Ball v. Warden, Marion Correctional Institution

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS, OVERRULING Petitioner's Objection. DENYING Petitioner's Motion to Show Cause for Stay and Abeyance. This action is hereby DISMISSED as untimely. The Clerk is DIRECTED to enter FINAL JUDGMENT. (cw)(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
DONOVON BALL,
Petitioner,
Case No. 2:14-cv-2602
Judge Marbley
Magistrate Judge King

v.
JASON BUNTING, WARDEN,
Respondent.

ORDER
On October 20, 2015, the Magistrate Judge recommended that Petitioner’s Motion to
Show Cause for Stay and Abeyance (ECF No. 13) be denied and that this action be dismissed as
untimely.

Report and Recommendation (ECF No. 14). Petitioner objects to that

recommendation. Objection (ECF No. 15). Pursuant to 28 U.S.C. § 636(b) this Court has
conducted a de novo review. For the reasons that follow, Petitioner’s Objection (ECF No. 15) is
OVERRULED.

The Report and Recommendation (ECF No. 14) is ADOPTED and

AFFIRMED. Petitioner’s Motion to Show Cause for Stay and Abeyance (ECF No. 13) is denied
and this action is hereby DISMISSED as untimely.
This case arises out of Petitioner’s 2007 conviction on one count of rape; The Petition
was executed in 2014. Petitioner objects to the Magistrate Judge’s conclusion that the case was
not filed within the one-year statute of limitations established by 28 U.S.C. § 2244(d).
Specifically, Petitioner contends that, because the state trial court failed to properly notify him of
the terms of his post release control, his sentence is void under Ohio law and is therefore not
final for purposes of the running of the statute of limitations. This Court disagrees.

Federal law requires that habeas corpus petitions under 28 U.S.C. § 2254 be filed within
one year of the date on which the judgment became final. See 28 U.S.C. § 2244(d)(1)(A). No
Ohio court has ever held that Petitioner’s judgment of conviction or sentence is void or does not
constitute a final appealable order.1 This Court agrees that Petitioner’s conviction became final
on July 18, 2008, i.e., forty-five days after the appellate court’s June 3, 2008, denial of his direct
appeal; the statute of limitations therefore expired one year later, i.e., on July 19, 2009.
Moreover, and as the Magistrate Judge reasoned, Petitioner’s state collateral actions did not toll
the running of the statute of limitations, because they were filed after the statute of limitations
had already expired. Further, the record does not establish that equitable tolling of the statute of
limitations is appropriate.
For these reasons, and for the reasons detailed in the Magistrate Judge’s Report and
Recommendation, Petitioner’s Objection (ECF No. 15) is OVERRULED. The Report and
Recommendation (ECF No. 14) is ADOPTED and AFFIRMED. Petitioner’s Motion to Show
Cause for Stay and Abeyance (ECF No. 13) is DENIED. This action is hereby DISMISSED as
untimely.
The Clerk is DIRECTED to enter FINAL JUDGMENT.

s/Algenon L. Marbley
ALGENON L. MARBLEY
United States Magistrate Judge
DATED: November 9, 2015

1

Indeed, Petitioner did not raise any such challenge to his conviction or sentence on direct appeal. See State v. Ball,
No. 07AP-818, 2008 WL 2246656 (Ohio App. 10th Dist. June 3, 2008).

2