Pearson v. Warden Marion Correctional Institution

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C. Smith on 5/20/16. (lvw)(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
ROBERT E. PEARSON,
Petitioner,
CASE NO. 2:15-CV-889
JUDGE GEORGE C. SMITH
MAGISTRATE JUDGE KEMP

v.
WARDEN, MARION
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On April 5, 2016, the Magistrate Judge issued a Report and Recommendation
recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be denied and that this action be dismissed. (ECF No. 8). Petitioner has filed an Objection to the
Magistrate Judge’s Report and Recommendation. (ECF No. 11). 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. 11) is OVERRULED. The Report and Recommendation (ECF No. 8) is
ADOPTED and AFFIRMED. This action is hereby DISMISSED.
This case involves Petitioner’s March 2007 convictions pursuant to his guilty plea on
rape and burglary in the Licking County Court of Common Pleas. The trial court imposed the
agreed-upon sentence of fifteen years incarceration (eight years on the rape count and seven on
the burglary count, such sentences to be served consecutively). Petitioner did not file a timely
appeal. Approximately one year later, he filed a sentencing memorandum, arguing that his
sentences should have run concurrently to each other. On March 18, 2008, the trial court denied
the motion. More than three years later, Petitioner filed a motion to vacate sentence and motion

for re-sentencing. The trial court denied those motions, and on December 16, 2013, the appellate
court affirmed the trial court’s decision. On May 14, 2014, the Ohio Supreme Court declined
review. On June 2, 2014, Petitioner filed a motion for leave to file a delayed appeal. He asserted
as cause for his untimely filing that the trial court had failed to advise him of the right to appeal
imposition of consecutive terms of incarceration, and that such sentence should not have been
imposed without a hearing. The appeals court denied his motion and a motion to reconsider, and
on February 18, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. On
March 12, 2015, Petitioner filed the instant § 2254 petition. He asserts that the state trial court
failed to notify him of his right to appeal. The Magistrate Judge recommended dismissal of this
action as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d).
Petitioner objects to the Magistrate Judge’s recommendation of dismissal of this action as
time-barred. Petitioner argues that the statute of limitations did not begin to run until February
18, 2015, when the Ohio Supreme Court declined jurisdiction of his motion for leave to file a
delayed appeal in the state appellate court, and that this action therefore is timely. He argues that
he was denied his right to appeal based on the trial court’s failure to advise him of his right to
appeal during his guilty plea colloquy.
Under the terms of 28 U.S.C. § 2244(d)(1)(A), the one-year statute of limitations begins
to run on “the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review[.]” Here, that was in April 2007, thirty days after
imposition of sentence, when the time period expired to file a timely appeal. The statute of
limitations therefore expired long before Petitioner filed this habeas corpus petition. Further, the
filing of a motion for a delayed appeal does not cause the statute of limitations to begin to run
anew. See Search v. Carter, 246 F.3d 515, 519 (6th Cir. 2001)(citing Raynor v. Dufrain, 28

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F.Supp.2d 896, 898 (S.D.N.Y. 1998). As noted by the Magistrate Judge, in his signed plea
agreement, Petitioner acknowledged that he understood his right to appeal and that any appeal
must be filed within thirty days. Further, the record fails to reflect that Petitioner exercised
diligence, particularly given the lengthy period of time between entry of his guilty plea and the
filing of this action.
For these reasons, and for the reasons detailed in the Magistrate Judge’s Report and
Recommendation, Petitioner’s Objection (ECF No. 11) is OVERRULED. The Report and
Recommendation (ECF No. 8) is ADOPTED and AFFIRMED.

This action is hereby

DISMISSED.
IT IS SO ORDERED.
\s\ George C. Smith
_
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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