Jones v. Warden, Lebanon Correctional Institution

Filing 33

REPORT AND RECOMMENDATIONS that Respondent's request to dismiss the case on limitations grounds be denied & that Respondent be directed to file a return of writ addressing the merits of Petitioner's claims w/in twenty-one days of any order adopting this recommendation. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 3/7/2014. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LAVELLE JONES,
CASE NO. 2:13-CV-155
JUDGE GREGORY L. FROST
MAGISTRATE JUDGE KEMP

Petitioner,
v.
WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION

I. INTRODUCTION
As the Court’s order of July 18, 2013 reflects, this habeas corpus action filed
under 28 U.S.C. §2254 involves Petitioner Lavelle Jones’s June 2, 2009, convictions in the
Franklin County Court of Common Pleas, pursuant to his guilty plea, on two counts of
robbery, kidnaping, and a repeat violent offender specification.

The trial court

sentenced Petitioner to an aggregate term of nineteen years in prison. Petitioner timely
appealed his conviction and sentence to the Tenth District Court of Appeals but not to
the Ohio Supreme Court. The Tenth District Court of Appeals affirmed his conviction
on March 11, 2010. State v. Jones, 2010 WL 866126 (Franklin Co. App. March 11, 2010).
He attempted to obtain review of that ruling from the Ohio Supreme Court by way of a
motion to file a delayed direct appeal, but on April 8, 2012, the Ohio Supreme Court

denied that motion. State v. Jones, 131 Ohio St.3d 1508 (2012). This federal case was
filed on February 20, 2013.
In response to the petition, Respondent moved to dismiss, arguing that the
petition is barred by the one-year statute of limitations found in 28 U.S.C. §2244(d).
Petitioner acknowledged that he filed his habeas corpus petition after the one-year
statute of limitations (measured from the date on which he could have taken a timely
appeal to the Ohio Supreme Court) expired - that date was in April, 2010 - but
contended that the statute of limitations was equitably tolled until February 21, 2012,
and because he filed this action within a year of that date, it is timely.
Because Petitioner alleged facts which, if true, might warrant equitable tolling of
the statute of limitations, the Court appointed counsel for Petitioner and scheduled an
evidentiary hearing on his request for equitable tolling. The hearing was conducted on
November 13, 2013. Petitioner testified, as did his state court appellate counsel, Michael
A. Prisley. The transcript of the hearing has now been filed, and both parties have
submitted post-hearing briefs.

Respondent has also filed a motion for leave to

supplement the post-hearing brief, and the Court grants that motion (Doc. 32). For the
following reasons, the Court recommends that Respondent’s motion to dismiss on
statute of limitations grounds be denied.
II. LEGAL STANDARD
Because the facts of this case, drawn from the testimony given and exhibits
admitted at the evidentiary hearing, must be evaluated in light of the law relating to the

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equitable tolling of §2244(d)’s one-year limitations period, the Court will set out that
law first.
A state prisoner seeking federal habeas corpus relief normally has one year from
the date his state conviction becomes final to file an action in federal court. 28 U.S.C.
§2244(d). That statute of limitations is subject to equitable tolling, however. This Court
has had many occasions to review the relevant Supreme Court and Court of Appeals
decisions about equitable tolling, and it makes sense simply to quote at length from
prior decisions of the Court about the matter rather to state it anew. For example, in
Willis v. Brunsman, 2012 WL 2564539, *5-6 (S.D. Ohio July 2, 2012), adopted and affirmed
2012 WL 3962899 (S.D. Ohio Sept. 11, 2012), the Court said this:

“[P]etitioner bears the ... burden of persuading the court that he ... is
entitled to equitable tolling.” Griffin v. Rogers, 308 F.3d 647, 653 (6th
Cir.2002). Equitable tolling should be used sparingly. Cook v. Stegall, 295
F.3d 517, 521 (6th Cir.2002). The statute of limitations may be equitably
tolled “‘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)).
The Supreme Court has explained that “[w]e have allowed
equitable tolling in situations where the claimant has
actively pursued his judicial remedies by filing a defective
pleading during the statutory period, or where the
complainant has been induced or tricked by his adversary's
misconduct into allowing the filing deadline to pass.” Irwin
v. Dep't of Veterans Afairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112
L.Ed.2d 435 (1990). However, “[w]e have generally been
much less forgiving ... where the claimant failed to exercise
due diligence in preserving his legal rights.” Id.; cf. Baldwin

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County Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S.Ct.
1723, 80 L.Ed.2d 196 (1984) (“One who fails to act diligently
cannot invoke equitable principles to excuse that lack of
diligence.”).
Jurado v. Burt, 337 F.3d 638, 642–43 (6th Cir.2003). A habeas corpus
petitioner is entitled to equitable tolling if he can establish 1) that “he has
been pursuing his rights diligently;” and 2) “some extraordinary
circumstance stood in his way and prevented timely filing.” Hall, 662 F.3d
at 749. See also Patterson v. Lafler, ––– F.Appx. ––––, No. 10–1379, 2012 WL
48186, at *2 n. 1 (6th Cir. Jan.9, 2012)).
Obviously, given the somewhat imprecise standard used to evaluate claims of
equitable tolling (involving determinations of whether a petitioner was “diligent,” and
whether the factors which led to the untimely filing were “extraordinary”), it is difficult
to state any hard and fast rules which can be applied in rote manner to this situation.
As the Fifth Circuit Court of Appeals noted in Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.
1999), “[a]s a discretionary doctrine that turns on the facts and circumstances of a
particular case, equitable tolling does not lend itself to bright-line rules ....” Many
courts have concluded, however, that if the obstacle to timely filing of a federal habeas
petition is just a “garden-variety” attorney error, equitable tolling does not apply. See,
e.g., Holland v. Florida, 560 U.S. 631, __, 130 S.Ct. 2549, 2564 (2010); Rues v. Denney, 643
F.3d 618, 622 (8th Cir. 2011)(“counsel's miscalculation of his filing deadline is a ‘garden
variety claim’ of neglect and does not warrant equitable tolling”). On the other hand, if
a petitioner’s state court attorney engages in egregious conduct which misleads the
petitioner into believing that proceedings are being timely filed, that can constitute the
type of extraordinary circumstance which will justify equitably tolling the statute of

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limitations. See, e.g., Fonseca v. Hall, 568 F.Supp.2d 1110 (C.D. Cal. 2008). Here, the
availability of equitable tolling very much depends on what the Court finds the facts to
be, so the Court now turns to a discussion of the evidence.
III. THE EVIDENCE FROM THE HEARING
A. MICHAEL PRISLEY
The first witness at the evidentiary hearing was Michael Prisley, the attorney
who represented Mr. Jones for purposes of his state court appeal. That representation
occurred during a brief period of time when Mr. Prisley worked as an associate with the
Columbus firm of Yavitch and Palmer. Both before and after that time, Mr. Prisley
worked for various governmental agencies including the Columbus City Attorney’s
office and the Athens County Prosecutor’s office. Mr. Prisley testified that he handled a
total of six criminal appeals while at Yavitch and Palmer, all of them as court-appointed
counsel.
Mr. Prisley recalled that he was appointed to handle Mr. Jones’s appeal in 2009.
After being appointed, he did not meet with Mr. Jones (in fact, he testified that they
never met in person) and that he did not recall if they ever spoke by telephone. He also
could not recall how many letters he might have written to Mr. Jones, and said that Mr.
Jones’s file at Yavitch and Palmer had been destroyed when that office was flooded in
early 2010. Additionally, he testified that he did not advise Mr. Jones of the date of the
oral argument in his case and was surprised when a man and a woman appeared at the
argument and asked him questions about the case.

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Mr. Prisley also described his usual practice with respect to briefs, decisions, and
other matters relating to a case in which he served as counsel. He ordinarily mailed
items of significance to the client. However, he did not have secretarial help, and he
might or might not prepare a cover letter when mailing such items.
The record reflects that the Tenth District Court of Appeals’ decision was filed in
this case on March 11, 2010. See . State v. Jones, 2010 WL 866126 (Franklin Co. App.
March 11, 2010 ).

Four days later, Mr. Prisley prepared his application for payment.

His application shows he spent an hour on the case that day, which would have
included preparation of the application for payment and, presumably, mailing a copy of
the decision to Mr. Jones. Because he had exceeded the limit for compensation in the
case, Mr. Prisley doubted that he prepared a cover letter, but he assumed that he mailed
a copy of the decision to Mr. Jones by placing it in an envelope. He considered the
matter closed as of that date, and did not advise Mr. Jones about his right to seek
further review by the Ohio Supreme Court.
Mr. Prisley remained with Yavitch and Palmer until August 26, 2011. He said he
received no letters from Mr. Jones during that time. He also took no steps that he could
recall to communicate with Mr. Jones after the court of appeals decision. He was shown
a number of letters which Mr. Jones claimed to have sent him, but denied seeing any of
them, and also testified that the only letters he got from Mr. Jones were handwritten
(the letters he claimed not to have received were all typewritten) and that their “tone”
was different. Finally, he said that any failure on his part to forward the court of
appeals decision to Mr. Jones would have been inadvertent rather than intentional.

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B. LAVELLE JONES
Mr. Jones was the second and final witness at the hearing. He agreed that he and
Mr. Prisley had never met, and also said they had never spoken on the phone. He also
testified, as he explained in more detail later in his testimony, that he never received a
single written communication of any kind from Mr. Prisley.
Mr. Jones testified that he sent a number of letters to Mr. Prisley, only one of
which was handwritten. Ordinarily, he types letters so he can make a carbon copy, but
as to the one handwritten letter, time constraints prevented him from typing it.
He described his efforts to keep abreast of developments in his case. A friend,
Louis Foster, sent him docket sheets from time to time about the progress of the appeal.
Petitioner’s Exhibit Four contains two such docket sheets, including one from January,
2010, before the appeal was argued. For family reasons, however, Mr. Foster stopped
updating Mr. Jones on the case shortly after he sent the second docket sheet. Mr. Jones’
common-law wife, Martesa Daniels, also communicated with him about the case.
However, that communication also ended in 2010. Mr. Jones said he rarely used the
phone at his institution, Lebanon Correctional, and had not used it at all since April,
2010. Rather, he chose to communicate through written letters.
The key exhibit in this case is Petitioner’s Exhibit 5. It consists of a number of
letters which, according to Mr. Jones, he wrote to Mr. Prisley inquiring about the status
of his appeal. Mr. Jones testified that he did not receive an answer to any of them, nor
did Mr. Prisley ever advise him of the March 11, 2010 decision. Rather, after Mr. Jones
filed several motions in the trial court, he received a response from the county

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prosecutor’s office mentioning the fact that the appeal had been denied. That occurred
in early 2012.
Mr. Jones also testified that he kept records of important dates and events in date
books or log books. Several of those were introduced into evidence as well. They show
that he had two visits from Ms. Daniels in April, 2010, at which time neither of them
had heard anything about the appeal. The same was true when she visited him in
October of that year. Mr. Jones noted the sending of the December, 2010 letter in his log
book, as well as the March, 2011 and July, 2011 letters. Mr. Jones also made a note that
he needed to find someone to go see Mr. Prisley to ask about the appeal, but he was not
able to locate anyone to do that. His log book also shows a letter written in October,
2011 referring to Mr. Prisley as a “clown attorney,” a reflection of Mr. Jones’s anger
about not hearing from him.
Mr. Jones was asked whether he had done everything possible to learn about the
disposition of his appeal. He testified that other than writing letters and trying to have
friends or family members like Mr. Foster and Ms. Daniels call Mr. Prisley, he did not
know what else to do. He also testified that had he known about the court of appeals
decision, he would have sought to appeal to the Ohio Supreme Court.
Mr. Jones identified January 10, 2012 as the date when he learned his appeal had
been denied.

Later that month, he obtained copies of the decision from both the

Franklin County Clerk of Courts and the Ohio Public Defender’s office. He also filed a
grievance with the Ohio Disciplinary Counsel complaining about Mr. Prisley. Lastly, he

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testified that there would have been no tactical advantage to ignoring the court of
appeals decision had he known about it in a timely fashion.
IV. OTHER EVIDENCE
The only other evidence relevant to this decision is the procedural history of the
case. Some of it is recited above. The records of the Franklin County courts show that
Mr. Jones filed his notice of appeal to the Ohio Supreme Court on March 5, 2012, less
than two months after he claims to have learned of the denial of his appeal. He also
filed, at about the same time, a motion to reopen his appeal with the Tenth District
Court of Appeals. He attached an affidavit to that motion which contains the same
allegations he makes in this case about how and when he learned of the initial decision
by that court and his efforts to learn about the disposition of his case. Finally, the
decision of the Court of Appeals denying the Rule 26(B) motion, filed on August 9,
2012, appears to be a ruling on the merits of the motion to reopen, finding that counsel
was not ineffective for failing to raise the additional arguments which Mr. Jones
contended should have been presented on appeal.
V. DISCUSSION
Before beginning a discussion of the legal significance of the facts of this case, it
is necessary to determine what those facts are. Clearly, there are significant differences
in the versions presented by Mr. Jones and Mr. Prisley. If the Court were to conclude,
based on Mr. Prisley’s testimony about his usual practice, that he mailed a copy of the
court of appeals decision to Mr. Jones and that Mr. Jones received it, there would be

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nothing further to discuss. For the following reasons, however, the Court does not
reach that conclusion.
Mr. Jones does, of course, have the burden of proving the facts supporting his
claim of equitable tolling by a preponderance of the evidence. To support his claim, he
provided, in addition to his testimony, documentary evidence in the form of letters and
log or date book notations which show that he did not receive a copy of the court of
appeals decision from Mr. Prisley. There was no evidence that any of these were
fabrications apart from Mr. Prisley’s testimony that he never received the letters.
There is substantial additional circumstantial evidence which also supports Mr.
Jones’ version of the facts. It is clear that prior to the decision of the court of appeals, he
was diligently monitoring his appeal, even to the point of having family members
attend the oral argument (which Mr. Prisley never bothered to inform him about) and
having his friend, Louis Foster, send him docket sheets. It would have been unusual for
Mr. Jones to drop any interest in a further appeal simply because the state court of
appeals ruled against him. Further, once he did (at least according to his testimony)
learn of the court of appeals decision, he promptly filed a motion for leave to appeal to
the Ohio Supreme Court and a Rule 26(B) motion in the court of appeals, raising
grounds that his family members had discussed with Mr. Prisley at the oral argument
and which Mr. Prisley had not raised in the initial appeal. That motion was supported
by an affidavit asserting exactly the same factual claims that Mr. Jones presented here.
He also filed a complaint with the Office of Disciplinary Counsel making identical
allegations.

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True, all of those actions could have been taken by Mr. Jones if he belatedly
realized that he had missed various filing deadlines after the court of appeals decision
and that he needed to fabricate some reason to have the courts excuse his delay.
However, that is not the most logical explanation. Nor does the timing of Mr. Jones’s
actions support that theory. He explained that he did not learn of the court of appeals
decision until some time in January, 2012, through filings in the state trial court, and the
state trial court records available through the Franklin County Courts case information
online show that, in Mr. Jones’ numerous filings of December 19, 2011, he made no
reference to, nor showed any awareness of, the March 11, 2010 decision of the Tenth
District Court of Appeals. Those records also show that the memorandum filed by the
county prosecutor’s office in opposition to these motions on January 6, 2012 refers to
that decision, and Mr. Jones’ reply, filed only 14 days later (and presumably mailed
some time before that date, because Mr. Jones was in prison at the time) states that Mr.
Jones was not aware of the decision. Again, if Mr. Jones knew about the decision, and
only realized after he filed his post-trial motion that he had missed deadlines and
needed to create a story which might gain him some relief, he made that decision
quickly and has reiterated it frequently and consistently since that date - a scenario that
is, again, possible, but not probable.
Against the evidence that Mr. Jones did not receive the decision, the Court has
little more than Mr. Prisley’s testimony about his usual practice to rely on. Because Mr.
Prisley did not, even if he mailed the decision to Mr. Jones, prepare and keep a copy of a
cover letter, or make any file notation about the mailing, there is no evidence which

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would corroborate the suggestion that he followed his “usual practice” in this case. Mr.
Prisley candidly admitted that he had no specific recollection of whether he did or did
not mail the decision. Given that he took no other steps, at any time, to keep Mr. Jones
informed about the progress of the appeal - not even notifying him about the date of
oral argument - the Court has little trouble accepting the proposition that the decision
was not mailed to Mr. Jones. Judged in terms of what is more likely true than not true,
on this record, the evidence favors Mr. Jones, and the Court finds as a fact that he did
not become aware of the court of appeals decision until he received the Franklin County
prosecutor’s response to his post-trial motions - a date shortly after January 6, 2012 and did not actually receive a copy until February 21, 2012. It is worthwhile noting that
the Tenth District Court of Appeals also apparently accepted this explanation when it
found that Mr. Jones “provided good cause for the untimely filing of his application”
for reopening under Rule 26(B). See Return of Writ, Doc. 7, Ex. 33, at 4.
Having decided the facts, the Court must still analyze them in terms of whether
Mr. Jones exercised due diligence in keeping abreast of developments in his state court
case, and whether he was prevented, by some extraordinary circumstance, from
learning about those matters which triggered the running of the federal statute of
limitations. As to Mr. Jones’ diligence, the question is whether the various efforts he
made to find out how his appeal was progressing were reasonable under the
circumstances, and if, as time progressed, he should have done more to find out
whether a decision had been issued. The Court addresses that issue first.

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There is no single standard which defines how a habeas corpus petitioner must
attempt to keep up to date about the progress of state court proceedings.

Such

petitioners find themselves in different circumstances, and those circumstances dictate,
to some extent, what they must do in order to be considered diligent. For example, an
inmate with internet access to court dockets may be required to use that means to check
on the progress of a state court case, while one with no such access will necessarily be
relegated to other methods. As one court has stated, “[t]he diligence requirement ‘does
not demand a showing that the petitioner left no stone unturned.’” Munchinski v.
Wilson, 694 F.3d 308, 330 (3d Cir. 2012), quoting Ramos-Martinez v. United States, 638 F.3d
315, 324 (1st Cir. 2011). As that court noted, “[i]f a petitioner ‘did what he reasonably
thought was necessary to preserve his rights ... based on information he received ... then
he can hardly be faulted for not acting more “diligently” than he did.’” Id. at 331,
quoting Holmes v. Spencer, 685 F.3d 51, 65 (1st Cir. 2012).
Relying on inaccurate advice from a court about the pendency of an appeal has
been held to be reasonable. See Williams v. Thaler, 400 Fed. Appx. 886 (5th Cir. Nov. 2,
2010). That is not what happened here, however. Mr. Jones was never advised by
anyone, including his attorney, that his appeal was still pending. On the other hand, he
was never told that it was not. The Court concludes that, for at least some period of
time, he could reasonably rely on the lack of information as an indication that nothing
had happened in the state court of appeals. The key question is, however, whether it
was reasonable for him to wait for almost two years after the oral argument date (which
he knew about) while doing nothing other than writing letters to an attorney who had

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proved himself to be non-communicative, and not taking any other steps - such as
writing directly to the court of appeals - to try to find out if a decision had been
rendered.
Respondent argues that even if Mr. Prisley did not send Mr. Jones a copy of the
court of appeals decision, Mr. Jones did not act with the requisite diligence; as
Respondent puts it, “had he remained diligent in monitoring the status of his case, Jones
could have learned of and obtained the Ohio Court of Appeals decision.” Respondent’s
Post-Hearing Brief, Doc. 31, at 6. In contrast, in his post-hearing memorandum, Mr.
Jones asserts that he “took all reasonable steps to keep up on his case, and acted with all
diligence one could expect (and more). He has more than satisfied the ‘diligent pursuit’
standard.” See Doc. 30, at 4.
Although this case presents a fairly close issue, the Court agrees with Petitioner
that he has met the standard for equitably tolling the statute of limitations. It is true
that, as more and more institutions grant internet access to inmates, inmates will have a
correspondingly greater ability (and responsibility) to keep track of their legal matters.
It is also true that inmates who have strong outside support systems may well be
required to use those systems to keep track of legal matters in order to be acting
diligently. Those concepts apply even when the first action which deprives an inmate
of the knowledge needed to pursue state court remedies in a timely fashion - the duty of
the inmate’s attorney to advise the inmate of events in his or her case as the occur - has
been breached by the attorney. In this case, however, the facts show that Mr. Jones did
not have internet access at the relevant times; he lost his community support system

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consisting of his friend, Louis Foster, and his common-law wife during the time when
the court of appeals decision was issued; and he made numerous unsuccessful attempts
to have his attorney communicate with him about his appeal. Under these very casespecific circumstances, the Court finds that Mr. Jones pursued information about his
state court case with sufficient diligence, and that the primary cause of his failure to
meet the time limits in state court was his attorney’s inexplicable inattention to the
issuance of the decision and the efforts which Mr. Jones made to communicate with him
later. Therefore, the statute of limitations should be equitably tolled in this case, and
Respondent should be directed to file a return of writ addressing the merits of Mr.
Jones’s grounds for relief.
VI. RECOMMENDATION
For all of the reasons set forth above, it is recommended that Respondent’s
request to dismiss this case on limitations grounds be denied and that Respondent be
directed to file a return of writ addressing the merits of Petitioner’s claims within
twenty-one days of any order adopting this recommendation.
VII. PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within
fourteen days of the date of this Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s). A judge of this Court shall
make a de novo determination of those portions of the report or specified proposed

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findings or recommendations to which objection is made. Upon proper objections, a
judge of this Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made herein, may receive further evidence or may recommit this
matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review
the Report and Recommendation de novo, and also operates as a waiver of the right to
appeal the decision of the District Court adopting the Report and Recommendation. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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