Westerfield v. Warden, Chillicothe Correctional Institution

Filing 9

REPORT AND RECOMMENDATIONS re 5 MOTION to Dismiss Habeas Petition as Time-Barred filed by Warden, Chillicothe Correctional Institution. It is RECOMMENDED that the Motion to Dismiss be granted and that this action be dismissed as untimely. Objections to R&R due by 4/24/2015. Signed by Magistrate Judge Norah McCann King on 4/7/2015. (pes1)(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.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of
habeas corpus under 28 U.S.C. § 2254, challenging 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 improperly imposed retroactively (claim two). This matter
is now before the Court on the Petition, ECF 1, respondent’s Motion to
Dismiss, ECF 5, petitioner’s Response in Opposition, ECF 8, and the
exhibits of the parties. For the reasons that follow, the Court
concludes that the action was untimely filed.
Petitioner was sentenced to life in prison and was classified as
a sexual predator by the Franklin County Court of Common Pleas on
December 6, 2007. Exhibit 7, attached to Motion to Dismiss. Petitioner
timely pursued a direct appeal but, on September 4, 2008, the Ohio
Court of Appeals for the Tenth District affirmed the judgment of

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conviction. Exhibit 12, attached to Motion to Dismiss. See also State
v. Westerfield, Case No. 07AP-1072 (Ct. App. 10th App. Dist.).
Petitioner timely filed a notice of appeal in the Ohio Supreme
Court, but that court declined jurisdiction to hear the case on
February 4, 2009. Exhibit 16, attached to Motion to Dismiss. See also
State v. Westerfield, 120 Ohio St. 3d 1506 (2009). Petitioner’s motion
for reconsideration was denied by the Ohio Supreme Court on April 8,
2009. Exhibit 19, attached to Motion to Dismiss.
Petitioner took no further action until he filed a motion to
vacate his sex offender classification on January 30, 2013. Exhibit
20, attached to Motion to Dismiss.

The trial court denied that motion

on March 13, 2013. Exhibit 22, attached to Motion to Dismiss.
Petitioner timely appealed that decision to the state court of
appeals, which affirmed the judgment of the trial court on September
26, 2013. Exhibit 27-28, attached to Motion to Dismiss.
Petitioner filed a notice of appeal from that decision in the
Ohio Supreme Court, which declined to accept jurisdiction on March 12,
2014. Exhibit 36, attached to Motion to Dismiss.
The Petition was filed in this Court on October 21, 2014. The
Petition appears to have been signed by petitioner on October 10,
2014. Id., at PAGEID#: 15. Respondent contends that the action is
untimely. Motion to Dismiss.
Federal law establishes a one-year statute of limitations on the
filing of habeas corpus actions:
[T]he the one-year limitation period shall run from the
latest of—

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(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 by 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.
28 U.S.C. § 2244(d)(1).
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). This Court agrees with that
calculation.

The statute of limitations therefore expired one year

later, i.e., on July 7, 2010. As noted supra, the Petition was filed
more than four (4) years later, in October 2014.
Petitioner does not appear to disagree that his conviction became
final on July 7, 2009. See generally, Response in Opposition. However,
petitioner “invoke[s] the miscarriage of justice exception as held by
(AEDPA) as a ‘gateway’ eliminating procedural obstacles. . . . “ Id.
at PAGEID#: 302. Petitioner also refers to “a colorable assertion of
innocence. . . .” Id.

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“[W]here an otherwise time-barred habeas petitioner can
demonstrate that it is more likely than not that no reasonable juror
would have found him guilty beyond a reasonable doubt, the petitioner
should be allowed to pass through the gateway and argue the merits of
his underlying constitutional claims.” Souter v. Jones, 395 F.3d 577,
602 (6th Cir. 2005). However, in order to serve as a gateway to
consideration of the merits of an otherwise untimely petition, a claim
of actual innocence must be based on newly-presented and reliable
evidence, Chavis-Tucker v. Hudson, 348 Fed. Appx. 125, 133 (6th Cir.
2009), which can take the form of “exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence – that
was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 327 (1995).
In the case presently before the Court, however, petitioner
offers no new evidence, but merely presents legal arguments in support
of his two claims for relief. Petitioner has not offered the
“exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence – that was not presented at trial,” see
Schlup, 513 U.S. at 327, that will serve to excuse the untimely filing
of a petition for a writ of habeas corpus under 28 U.S.C. § 2254.
It is therefore RECOMMENDED that the Motion to Dismiss, ECF 5, be
granted and that this action be dismissed as untimely.
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.

4

28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections

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

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

The parties are specifically advised that the 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 waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

April 7, 2015

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

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to