated at the Warren Correctional
Institution at the time he filed this action. (See Doc. 9).

and one count of having weapons under disability, in violation of Ohio Rev. Code
§ 2923.13(A)(3) (Count Six). (Doc. 6, Ex. 1). Petitioner, though counsel, entered a plea of not
guilty. (See Doc. 6, Ex. 4). Petitioner’s case proceeded to a bench trial. (Doc. 6, Ex. 2).
During trial, the court became aware of an episode of witness intimidation, ordered
anyone entering the courtroom to present a valid form of identification, and banned cellphones
from the courtroom. (See Doc. 6, Ex. 9, at PageID 196). 2 On April 16, 2015, the court found
petitioner guilty of Counts Two through Four but acquitted him of Counts One and Six. (Doc. 6,
Exs. 3, 4). Petitioner was sentenced to an aggregate prison term of 18 years to life. (Doc. 6, Ex.
3, at PageID 151).
Direct Criminal Appeal
Petitioner, though counsel, filed an appeal to the Ohio Court of Appeals on May 8, 2015.
(Doc. 6, Ex. 5). Petitioner raised the following four issues on appeal:
1. The Right to A Public Trial is a Fundamental Constitutional Guarantee Under the
United States and Ohio Constitutions. The Presumption of a Open, Public Trial
Can Only be Overcome Based on Findings Closure is Essential to Preserve Higher
Values and is Narrowly Tailored to Serve the Interest. The Trial Court Must Satisfy
Four Requirements to Properly Close the Courtroom. Did the Trial Court Violate
[Petitioner’s] Right to a Public Trial by Clearing and Closing the Courtroom
Without Satisfying any of the Four Requirements?
2. [Petitioner’s] Constitutional Rights Under the Untied States and Ohio Constitutions
Were Violated When Proceedings Were Conducted When [Petitioner] was not
Present in the Courtroom.
3. The Constitution Prohibits a Conviction Which is Against the Manifest Weight of
the Evidence. A Court May Not Convict a Defendant Where the Trier-of-Fact
Loses its Way in Weighing the Evidence. Was [Petitioner’s] Conviction a Manifest
Miscarriage of Justice?
2

The Ohio Court of Appeals set forth the facts of this case on direct appeal. (See Doc. 6,
Ex. 8). These binding factual findings “shall be presumed to be correct.” 28 U.S.C. § 2254(e).
2

4. Use of Felonious Assault as the Predicate Felony for [Petitioner’s] Conviction of
Felony Murder Violates [Petitioner’s] Due Process Rights Guaranteed in The
United States and Ohio Constitutions.
(Doc. 6, Ex. 6). On March 11, 2016, the Ohio Court of Appeals affirmed the trial court’s
judgment. (Doc. 6, Ex. 8). Petitioner appealed to the Ohio Supreme Court (Doc. 6, Ex. 9),
raising the following issue:
1. A trial court should use the criteria set forth in Waller v. Georgia, [467 U.S. 39
(1984)], and State v. Drummond, [854 N.Ed.2d 1038 (Ohio 2006)], before
imposing an identification requirement that excludes some members of the
public from attending a criminal trial.
(Doc. 6, Ex. 10). On July 27, 2016, the Ohio Supreme Court declined to accept jurisdiction
pursuant to Ohio S. Ct. Rule 7.08(B)(4). (Doc. 6, Ex. 12).
On January 17, 2017, the United States Supreme Court denied certiorari. (Doc. 6, Ex.
13).
State Post-Conviction Motions
On June 8, 2016, petitioner, through counsel, filed an application to reopen his direct
appeal, pursuant to Ohio App. Rule 26(b). (Doc. 6, Ex. 14). Therein, he alleged that he was
denied effective assistance of appellate counsel. (Id.). On September 28, 2016, the Ohio Court
of Appeals denied the application to reopen. (Doc. 6, Ex. 16). The Ohio Supreme Court
declined further review, pursuant to Ohio S. Ct. R. 7.08(B)(4). (Doc. 6, Ex. 20).
On March 27, 2018, petitioner filed a pro se motion to vacate judgment and conviction in
the trial court, asserting that the original criminal complaint filed against him in the Hamilton
County Municipal Court failed to allege the culpable mental state for murder. (See Doc. 6, Ex.
21). The trial court denied the motion on May 29, 2018. (Doc. 6, Ex. 23). It appears that
3

petitioner appealed the denial of his motion to vacate, and the matter is currently pending before
the Ohio Court of Appeals. 3
Federal Habeas Petition
Petitioner filed his pro se habeas petition on April 9, 2018, 4 raising the following four
grounds:
GROUND ONE: In his first assignment of error, petitioner argues that the trial
court’s closure of the court room violated his constitutional rights to a public trial.
GROUND TWO: In his second assignment of error, petitioner argues that the trial
court violated his constitutional right to be present at all stages of the proceedings
pursuant to Crim. R. 43(A).
GROUND THREE: In his third assignment of error, petitioner argues that his
conviction for murder is against the manifest weight of the evidence.
GROUND FOUR: In his fourth assignment of error, petition argues that the use
of felonious assault as the predicate offense for his felony murder conviction
violated his due process rights. United States v. Berger, [73 F.2d 278 (2d Cir.
1934)].
(Doc. 3).
Respondent has filed a motion to dismiss the petition on the grounds that it is barred by
the applicable one-year statute of limitations governing federal habeas actions by state prisoners,
which is set forth in 28 U.S.C. § 2244(d). (Doc. 7). Petitioner has filed a response in opposition.

3

See State v. Clark, No. C 1800370 (Ohio App.), viewed at the Hamilton County Clerk of Courts website,
www.courtclerk.org. The Court may take judicial notice of court records that are available on-line to members of
the public. See Lynch v. Leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d 327, 332 n.3
(6th Cir. 1999)).
4
The petition was filed with the Court on April 17, 2018. (See Doc. 3). However, petitioner executed the
petition on April 9, 2018. (See Doc. 3 at PageID 85). Under Houston v. Lack, 487 U.S. 266 (1988), 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 In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). It is presumed for purposes
of respondent’s motion to dismiss (Doc. 7) that the federal habeas corpus petition was “filed” on April 9, 2018, the
date petitioner executed it.

4

(Doc. 12).
II.

THE MOTION TO DISMISS 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.
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. Since petitioner was aware of the facts underlying his grounds for relief by the close of

5

direct review, his federal habeas petition is governed by the one-year statute of limitations set
forth in 28 U.S.C. § 2244(d)(1)(A), which began to run when petitioner’s convictions became
final “by the conclusion of direct review or the expiration for the time for seeking such review.”
Under § 2244(d)(1)(A), petitioner’s convictions became final on January 17, 2017, upon
the United States Supreme Court’s denial of his petitioner for a writ of certiorari. (See Doc. 6,
Ex. 13). The statute commenced running on January 18, 2017, 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 January 18, 2018, 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 postconviction 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. A Rule 26(B)
application for reopening is deemed a collateral post-conviction motion. See Lopez v. Wilson,
426 F.3d 339, 340-41 (6th Cir. 2005) (en banc).
The statute of limitations was tolled on January 17, 2017 (the date petitioner’s
convictions became final) by petitioner’s appeal from the denial of his Rule 26(B) application to
6

reopen, which was then pending in the Ohio Supreme Court. (See Doc. 6, Ex. 17). As the Ohio
Supreme Court denied review on January 25, 2017 (Doc. 6, Ex. 20), the limitations period began
running on January 26, 2017, and expired one year later on January 26, 2018. 5 Because
petitioner’s March 27, 2018 motion to vacate judgment and conviction was filed after the
expiration of the limitations period, it had no effect on the limitations period. 6 See Vroman, 346
F.3d at 602.
In his opposition to respondent’s motion to dismiss, petitioner asserts that, in addition to
the four grounds for relief listed in the petition, he is also challenging the validity of the original
criminal complaint filed against him in the Hamilton County Municipal Court. (See Doc. 12, at
PageID 379). Construing the petition liberally, it appears that petitioner does challenge the
validity of the original criminal complaint. (See Doc. 3, at PageID 76-81, 133). It also appears
that petitioner asserts that he was entitled to a pretrial psychiatric examination and denied
effective assistance of counsel in the municipal court, at trial, and on appeal. (See id.).
Assuming, without deciding, that petitioner properly pleaded these additional claims in
his federal habeas petition, it does not alter this Court’s statute-of-limitations analysis. As
previously stated, petitioner has not alleged that a state-created impediment prevented him from

5

Petitioner was not entitled to an additional 90 days of tolling of the limitations period in which he could
have petitioned for certiorari to the United States Supreme Court. His Rule 26(B) application is considered an
application for state post-conviction relief, see Lopez, 426 F.3d at 340-41, which, unlike “direct review” of a
conviction, is not subject to an additional 90 days of tolling. Lawrence v. Florida, 549 U.S. 327, 337 (2007).
6
In his motion to stay proceedings, petitioner states that the motion to vacate judgment and conviction was
filed in the trial court on February 27, 2018. (Doc. 14, at PageID 398). It appears that this was the date petitioner
executed the motion. (See Doc. 6, Ex. 21, at PageID 330). The motion, however, is file-stamped March 27, 2018.
(See id. at PageID 320). The Ohio Supreme Court has rejected the federal mailbox rule. See Vroman, 346 F.3d at
604. In any event, even if the motion to vacate judgment and conviction had been filed on February 27, 2018, it still
would have been filed after the expiration of the statute-of-limitations period and, thus, would not have served to toll
the limitations period. See id. at 602.

7

filing the instant petition or that his claims are governed by a newly recognized constitutional
right made retroactively applicable to his case. See 28 U.S.C. § 2244(d)(1)(B), (C). Nor has
petitioner established that he is entitled to a later limitations start date under 28 U.S.C.
§ 2244(d)(1)(D). Each of the additional claims is connected to events that would have occurred
prior to the close of direct review in the state courts. Petitioner has not established that he could
not have discovered the factual predicates for these claims through the exercise of due diligence
until a date after the statute of limitations began running under § 2244(d)(1)(A). See DiCenzi v.
Rose, 452 F.3d 465, 471 (6th Cir. 2006) (“[T]he petitioner bears the burden of proving that he
exercised due diligence, in order for the statute of limitations to begin running from the date he
discovered the factual predicate of his claim, pursuant to 28 U.S.C. § 2244(d)(1)(D).”).
On the record before the Court, the AEDPA limitations period expired as to petitioner’s
claims on January 26, 2018, and this petition is time-barred absent equitable tolling.
Equitable Tolling
The AEDPA’s statute of limitations is subject to equitable tolling, see Holland, 560 U.S.
at 645, “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, 560 U.S. at 649 (internal quotations omitted)); see also
Pace, 544 U.S. at 418. Although the Sixth Circuit previously utilized a five-factor approach in
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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 asserts in his response in opposition to respondent’s motion to dismiss that he
“tr[ied] to get an [e]xtension of time to file Habeas Corpus.” (Doc. 12, at PageID 381). He
further asserts that “[s]ince [he] didn’t have a case number he couldn’t get an extension.” (Id.).
Petitioner attaches to his response a copy of a January 12, 2018 letter to the Court “requesting for
extension of time to file habeas corpus” (Doc. 12, at PageID 385) and an envelope addressed to
petitioner from the Court dated January 25, 2018 (Doc. 3, at PageID 384). Even assuming,
arguendo, that petitioner sent the attached letter on January 12, 2018, and it was returned to him
unfiled on January 25, 2018, petitioner then waited over two months, until April 9, 2018, to file
his petition for habeas corpus relief. Petitioner does not assert that he was prevented from filing
the habeas petition before April 9, 2018. Rather, it appears from the record that instead of
pursuing his federal claims, petitioner returned to the state courts to file a motion to vacate
judgment and conviction. (See Doc. 6, Ex. 21). Petitioner’s efforts in state court do not merit
equitable tolling with respect to the deadline for filing his § 2254 petition. See 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”).
9

Further, it is well-settled in the Sixth Circuit that petitioner’s pro se status or lack of legal
knowledge are not sufficient to warrant equitable tolling. See, e.g., 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 limitations”). Moreover, to the extent
that petitioner argues that he is entitled to equitable tolling on the basis of ineffective assistance
of counsel (see Doc. 3, at PageID 82, 84), petitioner has not alleged how counsel’s alleged
ineffectiveness prevented him from timely filing his petition. Indeed, in a letter attached to the
petition, it appears that the attorney who represented petitioner on the Rule 26(B) application to
reopen informed petitioner in January 2017 of the January 2018 due date of his federal habeas
petition. (See Doc. 3, at PageID 87). Petitioner has failed to demonstrate that he was diligent in
pursuing his rights and is not entitled to equitable tolling.
Finally, petitioner has not 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.
III.

PETITIONER’S MOTIONS TO AMEND AND TO STAY PROCEEDINGS
SHOULD BE DENIED.
In light of the Court’s recommendation to dismiss the petition (Doc. 3) with prejudice as

barred by AEDPA’s statute of limitations, the Court further recommends that petitioner’s
motions to amend the amount of damages requested in the petition (Doc. 5) and to stay

10

proceedings to allow him to exhaust the motion to vacate judgment and conviction currently
pending in the state courts (Doc. 14) be DENIED.
Accordingly, the undersigned concludes that petitioner’s federal habeas corpus petition
(Doc. 3) is time-barred. 7 Therefore, the motion to dismiss (Doc. 7) should be GRANTED and
the petition for a writ of habeas corpus (Doc. 3) should be DISMISSED with prejudice. In light
of the recommendation to dismiss this action with prejudice, it is further recommended that
petitioner’s motions to amend (Doc. 5) and to stay proceedings (Doc. 14) be DENIED.
IT IS THEREFORE RECOMMENDED THAT:
1. Respondent’s motion to dismiss (Doc. 7) be GRANTED and petitioner’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 3) be DISMISSED with prejudice.
2. Petitioner’s motions to amend (Doc. 5) and to stay proceedings (Doc. 14) be
DENIED.
3. A certificate of appealability should not issue with respect to any of petitioner’s timebarred claims 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 that such claims are subject to dismissal on statute of
limitations grounds. 8
4. 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

7

Because this Court recommends finding that the petition is barred by the applicable statute of limitations,
it need not consider whether petitioner’s claims are exhausted or procedurally defaulted.
8
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.

11

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

12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TERRY CLARK,
Petitioner,

Case No. 1:18-cv-263
Barrett, 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).

13