Davis v. Warden, Allen Oakwood Correctional Institution

Filing 5

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus: The Magistrate Judge RECOMMENDS that this action be DISMISSED as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d). Objections to R&R due by 11/30/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 11/13/2015. (mas)(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
ANTHONY S. DAVIS,
CASE NO. 2:15-CV-02931
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Elizabeth P. Deavers

Petitioner,
v.
ALLEN/OAKWOOD
CORRECTIONAL INSTITUTION,
Respondent.

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 its own motion to consider the
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 as barred by the one year statute of
limitations under 28 U.S.C. § 2244(d).
This case involves Petitioner’s January 16, 1987, conviction pursuant to his guilty plea in
the Guernsey County Court of Common Please on breaking and entering. Petitioner indicates
that the trial court imposed a sentence of one year incarceration. Petitioner did not file an appeal;
however, on February 4, 2015, he filed a petition for a writ of habeas corpus in the Ohio
Supreme Court alleging that his sentence had completely expired and the Ohio Department of
Rehabilitation and Correction refused his release. On May 20, 2015, the Ohio Supreme Court
sua sponte dismissed his habeas corpus petition.

On September 24, 2015, Petitioner filed the instant Petition. He signed the Petition on
September 14, 2015.1

He asserts that his sentence has completely expired and the Ohio

Department of Rehabilitation and Correction continues to refuse his release:
Four (4) days after the Guernsey County, Ohio court of Common
Please entered judgment against, and sentenced Petitioner on the
offense committed, an employee of the Ohio Dept. of
Rehabilitation and correction looked at the sentencing Entry and
made the determination that the Court had erred in failing to run
the sentence consecutive to the other sentence(s) Petitioner had
pending and she decided to run the sentence consecutive herself.
(ECF No. 1, PageID# 5.)2
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a oneyear 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;

1

 On October 20, 2015, the case was transferred to this Court from the United States District

Court for the Northern District of Ohio. (ECF No. 4.)
2

  Petitioner challenges the execution of his sentence, rather than the constitutionality of his
underlying conviction itself. “[Section] 2254 allows state prisoners to collaterally attack either
the imposition or the execution of their sentences.” Allen v. White, 185 F. App’x 487, 490 (6th
Cir. 2006).

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(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 subsection.
28 U.S.C. § 2244(d). The provision of 28 U.S.C. § 2244(d)(1)(D) applies to the scenario in this
case. Petitioner does not challenge his underlying judgment of conviction, and he does not
allege that any State action impeded his timely filing, or that the United States Supreme Court
has newly recognized a constitutional right that has been retroactively applied to cases on
collateral review. “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); see also Ali v. Tennessee Board of Pardon and
Paroles, 431 F.3d 896 (6th Cir. 2005) (applying § 2244(d)(1)(D) to a petitioner’s challenge to
the denial of his release on parole).
Under 28 U.S.C. § 2244(d)(1)(D), the 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 reasonable care. 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
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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)).
Petitioner has failed to meet this burden here. He states that he “sent letters with entries,
to the Bureau of Sentence Computation and Records Management attempting to resolve the
miscalculation” of his sentence, and that he hired an attorney to do the same. (ECF No. 1,
PageID# 7.) He contends that the one-year statute of limitations does not apply because he only
learned that he was being held beyond expiration of his sentence after he appeared before the
parole board and received a continuance “far beyond the amount of time that I should have had
remaining on the lawful sentence(s) imposed,” after which time he filed a petition for a writ of
habeas corpus with the Ohio Supreme Court. (PageID# 13-14.) However, Petitioner claims that
he is being held beyond expiration of a one year sentence imposed in 1987. It would seem
therefore, that he should have learned of the factual basis for his claim after the term of that
sentence completely expired, or in 1988, one year from the date of sentencing. He provides no
information as to the date that he first appeared before the parole board after expiration of this
time, or why it took him nearly thirty years to learn that the Department of Rehabilitation and
Correction continued to hold him on this sentence for so long after it had purportedly expired.
He alleges that an employee of the Department of Rehabilitation and Correction made the error
four days after imposition of his sentence.
In view of the foregoing, the habeas corpus petition cannot be deemed to have been
timely filed. See Eberle v. Warden, Mansfield Correctional Inst., 532 F. App’x 605, 611 (6th
Cir. 2013) (a failure to explain the delay will not establish due diligence); McSwain v. Davis, 287
F. App’x 450, 454 (6th Cir. 2008) (where record was silent as to reasons that the petitioner did

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not discover the factual predicate for his claim, he failed to meet his burden of establishing due
diligence).
Finally, because this case involves a conviction imposed prior to the effective date of the
AEDPA, Petitioner had one year from the effective date of the AEDPA, or until April 24, 1997,
within which to file this habeas corpus petition. See Payton v. Brigano, 256 F.3d 405, 408 (6th
Cir. 2001). He waited more than eighteen years later to do so.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED as
barred by the one-year statute of limitations under 28 U.S.C. § 2244(d).
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

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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/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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