Zonars v. Warden, Ross Correctional Institution
REPORT AND RECOMMENDATION that 1 Petition for Writ of Habeas Corpus be DISMISSED because it was not timely filed as required by 28 U.S.C. §2244(d). Objections to R&R due by 3/14/2017. Signed by Magistrate Judge Terence P. Kemp on 2/28/2017. (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-2933
JUDGE GEORGE C. SMITH
MAGISTRATE JUDGE KEMP
WARDEN, ROSS CORRECTIONAL
REPORT AND RECOMMENDATION
Petitioner, Erik Zonars, a state prisoner, has filed this action seeking a writ of
habeas corpus pursuant to 28 U.S.C. §2254. The case is before the Court by way of the
petition (Doc. 1) and Respondent’s motion to dismiss (Doc. 6).
For the following
reasons, the Court recommends that the petition for a writ of habeas corpus be
DENIED and that this action be DISMISSED.
I. Procedural History
Because the motion to dismiss raises the question of whether Petitioner filed this
action within one year of the date that his conviction became final - a requirement
found in 28 U.S.C. §2244(d) - the Court’s review of the procedural history will focus
primarily on the dates when certain events occurred during the course of Petitioner’s
state court proceedings.
Petitioner was indicted in Franklin County, Ohio, on November 15, 2012. The
indictment alleged 45 counts of criminal activity on the part of Petitioner and a co-
defendant ranging from aggravated robbery and burglary to having a weapon under a
disability. Petitioner went to trial, was convicted of multiple offenses, and was
sentenced to a total of 48 years of imprisonment. Doc. 6, Ex. 4.
He timely appealed. On May 13, 2014, the Tenth District Court of Appeals
affirmed his convictions and sentences, State v. Zonars, 2014 WL 1912343 ((Franklin Co.
App. May 13, 2014), although it did not file its judgment until a week afterwards. Doc.
6, Ex. 20.
Petitioner had 45 days in which to perfect a timely appeal to the Ohio
Supreme Court. He missed that deadline.
On September 10, 2014, Petitioner filed a motion for leave to take a delayed direct
appeal to the Ohio Supreme Court.
Doc. 6, Ex. 13.
He explained that, due to
circumstances beyond his control, including difficulties imposed by his incarceration,
he could not file his appeal on time. The Ohio Supreme Court denied his motion on
October 22, 2014. See State v. Zonars, 140 Ohio St.3d 1466 (Oct. 22, 2014).
Petitioner also moved to reopen his direct appeal under Ohio Appellate Rule
26(B). That motion was filed on February 18, 2015, and denied on March 19, 2015. Doc.
6, Exs. 15, 17, &18. Petitioner did not seek review by the Ohio Supreme Court. There
are no other procedural facts which are relevant to the motion to dismiss.
II. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which
became effective on April 24, 1996, imposes a one-year statute of limitations on the
filing of habeas corpus petitions. 28 U.S.C. § 2244(d) provides:
(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
(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.
The two provisions which apply directly to Petitioner’s case are §(d)(1)(A), which tells
the Court how to decide when the one year starts to run, and §(d)(2), which tells the
Court when an event has occurred which does not count against the one-year
limitations period. The Court will look at each of these in turn.
First, the beginning. Petitioner pursued direct appeal of his conviction. That
ended when the time expired for filing an appeal to the Ohio Supreme Court. Since,
under Ohio law, a defendant who wants the Ohio Supreme Court to review a decision
of an Ohio court of appeals has 45 days after the court of appeals rules on his case,
Petitioner had 45 days from May 20, 2014, the date of the court of appeals’ judgment
entry, to perfect his appeal. He did not, so the one-year period in which he could
properly file a federal habeas corpus petition began to run on July 7, 2014, the first
business day after the appeals time expired. At that point, the direct appeal process
described in §(d)(1)(A) ended.
Next, applying §(d)(2), Petitioner’s motion for leave to take a delayed appeal
comes into play. He filed that motion on September 10, 2014. That stopped the clock at
64 (or, according to Respondent, 65) days. The Ohio Supreme Court denied it on
October 22, 2014. That started the clock running again. Had Petitioner taken a timely
appeal to begin with , he would have gotten the benefit of another 90 days from the
Ohio Supreme Court’s ruling, which is how long he would have had to file a petition
for a writ of certiorari with the United States Supreme Court. See Lawrence v. Florida, 549
U.S. 327 (2007). But since he did not, and because the motion he filed in the Ohio
Supreme Court is considered to be a request for collateral review which is covered by
§(d)(2), he does not get the benefit of that additional time. See Searcy v. Carter, 246 F.3d
515 (6th Cir. 2001); Lee v. Warden, Chillicothe Correctional Inst., 2009 WL 1911917, *1 (S.D.
Ohio June 30, 2009)(“state court motions for delayed appeal are considered to be post
conviction or collateral proceedings, and the statute of limitations therefore is not tolled
during the time period that petitioner could have filed a petition for a writ of certiorari
to the United States Supreme Court from the Ohio Supreme Court's denial of such a
Petitioner filed one additional motion in state court after October 22, 2014,
namely his motion to reopen under Ohio Appellate Rule 26(B). It was filed on February
18, 2015. By that time, the limitations clock had been ticking for 172 (or 173) days. This
motion, which was denied as untimely, probably did not stop the clock. Section (d)(2)
refers to “a properly filed application for State postconviction or other collateral
review,” and an untimely motion is not considered to be “properly filed.” See, e.g.,
Parks v. Miller, 2013 WL 3867804, *3 (S.D. Ohio July 25, 2013), adopted and affirmed 2013
WL 4457126 (S.D. Ohio Aug. 20, 2013)(“Petitioner's application to reopen the appeal
pursuant to Ohio Appellate Rule 26(B) and his petition for post-conviction relief did not
toll the running of the statute of limitations under 28 U.S.C. § 2244(d), because the state
courts denied both post-conviction filings as untimely”), citing Pace v. DeGuglielmo, 544
U.S. 408, 417 (2005). If that were the case, the limitations clock ran out 301 days after
October 22, 2014, or on or about August 19, 2015 (Respondent says August 18, 2015),
but either date comes before the filing of the petition, which was filed, at the earliest, on
October 21, 2015, the date Petitioner signed it.
Even if the motion to reopen stopped the clock, the effect was short-lived. The
court of appeals acted quickly on the motion, denying it on March 19, 2015 and entering
judgment the same day. Under the most favorable interpretation of the law, that would
add 29 days to the limitations period, making the last day for filing somewhere around
September 18, 2015. Under this calculation, the Petition was still more than a month
As Respondent acknowledges, this statute of limitations is subject to what is
known as “equitable tolling,” a doctrine that recognizes that some circumstances make
it unfair to hold a petitioner to the one-year filing deadline. As the Court of Appeals
explained in Giles v. Beckstrom, 826 F.3d 321, 325 (6th Cir. 2016),
“[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
circumstances stood in his way and prevented timely filing.” Holland v.
Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (internal
quotation marks and citation omitted). In order for the limitations period
to be tolled equitably based on attorney error, which is the claim here, the
error must be “far more serious” than “a garden variety claim of excusable
neglect.” Id. at 651–52, 130 S.Ct. 2549 (internal quotation marks and
In his petition, which is the only filing Petitioner has made (he did not respond to the
motion to dismiss), Petitioner does not set forth any facts or make any argument about
why he did not file on time, much less that he pursued his rights diligently and that
some extraordinary circumstance prevented him from meeting the filing deadline.
Equitable tolling does not apply here.
Lastly, the bar of the one-year limitations period can be overcome if a petitioner
makes a sufficient showing of actual innocence. See, e.g., McQuiggin v. Perkins, 133 S.Ct.
1924 (2013). Petitioner makes no such claim here, however, nor has he presented any
facts not presented at his trial which would call the jury’s verdicts into question.
Consequently, there is no valid basis for not applying the statute of limitations to bar
III. Recommendation and Order
For the reasons stated above, the Court recommends that this action be
DISMISSED because it was not timely filed as required by 28 U.S.C. §2244(d).
IV. 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 decision, they may submit arguments in any objections filed, regarding
whether a certificate of appealability should issue.
/s/ Terence P. Kemp
United States Magistrate Judge
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