Green v. Warden, Franklin Medical Center

Filing 40

ORDER AND REPORT AND RECOMMENDATIONS re 28 MOTION to Dismiss. The Magistrate Judge RECOMMENDS that Respondent's Motion to Dismiss be GRANTED, and that this action be DISMISSED. Respondent's Motion to Strike, ECF 38 , is DENIED as moot. Signed by Magistrate Judge Norah McCann King on 6/5/2015. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES EDWARD GREEN,
Petitioner,
Case No. 2:14-cv -01698
Judge Smith
Magistrate Judge King

v.
WARDEN, FRANKLIN COUNTY
MEDICAL CENTER,
Respondent.

ORDER and
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. 2254. This matter is before the Court on the Petition, Supplement to Petition, Facts in
Support, Explanation of Untimely Filing, and Case Law in Support, and ECF 1, 5, 32-35,
Respondent’s Motion to Dismiss, ECF 28, and Reply, ECF 36, Petitioner’s Rebuttal, ECF 37,
Respondent’s Motion to Strike, ECF 38, Petitioner’s Response in Opposition, ECF 39, and the
exhibits of the parties.
For the reasons that follow, the Magistrate Judge RECOMMENDS that Respondent’s
Motion to Dismiss, ECF 28, be GRANTED, and that this action be DISMISSED.
Respondent’s Motion to Strike, ECF 38, is DENIED as moot.
Facts and Procedural History
This case involves Petitioner’s convictions, after a jury trial in the Franklin County Court
of Common Pleas, on charges of felonious assault and having a weapon while under disability.
See ECF 28-1, PageID# 167; State v. Green, No. 09AP-972, 2010 WL 3239478, at *1-5 (Ohio
App. 10th Dist. Aug. 7, 2010). Prior to sentencing, the trial court granted Petitioner’s motion for

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a new trial. Id. The State filed an appeal from that decision and, on August 7, 2010, the
appellate court reversed the grant of a new trial and remanded the case to the trial court. Id. On
January 19, 2011, the Ohio Supreme Court dismissed Petitioner’s appeal. State v. Green, 127
Ohio St.3d 1503 (Ohio 2011). On June 11, 2011, the trial court imposed an aggregate sentence
of twelve years’ incarceration. Exhibit 26 to Motion to Dismiss. Petitioner filed a timely appeal,
and, on March 6, 2012, the appellate court affirmed the judgment of the trial court. State v.
Green, No. 2:11AP-526, 2012 WL 760836, at *1 (Ohio App. 10th Dist. March 6, 2012). On
December 10, 2012, Petitioner filed motion for leave to file a delayed appeal in the Ohio
Supreme Court. As cause for his untimely filing, Petitioner stated that his attorney had failed to
notify him of the appellate court’s decision until May 16, 2012. ECF 28-2, PageID# 441-42.
Petitioner also attached to his motion for a delayed appeal what appears to be a letter from his
attorney, dated May 16, 2012, which indicates that Petitioner’s counsel had failed to notify
Petitioner of the appellate court’s decision. Counsel further advised Petitioner that, although the
time to file a timely appeal to the Ohio Supreme Court had expired, there were in any event no
viable issues to present to the Ohio Supreme Court.

ECF 28-2, PageID# 450. Counsel also

provided Petitioner with documents for the filing of a petition for post conviction relief.
PageID# 450-51. On February 6, 2013, the Ohio Supreme Court denied Petitioner’s motion for a
delayed appeal. State v. Green, 134 Ohio St.3d 1446 (Ohio 2013).
On March 25, 2013, Petitioner filed a motion for reconsideration and a delayed
application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). As cause for the
untimely filing, Petitioner again referred to appellate counsel’s failure to timely notify him of the
appellate court’s decision denying his appeal. ECF 28-2, PageID# 46-61. On May 23, 2013, the
appellate court denied Petitioner’s motion, noting that a Rule 26(B) application must be filed

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within ninety days of the journalization of the appellate court’s decision, and that Petitioner had
waited “just more than one year” to file his motion. PageID# 496.
To show good cause for his delay, defendant claims that his
appellate counsel did not mail him this court’s decision until May
16, 2013. Even assuming that this delay would constitute good
cause for that period of time, defendant waited much longer than
90 days from the day he received this court’s decision to file this
motion. In fact, he waited another seven months and does not
provide any reason for that delay. Defendant has not demonstrated
good cause for this lengthy delay.
Id. In a footnote, the appellate court also stated that, to the extent that Petitioner requested
reconsideration pursuant to Ohio Appellate Rule 26(A), that motion was also untimely, because
he had filed it well beyond the ten day time limitation. Id. Petitioner apparently did not file an
appeal from that decision.
On September 23, 2013, Petitioner filed a motion in the state appellate court requesting
the reinstatement of the court’s denial of his Rule 26(A), (B) applications. Petitioner represented
that the Clerk had failed to provide him notice of the denial and he had therefore been unable to
timely appeal to the Ohio Supreme Court from that denial. PageID# 499-500. The appellate
court denied that request. PageID# 502.
Meanwhile, on February 1, 2013, Petitioner filed another motion for a new trial.
PageID# 504. The trial court denied that motion and, on December 5, 2013, the appellate court
affirmed that denial:
The trial court denied appellant's motion on March 11, 2013. In
its entry, the trial court noted that this court, in our decision on
appellant's direct appeal from his convictions, stated “[t]he trier
of fact is in the best position to take into account the
inconsistencies in the evidence, as well as the demeanor and
manner of the witnesses, and to determine which witnesses are
more credible. * * * Given the evidence presented at trial, the
jury did not lose its way or create a manifest miscarriage of
justice.” Green II at ¶ 12–13. Appellant timely appealed.
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***
Appellant is before this court on appeal from the trial court's denial
of his February 1, 2013 “Motion for 52(B) and Motion for New
Trial.” Appellant clarified in his brief that the motion was
“inadvertently titled under Ohio Crim. R. 52(B) when it should
have been titled under Ohio Crim. R. 33(B).” (Appellant's brief, at
3.) Therefore, we will proceed with our analysis under the law
governing motions filed pursuant to Crim.R. 33.
We will not disturb a trial court's decision granting or denying a
Crim.R. 33 motion for new trial absent an abuse of discretion.
State v. Schiebel, 55 Ohio St.3d 71, 76 (1990). An abuse of
discretion exists when the trial court's attitude in reaching its
judgment was unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Crim.R. 33(B) provides:
Motion for new trial; form, time. Application for a new trial shall
be made by motion which, except for the cause of newly
discovered evidence, shall be filed within fourteen days after the
verdict was rendered, or the decision of the court where a trial by
jury has been waived, unless it is made to appear by clear and
convincing proof that the defendant was unavoidably prevented
from filing his motion for a new trial, in which case the motion
shall be filed within seven days from the order of the court finding
that the defendant was unavoidably prevented from filing such
motion within the time provided herein.
Motions for new trial on account of newly discovered evidence
shall be filed within one hundred twenty days after the day upon
which the verdict was rendered, or the decision of the court where
trial by jury has been waived. If it is made to appear by clear and
convincing proof that the defendant was unavoidably prevented
from the discovery of the evidence upon which he must rely, such
motion shall be filed within seven days from an order of the court
finding that he was unavoidably prevented from discovering the
evidence within the one hundred twenty day period.
Under Crim.R. 33(B), a motion for new trial must be made within
14 days after the verdict was rendered or, when the motion
concerns newly discovered evidence, within 120 days after the day
the verdict was rendered. Because appellant filed his motion well
outside the 120–day period, he was required to obtain leave from
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the trial court to file his motion for new trial. “Leave of court must
be granted before the merits of the motion are reached.” State v.
Gover, 10th Dist. No. 12AP–777, 2013–Ohio–3366, ¶ 10, citing
State v. Lordi, 149 Ohio App.3d 627, 2002–Ohio–5517, ¶ 25 (7th
Dist.). The moving party must prove unavoidable delay by clear
and convincing evidence in order to obtain leave. State v.. Bates,
10th Dist. No. 09AP–583, 2009–Ohio–6422, ¶ 13; Crim.R. 33(B).
Unavoidable delay results when the party had no knowledge of the
existence of the ground supporting the motion for new trial and
could not have learned of the existence of that ground within the
time prescribed for filing the motion for new trial in the exercise of
reasonable diligence. State v. Walden, 19 Ohio App.3d 141, 146
(10th Dist.1984). The requirement of clear and convincing
evidence puts the burden on the defendant to prove he was
unavoidably prevented from discovering the evidence in a timely
manner. State v. Fortson, 8th Dist. No. 82545, 2003–Ohio–5387, ¶
12.
Appellant's motion for new trial was untimely by several years. He
did not seek leave from the trial court to file his motion, nor did he
allege that he was unavoidably prevented from filing his motion in
a timely manner. We also note that the allegations in appellant's
motion were based on information that was available to him before
and during trial. On appeal, appellant confirmed this by only
relying on the trial court record to support his claims of perjury and
prosecutorial misconduct. There is no indication that appellant
lacked knowledge of the existence of the grounds supporting his
motion and that he could not have learned of the existence of the
grounds in a timely manner with the exercise of reasonable
diligence. For all these reasons, the trial court did not abuse its
discretion in denying appellant's motion for new trial. Accordingly,
we overrule appellant's first assignment of error.
Because appellant failed to comply with the requirements of
Crim.R. 33, we do not find error with the trial court's decision to
deny appellant's motion without holding a hearing to explore the
merits of the motion. See Lordi at ¶ 25 (“Leave must be granted
before the merits are reached.”). Accordingly, we overrule
appellant's second assignment of error.
State v. Green, No. 13AP-260, 2013 WL 6406322, at *1-2 (Ohio App. 10th Dist. Dec. 5, 2013).
Petitioner apparently did not file an appeal from that decision.

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On September 25, 2014, approximately nine months later, Petitioner filed his pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The original Petition alleges
Violation of my Fourth and Fourteenth Amendment rights.
No substantive law filed in the public record of Case 08 CR 6930,
State of Ohio v. James E. Green.
Petition, ECF 1, PageID# 5. The Supplement to Petition appears to assert (1) denial of due
process for failure to disclose exculpatory information to the defense in violation of Brady v.
Maryland, 373 U.S. 83 (1963); (2) denial of due process because the evidence of guilt was
constitutionally insufficient, see Jackson v. Virginia, 443 U.S. 307 (1979); (3) ineffective
assistance of trial counsel; and (4) ineffective assistance of appellate counsel. Respondent argues
that the action is untimely under 28 U.S.C. § 2244(d)(2).
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a oneyear statute of limitations on the filing of habeas corpus petitions. 28 U.S.C. § 2244(d) provides
as follows:
(d) (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

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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.
28 U.S.C. § 2244(d)(emphasis added).
Petitioner acknowledges that he failed to file his habeas corpus petition within the oneyear statute of limitations, but maintains that he should not be faulted in view of his attorney’s
failure to timely notify him that the appellate court had dismissed his appeal. Explanation of
Untimely Filing, ECF 34, PageID# 699-710. Respondent argues that, even construing the statute
of limitations in the light most favorable to Petitioner, this action is untimely and the record fails
to justify the equitable tolling of the statute of limitations. Reply, ECF 36, PageID# 797-806. In
Rebuttal, Petitioner argues that the Court should equitably toll the running of the statute of
limitations based on the denial of the effective assistance of counsel and his pro se status.
According to Petitioner, dismissal of the case will constitute an injustice. ECF 37, PageID# 808812.
Application
For ease of discussion, this Court will assume, as Respondent suggests, that all of
Petitioner’s post conviction and collateral motions, and the time period in between such filings,
tolled the running of the statute of limitations under 28 U.S.C. § 2244(d)(2). The Court will also
assume, arguendo, that the one-year statute of limitations did not begin to run until May 16,

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2012, i.e., the date that Petitioner alleges that he first learned that the Ohio Court of Appeals had
denied his appeal. Nevertheless, the Court concludes that the action is untimely.
As noted supra, the Court assumes that the statute of limitations began to run on May 17,
2012. It then ran for 207 days, until December 10, 2012, when Petitioner filed a motion for
delayed appeal in the Ohio Supreme Court.
Post conviction and collateral actions denied as untimely by the state courts are not
“properly filed” within the meaning of 28 U.S.C. § 2244(d)(2), and therefore do not toll the
running of the statute of limitations. “[T]ime limits, no matter their form, are ‘filing’ conditions,
and where the state court rejects a post conviction or collateral action as untimely, it was not
“properly filed” so as to toll the running of the statute of limitations under § 2244(d)(2). Pace v.
DiGuglielmo, 544 U.S. at 417. See also Isreal v. Warden, Lebanon Correctional Inst., No. 2:13cv-50, 2013 WL 578594 at *4 (S.D. Ohio Oct. 28, 2013)(citing Bonilla v. Hurley, 370 F.3d 494,
497 (6th Cir. 2004) (per curiam)(concluding that a motion for a delayed appeal denied by the
Ohio Supreme Court as untimely does not toll the running of the statute of limitations under §
2244(d)(2)). However, the Court will give Petitioner the benefit of the doubt and assume that all
of his post conviction and collateral motions, as well as the time period in between such filings,
tolled the running of the statute of limitations.
Calculating the running of the statute of limitations in this manner, the statute of
limitations was tolled from December 10, 2012, until December 5, 2013, when the state appellate
court denied Petitioner’s second motion for a new trial as untimely. The statute of limitations
then began to run again the next day and expired 158 days later, on May 13, 2014. Petitioner did
not execute this habeas corpus petition until September 19, 2014, approximately four months
later. This action is therefore untimely.

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Moreover, equitable tolling is not appropriate on this record. The AEDPA’s limitations
period is not jurisdictional and is subject to equitable tolling. Such equitable tolling, however, is
granted sparingly in habeas cases. See Hall v. Warden, Lebannon Corr. Inst., 662 F.3d 745, 749
(6th Cir. 2011). In order to establish equitable tolling, a petitioner must establish that (1) he has
been pursuing his rights diligently and (2) some extraordinary circumstance stood in his way and
prevented him from filing in a timely fashion. See id. The United States Supreme Court
established this two-part “extraordinary circumstance” test in Holland v. Florida, 560 U.S.641,
649 (2010)(citing Pace, 544 U.S. at 418)). Petitioner bears the burden of demonstrating that he
is entitled to equitable tolling. Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011). Petitioner has not
met this burden here.
Petitioner argues that the running of the statute of limitations should be equitably tolled
because he did not receive notice of the denial of the appellate court’s dismissal of his direct
appeal until May 16, 2012. As discussed supra, however, Petitioner waited until December 10,
2012, i.e., approximately seven months later, before filing a motion for delayed appeal in the
Ohio Supreme Court. He then waited approximately ten months, until March 25, 2013, to file
his delayed Rule 26(B) application in the state court of appeals. He waited approximately nine
months after the state appellate court’s December 5, 2013, denial of his second motion for a new
trial before executing this habeas corpus petition.
“[P]etitioner bears the . . . burden of persuading the court that he or she 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 Supreme Court has
allowed equitable tolling where a claimant actively pursued judicial remedies by filing a timely,
but defective pleading, or where he was induced or tricked by his opponent’s misconduct into

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allowing the filing deadline to pass. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990).
Where the claimant failed to exercise due diligence in preserving his legal rights, courts are
much less forgiving. Id.; Jurado v. Burt, 337 F.3d 638, 642–43 (6th Cir. 2003). A prisoner’s pro
se incarcerated status, lack of knowledge regarding the law, and limited access to the prison’s
law library or to legal materials, either together or alone, do not provide sufficient justification to
apply equitable tolling of the statute of limitations. Hall, 662 F.3d at 751 (citation omitted).
These are conditions typical for many prisoners and do not rise to the level of exceptional
circumstances. Groomes v. Parker, No. 3:07-cv-0124, 2008 WL 123935, at *5 (M.D. Tenn. Jan.
9, 2008)(citing Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004)). “Generally, a habeas
petitioner’s reliance on unreasonable or incorrect legal advice from his attorney is not a valid
ground for equitable tolling of the statute of limitation.” Brown v. Bauman, No. 2:10–cv–264,
2012 WL 1229397, at *9 (W.D. Mich. April 12, 2012)(citations omitted).

“The fact that

Petitioner may be ignorant of the law and instead chose to rely on counsel, in itself, does not
provide a basis for equitable tolling. Neither a prisoner’s pro se status nor his lack of knowledge
of the law constitute[s] extraordinary circumstances justifying equitable tolling.” Taylor v.
Palmer, No. 2:14-cv-14107, 2014 WL 6669474, at *4 (E.D. Mich. Nov. 11, 2014)(citing
Rodriguez v. Elo, 195 F. Supp. 2d 934, 936 (E.D. Mich. 2002); Johnson v. United States, 544
U.S. 295, 311 (2005)(“[W]e have never accepted pro se representation alone or procedural
ignorance as an excuse for prolonged inattention when a statute’s clear policy calls for
promptness”)).
Petitioner’s counsel’s failure to timely notify Petitioner of the appellate court’s March 6,
2012, decision denying Petitioner’s direct appeal simply does not serve to excuse all of

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Pettitioner’s subsequent delays in pursuing relief. Petitioner did not act diligently in pursuing his
claims.
The one-year statute of limitations may also be subject to equitable tolling upon a
“credible showing of actual innocence.” Souter v. James, 395 F.3d 577, 602 (6th Cir. 2005).
Accordingly, “a petitioner whose claim is otherwise time-barred may have the claim heard on the
merits if he can demonstrate through new, reliable evidence not available at trial, that it is more
likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt.”
Yates v. Kelly, No. 1:11-cv-1271, 2012 WL 487991 (N.D. Ohio Feb. 14, 2012) (citing Souter,
395 F.3d at 590). Actual innocence means factual innocence, not mere legal insufficiency. See
Bousely v. United States, 523 U.S. 614, 623 (1998). Equitable tolling is required upon a showing
of actual innocence because the refusal to consider even an untimely habeas petition would cause
a fundamental miscarriage of justice. See Patterson v. Lafler, No. 10–1379, 2012 WL 48186, at
*3 (6th Cir. Jan. 9, 2012). A petitioner must overcome a high hurdle in order to establish his
actual innocence, and the record fails to reflect that Petitioner has done so here.
The United States Supreme Court has held that if a habeas
petitioner “presents evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court
is also satisfied that the trial was free of nonharmless constitutional
error, the petitioner should be allowed to pass through the gateway
and argue the merits of his underlying claims.” Schlup [v. Delo],
513 U.S. [298,] 316, 115 S.Ct. 851, 130 L.Ed.2d 808 [(1994)].
Thus, the threshold inquiry is whether “new facts raise[ ] sufficient
doubt about [the petitioner’s] guilt to undermine confidence in the
result of the trial.” Id. at 317, 513 U.S. 298, 115 S.Ct. 851, 130
L.Ed.2d 808. . . . . “To be credible, such a claim requires petitioner
to support his allegations of constitutional error with new reliable
evidence-whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence-that was not
presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851, 130
L.Ed.2d 808. The Court counseled however, that the actual
innocence exception should “remain rare” and “only be applied in

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the ‘extraordinary case.’ ” Id. at 321, 513 U.S. 298, 115 S.Ct. 851,
130 L.Ed.2d 808.
Souter, at 589–90 (footnote omitted). A petitioner who asserts a convincing claim of actual
innocence need not establish that he was diligent in pursuing this claim. McQuiggin v. Perkins,
–– U.S. ––, 133 S.Ct. 1924, 1932–33 (2013). Unexplained delay, however, still undermines the
petitioner’s credibility. The Supreme Court has emphasized that “[t]o invoke the miscarriage of
justice exception to AEDPA’s statute of limitations, we repeat, a petitioner ‘must show that it is
more likely than not that no reasonable juror would have convicted him in the light of the new
evidence.’” Id. at 1935 (quoting Schlup, 513 U.S. at 332, 327).
Petitioner has failed to provide a convincing or even credible evidence of actual
innocence. He has proffered no new, reliable evidence supporting a claim of actual innocence.
Thus, Petitioner has failed to establish he is entitled to equitable tolling because he is actually
innocent of the offense on which he stand convicted.
The Magistrate Judge RECOMMENDS that Respondent’s Motion to Dismiss, ECF 28,
be GRANTED and that this action be DISMISSED.
Respondent has filed a Motion to Strike Petitioner’s Rebuttal for failure to comply with
local rules. Motion to Strike, ECF 38. In light of the recommended disposition of Respondent’s
Motion to Dismiss, Respondent’s Motion to Strike, ECF 38, is DENIED as moot.

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
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portions of the report or specified proposed 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).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
June 5, 2015

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