Gilbert v. Warden Southeastern Correctional Institution et al

Filing 2

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Tyrelle Gilbert. The Magistrate Judge RECOMMENDS that this action be DISMISSED. Objections to R&R due by 9/6/2016. Signed by Magistrate Judge Kimberly A. Jolson on 8/19/2016. (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
TYRELLE GILBERT,
CASE NO. 2:16-CV-00781
JUDGE JAMES L. GRAHAM
Magistrate Judge Kimberly A. Jolson

Petitioner,
v.
CCA HALFWAY HOUSE,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. This matter is before the Court on its own motion 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.
I.

FACTS AND PROCEDURAL HISTORY
This case involves Petitioner’s March 12, 1999, convictions after a jury trial on two

counts of possession of drugs, two counts of felonious assault, improperly handling firearms, and
improperly discharging a firearm at or into a habitation or school. The trial court imposed an
aggregate term of 18 ½ years of incarceration. Petitioner apparently did not file an appeal. The
Ohio Seventh District Court of Appeals further summarized the procedural history of the case as
follows:
The original sentencing entry dated March 12, 1999, did not
contain a postrelease control sentence or advisement.
In a letter dated January 15, 2008, the Ohio Department of
Rehabilitation and Corrections advised the sentencing judge and
the prosecutor that the sentencing judgment entry did not contain a
sentence for postrelease control. On January 29, 2008, the trial
court issued a nunc pro tunc judgment entry that was similar in all

respects with the March 12, 1999 judgment entry, but it added the
following paragraph:
“On March 10, 1999 Defendant was informed by the Court in
open Court at his sentencing hearing that he is subject to Post
Release Control for a period of five (5) years beginning upon
his release from prison all of which is MANDATORY pursuant
to Ohio Revised Code § 2967.28(B).” 01/29/08 J.E. (Emphasis
sic.)
There were instructions to send copies of this judgment entry to
Gilbert.
On May 16, 2011, Gilbert filed a Motion for Sentencing Hearing
De Novo arguing that he was entitled to a sentencing hearing since
the March 12, 1999 judgment entry did not contain a postrelease
control sentence or advisement. The trial court denied the motion
without holding a hearing. 06/23/11 J.E.
State v. Gilbert, No. 11JE21, 2012 WL 1116223, at *1 (Ohio Ct. App. Mar. 30, 2012). On
March 30, 2012, the appellate court reversed the judgment of the trial court and remanded the
case to the trial court for a re-sentencing hearing solely on post-release control. Id. Petitioner
does not indicate the date of his re-sentencing hearing but does indicate that he did not pursue
further state-court relief.
On July 26, 2016, Petitioner executed the instant habeas corpus petition. (Doc. 1 at
PageID #: 15). According to the Petition, on August 7, 2016, he placed it in the prison mailing
system. (Id.). Petitioner asserts that, upon his September 29, 2016, release from prison, the Ohio
Adult Parole Authority unconstitutionally amended his sentence to include three to five years
post release control, forcing him into a halfway house (claim one); and that he was convicted in
violation Ohio’s speedy trial statutes (claim two). Petitioner also raises allegations regarding
Ohio’s House Bill 86 (claims three and four). Specifically, Petitioner asserts:
Ground Three: HB 86
....
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The New Bill removing former HB 2 states R.C. 2929.11
repositioned to depopulate the prison population in Ohio where the
Ohio prison system is 14,600.00 inmates over capacity and the
Court knew or rather should have known that this case should have
been terminated by the signing of the Bill Sept. 30, 2011.
....
Ground Four: HB86; Judicial fact finding, was not impl[e]mented
by the attorneys of record now that the defendant is a person with
the understanding of the law.
....
Concerning maximum sentences, minimum sentences, reinstitutes
state policy, declares unconstitutional states policy, reduction of
amounts of public funds used to operate private prisons, to reduce
the number of offenders in state prison for violations of law to
moderate low level offenses, to increase the availability of
community control sanctions.
(PageID #: 8–10).
II.

DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-

year statute of limitations on the filing of habeas corpus petitions:
(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

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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).
Under the provision of § 2244(d)(1)(A), Petitioner’s judgment of conviction became final
in April 1999, when the time period expired to file a timely appeal. See Worthy v. Warden,
Chillicothe Corr. Inst., 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
408, 481 (6th Cir. 2002); Ohio App. R. 4(A)). The statute of limitations expired one year later,
in April 2000. Petitioner’s claim that he was convicted in violation of Ohio’s speedy trial law
therefore is plainly time barred.
In claims three and four, Petitioner raises issues regarding Ohio’s House Bill 86. In
claim one, Petitioner asserts that the Ohio Parole Board unconstitutionally imposed a term of
three to five years post release control by requiring him to reside at a halfway house upon his
release from incarceration. Applying the provision of 2244(d)(1)(D) to these claims, they too
plainly are time-barred:
[T]he time commences under § 2244(d)(1)(D) when the factual
predicate for a petitioner's claim could have been discovered
through the exercise of due diligence, not when it was actually
discovered by a given prisoner. Owens v. Boyd, 235 F.3d 356, 359
(7th Cir.2000). Also, under § 2244(d)(1)(D), the time under the
limitations period begins to run is when a petitioner knows, or
through due diligence, could have discovered, the important facts
for his claims, not when the petitioner recognizes the legal
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significance of the facts. Id. In other words, § 2244(d)(1)(D) does
not convey a statutory right to an extended delay while a petitioner
gathers every possible scrap of evidence that might support his
claim. Sorce v. Artuz, 73 F.Supp.2d 292, 294-95 (E.D.N.Y.1999).
Rather, it is the actual or putative knowledge of the pertinent facts
of a claim that starts the clock running on the date on which the
factual predicate of the claim could have been discovered through
due diligence, and the running of the limitations period does not
await the collection of evidence which supports the facts[.] Tate v.
Pierson, 177 F.Supp.2d 792, 800 (N.D.Ill.2001)(citing to Flanagan
v. Johnson, 154 F.3d 196, 198-99 (5th Cir.1998)). Furthermore, a
habeas petitioner has the burden of proof in establishing that he
exercised due diligence in searching for the factual predicate of the
habeas claims. Stokes v. Leonard, 36 Fed.Appx. 801, 804 (6th Cir.
2002).
Redmond v. Jackson, 295 F. Supp. 2d 767, 771 (E.D. Mich. 2003).
Petitioner advances no reason why he could not have discovered the factual predicate for
his claims long prior to one year before the filing of this habeas corpus petition. Ohio’s House
Bill 86 became effective in September 2011. See State v. Trammell, 3 N.E.3d 260, 269–70 (Ohio
Ct. App. 2013). Further, in May 2011, Petitioner filed a motion for a sentencing hearing based
on the lack of any provision regarding post release control in his March 1999, judgment entry.
See Gilbert, 2012 WL 1116223, at *1. On March 30, 2012, the appellate court remanded the
case to the trial court for re-sentencing on post-release control. Id. Petitioner therefore would
have known, or could have discovered through the exercise of due diligence, the factual
predicate for his claims regarding House Bill 86 and imposition of post release control long prior
to the filing of this action. Additionally, the record fails to reflect a basis for equitable tolling of
the statute of limitations. See Holland v. Florida, 560 U.S. 631, 649 (2010)(in order to obtain
equitable tolling of the statute of limitations, a litigant must establish that he has diligently
pursued relief but that some extraordinary circumstance stood in his way of timely filing)(citing
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

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Moreover, Petitioner has never presented any of his claims to the state courts. As such,
all of his claims remain unexhausted, and subject to dismissal. Before a federal habeas court
may grant relief, a state prisoner must exhaust his available remedies in the state courts. 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.
O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.
1990). If Petitioner’s claim is that he has served the maximum sentence allowed under state law,
he has a state remedy for that claim. In Ohio, “habeas corpus is available where an individual’s
maximum sentence has expired and he is being held unlawfully.” Morgan v. Ohio Adult Parole
Auth., 626 N.E.2d 939, 941, 68 Ohio St. 3d 344, 346 (1994). It appears that Petitioner also may
pursue a motion for a delayed appeal. See Ohio App. R. 5(A).
Finally, the Court notes that, even if Petitioner’s claims two, three, and four were
properly before this Court, these claims fail to raise a basis for federal habeas corpus relief. In
claim two, Petitioner asserts the alleged violation of state law. Such claim does not warrant
relief. In claims three and four, Petitioner refers to House Bill 86, but fails to identify the nature
of any federal constitutional issue for this Court’s review. A federal court may review a state
prisoner’s habeas petition only on the grounds that the challenged confinement is in violation of
the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal court may
not issue a writ of habeas corpus “on 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). A federal

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habeas court does not function as an additional state appellate court reviewing state courts’
decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988).
“‘[F]ederal courts must defer to a state court’s interpretation of its own rules of evidence and
procedure’” in considering a habeas petition. Id. (quoting Machin v. Wainwright, 758 F.2d 1431,
1433 (11th Cir. 1985)).
III.

CONCLUSION
For the foregoing reasons, 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).

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The parties are further advised that, if they intend to file an appeal of any adverse 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.
IT IS SO ORDERED.

Date: August 19, 2016

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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