Moore v. Warden Noble Correctional Institution

Filing 2

REPORT AND RECOMMENDATION that 1 Petition for Writ of Habeas Corpus filed by Thomas M. Moore be DISMISSED as time-barred. Objections to R&R due within ten days. Signed by Magistrate Judge Terence P. Kemp on 8/26/2015. (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
EASTERN DIVISION
THOMAS M. MOORE,

CASE NO. 2:15-cv-2659

Petitioner,
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
v.
WARDEN, NOBLE CORRECTIONAL
INSTITUTION,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, filed a petition for a writ of habeas corpus on July 27,
2015. The case is now before the Court pursuant to its own motion to consider
sufficiency of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts. For the reasons that follow, the Magistrate Judge
RECOMMENDS that this action be DISMISSED.
I. BACKGROUND
The following facts are taken from the Petition and from the history of
Petitioner’s case, which arises from the Franklin County Court of Common Pleas.
In 1991, Petitioner was indicted on six charges of rape involving a fifteen-year
old victim. He was convicted and sentenced to a total of sixty to 150 years in prison (six
consecutive terms of ten to 25 years). Petitioner appealed to the Tenth District Court of
Appeals, which affirmed the conviction in an Opinion filed on July 14, 1992. See State v.
Moore, 1992 WL 166117 (Franklin Co. App. July 14, 1992). The court overruled five

assignments of error, which alleged a violation of the Confrontation Clause, suggestive
eyewitness identification, erroneous evidentiary rulings, error in not dismissing jurors
allegedly prejudiced by improper prosecutorial conduct, and insufficiency of the
evidence as to three of the six convictions. The Ohio Supreme Court affirmed that
decision. State v. Moore, 69 Ohio St. 3d 1480 (July 6, 1994).
It does not appear that Petitioner filed any additional challenges to his conviction
or sentence until 2012, although the docket sheet from the Franklin County Court of
Common Pleas (http://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/
caseSearch?xZsF8BTaSsks4ngNeBJd, accessed on August 20, 2015) seems to indicate
that Petitioner was adjudged a sexual predator on May 16, 2000, and that he
unsuccessfully appealed that adjudication. On May 14, 2012, Petitioner filed a Motion
to Modify and Reduce Sentence, asking that his six 10-25 year sentences be changed to
run concurrently. The State opposed the motion, arguing that the trial court lacked
jurisdiction to grant it. The motion was subsequently denied. Petitioner then (on
November 8, 2013) filed a motion to vacate his entire sentence, arguing that it was
unlawful under the Double Jeopardy Clause. The State also opposed that motion,
arguing that it was untimely, barred by res judicata, and meritless. The trial court
denied the motion in an entry filed on April 16, 2014, finding that the issues which
Petitioner raised could have been raised at trial or on appeal and that the motion was
barred by res judicata.
Petitioner appealed. On February 5, 2015, the Tenth District Court of Appeals
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affirmed. State v. Moore, 2015 WL 476299 (Franklin Co. App. Feb. 5, 2015). The Ohio
Supreme Court denied review. State v. Moore, 142 Ohio St.3d 1478 (June 3, 2015). This
federal habeas petition followed in short order. The petition alleges that the consecutive
sentences imposed on Petitioner violated various constitutional provisions, including
the Due Process and Double Jeopardy clauses, and that the state courts’ reliance on res
judicata as a basis for denying him relief is itself a due process violation. He also claims
that he received ineffective assistance of counsel and that the trial court denied him a
hearing on the issue of consecutive sentences. For the following reasons, the Court
concludes that all of his claims are either time-barred or not cognizable in federal
habeas corpus.
II. DISCUSSION
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
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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 subsection.

Petitioner’s conviction became final on October 7, 1995, which was 90 days after the
Ohio Supreme Court denied his appeal. At that point, the AEDPA had not been
enacted. As a result, no statute of limitations began to run. After the AEDPA became
law, prisoners such as Petitioner had one year from its effective date, or until April 24,
1997, to file a habeas corpus petition. See Isham v. Randle, 226 F.3d 691 (6th Cir. 2000).
Petitioner did not do so. His current petition is more than eighteen years late.
Petitioner might argue that his more recent filings somehow revived the statute
of limitations, and that he had one year from the date of the most recent Ohio Supreme
Court decision in his case to file this petition. That is simply incorrect. “‘Once the
limitations period is expired, collateral petitions can no longer serve to avoid a statute
of limitations.’” Vroman v. Brigano, 346 F.3d 598, 601 (6th Cir. 2003), quoting Rashid v.
Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y.1998). The statute of limitations expired long
before Petitioner filed his first collateral attack on his conviction, and the filing of his
various motions in state court did not trigger the running of a new one-year period.

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Petitioner raises one argument which, he might argue, could not have been
raised within the limitations period - that the Ohio courts denied him due process by
relying on res judicata as a basis for denying his motion to vacate his sentence. That is
not a constitutional attack on his sentence or conviction, however. As this Court has
held, “The writ of habeas corpus is not the proper means by which prisoners can
challenge errors or deficiencies in state post-conviction proceedings because the claims
address collateral matters and not the underlying conviction giving rise to the prisoner's
incarceration.” Richardson v. Moore, 2007 WL 539641, *7 (S.D. Ohio Feb. 15, 2007), aff’d
384 Fed.Appx. 479 (6th Cir. July 2, 2010). And even if it were, there is no constitutional
barrier to the use of res judicata as a basis for denying relief to someone in Petitioner’s
position. Courts have recognized, time and again, that Ohio’s res judicata rules are
sufficient to support, independently, a decision adverse to a party who seeks collateral
review of a conviction or sentence by raising issues that were or could have been raised
on direct appeal. See, e.g., Coleman v. Mitchell, 268 F.3d 417, 429 (6th Cir.
2001)(”application of res judicata under [Ohio law] is an adequate and independent
state ground for barring habeas review of constitutional claims”). Consequently, even if
this claim were viewed as timely, it would not provide any basis for relief.
Petitioner has set forth no facts suggesting that the statute of limitations should
be equitably tolled, nor has he argued that he is actually innocent, a claim which can,
under some circumstances, justify relief from the statute of limitations’ time bar. See
Schlup v. Delo, 513 U.S. 298 (1995). Consequently, this action should be dismissed as not
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having been filed within the applicable limitations period which expired on April 24,
1997.
III. CONCLUSION
Based upon the foregoing, the Court RECOMMENDS that this action be
DISMISSED as time-barred.
IV. PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within ten
(10) 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
matt er 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).

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/s/ Terence P. Kemp
United States Magistrate Judge

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