Summers v. Warden

Filing 20

ORDER and REPORT AND RECOMMENDATION in that it is RECOMMENDED that 10 MOTION to Grant Writ of Habeas Corpus and Release Petitioner filed by Tony Summers be denied, 9 MOTION to Vacate Sentence and Release Petitioner filed by Tony Summers be denied, 14 MOTION to Dismiss Habeas Petition filed by Warden Allen Correctional Institution be granted, 8 MOTION to Vacate Sentence and Release Petitioner filed by Tony Summers be denied, 1 . MOTION 12 to Deny Respondent's Motion for Extension of Time filed by Tony Summers is DENIED. Objections to R&R due by 2/14/2017. Signed by Magistrate Judge Norah McCann King on 1/31/17. (sem)(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
TONY SUMMERS,
Petitioner,
Case No. 2:16-cv-00063
JUDGE MICHAEL H. WATSON
Magistrate Judge King

v.
WARDEN, ALLEN
CORRECTIONAL INSTITUTION,
Respondent.

ORDER and
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 the Petition (ECF No. 1), Respondent’s
Motion to Dismiss (ECF No. 14), Petitioner’s response to Respondent’s motion, Petitioner’s
Reply (ECF No. 18), and the exhibits of the parties. For the reasons that follow, the Magistrate
Judge RECOMMENDS that Respondent’s Motion to Dismiss be GRANTED and that this
action be DISMISSED. It is FURTHER RECOMMENDED that Petitioner’s Motion to Vacate
Sentence and Release Petitioner (ECF Nos. 8, 9), and Motion to Grant Writ of Habeas Corpus
and Release Petitioner (ECF No. 10) be DENIED. Petitioner’s Motion to Deny Respondent’s
Motion for Extension of Time (ECF No. 12) is DENIED.
Facts and Procedural History
This case involves Petitioner’s September 28, 2009 convictions, based on his guilty plea
in the Franklin County Court of Common Pleas, on charges of rape and gross sexual imposition.
The trial court imposed an aggregate term of thirteen years’ incarceration pursuant to the joint
recommendation of the parties. (ECF No. 14-1, PageID# 96-97.) Petitioner did not file a timely

appeal from that judgment. On December 16, 2009, Petitioner filed a document captioned
Motion for Appointment of Counsel and Affidavit of Indigency in the state appellate court. (ECF
No. 14-1, PageID# 98-100.) On December 18, 2009, Petitioner moved to withdraw his guilty
plea in the state trial court, arguing that he had been incompetent at the time of sentencing and
did not knowingly, intelligently and voluntarily enter his guilty plea. (ECF No. 14-1, PageID#
101-102.) On January 14, 2010, the trial court denied that motion. (ECF No. 14-1, PageID#
115.) Petitioner apparently did not file an appeal from that decision. Approximately two years
later, on January 19, 2012, Petitioner filed a Motion to Modify Sentence with the state trial court.
(ECF No. 14-1, PageID# 117.) The record does not indicate that the trial court has ever issued a
ruling on that motion. On August 19, 2015, Petitioner filed a Motion to Correct or Vacate
Sentence in the trial court. (ECF No. 14-1, PageID# 123.) On September 1, 2015, the trial court
denied that motion. (ECF No. 14-1, PageID# 133.) Petitioner apparently did not file an appeal
from that decision.
Petitioner apparently executed the Petition on January 4, 2016, Petition (ECF No. 1,
PageID# 15), and filed this action for a writ of habeas corpus on January 11, 2016,1 alleging the
following:
Violations of Article 1 Section 10 of the Ohio Constitution and the
Fifth and Fourteenth Amendments to the United States
Constitution.
I have been denied Equal Protection and Due Process of Law to a
deprivation of significant liberty interest.
The trial court
committed prejudicial error and abuse of discretion when it
imposed consecutive sentences, to an allied offen[s]e. Plaintiff had
entered a plea agreement via an Alf[o]rd Plea. The Court should
have followed Ohio Statutory law during the sentencing phase by
imposing the sentences concurrent, and not consecutive.

1

On January 22, 2016, the case was transferred to this Court from the United States District Court for the Northern
District of Ohio. Order of Transfer (ECF No. 3.)

2

Respondent contends that this action must be dismissed as time-barred, unexhausted,
procedurally defaulted and, alternatively, without merit.
Motion to Vacate Sentence and Release Petitioner
Petitioner has filed a number of motions in this action: Motion to Vacate Sentence and
Release Petitioner (ECF Nos. 8, 9),2 and a Motion to Grant Writ of Habeas Corpus and Release
Petitioner. (ECF No. 10.) Respondent has filed a Response in Opposition and Reply. (ECF
Nos. 11, 13.)
In these motions, Petitioner asks that the Petition be granted and that he be released from
confinement because this case was transferred to this Court from the United States District Court
for the Northern District of Ohio to this Court without requiring the Respondent to respond to the
Petition. Petitioner also asks that the Petition be granted or that judgment by default be entered
because Respondent was granted an extension of time for responding to the Petition without
demonstrating good cause.
As noted supra, the Petition was filed in the Northern District of Ohio. Petition (ECF No.
1.) On January 22, 2016, the action was transferred to this Court pursuant to 28 U.S.C. §
2241(d). That statute conferred on the District Court for the Northern District of Ohio the
discretion to transfer the action to this Court, prior to requiring a response from the Respondent,
because Petitioner was convicted by a state court in this judicial district and because this district
“is the more convenient forum and the evidence is more readily accessible” in this district.
Order of Transfer (ECF No. 3, PageID# 20-21.) These circumstances are not unusual, and the
transfer of this action to this district does not constitute grounds for granting the Petition.

2

Petitioner apparently filed the same motion in the Northern District of Ohio, which filing has been transferred to
this Court. (See ECF No. 9, PageID# 39.)

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On August 22, 2016, the assigned Magistrate Judge ordered the Respondent to answer the
Petition within twenty-one days. Order (ECF No. 5.) On September 8, 2016, Respondent
requested an extension of time - until November 14, 2016 - to respond in order to obtain and
review the necessary state court documents. First Motion for Extension of Time (ECF No. 6,
PageID# 28.) The Court granted that motion. Order (ECF No. 7.) On November 14, 2016,
Respondent filed a timely response to the Petition. Motion to Dismiss. (ECF No. 14.) Petitioner
thereafter sought and was granted an extension of time – until December 26, 2016 - to respond to
the Motion to Dismiss. Motion for Extension of Time (ECF No. 15); Order (ECF No. 17.)
Petitioner’s response was timely filed on December 22, 2016. Petitioner’s Reply (ECF No. 18.)
Nothing in this procedural history constitutes grounds for granting the Petition or for
entering a judgment by default. Moreover, Respondent’s Motion to Dismiss raises serious issues
as to the timeliness of the action, exhaustion and procedural default. In any event, a judgment
by default “is an extreme sanction that is disfavored in habeas corpus cases.” Lemmons v.
O’Sullivan, 54 F.3d 357, 364-65 (7th Cir. 1985).
For all these reasons, then, the Court concludes that Petitioner’s Motion to Vacate
Sentence and Release Petitioner (ECF Nos. 8, 9) and Motion to Grant Writ of Habeas Corpus
and Release Petitioner (ECF No. 10) are without merit.
Petitioner’s Motion to Deny Respondent’s Motion for Extension of Time (ECF No. 12) is
DENIED, as moot.
Statute of Limitations
Respondent contends, inter alia, that this action was not timely filed. The Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-year statute of limitations
on the filing of habeas corpus petitions:

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(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 subsection.
28 U.S.C. § 2244(d). Under the provisions of § 2244(d)(1)(A), Petitioner’s judgment of
conviction became final on October 29, 2009, i.e., thirty days after the trial court’s September
29, 2009 judgment was entered, Judgment Entry (PageID# 96-97), when the time for filing an
appeal expired. See Williams v. Jenkins, No. 2:16-cv-00666, 2016 WL 3745765, at *3 (S.D.
Ohio July 13, 2016)(citing Searcy v. Carter, 246 F.3d 515, 518–19 (6th Cir. 2001); Marcum v.
Lazarof, 301 F.3d 480, 481 (6th Cir. 2002); Ohio App.R. 4(A)). By this calculation, the statute
of limitations expired one year later – on October 29, 2010 – and the Petition, which was
executed on January 4, 2016 and was filed on January 11, 2016, is untimely.

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Even assuming that the statute of limitations did not begin to run until February 13, 2010,
i.e., thirty days after the trial court’s January 14, 2010 denial of his motion to withdraw his guilty
plea, Decision and Entry Denying Defendant’s Motion to Withdraw Guilty Plea (ECF No. 14-1,
PageID# 115-16), the statute of limitations expired one year later, on February 13, 2011. Yet, as
noted, Petitioner waited almost five (5) years, until January 4, 2016, to execute the habeas corpus
petition. Petitioner’s later filings in the state court, i.e., Motion to Modify Sentence (ECF No. 141, PageID# 117-22), and Motion to Correct or Vacate Sentence (ECF No. 14-1, PageID# 12328), did not toll or otherwise affect the running of the statute of limitations, because Petitioner
filed those motions after the statute of limitations had already expired. See 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.”).
Thus, by any calculation, this action was not timely filed.
It is true that the one-year limitations period is not jurisdictional and may be subject to
equitable tolling, although that relief is granted only sparingly in habeas cases. Hall v. Warden,
Lebannon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011). A petitioner who invokes equitable
tolling must establish (1) that he has been pursuing his rights diligently and (2) that some
extraordinary circumstance stood in his way and prevented him from filing the action in a timely
fashion. Holland v. Florida, 560 U.S. 641, 649 (2010)(citing Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005)); Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011). 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

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allowing the filing deadline to pass. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990).
Where the party failed to exercise due diligence in preserving his legal rights, however, courts
are much less forgiving. Id.; Jurado v. Burt, 337 F.3d 638, 642–13 (6th Cir. 2003).
Petitioner maintains that equitable tolling of the statute of limitations is appropriate in
this case because he suffers from dementia and because he required help from other prison
inmates to assist him. He argues that he was denied the effective assistance of counsel at the
time of his guilty plea, was coerced into entering the guilty plea, and was not competent at the
time of his guilty plea. He also complains that his attorney failed to advise him of his right to an
appeal. Response to Motion to Dismiss (ECF No. 18.) This Court is not persuaded that equitable
tolling of the statute of limitations is warranted in this action.
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 for
the equitable tolling of the statute of limitations. Hall, 662 F.3d at 751 (citation omitted). See
also Johnson v. United States, 544 U.S. 295, 311 (2005) (“[W]e have never accepted pro se
representation alone or procedural ignorance as an excuse for prolonged inattention when a
statute's clear policy calls for promptness”). These are conditions typical for many prisoners and
do not rise to the level of exceptional circumstances. Allen v. Yukins, 366 F.3d 396, 403 (6th Cir.
2004). Similarly, bad advice from a fellow inmate or other non-lawyers does not constitute
grounds for the equitable tolling of the statute of limitations. Allison v. Smith, No. 2:14–cv–
10423, 2014 WL 2217238, at *5 (E.D. Mich. May 29, 2014) (citing Smith v. Beightler, 49
Fed.Appx. 579, 580–81 (6th Cir. 2002); United States v. Cicero, 14 F.3d 199, 204-05 (D.C. Cir.
2000); Henderson v. Johnson, 1 F.Supp.2d 650, 655 (N.D. Tex. 1998)).

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Further, the equitable tolling of the statute of limitations on the basis of mental
incompetence requires “a threshold showing of incompetence” and a demonstration that “the
alleged incompetence affected [the petitioner’s] ability to file a timely habeas petition.”
McSwain v. Davis, 287 Fed.Appx. 450, 456 (6th Cir. 2008)(citations omitted). Petitioner has
failed to meet this standard here. Petitioner offers no support for his allegation that his mental
incompetence or dementia prevented him from timely filing. See, e.g., Kitchen v. Bauman, 629
Fed.Appx. 743, 747-48 (6th Cir. 2015)(“[A] causal link between the mental condition and
untimely filing is required.”)(quoting Ata, F.3d at 742). To the contrary, on May 4, 2009, the
trial court found, after a hearing and after considering a report on the Petitioner’s current
competency status, the stipulations of counsel, and the trial court’s observations of the
Petitioner’s demeanor, that Petitioner was competent to stand trial. Entry (ECF No. 14-1,
PageID# 92-93.) Petitioner thereafter indicated in writing, inter alia, that he understood that he
could file an appeal as a matter of right within thirty days. Entry of Guilty Plea (ECF No. 14-1,
PageID# 95.) Petitioner also filed various motions in the state courts, including a motion for the
appointment of counsel and an affidavit of indigency, a motion to withdraw his guilty plea, a
motion to modify his sentence, and a motion to correct or vacate his sentence. The state trial
court denied Petitioner’s motion to withdraw his guilty plea, finding that Petitioner had
knowingly entered his guilty plea “with a full understanding of all the consequences, including
the maximum penalty and sentence[.]” Decision and Entry Denying Defendant’s Motion to
Withdraw Guilty Plea (ECF No. 14-1, PageID# 116.) These findings are presumed to be correct,
and Petitioner has failed to rebut the presumption of correctness afforded the state court’s
findings of fact. See 28 U.S.C. § 2254(e)(1).

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Moreover, the record does not establish that Petitioner acted diligently in pursuing relief
or that some extraordinary circumstances prevented him from timely filing the Petition. He did
not file an appeal from the trial court’s January 14, 2010 decision denying his motion to
withdraw his guilty plea. He waited approximately two years - until January 2012 - to file a
motion to modify sentence in the state trial court. He then waited until August 19, 2015 to file a
motion to correct or vacate sentence in the state trial court. He did not file an appeal from the
trial court’s September 1, 2015 denial of the motion to correct or vacate sentence. He waited
more than four months thereafter to execute the Petition.
Furthermore, this case presents an issue of exhaustion. Before a federal habeas court may
grant relief, a state prisoner must exhaust his available remedies in the state courts. 28 U.S.C. §
2254(b)(1); Castille v. Peoples, 489 U.S. 346, 349 (1989); Silverburg v. Evitts, 993 F.2d 124,
126 (6th Cir. 1993). If a habeas petitioner has the right under state law to raise a claim by any
available procedure, he has not exhausted that claim. 28 U.S.C. § 2254(b), (c). Moreover, a
constitutional claim for relief must be presented to the state's highest court in order to satisfy the
exhaustion requirement. Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). In Ohio, this
exhaustion requirement includes direct and delayed appeals to the Ohio Court of Appeals and the
Ohio Supreme Court. Mackey v. Koloski, 413 F.2d 1019 (6th Cir. 1969); Allen v. Perini, 26
Ohio Misc. 149 (6th Cir. 1970). Petitioner did not pursue a timely direct appeal from his
judgment of conviction and has apparently never pursued a motion for a delayed appeal pursuant
to Ohio Appellate Rule 5(A). Under these circumstances, this action may be subject to dismissal
as unexhausted. See Keeley v. Warden, Belmont Correctional Institution, No. 2:15-cv-00972,
2016 WL 1642965, at *5-6 (S.D. Ohio April 26, 2016)(habeas corpus petition unexhausted
because the petitioner failed to pursue either a direct or delayed appeal to the Ohio Supreme

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Court); Ortiz v. Wolfe, No. 2:08-cv-94, 2009 WL 995622, at *5-6 (S.D. Ohio April 14,
2009)(habeas corpus petition unexhausted where the petitioner failed to pursue a motion for a
delayed appeal pursuant to Ohio Appellate Rule 5(A)).
Recommended Disposition
For all these reasons, the Magistrate Judge RECOMMENDS that Motion to Dismiss
(ECF No. 14) be GRANTED and that this action be DISMISSED. It is FURTHER
RECOMMENDED that Petitioner’s Motion to Vacate Sentence and Release Petitioner (ECF
Nos. 8, 9), and Motion to Grant Writ of Habeas Corpus and Release Petitioner (ECF No. 10) be
DENIED. Petitioner’s Motion to Deny Respondent’s Motion for Extension of Time (ECF No. 12)
is DENIED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
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).

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
January 31, 2017

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