Wilson v. Haviland

Filing 10

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by George Wilson. IT IS RECOMMENDED THAT: (1) The petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 1 be DENIED with prejudice on the ground that t he 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; (3) With respect to any application by petitioner to proceed on appea l 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 f orma pauperis upon a showing of financial necessity. Objections to R&R due by 6/19/2019. Signed by Magistrate Judge Stephanie K. Bowman on 6/5/2019. (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
GEORGE WILSON,
Petitioner,

Case No. 1:18-cv-276
Black, J.
Bowman, M.J.

vs.
WARDEN, ALLEN
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND
RECOMMENDATION

Petitioner, an inmate in state custody at the Allen Correctional Institution, has filed a pro
se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is
before the Court on respondent’s return of writ (Doc. 9), to which petitioner has not responded.
For the reasons stated below, the undersigned recommends that the petition be denied on the
ground that petitioner’s habeas corpus petition is time-barred pursuant to 28 U.S.C. § 2241(d)(1).
I. PROCEDURAL HISTORY
State Trial Proceedings and Direct Appeal
On October 3, 2002, the Hamilton County, Ohio, grand jury returned a seven-count
indictment charging petitioner with two counts of felonious assault and one count each of
aggravated robbery, robbery, tempering with evidence, having weapons while under disability,
and attempted murder. (Doc. 8, Ex. 1). Petitioner, through counsel, filed a motion to suppress a
lineup identification prior to trial. 1 (Doc. 8, Ex. 9). The motion was denied by the trial court.
(Doc. 8, Ex. 10).
Following a jury trial, petitioner was found guilty of all counts with the exception of the
charges of robbery and attempted murder. (Doc. 8, Ex. 15, 16). On June 19, 2003, petitioner

1

Petitioner also filed a notice of alibi through counsel (Doc. 8, Ex. 11), as well as pro se motions to examine
medical tests and to suppress seized evidence. Both motions were denied by the trial court. (See Doc. 8, Ex. 8).

was sentenced to a total aggregate prison sentence of twenty-seven years in the Ohio Department
of Corrections. (Doc. 8, Ex. 18).
On July 17, 2003, petitioner, through counsel, filed a timely notice of appeal to the Ohio
Supreme Court. (Doc. 8, Ex. 20). In his single assignment of error, petitioner argued that
insufficient evidence was presented at trial to support his aggravated robbery conviction. 2 (Doc.
8, Ex. 23). On August 25, 2004, the Ohio Court of Appeals overruled petitioner’s assignment of
error and affirmed the judgment of the trial court. (Doc. 8, Ex. 29).
Petitioner did not appeal to the Ohio Supreme Court from the Ohio Court of Appeals’
decision.
Application to Reopen Appeal
Petitioner filed an application to reopen his appeal pursuant to Ohio App. R. 26(B) on
November 29, 2004. (Doc. 8, Ex. 30). By entry issued March 11, 2005, the Ohio Court of
Appeals denied petitioner’s application, finding the application to be untimely. (Doc. 8, Ex. 32).
Petitioner did not seek further review in the Ohio Supreme Court.
Petition to Vacate or Set Aside Sentence
Meanwhile, on January 2, 2004, petitioner field a motion to vacate or set aside sentence.
(Doc. 8, Ex. 33). The petition was denied as untimely by the trial court on January 13, 2004.
(Doc. 8, Ex. 37).

2

Petitioner subsequently filed a motion to remove his appellate counsel and to file a substitute pro se brief. (Doc. 8,
Ex. 25). The appeals court overruled his motion to remove counsel, but granted petitioner an extension of time to
file a supplemental appellate brief. (Doc. 8, Ex. 26). Petitioner filed a motion for an additional extension of time,
which was denied by the appeals court. (Doc. 8, Ex. 27, 28).

2

Motion to Vacate and Correct a Void Sentence
Next, on January 31, 2012, petitioner field a motion to vacate and correct a void sentence,
alleging that the trial court failed to properly impose post-release control and that his convictions
for felonious assault and aggravated robbery constituted allied offenses of similar import. (Doc.
8, Ex. 38). The trial court denied petitioner’s motion on February 2, 2012. (Doc. 8, Ex. 39).
Petitioner appealed the trial court’s decision, but the Ohio Court of Appeals dismissed the
appeal for petitioner’s failure to comply with Ohio App. R. 4(A) or to file a motion for delayed
appeal pursuant to Ohio App. R. 5(A). (Doc. 8, Ex. 40, 41).
Petitioner subsequently filed a motion for a delayed appeal, which was granted by the
Ohio appeals court. (Doc. 8, Ex. 42, 43, 44). On May 3, 2013, the Ohio Court of Appeals
affirmed the judgment of the trial court, but remanded the case for resentencing so that postrelease control could be properly imposed. (Doc. 8, Ex. 47).
Resentencing
On July 25, 2013, after appointing petitioner counsel, the trial court resentenced
petitioner to the same twenty-seven-year prison term. The trial court notified petitioner of the
applicable post-release control terms, the consequences of violating the terms, and imposed postrelease control. (Doc. 8, Ex. 49).
Petitioner did not file an appeal from the resentencing.
Post-Conviction Relief
On August 1, 2016, petitioner filed a pro se motion for judicial release, which was denied
by the trial court on August 11, 2016. (Doc. 8, Ex. 50, 51).
Petitioner also filed unsuccessful pro se motions for findings of fact and conclusions of
3

law and to vacate and correct a void sentence. (Doc. 8, Ex. 52, 53, 55).
Application to Reopen
Finally, on July 11, 2017, petitioner filed a second application to reopen his appeal
pursuant to Ohio App. R. 26(B). (Doc. 8, Ex. 56). Petitioner argued that his appellate counsel
was ineffective for failing to raise issues regarding the ineffectiveness of trial counsel and his
consecutive sentences. Petitioner’s application was denied on August 28, 2017. (Doc. 8, Ex.
58). The Ohio Court of Appeals found his application successive and his claims barred by the
doctrine of res judicata. (See id.).
Petitioner did not seek further review in the Ohio Supreme Court.
Federal Habeas Corpus
On April 9, 2018, petitioner commenced the instant federal habeas corpus action. 3 (See
Doc. 1 at PageID 16). Petitioner raises the following two grounds for relief in the petition:
GROUND ONE: Defendant/Petitioner was deprived and denied effective
assistance of counsel on direct appeal as guaranteed by the 6th & 14th Amendments
to the U.S. Const. where appellate counsel failed to assign on direct appeal
ineffective assistance of counsel.
GROUND TWO: Defendant/Petitioner was deprived and denied effective
assistance of counsel on direct appeal as guaranteed by the 6th & 14th Amendments
to the U.S. Const. where appellate counsel failed to assign on direct appeal the
disparity in his sentence, as a 1st time offender, is unwarranted in violation of due
process & R.C. 2953.08(A)(4), sentence in contrary to law.
(Id. at PageID 5, 7).

3

The petition was filed with the Court on April 12, 2018. (See Doc. 1). Petitioner avers, however, that he placed
the petition in the prison mailing system for delivery to the Court on April 9, 2018. (See Doc. 1 at PageID 16).
Because 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 that the petition was “filed” on April 9, 2018.

4

Respondent has filed a return of writ. (Doc. 9). As noted above, petitioner has not
responded.
II. THE PETITION SHOULD BE DENIED AS 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. Furthermore, petitioner’s grounds for habeas relief are based on alleged errors that
occurred at trial and during his direct appeal. Because petitioner was aware of the facts
5

underlying his claims or the claims could have been discovered through the exercise of due
diligence 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
petitioner’s conviction became final “by the conclusion of direct review or the expiration for the
time for seeking such review.”
In this case, however, petitioner was resentenced on July 25, 2013 so that petitioner could
be properly informed of post-release control. (Doc. 8, Ex. 49). See Crangle v. Kelly, 838 F.3d
673, 680 (6th Cir. 2016) (holding that a nunc pro tunc order issued to inform a defendant of postrelease control amounts to a new judgment that resets AEDPA’s one-year statute of limitations
period). Although respondent argues that the new sentence imposed did not amount to a worsethan-before sentence that would reset the limitations period, 4 assuming in petitioner’s favor that
the limitations was reset by the resentencing the petition is still time-barred. As noted above,
petitioner did not appeal from the resentencing. Therefore, his conviction and sentence became
final on August 26, 2013, upon the expiration of the 30-day period for filing his direct appeal
expired. 5 See Ohio R. App. P. 4(A). The statute commenced running on August 27, 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 August 27, 2014,
absent the application of statutory or equitable tolling principles.

4

In Crangle, the Sixth Circuit noted that only a “new, worse-than-before sentence . . . amounts to a new judgment.”
Crangle, 838 F.3d at 678. Because the petition is time-barred even if the limitations period was reset by petitioner’s
resentencing, the Court need not determine whether petitioner’s case is distinguishable from Crangle, as respondent
contends. (See Doc. 8 at PageID 451).
5

Because the 30-day time period ended on Saturday, August 24, 2013, petitioner had until Monday, August 26,
2013 to file a timely direct appeal.

6

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.
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 1,070 days before petitioner filed his August 26,
2016 motion for judicial release, the first of his post-conviction motions. Because petitioner’s
subsequent motions were all 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.
The AEDPA’s statute of limitations is subject to equitable tolling, see Holland, 560 U.S.
7

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
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 argued nor does the record otherwise indicate that he is entitled to
equitable tolling in this case. Petitioner does state that he did not have constructive knowledge
of federal habeas corpus until July of 2017. (See Doc. 1 at PageID 14). However, it is wellsettled in the Sixth Circuit that petitioner’s pro se status, lack of legal knowledge, or lack of
access to legal materials 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 pro se 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,
8

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 limitations”); Lacking v. Jenkins, No. 2:15cv3069, 2016 WL
4505765, at *4 (S.D. Ohio Aug. 29, 2016) (Report & Recommendation) (“A prisoner’s pro se
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, 2016), appeal filed,
No. 16-4291 (6th Cir. Nov. 10, 2016); Boyd v. Tibbals, No. 2:13cv611, 2014 WL 1400978, at *3
(S.D. Ohio Apr. 10, 2014) (Report & Recommendation) (and numerous cases cited therein) (“A
prisoner’s pro se incarcerated status, lack of knowledge regarding the law, and limited access to
the prisons’ law library or to legal materials together or alone do not provide a sufficient
justification to apply equitable tolling of the statute of limitations.”), adopted, 2014 WL 2931475
(S.D. Ohio June 30, 2014).
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, 569 U.S. 383, 399 (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
9

actions brought pursuant to 28 U.S.C. § 2254.
IT IS THEREFORE RECOMMENDED THAT:
1. The petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be
DENIED 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. 6
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

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-barred grounds for relief. See Slack, 529 U.S. at 484.

10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
GEORGE WILSON,
Petitioner,

Case No. 1:18-cv-276
Black, J.
Bowman, M.J.

vs.
WARDEN, ALLEN
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).

11