Summers v. Warden

Filing 24

ORDER adopting and affirming 20 the Report and Recommendation; granting 14 Respondent's Motion to Dismiss; denying 8 and 9 Petitioner's Motion to Vacate; denying 10 Petitioner's Motion to Grant Writ of Habeas Corpus and Release Petitioner. Signed by Judge Michael H. Watson on 3/8/17. (jk)(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-63
JUDGE MICHAEL H. WATSON

V.

Magistrate Judge King
WARDEN, ALLEN
CORRECTIONAL INSTITUTION,
Respondent.

ORDER

On January 31,2017, the United States Magistrate Judge recommended that

Respondent's Motion to Dismiss, EOF No. 14, be granted, and that Petitioner's Motion
to Vacate Sentence and Release Petitioner, EOF Nos. 8,9, and Petitioner's Motion to

Grant Writof Habeas Corpus and Release Petitioner, EOF No. 10, be denied. Order

and Report and Recommendation (EOF No. 20). This matter is now before the Court

on Petitioner's objection to that recommendation. Objection (EOF No. 23). The Court
has considered the matter de novo. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b). For

the reasons that foiiow. Petitioner's objection to the Magistrate Judge's recommendation
is DENIED. The Order and Report and Recommendation is ADOPTED AND
AFFIRMED. Respondent's Motion to Dismiss is GRANTED, and Petitioner's Motion to
Vacate Sentence and Release Petitioner and Petitioner's Motion to Grant Writ of

Habeas Corpus and Release Petitioner are DENIED. This action is hereby
DISMISSED.

In September 2009, Petitioner pleaded guilty In the Franklin County Court of
Common Pleas to charges of rape and gross sexual Imposition. The trial court
sentenced Petitioner, pursuant to the joint recommendation of the parties, to an
aggregate term of imprisonment of thirteen years. Petitioner did not file a timely appeal

from that judgment. The Magistrate Judge concluded that the Petition, executed on
January 4,2016, Petition (ECF No. 1, PagelD# 15), and filed on January 11, 2016, had
not been filed within the one-year statute of limitations established by 28 U.S.C. §

2244(d) and, further, that Petitioner had not established that equitable tolling of the
statute of limitations was appropriate. Order and Report and Recommendation

(PagelD# 157-62). The Magistrate Judge also observed that, in light of Petitioner's
apparent failure to pursue a motion for a delayed appeal pursuant to Ohio Appellate
Rule 5(a), Petitioner's claims may be subject to dismissal for failure to exhaust available
state court remedies, id. (PagelD# 162).

In his objections, Petitioner does not address either the statute of limitations or
the exhaustion issue. Instead, Petitioner complains—^as he did before the Magistrate
Judge—of the delay between the filing of the action in the Northern District of Ohio and

the order to show cause issued to Respondent in the Southem District of Ohio following
the transfer of this case. This Court agrees with the Magistrate Judge that "[njothing in
this procedural history constitutes grounds for granting the Petidon or for entering a

judgment by default." Order and Report and Recommendation (PagelD# 157). See
aiso Lemmons v. O'Suliivan, 54 F.3d 357, 364-65 (7th Cir. 1985) (judgment by default
"is an extreme sanction that is disfavored in habeas corpus cases").

Petitioner's objections also address the merits of his challenges to his conviction

and sentence. Petitioner challenges the sufficiency of the evidence presented at trial,
the admission of certain evidence against him, the adequacy of his trial counsel, and the

propriety under Ohio law of his sentence. See generally Objection. However, this Court
may not consider the merits of claims presented in an untimely petition or claims that
are unexhausted.

Having carefully reviewed the record in this action, the Court agrees that the
Petition was untimely filed. Altematlvely, because Petitioner may still have available to
him a remedy under Ohio law, his claims are not exhausted.
Petitioner's Objection, EOF No. 23, is DENIED. The Order and Report and

Recommendation, EOF No. 20, is ADOPTED AND AFFIRMED. Respondent's Motion
to Dismiss, EOF No. 14, is GRANTED, and Petitioner's Motion to Vacate Sentence and
Release Petitioner, EOF Nos. 8, 9, and Petitioner's Motion to Grant Writ of Habeas

Corpus and Release Petitioner, EOF No. 10, are DENIED. This action is hereby
DISMISSED.
The Clerk Is DIRECTED to enter FINAL JUDGMENT.

IICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT