Davis v. Warden, Allen Oakwood Correctional Institution

Filing 7

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus, filed by Anthony S Davis. the Magistrate Judge RECOMMENDS that this action be DISMISSED as barred by the one-year statute of limitations pursuant to 28 U.S.C. § 2244(d). Objections to R&R due by 11/23/2015. Signed by Magistrate Judge Norah McCann King on 11/6/2015. (pes)(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,
Petitioner,
Case No. 2:15-cv-02935
JUDGE ALGENON L. MARBLEY
Magistrate Judge King

v.
ALLEN/OAKWOOD
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action 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, ECF No. 1, 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 pursuant to 28 U.S.C. § 2244(d).
This case involves Petitioner’s September 18, 1985 conviction, pursuant to his guilty plea
in the Franklin County Court of Common Pleas, for theft. The trial court imposed a sentence of
one and one-half years’ incarceration. Petitioner did not file an appeal from that conviction.
However, he indicates that, in February 2015, he filed a petition for a writ of habeas corpus in
the Ohio Supreme Court alleging that his sentence has completely expired but that the Ohio
Department of Rehabilitation and Correction (“ODRC”) refuses to release him.

The Petition was filed on September 24, 2015.1

Petitioner alleges that the ODRC

continues to hold him beyond the expiration of his sentence:
Thirty (30) days after the Franklin County, Ohio Court of Common
Pleas 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 Petitioner had
pending and she decided to run the sentence consecutive herself.
Petition, PageID# 6.2
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;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly

1

 On October 22, 2015, the case was transferred to this Court from the United States District

Court for the Northern District of Ohio. Order, ECF No. 4.
2

  Petitioner does not challenge the constitutionality of his underlying conviction. “[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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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). It is subsection (D) of the statute that applies to Petitioner’s claim. “Sixth
See Bachman v. Bagley, 487 F.3d 979, 984 (6th Cir. 2007)(“[C]ourts determine the beginning of
the one-year statute of limitations period based on the content of the prisoner's claim.”) ; see also
Ali v. Tennessee Board of Pardon and Parole, 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), 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 rather when he should have learned of it had he exercised reasonable care. Townsend v.
Lafler, 99 F. App’x 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 for his habeas corpus claim. Redmond v. Jackson, 295 F.Supp.2d 767, 772
(E.D. Mich. 2008)(citing Stokes v. Leonard, 36 F. App’x 801, 804 (6th Cir. 2002)).
Petitioner has failed to carry this burden. He states that he “sent letters with entries, to
the Bureau of Sentence Computation and Records Management attempting to resolve the

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miscalculation” of his sentence. Petition, PageID# 8. He contends that the one-year statute of
limitations does not apply because he learned that he was being detained beyond the expiration
of his sentence only when he went before the parole board “and received a continuance far
beyond the amount of time that I should have had remaining on the lawful sentence imposed.”
Id. at PageID# 13-14. Petitioner thereupon filed a petition for a writ of habeas corpus in the Ohio
Supreme Court. Id. The claim asserted in this action is that Petitioner is being held beyond the
expiration of a 1 ½ year sentence that was imposed in 1985. Petitioner should have discovered
the factual basis of this claim long before February 2015, when he filed the petition for a writ of
habeas corpus in the Ohio Supreme Court. Petitioner offers no information as to the date on
which he first appeared before the parole board, or why it took him nearly thirty years to learn
that the ODRC continued to hold him on this sentence. Significantly, Petitioner alleges that an
ODRC employee made an error in connection with his sentence thirty days after the imposition
of that sentence.
In view of the foregoing, this Court concludes that 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 not discover the factual predicate for his claim, he failed to meet his
burden of establishing due diligence).
Because this case involves a conviction imposed prior to the effective date of the
AEDPA, Petitioner had one year from that date, 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). Yet Petitioner

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waited more than eighteen years to file this action. Under these circumstances, this action was
not timely filed.
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
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.

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s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
November 6, 2015

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