Owens v. Warden Marion Correctional Institution

Filing 5

REPORT AND RECOMMENDATION that 1 Petition for Writ of Habeas Corpus be DISMISSED as barred by the one-year statute of limitations found in 28 U.S.C. §2244(d), and, to the extent Petitioner is seeking an order directing the state court to rule on his post-conviction proceeding, as moot. Objections to R&R due by 3/1/2017. Signed by Magistrate Judge Terence P. Kemp on 2/15/2017. (agm)(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
CARLO LAMARR M. OWENS,

CASE NO. 2:16-CV-847

Petitioner,
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE KEMP
v.
JASON BUNTING, WARDEN,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed this petition 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 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 found in 28 U.S.C. § 2244(d), and, to the extent Petitioner is seeking an order
directing the state court to rule on his post-conviction proceeding, as moot.
I. Facts and Procedural History
The facts of this case are taken from the Petition and from the state court record.
They can be summarized as follows.
In 1999, Petitioner was indicted in the Franklin County, Ohio Court of Common
Pleas and charged with 21 counts of criminal activity. They included capital murder. He
pleaded guilty to two counts of aggravated murder with capital specifications as well as
multiple other offenses, and was sentenced to two consecutive terms of life imprisonment

without parole plus a variety of other consecutive sentences which, according to Petitioner,
total 92½ years.
Petitioner took a direct appeal, raising two issues about his sentence. In a decision
filed on September 18, 2001, the Tenth District Court of Appeals affirmed the trial court.
State v. Owens, 2001 WL 1084167 (Franklin Co. App. Sept. 18, 2001). His motion to take a
delayed appeal to the Ohio Supreme Court was denied on May 1, 2002. State v. Owens, 95
Ohio St.3d 1435 (May 1, 2002).
Petitioner appears to have filed nothing else in the state courts for over ten years.
Then, according to the Franklin County Court of Common Pleas’ website, he filed a postconviction petition on June 13, 2014. The State opposed it on June 23, 2014. Petitioner filed
several motions thereafter seeking to obtain a decision on his motion. When Petitioner filed
this case, the motion had not yet been ruled on, but the state trial court overruled the
motion on September 27, 2016, finding that it was untimely. It does not appear that
Petitioner has appealed that decision. He signed his petition for a federal writ of habeas
corpus on August 11, 2016. In it, he asks for an order directing the state court to rule on his
post-conviction motion and also for a new trial. He asserts that his federal constitutional
rights were violated by deficiencies in the state court indictment and that he was tricked
or coerced into entering his guilty plea.
II. Statute of Limitations
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
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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
pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.
It is clear that the statute of limitations has run on Petitioner’s claims. Without
doing an extensive analysis, his state court conviction became final in either 2001 or 2002,
and he did not seek federal habeas corpus relief within one year of that date. The fact that,
after the limitations period expired, Petitioner filed a motion for post-conviction relief in
the state trial court does not change that. Even if that motion was timely (which it was not),
the filing of such a motion does not start the running of a new limitations period;
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otherwise, a petitioner could avoid the statute of limitations altogether just by filing
motions or appeals after the one-year period has elapsed. That is not permissible under
federal law. See Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003); see also Wright v. Warden,
Noble Correctional Institution, 2016 WL 3746259, *5 (S.D. Ohio Feb. 11, 2016)(“Once the
limitations period is expired, state collateral review proceedings can no longer serve to
avoid the statute of limitations bar”), adopted and affirmed 2016 WL 3654463 (S.D. Ohio July
8, 2016). Consequently, the petition must be dismissed as untimely. The Court also notes
that it appears that the state court has ruled on the post-conviction motion, so Petitioner’s
request that this Court order the state court to rule - regardless of whether this Court could
grant such a request - is moot.
III. Recommended Disposition
For the reasons set forth above, the Court RECOMMENDS that this action be DISMISSED
as barred by the one-year statute of limitations found in 28 U.S.C. §2244(d).
IV. 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

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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.

/s/ Terence P. Kemp
United States Magistrate Judge

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