Westerfield v. Warden, Chillicothe Correctional Institution

Filing 13

ORDER granting 5 Motion to Dismiss; adopting Report and Recommendations re 9 Report and Recommendations.. Signed by Judge James L Graham on 5/27/2015. (ds)(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

ERIC WESTERFIELD,
PETITIONER,
Case No. 2:14-cv-2012
Judge Graham
Magistrate Judge King

v.

WARDEN, CHILLICOTHE CORRECTIONAL
INSTITUTION,
RESPONDENT.

ORDER
This is an action for a writ of habeas corpus under 28 U.S.C. §
2254 in which Petitioner challenges his life sentence, imposed on
December 6, 2007, on one count of rape of a child less than 10 years
of age in violation of O.R.C. § 2907.02, and his classification as a
sexual predator. Petitioner specifically contends that he was not
afforded notice and opportunity to be heard prior to his
classification as a sexual predator (claim one), and that the life
sentence was imposed retroactively (claim two). On April 7, 2015, the
United States Magistrate Judge recommended that Respondent’s motion to
dismiss the action as untimely, Motion to Dismiss, ECF 5, be granted.
Report and Recommendation, ECF 9. This matter is now before the Court
on Petitioner’s objection to that recommendation, Objection, ECF 12.
The Court will consider the matter de novo. See 28 U.S.C. § 636(b);
Fed. R. Civ. P. 72(b).

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Respondent contends that Petitioner’s conviction became final on
July 7, 2009, i.e., upon the expiration of the time for seeking review
by the United States Supreme Court from the Ohio Supreme Court’s
denial of petitioner’s motion for reconsideration. See Jimenez v.
Quarterman, 655 U.S. 113, 119 (2009). The Magistrate Judge agreed with
that calculation and concluded that the statute of limitations
therefore expired one year later, i.e., on July 7, 2010. Because the
the Petition was filed more than four (4) years later, in October
2014, the Magistrate Judge concluded that the action was not filed
within the one-year statute of limitations established by 28 U.S.C. §
2244(d)(1). Report and Recommendation.
In his objection, Petitioner contends that the challenged
judgment never became final because it is void under state law. See
generally Objection.
Federal law requires that a petition for a writ of habeas corpus
under 28 U.S.C. § 2254 be filed within one year after the challenged
state court judgment becomes final. 28 U.S.C. § 2244(d)(1).
Application of this statute of limitations is a matter of federal law
and a petitioner who wishes to challenge a state court judgment cannot
avoid this federal statute of limitations merely by characterizing his
conviction as void under state law.
Petitioner’s objection, Objection, ECF 12, to the Report and
Recommendation, ECF 9, is DENIED. The Report and Recommendation, ECF
9, is ADOPTED AND AFFIRMED.
Respondent’s Motion to Dismiss, ECF 5, is GRANTED. This action is
DISMISSED as untimely.

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The Clerk is DIRECTED to enter final judgment accordingly.
Date: May 27, 2015

________s/James L. Graham___
James L. Graham
United States District Judge

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