Tucker v. Warden Madison Correctional Institution

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS, DENYING Petitioner's Objection. This action is hereby DISMISSED as untimely. The Clerk is DIRECTED to enter FINAL JUDGMENT. The Court concludes that jurists of reason would not find it debatable that this Court was correct in its procedural ruling. Accordingly, the Court DECLINES to issue a certificate of appealability in this case. Signed by Judge Algenon L. Marbley on 5/2/2014. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN R. TUCKER,
Petitioner,
Case No. 2:13-CV-122
Judge Marbley
Magistrate Judge King

v.
WARDEN, MADISON
CORRECTIONAL INSTITUTION,
Respondent.
ORDER

Petitioner, a state prisoner, brings this action for a writ of
habeas corpus under 28 U.S.C. § 2254 challenging his 1987 conviction
on

charges

of

specifications.

aggravated

murder

and

aggravated

robbery,

with

On April 3, 2014, the United States Magistrate Judge

recommended that this action be dismissed.

Report and Recommendation,

ECF 10. Specifically, the Magistrate Judge reasoned that petitioner’s
second and third claims raised only issues of state law not cognizable
in federal habeas corpus and that, in any event, the Petition, ECF 1,
executed by petitioner on February 5, 2013, see PAGEID # 14, and filed
on February 11, 2013, was untimely filed. This matter is now before
the

Court

on

petitioner’s

objection

to

that

recommendation.

Objection, ECF 12.

The Court will consider the matter de novo.

28 U.S.C. § 636(b);

See

Fed. R. Civ. P. 72(b).

In his objections, petitioner does not address the reasoning of
the Magistrate Judge.

Instead, petitioner argues only that a claim of

ineffective assistance of counsel (the fourth claim raised in the
Petition), is properly raised in collateral proceedings.

Although it

is true that a claim of ineffective assistance of counsel is commonly
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raised

in

a

collateral

attack

of

a

criminal

conviction,

if

that

collateral attack is presented in a petition for a writ of habeas
corpus under federal law, the petition must nevertheless be timely
filed.

See 28 U.S.C. § 2244(d).

Because

petitioner’s

conviction

became

final

prior

to

the

effective date of the applicable statute of limitations, petitioner
had until April 24, 1997 in which to file his petition in this Court.
See Jurado v. Burt, 337 F.3d 638 (6th Cir. 2003).
more

than

Petition.

fifteen

years

after

that

date

Petitioner waited

before

he

executed

the

The Petition is therefore untimely and subject to dismissal

on that basis.
Petitioner’s Objection, ECF 12, is therefore DENIED.
and Recommendation, ECF 10, is ADOPTED AND AFFIRMED.

The Report

This action is

hereby DISMISSED as untimely.
The Clerk is DIRECTED to enter FINAL JUDGMENT.

Moreover, the Court concludes that jurists of reason would not
find

it

ruling.

debatable

that

this

Court

was

correct

in

its

procedural

See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly,

the Court DECLINES to issue a certificate of appealability in this
case.

s/Algenon L. Marbley
Algenon L. Marbley
United States District Judge

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