Lewis v. Warden, London Correctional Institution

Filing 9

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed with prejudice as barred by the statute of limitations. Because reasonable jurists would not disagree with this conclusion, it is also recommended th at Petitioner be denied a certificate of appealability and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 5/12/2021. Signed by Magistrate Judge Michael R. Merz on 4/27/2021. (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
MICHAEL R. LEWIS, II,
Petitioner,

:

- vs -

Case No. 1:20-cv-933
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

WARDEN, London
Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Michael Lewis II under 28 U.S.C. §
2254, is before the Court on Respondent’s Motion to Dismiss the Petition as barred by the statute
of limitations (ECF No. 6). Petitioner opposes the Motion (ECF No. 7). Lewis seeks relief from
his convictions and sentence in the Butler County, Ohio, Court of Common Pleas on charges, in
separate cases, of burglary, illegal conveyance, and aggravated arson.
The Magistrate Judge reference in this case has recently been transferred to the undersigned
to help balance the Magistrate Judge workload in the District.

Litigation History
Lewis was indicted on June 14, 2017, by the Butler County grand jury on one count of
aggravated arson in violation of Ohio Revised Code § 2909.02(A)(2). According to the Twelfth
District Court of Appeals:
1

[T]his charge arose after Lewis admitted setting fire to bedding
material and a mattress located in a bedroom of a Middletown,
Butler County, Ohio home on the afternoon of April 17, 2017, the
same home where his father was found dead from a drug overdose
earlier that day. Lewis claims to have no recollection of the incident
having blacked out after consuming a significant amount of alcohol
upon learning of his father's death.
State v. Lewis, 2018-Ohio-1458, ¶ 4 (Ohio App. 12th Dist. Apr. 16, 2018). After a number of
forensic evaluations, Lewis pleaded guilty to the arson charge and was sentenced on that charge,
as well as on community control violations arising from the prior convictions for burglary and
unlawful conveyance, to an aggregate of twelve years imprisonment.
After sentencing, Lewis filed through counsel a request that he not be transferred to state
prison so that he could have an additional local forensic evaluation in support of a planned motion
to withdraw his guilty plea. That motion was denied and Lewis appealed, but the Twelfth District
Court of Appeals affirmed his conviction and sentence. State v. Lewis, supra.
Lewis was represented by retained counsel on the direct appeal. On July 14, 2020, now
proceeding pro se, Lewis filed a notice of appeal to the Supreme Court of Ohio and a motion for
leave to file a delayed appeal in that court (State Court Record, ECF No. 5, Exs. 26 and 27). In
his Affidavit in support of delayed appeal, he averred that his appellate attorney did not tell him
of the forty-five day deadline to appeal until after the time had expired. Id. at Ex. 27, PageID 121.
He also claims he did not have the required documents for filing a memorandum in support of
jurisdiction or the necessary financial resources to file. Id.
The Supreme Court of Ohio denied leave for a delayed appeal on September 15, 2020
(State Court Record, ECF No. 5, Ex. 28). On November 17, 2020, Lewis, filed the instant Petition
pleading the following grounds for relief:
Ground One: Appellant was denied due process by the trial courts
failure to rule on his motion to stop his transfer into state custody.
2

Supporting Facts: Appellant was charged with Aggravated Arson,
in violation of Ohio Revised Code, 2909.02(A)(2), a second-degree
felony. This charge was brought after Appellant set fire to bedding
and a mattress. Appellant came to the home to identify the body of
his father, who was found dead from an alleged drug overdose. Prior
to being taken to that location Appellant had consumed a significant
amount of alcohol, upon learning of his father’s death. Appellant has
no recollection of the incident, and believes he must have “Blacked
Out.”
On August 21, 2017, Appellant filed a motion for leave to file a plea
of not guilty by reason of insanity. Appellant also moved the court
for an evaluation on his claim. On August 24, 2017, Appellant
requested a competency evaluation. On August 28, 2017, the trial
court ordered Appellant be evaluated for competency to stand trial.
A competency hearing was scheduled for September 25, 2017, then
rescheduled to October 9, 2017. The trial court did not record the
competency report or have it filed with this case on October 10,
2017, Appellant entered a plea of guilty to aggravated arson. On
November 14, 2017, judgment of conviction and sentencing. To
support the motion, Appellant asserts that he was in the process of
preparing a motion to withdraw his guilty plea. As part of his
motion, Appellant was scheduling an independent competency
evaluation. The evaluation requires that Appellant meet in person
with the psychiatrist performing the evaluation.
The trial court did not rule on the motion, and Appellant never got
to file his motion to withdraw his guilty plea or the motion for
independent evaluation. Appellant was denied an opportunity to
include in his insanity claim, his state of mind at the time of alleged
offense.
Ground Two: Appellant was denied equal protection of the law by
imposing consecutive sentences.
Supporting Facts: At the time Appellant received a charge for the
aggravated arson he was on probation also know [sic] as community
control for Butler County case numbers: CR2015-11-1768
(burglary) and CR2016-06-0787 (Illegal Conveyance).
On November 17, 2017, the trial court held a hearing revoking
Appellants community control. The court imposed a 36 month
prison term in Case No. CR2015-11-1768, to be served
consecutively with a 36 month prison term in Case No. CR2016-060787 to be served consecutively with the six-year prison term
imposed in Case No. CR2017-05-0820. The court finds that
3

consecutive sentences are necessary to protect the public from future
crimes; that Appellant’s history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from
future crime by the defendant.
(Petition, ECF No. 1).

Analysis

The one-year statute of limitations for federal habeas corpus cases is codified at 28 U.S.C.
§ 2244(d) which 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 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.
(2) The time during which a properly filed application for State postconviction 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.
4

By Respondent’s calculation, the statute of limitations on Lewis’s claims began to run May
31, 2018, when his time to appeal to the Supreme Court of Ohio expired, forty-five days from the
Twelfth District’s decision affirming his conviction. It would then have run for one year until June
1, 2019, unless interrupted. Because Lewis did not file his Petition until November 17, 2020, it is,
by this calculation, well over a year late.
In the timeliness portion of his Petition, Lewis represents that he did not learn of the
appellate court’s decision until February 2020 when he inquired of the Clerk of Courts (ECF No.
1, PageID 16). He did not file an application for delayed appeal in the Supreme Court of Ohio
until July 14, 2020. That court denied his application September 15, 2020, and he filed his Petition
here November 17, 2020.1
In his Opposition to the Motion to Dismiss, Lewis is even vaguer on dates. He asserts only
that his appellate attorney did not tell him when the case was decided and that at some unspecified
later date he inquired of the Clerk of Courts (Memo. in Opp., ECF No. 7, PageID 168). In
attempting to excuse his delay, Lewis points to the lockdown at his institution of confinement
caused by the COVID-19 pandemic. However that lockdown did not occur until March 2020,
nearly two years after the Court of Appeals decision in April 2018. Nothing prevented Lewis from
making that inquiry earlier.
Lewis actually learned of the Court of Appeals decision in February 2020, on a date he
does not list. Giving him the benefit of the doubt, the Court will assume he learned of the decision
on the last day, February 29, 2020. If that had been the day on which the Court of Appeals decided
the case, Lewis would have had forty-five days to appeal, or only until April 14, 2020. He did not

1

Under the prison mailbox rule, an incarcerated person is entitled top a filing date of the date on which he deposits a
filing in the prison mailing system. Houston v. Lack, 487 U.S. 266 (1988); Cook v. Stegall, 295 F.3d 517, 521 (6th
Cir. 2002). Although the standard form for habeas corpus petitions includes a place to enter that date, Lewis has left
the space blank (Petition, ECF No. 1, PageID 18).

5

seek leave to file a delayed appeal until ninety days later on July 14, 2020. In other words, he took
three times the amount of time allowed for an appeal to the Supreme court of Ohio even by a
person who knows of an adverse appellate decision.
Lewis’s appellate attorney certainly should have notified him of the Court of Appeals’
decision and this Court accepts at face value (i.e. without any corroboration) that she did not do
so. However, the failure of an attorney to do her or his duty will only act as an excuse for some
limited period of time, not for a period more than twice as long as the statute of limitations. In
seeking leave of the Supreme Court to file a delayed appeal, Lewis swore that his attorney had not
advised him of the appellate giving that court an opportunity to excuse his delay on that basis, but
it declined to do so (State Court Record, ECF No. 5. Exs. 27, 28). This Court cannot say it was
unreasonable in doing so, nor was it under any constitutional duty to extend the time to appeal by
more than two years.
Accordingly, it is respectfully recommended that the Petition herein be dismissed with
prejudice as barred by the statute of limitations. Because reasonable jurists would not disagree
with this conclusion, it is also recommended that Petitioner be denied a certificate of appealability
and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and
should not be permitted to proceed in forma pauperis.

April 27, 2021.
s/ Michael R. Merz
United States Magistrate Judge

6

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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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. 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.

7