Alls v. Warden, Belmont Correctional Institution
REPORT AND RECOMMENDATION re (13 in 2:15-cv-02323-MHW-CMV, 8 in 2:16-cv-01001-MHW-CMV) Petition for Writ of Habeas Corpus filed by James Alls and (11 in 2:16-cv-01001-MHW-CMV) MOTION to Dismiss filed by Warden, Belmont Correctional Ins titution. The Magistrate Judge RECOMMENDS that this action be DISMISSED. Objections to R&R due by 1/25/2018. Signed by Magistrate Judge Chelsey M. Vascura on 1/11/2018. Associated Cases: 2:15-cv-02323-MHW-CMV, 2:16-cv-01001-MHW-CMV. (kpt)(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
LEAD CASE NO. 2:15-CV-23231
REL. CASE NO. 16-CV-1001
JUDGE MICHAEL H. WATSON
Magistrate Judge Chelsey M. Vascura
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Motion to Dismiss,
Petitioner’s Memorandum Contra Respondent’s Motion to Dismiss, and the exhibits of the
parties. For the reasons that follow, it is RECOMMENDED that this action be DISMISSED.
Facts and Procedural History
On February 14, 2012, Petitioner was sentenced to a term of 15 years after pleading
guilty to aggravated robbery and felonious assault charges in Case No. 11CR-02-1081, in the
Court of Common Pleas for Franklin County, Ohio. (ECF Nos. 1-1, PAGEID # 7; 11-1,
PAGEID # 103–04.) On February 28, 2012, Petitioner filed a direct appeal of that determination
pro se in the state court. (ECF No. 11-1, PAGEID # 109–11.)
Petitioner alleges that he was
unsure about what to do after filing the notice of appeal but that he assumed that he would
Any future filings must be filed under the lead case number and use docket identification numbers from the lead
Although Petitioner alleges that his notice of appeal was filed by a court appointed attorney in his Memorandum
Contra (ECF No. 12, PAGEID # 132), elsewhere he alleges that he filed a notice of appeal “of his own accord”
(ECF No. 1-2, PAGEID # 21.) Moreover, the record indicates that Petitioner signed the notices of appeal. (ECF
No. 11-1, PAGEID # 106, 109.)
receive instructions from the court of appeals. (ECF No. 1-2, PAGEID # 21.) Petitioner further
alleges that that he attempted “to contact his trial counsel several times to ask about appeal
procedures,” and that his “family attempted to contact [his] trial counsel,” but that his “attorney
never responded.” (Id. at PAGEID #22.) Moreover, Petitioner alleges that “access to the law
library was minimal at best,” but that in any event, he never visited it, believing instead that he
would eventually hear back from the court or his attorney about his appeal. (Id.)
Petitioner’s appeal was dismissed on April 19, 2012, for failure to file an appeal brief.
(ECF Nos. 1-1, PAGEID # 7; 11-1, PAGEID # 108.) Petitioner alleges that he “did not become
aware of the dismissal until he arrived at his parent institution and inquired with the Court about
the status of his appeal.” (ECF No. 1-2, PAGEID # 18.) Although he does not allege precisely
when he made that inquiry, or when he received a response to the same, he alleges that “upon
becoming aware” that the appeal had been dismissed, he “immediately filed . . . a motion for
delayed appeal.” (Id.) The state-court docket indicates that Petitioner filed a motion for a
delayed appeal on June 12, 2014— more than two years Petitioner’s appeal was dismissed.
(Franklin County Common Pleas, 14-AP-000469, Docket 6/12/14.) Petitioner’s motion for a
delayed appeal was denied on June 23, 2014. (ECF No. 11-1, PAGEID # 117.) Petitioner filed a
notice of appeal from that determination with the Ohio Supreme Court on July 28, 2014. (ECF
No. 11-1, PAGEID # 124.) On October 22, 2014, the Ohio Supreme Court declined to exercise
jurisdiction over that appeal. (ECF No. 1-2, PAGEID # 26.)
Approximately seven months later, on May 27, 2015, Petitioner executed the instant
petition for a writ of habeas corpus under 28 U.S.C § 2254. (ECF Nos. 1-1, 1-2.) On June 22,
2015, Petitioner successfully moved to withdraw his federal habeas petition. (ECF Nos. 4, 5.)
On July 8, 2015, Petitioner sought a petition of habeas corpus in the Ohio courts, but that relief
was denied on April 26, 2016. Alls v. Miller, No. 15 BE 0043, 2016 WL 1730527, (Ohio Ct.
App., Belmont County, April 25, 2016). After Petitioner’s state habeas action was dismissed,
this Court permitted him to reinstate his federal habeas petition on September 12, 2016,
conditioned upon payment of the $5.00 filing fee. (ECF No. 7.) Instead of paying that fee,
however, on October 19, 2016, Petitioner filed with this Court an identical copy of his petition in
a new federal habeas corpus action, which was assigned Case No 2:16-CV-1001. On May 16,
2017, this Court found that the two federal habeas actions were, for all material purposes,
identical, and thus consolidated them. (ECF No. 9.)
In his single assignment of error, Petitioner asserts that the state court of appeals “erred
when it did not allow [Petitioner] to proceed with a delayed appeal.” (ECF No. 1–1, at 2.)
Respondent asserts that Petitioner’s claim is time-barred.
Statute of Limitations
The Undersigned agrees that Petitioner’s claim is time-barred. The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year statute of limitations on the
filing of habeas corpus petitions. 28 U.S. C. § 2244(d) provides:
(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 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
(2) The time during which a properly filed application for State postconviction 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.
Under the terms of § 2244(d)(1)(A), Petitioner’s judgment of conviction became final on June 4,
2012,3 i.e., forty-five days after the state appellate court dismissed his direct appeal, and when
the time for filing a timely appeal from that determination with the Ohio Supreme Court
expired.4 Ohio S.Ct.Prac.R. 7.01(A)(1)(a)(i); Gonzalez v. Thaler, 566 U.S. 134, 149–50, 132
S.Ct. 641, 653-54 (2012) (holding that because the petitioner did not appeal to the State's highest
court, his conviction became final under § 2244(d)(1)(A) “when his time for seeking review with
the State’s highest court expired”). The statute of limitations began to run the next day and
expired one year later on June 5, 2013. Petitioner did not execute the instant petition until May
27, 2015— approximately two years after the statute of limitations expired on June 5, 2013. His
petition is thus time-barred.
Petitioner’s other post-conviction filings in the state courts (the first of which was the
unsuccessful motion for a delayed appeal, filed on June 12, 2014) do not toll the statute of
limitations because they were all filed after the limitation period had already expired.
Unsuccessful motions for delayed appeals and state collateral actions do not resurrect an expired
limitation period under § 2244(d)(2). Armstrong v. Warden, Case No. 1:15-CV-783, 2016 WL
4778367, at *4 (6th Cir. 2016) (explaining that unlike a successful motion for a delayed appeal,
The forty-fifth day was June 3, 2012, a Sunday, and thus Petitioner had until the following day to file.
The Court does not find that pursuant to §2254(d)(1)(D), the one-year statute of limitations began running only
after Petitioner learned that his direct appeal had been dismissed— the petition does not allege facts showing that
Petitioner was unable to discover, through the exercise of due diligence, that his appeal had been dismissed prior to
that date. Instead, as explained infra, the Court concludes that Petitioner was not diligent in this regard.
an unsuccessful motion for a delayed appeal cannot restart the running of the statute of limitation
under § 2244(d)(1)(A), but can only toll an unexpired limitation period under § 2244(d)(2));
Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (“The tolling provision does not . . .
‘revive’ the limitation period (i.e., restart the clock at zero); it can only serve to pause a clock
that has not yet fully run. Once the limitations period is expired, collateral petitions can no longer
serve to avoid a statute of limitations.”).
Further, the petition fails to allege facts demonstrating that equitable tolling of the time
limitation in § 2244(d)(1)(A) is warranted. A petitioner is entitled to equitable tolling of that
period only if he shows: “1) that he has been pursuing his rights diligently, and 2) that some
extraordinary circumstances stood in his way” and prevented timely filing. Holland v. Florida,
560 U.S. 631, 648 (2010).5 “Petitioner bears the burden of persuading the court that he or she is
entitled to equitable tolling.” McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003).
Equitable tolling is applied only sparingly. Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745,
750 (6th Cir. 2011) (citing Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010).
The petition does not allege that Petitioner diligently pursued his rights. It states that
Petitioner’s motion for a delayed appeal was untimely because he did not learn that his appeal
had been dismissed until after he arrived at his parent institution and asked the state court about
the status of his appeal. (ECF No. 1-2, PAGEID # 18.) He does not state when he contacted the
state court, but he alleges that he “immediately” filed his motion for a delayed appeal when he
learned that his appeal had been dismissed.
That motion for a delayed appeal was filed,
however, two years after the appeal was dismissed. Petitioner does not provide an adequate
explanation for why he waited approximately two years to contact the court and learn that his
Equitable tolling is also available when a petitioner makes a credible claim of actual innocence on the basis of
newly discovered evidence. Phillips v. United States, 734 F.3d 573, 581 (6th Cir. 2013) (citing Bousley v. United
States, 523 U.S. 614, 622 (1998)). Petitioner does not allege this basis for tolling.
appeal had been dismissed. See Robinson v. Easterling, 424 F. App’x 439, 442 (6th Cir. 2011)
(“While this Court has recognized that attorney assurances and the realities of incarceration may
justifiably delay a petitioner's request for a case status update, . . . this Court has never granted
equitable tolling to a petitioner who sat on his rights for a year and a half.”) Petitioner states
only that he and his family made “several” unsuccessful attempts to contact his attorney about
appeal procedures (ECF No. 1-2, PAGEID # 22), but he fails to indicate precisely how many
attempts he or his family made, or when they made them. See Fitts v. Eberlin, 626 F. Supp. 2d
724, 730 (N.D. Ohio 2009) (finding that a petitioner was not diligent where he alleged that his
letters to his attorney had gone unanswered but failed to specify when he had allegedly sent the
letters). Moreover, Petitioner offers no explanation as to why he waited another year after that to
file his federal habeas petition.
Nor does the petition allege that some extraordinary circumstance stood in Petitioner’s
way and prevented timely filing. Petitioner alleges that he had very little knowledge of the law
and that he was unsure of what to do after filing his notice of appeal. (ECF No. 1-2, PAGEID
# 21.) Nevertheless, 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 do not provide a sufficient
justification to apply equitable tolling of the statute of limitations. Hall, 662 F.3d at 751 (6th
Cir. 2011) (citation omitted); Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 464 (6th
Cir. 2012). These conditions are typical for many prisoners and simply do not constitute
Adams v. Chillicothe Corr. Inst., No. 2:16-CV-563, 2016 WL
4442826, at *2 (S.D. Ohio Aug. 22, 2016.)
Therefore, the Undersigned RECOMMENDS that this action be DISMISSED.
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
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/ Chelsey M. Vascura___
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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