Boddie v. Warden, Chillicothe Correctional Institution

Filing 18

OPINION and ORDER adopting and affirming 11 the Report and Recommendation and denying 8 Respondent's Motion to Dismiss. Signed by Judge Michael H. Watson on 1/8/15. (jk1) (This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HOWARD BODDIE, JR.,

Petitioner,
Case No. 2:14-cv-226
Judge Watson
Magistrate Judge King

v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,

Respondent.
OPINION AND ORDER
On November 20, 2014, the Magistrate Judge recommended that
Respondent's Motion to Dismiss, ECF 8, be denied. Order and Report and
Recommendation, ECF 11. 1 This matter is now before the Court on
Respondent's objection to that recommendation. Obj., ECF 17. Pursuant to 28
U.S.C. § 636(b), and Federal Rule of Civil Procedure 72(b), this Court has
conducted a de novo review. For the reasons that follow, Respondent's
Objection is OVERRULED. The Order and Report and Recommendation is
ADOPTED and AFFIRMED. Respondent's Motion to Dismiss is DENIED.
Respondent is DIRECTED to file a response to the Petition within twenty-one
(21) days. Petitioner may file a reply within twenty-one (21) days thereafter.
The Motion to Dismiss asks that the action be dismissed as untimely. In
recommending that the motion be denied, the Magistrate Judge reasoned, inter
1

The Magistrate Judge also denied Petitioner's requests for the appointment of counsel
and an evidentiary hearing. /d.
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alia, that Petitioner's state post-conviction proceedings served to toll the statute
of limitations under 28 U.S.C. § 2244(d)(2). 2 In particular, the Magistrate Judge
reasoned that this tolling included the time during which petitioner could have,
but did not, file an appeal in those state court proceedings. The sole issue raised
in the Objection is whether those periods of time are properly included in the
tolling of the statute of limitations. If they are, this action is timely; if they are not,
the action is untimely.
Respondent maintains that Petitioner's July 26, 2011, application for postconviction relief tolled the running of the statute of limitations only until
September 8, 2011, i.e., the date on which the state trial court dismissed the

2

28 U.S.C. 2244(d) 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 post-conviction 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.
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action, and not for the thirty (30) days thereafter during which Petitioner could
have filed, but did not file, an appeal from that dismissal. Respondent appears
to concede that Petitioner's June 1, 2012, second application for post-conviction
relief tolled the running of the statute of limitations for the period during which
those proceedings were pending before the state trial court and court of appeals.
See Obj., PageiD# 699 n.1. Respondent contends, however, that the statute of
limitations was tolled only until September 12, 2013, i.e., the date on which the
state appellate court affirmed the trial court's dismissal of that action. /d. at
PageiD# 699-700.
The Magistrate Judge reasoned that the statute of limitations was tolled
until October 27, 2013, i.e., the last date on which Petitioner could have sought,
but did not seek, review by the Ohio Supreme Court. Order and Report and
Recommendation, PageiD# 660.

As noted, Respondent argues that the time during which a petitioner could
have sought appellate review of the dismissal of a state post-conviction
proceeding should not be counted in the tolling period if the petitioner does not in
fact seek such review. Respondent acknowledges that the United States Court
of Appeals for the Sixth Circuit, Martin v. Wilson, 110 F. App'x. 488, 490 (6th Cir.
Aug. 11, 2004)(citing Carey v. Saffold, 536 U.S. 214, 219-20 (2002)), and indeed
the majority of courts to consider the issue, have rejected this argument. Obj.,
PageiD# 700-01. Respondent argues that the unpublished decision of the Sixth
Circuit is not binding on this Court and that decisions of the United States
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Supreme Court, Evans v. Chavis, 546 U.S. 189 (2006); Pace v. DiGuglielmo, 544
U.S. 408,413-14 (2005); Carey v. Saffold, 536 U.S. 214, when viewed together,
require the opposite conclusion. Obj., PageiD# 701. This Court disagrees.
In Pace v. DiGuglielmo, the Supreme Court held that a petition for postconviction or collateral relief denied by the state courts as untimely does not toll
the running of the statute of limitations under 28 U.S.C. § 2244(d)(2). /d. 544
U.S. at 412-14 (citing Artuz v. Bennett, 531 U.S. 4, 11 (2000)). In Evans v.
Chavis, the United States Supreme Court reiterated its holding in Carey v.
Saffold:

For purposes of tolling AEDPA's 1-year limitations
period, is a state habeas application "pending" during
the interval between (1) the time a lower state court
reaches an adverse decision, and (2) the day the
prisoner timely files an appeal? We answered this
question "yes." 536 U.S. at 219-221, 122 S.Ct. 2134. If
the filing of the appeal is timely, the period between the
adverse lower court decision and the filing (typically just
a few days) is not counted against the 1-year AEDPA
time limit.
Evans v. Chavis, 546 U.S. at 192. 3 Respondent seems to argue that, because

the United States Supreme Court has held that the timely appeal in a postconviction or collateral proceeding serves to toll the running of the statute of
limitations, it follows that the time period during which a petitioner could have
filed, but did not file, a timely appeal does not toll the running of the statute of
limitations. Obj., PageiD# 701-02.
3

In Evans v. Chavez, the Supreme Court specifically rejected the argument that the
California Supreme Court's summary dismissal of a collateral proceeding filed more
than three years late constituted a decision on the merits.
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None of the cases relied upon by Respondent addresses the precise issue
presented in this action. The statute requires that the time during which a
properly filed application for state post-conviction relief "is pending" be excluded
from the calculation of the statute of limitations. 28 U.S.C. § 2244(d)(2). This
Court is not persuaded that the Supreme Court's decision in Carey v. Saffold
supports Respondent's narrow interpretation of that phrase:
The dictionary defines "pending" (when used as
an adjective) as "in continuance" or "not yet decided."
Webster's Third New International Dictionary 1669
(1993). It similarly defines the term (when used as a
preposition) as "through the period of continuance .. .
of," "until the ... completion of." Ibid. That definition .. .
means that an application is pending as long as the
ordinary state collateral review process is "in
continuance"- i.e., "until the completion of' that process.
In other words, until the application has achieved final
resolution
through
the
State's
post-conviction
procedures, by definition it remains "pending."
. . . A federal habeas petitioner must exhaust
state remedies before he can obtain federal habeas
relief. The statute makes clear that a federal petitioner
has not exhausted those remedies as long as he
maintains "the right under the law of the State to raise"
in that State, "by any available procedure, the question
presented." 28 U.S.C. § 2254(c). We have interpreted
this latter provision to require the federal habeas
petitioner to "invok[e] one complete round of the State's
established appellate review process." O'Sullivan v.
Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144
L. Ed.2d 1 ( 1999). The exhaustion requirement serves
AEDPA's goal of promoting "comity, finality, and
federalism," Williams v. Taylor, 529 U.S. 420, 436, 120
S.Ct. 1479, 146 L.Ed.2d 435 (2000), by giving state
courts "the first opportunity to review [the] claim," and to
"correct" any "constitutional violation in the first
instance." Boerckel, supra, at 844-845, 119 S.Ct. 1728.
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And AEDPA's limitations period- with its accompanying
tolling provision - ensures the achievement of this goal
because it "promotes the exhaustion of state remedies
while respecting the interest in the finality of state court
judgments." Duncan v. Walker, 533 U.S. 167, 178, 121
S.Ct. 2120, 150 L.Ed.2d 251 (2001). California's
interpretation violates these principles by encouraging
state prisoners to file federal habeas petitions before the
State completes a full round of collateral review. This
would lead to great uncertainty in the federal courts,
requiring them to contend with habeas petitions that are
in one sense unlawful (because the claims have not
been exhausted) but in another sense required by law
(because they would otherwise be barred by the 1-year
statute of limitations).
It is therefore not surprising that no circuit court
has interpreted the word "pending" in the manner
proposed by California. Every Court of Appeals to
consider the argument has rejected it. Melancon v.
Kaylo, 259 F.3d 401, 406 (C.A.5 2001); Payton v.
Brigano,
256 F.3d 405, 408 (C.A.6 2001 );
Hizbullahankhamon v. Walker, 255 F.3d 65, 72 (C.A.2
2001); Nyland v. Moore, 216 F.3d 1264, 1267 (C.A.11
2000); Swartz v. Meyers, 204 F.3d 417, 421-422 (C.A.3
2000); Taylor v. Lee, 186 F.3d 557, 560-561 (C.A.4
1999); Nino v. Galaza, 183 F.3d 1003, 1005 (C.A.9
1999); Barnett v. Lemaster, 167 F.3d 1321, 1323
(C.A.1 0 1999).
Carey v. Saffold, at 218-220. In short, this Court concludes, as did the

Magistrate Judge, that the statute of limitations was tolled during the time that
Petitioner could have filed, but did not file, an appeal from the decisions denying
his applications for post-conviction relief. It follows, then, that the Petition was
not untimely filed.
For the foregoing reasons and for the reasons detailed in the Magistrate
Judge's Order and Report and Recommendation, Respondent's Objection, ECF
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17, is OVERRULED. The Order and Report and Recommendation, ECF 11, is
ADOPTED and AFFIRMED. Respondent's Motion to Dismiss, ECF 8, is
DENIED.
Respondent is DIRECTED to file a response to the Petition within twentyone (21) days. Petitioner may file a reply within twenty-one (21) days thereafter.
IT IS SO ORDERED.

thdJ]_. /A}~
MlCHAELH:WAfSON, JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:14-cv-226

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