Qualls v. Warden Chillicothe Correctional Institution

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATIONS, OVERRULING Petitioner's Objections. His request for a stay is DENIED. This action is hereby DISMISSED as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d). Signed by Judge Algenon L. Marbley on 6/19/2013. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ERIC A. QUALLS,
CASE NO. 2:13-CV-0263
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE KEMP

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

OPINION AND ORDER
On April 3, 2013, the Magistrate Judge issued a Report and Recommendation pursuant to
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts
recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be dismissed as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d).
Petitioner has filed objections to the Magistrate Judge’s Report and Recommendation.
Petitioner objects to the Magistrate Judge’s recommendation of dismissal of this action as
time barred and requests a stay of proceedings so that he may litigate his claims in the state
courts. Although the trial court sentenced Petitioner on the aggravated murder and kidnapping
convictions at issue here in 2002, Petitioner argues that his judgment did not become final until
March 20, 2012, when the Ohio Supreme Court dismissed Petitioner’s 2010 appeal regarding the
trial court’s nunc pro tunc sentencing entry to correct a clerical error omitting a provision
regarding Petitioner’s post release control.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the
reasons already well detailed in the Magistrate Judge’s Report and Recommendation, Petitioner’s
objections are OVERRULED.

This Court agrees with the reasoning referred to by the
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Magistrate Judge in Quillen v. Warden, Marion Correctional Inst., No. 1:12-cv-160, 2013 WL
275973 (S.D. Ohio Jan. 24, 2013), affirmed by Quillen, 2013 WL 1315089 (S.D. Ohio March 29,
2013), concluding that the trial court’s issuance of a nunc pro tunc entry to correct a clerical
error did not re-start the running of the statute of limitations in this case. Moreover, as already
discussed, Petitioner’s claim regarding the propriety of the trial court’s issuance of the nunc pro
tunc judgment entry raises an issue regarding the alleged violation of state law, and provides no
basis for federal habeas corpus relief.
Petitioner’s Objection, Doc. 6, is OVERRULED. His request for a stay is DENIED.
The Report and Recommendation is ADOPTED and AFFIRMED.

This action is hereby

DISMISSED as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d).
IT IS SO ORDERED.
DATED: June 19, 2013

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

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