Williams v. Warden Chillicothe Correctional Institution
Filing
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ORDER AND REPORT AND RECOMMENDATIONS denying 1 MOTION for Leave to Proceed in forma pauperis & recommending that the 3 Petition for Writ of Habeas Corpus be dismissed. Objections to R&R due w/in fourteen (14) days. Signed by M agistrate Judge Elizabeth Preston Deavers on 7/13/2016. (kk)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification [Brian L Williams, A586-903 @ 6530 Co. Rd. 22, Mt Gilead OH 43338])
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRIAN L. WILLIAMS,
CASE NO. 2:16-CV-00666
JUDGE GEORGE C. SMITH
Magistrate Judge Elizabeth Preston Deavers
Petitioner,
v.
CHARLOTTE JENKINS, WARDEN,
CHILLICOTHE CORRECTIONAL
INSTITUTION,
Respondent.
ORDER and
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 as well as a Motion for Leave to Proceed in forma pauperis. (ECF
No. 1.) Because the information contained in the affidavit relates to his financial condition when
he was incarcerated, and he has since been released from prison, Petitioner’s Motion for Leave to
Proceed in forma pauperis is DENIED WITHOUT PREJUDICE. If the matter proceeds,
Petitioner will be directed to file another application with his current information. Nonetheless,
for purposes of the following analysis, the Clerk is DIRECTED to file the Petition.
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.
Facts and Procedural History
Petitioner challenges his June 28, 2008 convictions pursuant to his guilty plea on two
counts of sexual battery in the Delaware County Court of Common Pleas. See State v. Williams,
Case No. 15CAA 03 0023, 2015 WL 6739561 (Ohio App. 5th Dist. Nov. 3, 2015). According to
the Petition, on August 18, 2008, the trial court imposed consecutive sentences of four years of
incarceration on each count. (PageID# 6.) Petitioner did not file an appeal. Petitioner indicates
that he did not know, and neither the trial court nor trial counsel advised him, that he had a right
to do so.
On November 25, 2014, Petitioner filed a “motion to present plain errors and defects and
request for an evidentiary hearing to correct an illegal sentence” in the state trial court. He
asserted therein that his convictions constituted allied offenses of similar import, that the trial
court erred in imposing consecutive sentences, failed to advise him of his right to appeal at
sentencing, and that he had been denied the effective assistance of counsel. Williams, 2015 WL
6739561, at *1. “The trial court overruled the motion, finding that [Petitioner’s] claims should
have been raised on direct appeal or pursuant to a timely petition for postconviction relief under
R.C. 2953.21.” Id. Petitioner filed a timely appeal. On November 3, 2015, the appellate court
affirmed the trial court’s dismissal of petitioner’s motion as an untimely petition for postconviction relief. Id. On March 23, 2016, the Ohio Supreme Court declined jurisdiction of the
appeal. State v. Williams, 145 Ohio St.3d 1423 (Ohio 2016).
On July 1, 2016, Petitioner executed the instant habeas corpus petition. (PageID# 3.)
Petitioner asserts that the state courts “erred in denying a properly titled motion to present plain
errors and defects, and request for an evidentiary hearing to correct an illegal sentence as
provided for under the provisions within Criminal Rule 52(B)” (claim one); that his convictions
constitute allied offenses of similar import (claim two); and that he was denied the effective
assistance of counsel because his attorney led him to belief that his convictions would be merged
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at sentencing and he would be sentenced to no more than four years in prison and would be able
to obtain early release, and failed to advise him of his right to appeal (claim three).
Claim One
To the extent that Petitioner asserts that the state courts improperly denied his motion to
present plain errors and defects and request for an evidentiary hearing to correct an illegal
sentence as an untimely post-conviction petition, such claim fails to provide a basis for federal
habeas corpus relief.
The Sixth Circuit has held that “habeas corpus is not the proper
means by which prisoners should challenge errors or deficiencies
in state post-conviction proceedings.” Greer v. Mitchell, 264 F.3d
663, 681 (6th Cir. 2001) (rejecting as noncognizable in habeas
corpus claim that Ohio's post-conviction scheme fails to provide
defendants an adequate corrective process for reviewing claims of
constitutional violations) (citing Kirby v. Dutton, 794 F.2d 245 (6th
Cir. 1986)), cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152
L.Ed.2d 231 (2002). Federal habeas review is not available to
attack the legality of post-conviction proceedings because such
proceedings are not related to a petitioner's detention. Kirby, 794
F.2d at 247; see also Cress v. Palmer, 484 F.3d 844, 853 (6th Cir.
2007); Alley v. Bell, 307 F.3d 380, 387 (6th Cir.2002). Petitioner's
claim “must directly dispute the fact or duration of the
confinement.” Kirby, 794 F.2d at 248 (citing Preiser v. Rodriguez,
411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). A
ground for relief that challenges the correctness of a state judicial
proceeding and does not dispute the detention itself is not
cognizable. See Kirby, 794 F.2d at 247–48.
Wright v. Lazaroff, 643 F. Supp. 2d 971, 990-91 (S.D. Ohio 2009) (footnote omitted).
To the extent that Petitioner raises an issue regarding the alleged violation of state law,
such claim likewise fails to provide a basis for federal habeas corpus relief. A federal court may
review a state prisoner’s habeas petition only if the petitioner's challenge to his confinement is
predicated on an alleged violation of the Constitution, laws or treaties of the United States. 28
U.S.C. § 2241(c)(3); § 2254(a). Thus, a federal court may not issue a writ of habeas corpus “on
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the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v.
Sowders, 848 F.2d 735, 738 (6th Cir. 1988). It is only where the error resulted in the denial of
fundamental fairness will habeas relief be granted. Cooper v. Sowders, 837 F.2d 284, 286 (6th
Cir. 1988). Such are not the circumstances here.
Therefore, claim one fails to warrant federal habeas corpus relief.
Statute of Limitations
Further, the record reflects that Petitioner’s remaining claims are time-barred.
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
diligence.
(2) The time during which a properly filed application for State
postconviction or other collateral review with respect to the
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pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.
Applying the language of 2244(d)(1)(A), Petitioner’s conviction became final in
September 2008, thirty days after his judgment entry of sentence, when the time period expired
to file a timely appeal. See Worthy v. Warden, No. 2:12-cv-652, 2013 WL 4458798, at *2 (S.D.
Ohio Aug. 19, 2013) (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)). The statute of limitations
therefore expired one-year later, in September 2009. Petitioner waited approximately six years
and nine months later, until July 1, 2016, to execute this habeas corpus petition. His November
24, 2014, motion in the state trial court did not toll or otherwise affect the running of the statute
of limitations because the statute of limitations had already long since expired prior to the date
that Petitioner filed such motion, and the state courts denied the motion as untimely. “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.” Vroman v. Brigano, 346 F.3d 598, 601 (6
Cir. 2003) (citing Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y.1998); Winkfield v.
Bagley, 66 F. App’x 578, unpublished, 2003 WL 21259699 (6th Cir. May 28, 2003) (same). See
also Pace v. DiGuglielmo, 544 U.S. 408, 417 (2008) (“[T]ime limits, no matter their form, are
‘filing’ conditions,” and where the state court rejects a post conviction or collateral action as
untimely, it is not “properly filed” so as to toll the running of the statute of limitations under §
2244(d)(2)). Further, the record fails to reflect that equitable tolling of the statute of limitations
is appropriate. See Holland v. Florida, 560 U.S. 631, 650 (2010) (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)(citing Pace,
544 U.S. at 418).
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Petitioner alleges that he did not know about and was not advised of his right to appeal.
In DiCenzi v. Rose, 452 F.3d 465 (6th Cir. 2006), the United States Court of Appeals for the
Sixth Circuit held that, where a criminal defendant is not advised of and does not know of his
right to appeal, those claims relating to events that occurred at the time of sentencing may be
timely under 28 U.S.C. § 2244(d)(1)(D) if the petitioner acted reasonably diligently in learning
about his right to appeal:
The proper task in a case such as this one is to determine when a
duly diligent person in petitioner's circumstances would have
discovered [his right to an appeal]. After that date, petitioner was
entitled to further delay (whether in actually making the discovery,
or in acting on a previously made discovery, or for any other
reason whatsoever), so long as he filed his petition within one year
of the date in which the discovery would have been made in the
exercise of due diligence.
***
[T]he date on which the limitations clock began to tick is a factspecific issue the resolution of which depends, among other things,
on the details of [a defendant's] post-sentence conversation with
his lawyer and on the conditions of his confinement in the period
after [sentencing].
Wims, 225 F.3d at 190–91 (citing Easterwood v. Champion, 213
F.3d 1321, 1323 (10th Cir. 2000) (taking into account “the realities
of the prison system” in determining due diligence)).
Id. at 470–471 (citing Wims v. United States, 225 F.3d 186 (2nd Cir. 2000)). “[P]etitioner bears
the burden of proving that he exercised due diligence, in order for the statute of limitations to
begin running from the date he discovered the factual predicate of his claim, pursuant to 28
U.S.C. § 2244(d)(1)(D).” Id., at 471 (citing Lott v. Coyle, 261 F.3d 594, 605–06 (6th Cir.
2001)). The Court also construes DiCenzi v. Rose, in conjunction with Johnson v. United States,
544 U.S. 295 (2005), requiring consideration of the petitioner’s exercise of diligence. Thus, a
petition will not be deemed timely where the petitioner fails to act with reasonable diligence.
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See Neu v. Brunsman, No. 2:09-cv-257, 2010 WL 5600902, at *4 (S.D. Ohio Oct. 12, 2010)
(same) (citing Pierce v. Banks, No. 2:09-cv-00590, 2009 WL 2579202 (S.D. Ohio Aug.20,
2009); Korbel v. Jeffries, No. 2:06-cv-625, 2008 WL 269626 (S.D. Ohio Jan.29, 2008); Ward v.
Timmerman–Cooper, No. 2:07-cv-41, 2008 WL 214411 (S.D. Ohio Jan. 23, 2008)). “Applying
DiCenzi and Johnson, Petitioner must demonstrate either that he exercised due diligence in
discovering the lack of notice of his right to appeal, the fact on which his conviction-based
claims are predicated, or that he filed for habeas within one-year from the time a person
exercising due diligence in Petitioner's position would have discovered that fact.” McIntosh v.
Hudson, 632 F. Supp. 2d 725, 734 (N.D. Ohio July 10, 20009) (“A person in Petitioner's position
exercising due diligence would have acted much sooner, seeking out his rights and remedies
rather than waiting [more than two and one half years after his conviction] for a law clerk. . . to
‘[notice] that [he] was never informed of his right to appeal[.]’”) Petitioner has failed to
establish he acted diligently.
Lack of actual notice and “ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse [late] filing.” Fisher v. Johnson, 174 F.3d 710, 714–15 (5th
Cir. 1999); United States v. Baker, 197 F.3d 211, 218 (6th Cir. 1999); Rose v. Dole, 945 F.2d
1331, 1335 (6th Cir. 1991). Petitioner waited more than six years after sentencing to file a
collateral action in the state trial court. He does not indicate that he took any action during this
time to learn about his right to appeal, nor does he indicate any reason that would have prevented
him from earlier learning about the right to appeal.
Nothing in the record indicates that
Petitioner’s conditions of confinement prevented him from visiting the prison's law library or
learning about the right to appeal. Petitioner has not advanced any reason that he could not have
earlier learned about such right. See Baker v. Wilson, No. 5:06-cv-1547, 2009 WL 313325, at
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*12 (N.D. Ohio Feb. 6, 2009) (declining to find that the petitioner acted diligently under such
circumstances) (citing McIntosh v. Hudson, No. 1:07cv2583, 2008 WL 4758695, at *9 (N.D.
Ohio Oct. 28, 2008) (petitioner did not act diligently where he pursued his appellate right only
after a law clerk approached him and informed him of the trial court’s error in failing to advise
him of his right to appeal); see also Baker v. Wilson, No. 5:06 CV 1547, 2009 WL 313325, at *12 (N.D. Ohio Feb. 6, 2009) (concluding that the petitioner failed to act diligently in waiting three
years to learn about his right to appeal, noting that “[c]ourts in this Circuit have recognized that
when a petitioner has access to retained counsel, due diligence requires that he ask his counsel
about his appellate rights” and “[a] period not greater than 90 days is a reasonable amount of
time in which to inquire of counsel.”) (citing Ramos v. Wilson, No. 1:06CV901, 2008 WL
2556725 (N.D.Ohio 2008); Ward v. Timmerman-Cooper, No. 2:07-cv-41, 2008 WL 214411, at
*5 (S.D. Ohio Jan. 23, 2008) (no due diligence where the petitioner “apparently made no effort
to learn about his right to appeal for more than seven years from the date of his sentencing[.]”)
“Due diligence requires the petitioner to pursue his rights[.]” Steward v. Moore, 555 F. Supp. 2d
858, 869 (N.D. Ohio 2008) (no due diligence where the petitioner “had free access to law
libraries, the public defender’s office, and the court for over six years prior to the date he says he
discovered his ability to challenge the conviction”).
Even those not versed in the law recognize the centuries-old
maxim that “ignorance of the law is no excuse.” This maxim,
deeply embedded in our American legal tradition, reflects a
presumption that citizens know the requirements of the law. The
benefits of such a presumption are manifest. To allow an ignorance
of the law excuse would encourage and reward indifference to the
law. Further, the difficulty in proving a defendant's subjective
knowledge of the law would hamper criminal prosecutions.
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United States v. Baker, 197 F. 3d at 218. To the contrary, even after being advised by the state
appellate court in November 2015, regarding his right to appeal, to date, Petitioner has failed to
pursue such action.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
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/ Elizabeth A. Preston Deavers
Elizabeth P. Preston Deavers
United States Magistrate Judge
Date: July 13, 2016
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