Al'Shahid v. Warden Pickaway Correctional Institution
REPORT AND RECOMMENDATION that 1 Petition for Writ of Habeas Corpus be DISMISSED. Objections to R&R due by 10/31/2016. Signed by Magistrate Judge Terence P. Kemp on 10/13/2016. (agm)(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
CASE NO. 2:15-CV-02411
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE KEMP
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant 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 Return of Writ, Petitioner’s Reply, and the exhibits of the parties. For the
reasons that follow, the Magistrate Judge RECOMMENDS that this action be
Facts and Procedural History
Petitioner has a lengthy criminal history dating back to 1965.
See Doc. 7-1,
PageID# 423. He does not challenge any of his underlying criminal convictions, but the
subsequent actions of the Ohio Adult Parole Authority. The Court summarizes the
relevant procedural history as follows:
In February 1990, Petitioner was convicted in Hamilton County on five counts of
aggravated robbery and three counts of robbery. At that time, Petitioner was on parole
for a prior conviction on unarmed robbery for which he had been sentenced to one to
twenty-five years in 1972. The trial court imposed ten to twenty-five years on each of
the aggravated robbery convictions, and ten to fifteen years on each of the robbery
convictions, such sentences to run concurrently with each other but consecutive to any
parole violation, plus three years on the firearm specification, such sentence to run
consecutively to all other sentences imposed, including any parole violation. Doc. 7-1,
PageID# 39-40. Petitioner’s parole was revoked. The parole board determined his
maximum release date to be April 11, 2093. On December 7, 2004, Petitioner was
released on parole. PageID# 35.
However, on December 28, 2005, Petitioner was convicted in Hamilton County
on three counts of burglary. The trial court imposed an aggregate term of nine years
incarceration. PageID# 41. The state appellate court reversed one of his convictions on
appeal and remanded the case for entry of a new conviction for a lesser-included
offenses, and for re-sentencing under State v. Foster, 109 Ohio St.3d 1 (2006)(declaring
portions of Ohio’s sentencing statutes as unconstitutional). On February 16, 2007, the
trial court re-imposed an aggregate term of nine years incarceration. PageID# 42-50, 52.
Petitioner’s parole was revoked.
On January 13, 2006, represented by counsel,
Petitioner signed a waiver of his right to a parole mitigation hearing. PageID# 324. The
parole board determined his maximum release date to be March 28, 2093. PageID# 35.
On June 19, 2014, Petitioner filed a state habeas corpus petition in the Ohio Court
of Appeals. He asserted that the Ohio Adult Parole Authority improperly had failed to
provide him with a mitigation and final revocation hearing for over nine years, in
violation of Kellogg v. Shoemaker, 927 F.Supp. 244 (S.D. Ohio 1996). PageID# 287. On
September 12, 2014, the appellate court denied Petitioner’s habeas corpus petition.
PageID# 341. On June 14, 2015, the Ohio Supreme Court affirmed the decision of the
Court of Appeals. PageID# 407.
On June 15, 2015, Petitioner filed the instant pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. He asserts that the Ohio Adult Parole Authority
violated his right to due process under Morrissey v. Brewer, 408 U.S. 471 (1972), and
Kellogg v. Shoemaker, 927 F.Supp. at 244-45, by securing an unknowing, unintelligent,
and involuntary waiver of his right to a parole mitigation and final parole revocation
hearing by deception and under false pretenses (claim one); and lacks jurisdiction to
continue his incarceration by failing to provide him with a parole mitigation and final
revocation hearing within a reasonable amount of time (claim two). It is the position of
the Respondent that this action must be dismissed as barred by the one-year statute of
limitations under 28 U.S.C. § 2244(d).
Statute of Limitations
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 as follows:
(d) (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 diligence.
(2) The time during which a properly filed application for
State post-conviction 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
28 U.S.C. § 2244(d).
“Sixth Circuit precedent dictates  that courts determine the beginning of the
one-year statute of limitations period based on the content of the prisoner's claim.”
Bachman v. Bagley, 487 F.3d 979, 984 (6th Cir. 2007).
The United States Court of Appeals for the Sixth Circuit has
stated that, in the context of a challenge to a parole denial,
the one-year statute of limitations begins when under 28
U.S.C. § 2244(d)(1)(D), petitioner could have discovered the
factual predicate of his claims through the exercise of due
diligence. Alexander v. Birkett, 228 Fed.Appx. 534,
unpublished, 2007 WL 1063270 (6th Cir. April 9, 2007)
(statute of limitations on claim that parole board's denial of
release on parole violated the Ex Post Facto Clause began to
run when petitioner could have discovered through due
diligence the change in policy regarding parole eligibility for
prisoners sentenced to life terms); see also Ali v. Tennessee
Board of Pardon and Parolees, 431 F.3d 896, 898 (6th Cir. 2005)
(challenge to the parole board's denial of release on parole
timely where filed within one year of decision denying
release on parole); Guerrero v. Palmer, 2006 WL 2077581
(W.D. Michigan July 24, 2006) (statute of limitations begins
to run on challenges to parole board's repeated denials of
release on parole on the date that petitioner could have
discovered with due diligence changes in state law and
parole policy regarding parole eligibility); Bachman v. Bagley,
487 F.3d 979, 984-85 (6th Cir.2007), stating that “Sixth Circuit
precedent dictates ... that courts determine the beginning of
the one-year statute of limitations period based on the
content of the prisoner's claim,” and noting:
the Sixth Circuit has permitted prisoners to
challenge a state parole board's administrative
denial of parole in a habeas petition filed
within one year of the parole denial becoming
final, Ali v. Tennessee Board of Pardon & Paroles,
431 F.3d 896, 898 (6th Cir.2005), and to
challenge the revocation of parole within one
year of the revocation decision becoming final,
Bogan v. Hufman, No. 98-4425, 2000 WL
1800572, ----1-2, 2000 U.S.App. LEXIS 31039, at
*3-4 (6th Cir. Nov.30, 2000).
Wolfel v. Timmerman-Cooper, No. 2:07-cv-1079, 2008 WL 5188188, at *5-6 (S.D. Ohio Dec.
10, 2008); see also Allison v. Warden, Madison Correctional Inst., No. 2:12-cv-634, 2013 WL
4080749, at *2 (S.D. Ohio Aug. 13, 2013)(parole revocation becomes final on the date that
the parole board determines that the revocation sanction should be imposed)(citing
Klopp v. Wolfe, 8 Fed.Appx. 444, 446 (6th Cir. 2001)).
Here, as discussed, Petitioner claims that parole authorities, deceptively, under
false pretenses, and in violation of Kellogg, improperly obtained an unknowing,
unintelligent, and involuntary waiver of his right to a parole mitigation and final parole
revocation hearing. As a result, Petitioner contends, his continued incarceration is
unlawful. The action Petitioner challenges took place on January 13, 2006, the date that
Petitioner signed the waiver of his right to mitigation hearing.
At that time, he
indicated that he understood his right to a mitigation hearing, and that “upon
consideration and without any promises or threats made by any party,” he knowingly,
intelligently, and voluntarily waived his right to a mitigation hearing “as explained in
the Notification of right to Mitigation Hearing.” Doc. 7-1, PageID# 414. Counsel from
the Ohio Public Defender’s office also signed the form, indicating that “the above
Kellogg class member signed this waiver in my presence on the date indicated.” Id. The
record appears to reflect that, on May 9, 2006, the Ohio Parole board revoked
Petitioner’s parole on the basis of his December 2005 burglary convictions. PageID#
Therefore, it would appear that the statute of limitations began to run, at the
latest, in May 2006, and expired one year later, in May 2007. Petitioner does argue that
his parole has never “officially” been revoked, to date. PageID# 2. However, the record
does not support this allegation. The minutes of the meeting of the parole board held at
the Pickaway Correctional Institution indicate that Petitioner’s parole violation
revocation hearing took place on May 8, 2006, and that his parole was revoked. Doc. 71, PageID# 411-413; see also PageID# 34-35. Petitioner’s state habeas corpus petition
does not toll or otherwise affect the running of the statute of limitations, as Petitioner
filed such action long after the statute of limitations had already expired. See Sevilla v.
Warden, No. 214-cv-02637, 2015 WL 5384225, at *4 (S.D. Ohio Sept. 14, 2015)(citing
Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003)(“The tolling provision does not...
‘revive’ the limitations 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.”).
Petitioner claims that he was “forced to involuntarily sign a waiver of his Kellogg
rights to a parole mitigation and final revocation hearing” because the parole officials
deceived him into believing he did not qualify as a Kellogg class member. PageID# 2. In
support of this allegation, Petitioner refers to an Ohio Parole Board “PVR/Kellogg
Screening” form. See Doc. 10, PageID# 465. The form appears to indicate that Petitioner
did not meet the criteria for a Kellogg class member, but also indicates that the case
constituted a Kellogg action, that Petitioner had elected to waive his Kellogg mitigation
hearing on January 13, 2006, and that the parole board recommended that his “DPV and
parole” be revoked. A hearing officer from the parole board signed the form in May
2006. The document indicates that Petitioner’s maximum release date is March 28, 2093.
See id. Petitioner, however, states that he does not recall waiving his rights to a Kellogg
hearing, and did not learn that he had done so until his May 1, 2014, parole eligibility
hearing, see Doc. 7-1, PageID# 418, which took place approximately one month before
the nine year sentence on his 2005 burglary convictions was due to expire. Doc. 1,
Under 28 U.S.C. § 2244(d)(1)(D), a petitioner must file his habeas corpus petition
one year from the date that his claim “could have been discovered through the exercise
of due diligence.”
The question is not when a prisoner first learns of the factual
predicate for his claim, but when he should have learned of it had he exercised
Townsend v. Lafler, 99 Fed.Appx. 606, 608 (6th Cir. 2004)(citations
omitted). “Section 2244(d)(1)(D). . . does not convey a statutory right to an extended
delay while a habeas petitioner gathers evidence that might support a claim.” Brooks v.
McKee, 307 F.Supp.2d 902, 906 (E.D. Mich. 2004)(citation omitted). It is the Petitioner’s
burden to establish that he exercised due diligence in searching for the factual predicate
of his claim. Redmond v. Jackson, 295 F.Supp.2d 767, 772 (E.D. Mich. 2008)(citing Stokes v.
Leonard, 36 Fed.Appx. 801, 804 (6th Cir. 2002)). He has failed to do so here.
Petitioner fails to explain why it allegedly took him approximately eight years to
learn that he had been illegally denied the right to a mitigation or final revocation
hearing. He does not indicate that he made any efforts, during this time, to learn of the
basis for his claims.
Further, the record fails to reflect that equitable tolling of the statute of
limitations is warranted. A petitioner is entitled to equitable tolling only if he shows
“(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way” and prevented timely filing. Holland v. Florida, 560 U.S.
631, 650 (2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “[P]etitioner bears
the ... burden of persuading the court that he or she is entitled to equitable tolling.”
Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). Equitable tolling should be used
sparingly. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002); Humphreys v. Memphis Brooks
Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000) (citations omitted). “Typically,
equitable tolling applies only when a litigant's failure to meet a legally-mandated
deadline unavoidably arose from circumstances beyond that litigant's control.” Id. at
560–61. The Supreme Court has allowed equitable tolling where a claimant actively
pursued judicial remedies by filing a timely, but defective pleading, or where he was
induced or tricked by his opponent's misconduct into allowing the filing deadline to
pass. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990). Where the claimant failed
to exercise due diligence in preserving his legal rights, courts are much less forgiving.
Id.; Jurado v. Burt, 337 F.3d 638, 642–43 (6th Cir. 2003). 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 v. Warden, Lebanon Correctional Inst., 662 F.3d
745, 751 (6th Cir. 2011) (citation omitted). These conditions are typical of most habeas
corpus petitioners and do not constitute an extraordinary circumstance beyond the
Petitioner's control. Lowe v. State, No. 2:12-cv-142, 2013 WL 950940, at *7 (S.D. Ohio
March 12, 2013) (citing Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004)). Petitioner has
failed to meet this standard here
The one-year statute of limitations may also be subject to equitable tolling upon a
“credible showing of actual innocence.” Souter v. James, 395 F.3d 577, 602 (6th Cir. 2005).
Accordingly, “a petitioner whose claim is otherwise time-barred may have the claim
heard on the merits if he can demonstrate through new, reliable evidence not available
at trial, that it is more likely than not that no reasonable juror would have found him
guilty beyond a reasonable doubt.” Yates v. Kelly, No. 1:11 CV 1271, 2012 WL 487991
(N.D. Ohio Feb. 14, 2012) (citing Souter, 395 F.3d at 590). Actual innocence means
factual innocence, not mere legal sufficiency. See Bousely v. United States, 523 U.S. 614,
623 (1998). Equitable tolling is required upon a showing of actual innocence because
the refusal to consider even an untimely habeas petition would cause a fundamental
miscarriage of justice. See Patterson v. Lafler, No. 10-1379, 2012 WL 48186, at *3 (6th Cir.
Jan. 9, 2012). Such are not the circumstances here.
In his reply, however, Petitioner appears to present the alternative argument that
his action was not brought under 28 U.S.C. § 2254, but is an action to enforce the
consent decree entered in Kellogg.
He contends that the Court has continuing
jurisdiction to enforce that decree, and should do so in this case because he did not
knowingly waive his mitigation hearing. Respondent, making an alternative argument
for dismissal on the merits, concedes that Petitioner is a member of the Kellogg class and
that he was entitled to a mitigation hearing. However, Respondent argues that the
waiver which both Petitioner and his counsel signed in January, 2006 effectively
relinquished that hearing, and that the May, 2006 form which indicates that he was not
a Kellogg class member is irrelevant to the inquiry, which focuses on whether the waiver
signed four months previously is valid.
The record contains a signed affidavit from Petitioner stating both that he does
not recall signing the waiver form - which, as Respondent points out, is of little
consequence and does not affect the validity of the waiver - and, perhaps more
significantly, that he was told orally at about that time that he was not a Kellogg class
member and had no right to a mitigation hearing. Petitioner argues that since he was
given false information about whether he was a Kellogg class member, he could not have
knowingly waived his mitigation hearing, or, at least, that there is a factual issue about
The Court, after carefully considering the documents presented by both
Petitioner and Respondent, concludes that even if there is some factual question about
whether Petitioner’s waiver of his mitigation hearing was valid, he has not timely
moved to enforce his rights under the Kellogg consent decree. Again, it is important to
note that Petitioner’s claim that he does not recall signing the January, 2006 waiver form
does not create a factual issue about whether he did sign it. That form clearly indicates
that he had the right to a mitigation hearing and refers to Petitioner as a “Kellogg class
member.” At a minimum, if he had been told by someone at that time - although not,
apparently, by his own counsel, who also signed the form - that he was not a Kellogg
class member, that should have raised some question in his mind about which piece of
information was accurate. The May, 2006 form also contains inconsistencies, noting
both that Petitioner did not meet the four criteria for a mitigation hearing, but also
stating that he waived his Kellogg hearing.
The bottom part of the form advised
Petitioner that a ”Kellogg action” had been taken by the Parole Board based upon that
waiver. The form also contains a section to describe ”Non-Kellogg action” and that part
of the form is blank. In June, 2011, the Parole Board reviewed his case and correctly
completed that part of the form indicating that Petitioner was a Kellogg class member.
Doc. 7-1, PageID# 340. That form also advised Petitioner that the Board was taking a
“Kellogg action” and that it was relying on his earlier waiver of a mitigation hearing.
Petitioner did not take any action to obtain a Kellogg hearing until 2014, however, when
he filed his state habeas corpus action - which was dismissed for procedural deficiencies
- and he did not file this case seeking to enforce the Kellogg decree until 2015.
In Bergmann v. Michigan State Transp. Comm’n, 665 F.3d 681 (6th Cir. 2011), the
Court of Appeals addressed the issue of when an action to enforce a consent decree was
untimely filed. There, it held that the equitable doctrine of laches governs that issue.
See also Adcor Indus., Inc. v. Bevcorp LLC, 411 F.Supp.2d 778, 795 (N.D. Ohio
2005)(consent decrees are subject to the equitable defense of doctrine of laches)(citing
Brennan v. Nassau County, 352 F.3d 60, 63 (2d Cir. 2003); Cook v. City of Chicago, 192 F.3d
693, 695 (7th Cir. 1999).
“The doctrine of laches is an equitable principle that bars
recovery in circumstances in which a plaintiff's delay in seeking a judicial remedy
prejudices a defendant.” Id. (quoting Bylinski v. City of Allen Park, 169 F.3d 1001, 1003
(6th Cir. 1999)). As the Court of Appeals has interpreted that doctrine in Herman Miller,
Inc. v. Palazzetti Imports & Exports, Inc., 270 F.3d 298, 320 (6th Cir. 2001), it requires two
showings: “(1) lack of diligence by the party against whom the defense is asserted, and
(2) prejudice to the party asserting it.” See also United States v. City of Loveland, Ohio, 621
F.3d 465, 473-74 (6th Cir. 2010)(same)(citation omitted)(concluding that Loveland
forfeited its right to contest to effects of consent decree by unreasonably sitting on its
The Court has no difficulty finding that Petitioner did not diligently assert his
right to a Kellogg hearing. Despite knowing that, at the very least, there was some
uncertainty about whether he was entitled to one - and given his very strong incentive
to make sure his rights were being protected - Petitioner waited over nine years to
assert his Kellogg claim in federal court. Further, the prejudice to the State is apparent.
Had Petitioner asserted his rights earlier, any error in the parole proceedings (if there
was one), and any uncertainty about the validity of the Kellogg waiver, could have been
corrected in a timely fashion. Nine years after the fact, it would clearly be more difficult
to determine if Petitioner was actually told, as he claims, that he was not a Kellogg class
member, more difficult to determine if he knowingly waived his hearing, and more
difficult to hold a mitigation hearing based on evidence that would relate to the 20052006 time frame. In the Court’s view, to the extent that Petitioner’s claim is based
purely on the Kellogg consent decree, he has not timely asserted it.
For these reasons, the Magistrate Judge RECOMMENDS that this action be
DISMISSED as not having been timely filed.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) 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 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
/s/ Terence P. Kemp
United States Magistrate Judge
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