Boddie v. Warden, Chillicothe Correctional Institution

Filing 11

ORDER REPORT AND RECOMMENDATIONS. It is RECOMMENDED that Respondent's Motion to Dismiss, ECF 8 , be DENIED. It is also RECOMMENDED that petitioner's motion to take judicial notice, ECF 10 , be DENIED. Petitioner's requests for the appointment of counsel and for a hearing are DENIED. Objections to R&R due by 12/8/2014. Signed by Magistrate Judge Norah McCann King on 11/20/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HOWARD BODDIE, JR.,
Petitioner,
vs.

Civil Action 2:14-cv-226
Judge Watson
Magistrate Judge King

WARDEN, CHILLICOTHE CORRECTIONAL
INSTITUTION,
Respondent.
ORDER AND
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of
habeas corpus under 28 U.S.C. § 2254 challenging his May 27, 2010
conviction in the Franklin County Court of Common Pleas.

This matter

is before the Court on respondent’s motion to dismiss the action as
untimely under the Antiterrorism and Effective Death Penalty Act of
1996 (”AEDPA”).

Respondent’s Motion to Dismiss (“Respondent’s

Motion”), ECF 8.

Petitioner opposes Respondent’s Motion. Petitioner’s

Contra Motion to Respondent’s Motion to Dismiss (“Petitioner’s
Response”), ECF 9.

Respondent has not filed a reply.

For the reasons

that follow, the Court concludes that the action was not untimely
filed.
I.

Background
Petitioner was convicted in May 2010, following a jury trial, on

one count of domestic violence in violation of O.R.C. § 2919.25 and
one count of abduction in violation of O.R.C. § 2905.02.

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Judgment

Entry, attached to Petition, ECF 3.

On June 25, 2010, petitioner was

sentenced to a term of imprisonment of 12 months for the crime of
domestic violence and five years for the crime of abduction, the
sentences to be served concurrently.

Id.

Represented by new counsel, petitioner appealed from that
conviction to the Ohio Tenth District Court of Appeals, raising the
issues of denial of a speedy trial and ineffective assistance of trial
counsel.

Respondent’s Motion, Exhibits 25, 26.

The Tenth District

Court of Appeals affirmed petitioner’s conviction on June 30, 2011.
Id. Exhibits 28, 29.

Petitioner did not pursue an appeal from that

decision to the Ohio Supreme Court.
On June 20, 2012, petitioner filed a pro se motion to reopen his
appeal pursuant to Rule 26(B) of the Ohio Rules of Appellate
Procedure, again asserting the denial of a speedy trial and the
ineffective assistance of trial counsel.

Id. Exhibit 30.

The Tenth

District Court of Appeals denied petitioner’s motion on September 25,
2012 as untimely and without merit.

Id. Exhibits 31, 32.

On October

22, 2012, petitioner filed a notice of appeal to the Supreme Court of
Ohio from that decision.

Id. Exhibits 33, 34.

The Supreme Court of

Ohio declined to accept jurisdiction of the appeal pursuant to
S.Ct.Prac.R. 7.08(B)(4) on February 6, 2013.

Id. Exhibit 37.

On July 26, 2011, petitioner filed motions in the Franklin County
Court of Common Pleas, seeking expert assistance, the appointment of
counsel, and to set aside the judgment of conviction or sentence.
Exhibits 38, 39, 40.

The petition to set aside the judgment of

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Id.

conviction or sentence was denied on September 8, 2011.
43.

Id. Exhibit

Petitioner did not file a timely appeal from that decision.
Petitioner also filed a motion to prepare transcripts of

proceedings at the State’s expense on November 10, 2011.
44.

Id. Exhibit

The trial court denied that motion on January 4, 2012.

Id.

Exhibit 45. Petitioner did not appeal from that decision.
Petitioner filed a motion titled “Motion to Vacate Sentence (Not
to be Construed as a Motion for Post Conviction Relief)” on June 1,
2012, in the Franklin County Court of Common Pleas.

Id. Exhibit 46.

Petitioner again alleged the ineffective assistance of his trial
counsel in connection with his speedy trial claims.
motion was denied on August 15, 2012.

Id.

Petitioner’s

Id. Exhibit 47.

On September 17 and 18, 2012, petitioner filed notices of appeal
from the August 15, 2012 denial of his motion to vacate and the
September 8, 2011 denial of his petition to set aside the judgment of
conviction.

Id. Exhibits 48, 49.

The Tenth District Court of Appeals

construed petitioner’s filings as petitions for post-conviction
relief, id. Exhibit 56, and consolidated these appeals. Id. Exhibit
50. On September 12, 2013, the state appellate court affirmed the
trial court’s decisions.

Id. Exhibits 55, 56.

Petitioner did not

file an appeal with the Ohio Supreme Court from that decision.
Petitioner filed a petition for a writ of habeas corpus with the
Supreme Court of Ohio on October 15, 2012.

Id. Exhibit 57.

court sua sponte dismissed the petition on November 28, 2012.
Exhibit 59.

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That
Id.

Petitioner filed this action for a writ of habeas corpus under 28
U.S.C. § 2254 on March 3, 2014.

Petitioner signed the Petition on

February 25, 2014 and represents that he placed the Petition in the
prison mailing system on that same date.

Petition, p. 21.

In the

Petition, petitioner claims that he is in custody in violation of the
United States Constitution and federal law.

Specifically, petitioner

alleges that his post-conviction relief petition was denied without an
evidentiary hearing, his post-conviction claims were improperly denied
on the basis of res judicata, he was denied a transcript of voir dire
proceedings, the prosecutor knowingly used false and perjured
testimony, the Supreme Court of Ohio refused to entertain “the
discretionary appeal in post-conviction proceedings,” he was denied
the effective assistance of counsel, there was fraudulent concealment
of exculpatory and impeaching material evidence, and there is
insufficient evidence to support his domestic violence conviction.
Petition, pp. 10-12.
Respondent contends in Respondent’s Motion that the Petition was
untimely filed.
II.

Discussion
The AEDPA imposes a one-year statute of limitation “to an

application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.”

28 U.S.C.A. § 2244(d)(1).

The limitation period runs 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;

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(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.
Id.

When a petitioner is “aware of the factual predicate of [his]

claims at the time of his direct appeal, and the claims do not
implicate sections 2244(d)(1)(B) or 2244(d)(1)(C), the one-year
statute of limitations [begins] to run on the date that his judgment
became final, at the expiration of the time for seeking direct
review.”

Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 460

(6th Cir. 2012) (citing 28 U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler,
132 S.Ct. 641, 653–54 (2012)).

“The one-year period of limitations is

tolled during the time that a ‘properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending.’”
(quoting 28 U.S.C. § 2244(d)(2)).

Keeling, 673 F.3d at 459

An application for post-conviction

relief remains “pending” for purposes of § 2244(d)(2) during the time
that the petitioner could seek timely review, even if he does not
actually seek such review.

Martin v. Wilson, 110 Fed. Appx. 488, 490

(6th Cir. August 11, 2004)(citing Carey v. Saffold, 536 U.S. 214, 219-

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20 (2002). See also Campbell v. Warden, 2009 WL 6594326, at *6 n.4
(S.D. Ohio July 14, 2009).
The state appellate court affirmed petitioner’s conviction on
direct appeal on June 30, 2011.

Respondent’s Motion, Exhibits 28, 29.

Rule 7.01(A)(1)(a) of the Rules of Practice for the Supreme Court of
Ohio requires an appellant to “file a notice of appeal in the Supreme
Court within forty-five days from the entry of the judgment being
appealed.”

Petitioner did not file a notice of appeal in the Supreme

Court of Ohio.

Accordingly, petitioner’s conviction became “final”

for purposes of the statute of limitations on August 15, 2011, and the
statute of limitations would ordinarily begin to run the next day.
See Gonzales, 132 S.Ct. at 653-54 (“For petitioners who pursue direct
review all the way to this Court, the judgment becomes final at the
‘conclusion of direct review’ . . . .

For all other petitioners, the

judgment becomes final at the ‘expiration of the time for seeking such
review’ — when the time for pursuing direct review in this Court, or
in state court, expires.”).

Accordingly, petitioner’s one-year

statute of limitations would have expired on August 15, 2012, unless
statutory or equitable tolling extends the period.
The statute of limitations is tolled during the pendency of a
“properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim.”
28 U.S.C. § 2244(d)(2).

Such an application must “challenge or

otherwise seek review of [the petitioner’s] conviction or sentence” in

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order to effectively toll the statute of limitations.

Tomilson v.

Lazaroff, No. 2:07-CV-583, 2008 WL 2796549, at *2 (S.D. Ohio July 16,
2008) (citing Fleming v. Lazaroff, No. C-1-05-513, 2006 WL 1804546
(S.D. Ohio June 28, 2006)).

“An application is ‘filed,’ as that term

is commonly understood, when it is delivered to, and accepted by, the
appropriate court officer for placement into the official record.”
Artuz v. Bennett, 531 U.S. 4, 8 (2000).

“[A]n application

is ̔properly filed’ when its delivery and acceptance are in compliance
with the applicable laws and rules governing filings.”
in original).

Id. (emphasis

See also Williams v. Birkett, 670 F.3d 729, 733 (6th

Cir. 2012).
On July 26, 2011, i.e., before petitioner’s judgment became
“final,” petitioner filed a motion to set aside the judgment of
conviction or sentence in the Franklin County Court of Common Pleas.
Respondent’s Motion, Exhibit 40.

The state appellate court construed

this filing as a petition for post-conviction relief.

Id. Exhibit 56.

Respondent concedes that the statute of limitations was tolled during
the pendency of this motion, but argues that the statute of
limitations began to run the day after the trial court dismissed that
petition on September 9, 2011.

Respondent’s Motion, p. 17.

However,

this application for post-conviction relief must be considered to have
been “pending,” for purposes of § 2244(d)(2), even during the thirty
(30) days during which the petitioner could have sought timely review
by the state court of appeals, see Ohio R. App. P. 4(A)(1), even

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though petitioner did not seek such timely review.

See Martin v.

Wilson, 110 Fed. Appx. at 490 (citing Carey v. Saffold, 536 U.S. at
219-20). Thus, the statute of limitations began to run on October 8,
2011.
The statute of limitations ran for 237 days until, on June 1,
2012, petitioner filed another petition for post-conviction relief.
Respondent’s Motion, Exhibit 46. That petition was not apparently
filed within the time required by O.R.C. § 2953.21(A)(2)(petition for
post-conviction relief must be filed within 180 days after the trial
transcript is lodged with the court of appeals). However, neither the
state trial court nor the state appellate court found this petition to
be untimely. Because the state courts did not characterize this
petition as improperly filed, this Court concludes that the June 1,
2012 petition also served to toll the statute of limitations under §
2244(d)(2).

See Martin v. Wilson, 110 Fed. Appx. at 490 (citing Artuz

v. Bennett, 531 U.S. 4, 8 (2000)). Thus, the statute of limitations
was tolled for the time that this petition was pending, i.e., from
June 1, 2012 until October 27, 2013 (when the period for seeking
review by the Ohio Supreme Court expired).
The statute of limitations therefore resumed on October 28, 2013
and ran for another 120 days until the Petition was signed on February
25, 2014. See Houston v. Lack, 487 U.S. 266 (1988)(a habeas petition
is deemed filed when the prisoner gives the petition to prison
officials for filing in the federal courts).

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By this Court’s calculation, the Petition was effectively filed
within 357 days – or less than one (1) year - after petitioner’s
conviction became final. The Petition is therefore not untimely.
It is therefore RECOMMENDED that Respondent’s Motion to Dismiss,
ECF 8, be DENIED.
This matter is also before the Court on petitioner’s motion for
the Court to take judicial notice, ECF 10.

Petitioner asks that the

Court take judicial notice that the State of Ohio lacked subject
matter jurisdiction to convict petitioner.

Petitioner’s motion seeks

judicial notice of a fact that is subject to reasonable dispute, see
Fed. R. Civ. P. 201, and would challenge the fact of his confinement.
It is therefore also RECOMMENDED that petitioner’s motion to take
judicial notice, ECF 10, be DENIED.
Because respondent has not yet made substantive response to the
Petition, petitioner’s requests for the appointment of counsel and for
a hearing, made in Petitioner’s Response, p. 9, are DENIED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

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

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The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and 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); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

November 20, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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