Granados v. Warden Southeastern Correctional Institution

Filing 18

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be dismissed as barred by the statute of limitations. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appe alability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 5/21/2019. Signed by Magistrate Judge Michael R. Merz on 5/6/2019. (kpf)(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 AT COLUMBUS
SAMUEL GRANADOS,
Petitioner,

:

- vs -

Case No. 2:16-cv-879
District Judge Algenon L. Marbley
Magistrate Judge Michael R. Merz

WARDEN,
Southeastern Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Samuel Granados under 28 U.S.C. §
2254, is before the Court for decision on the merits. Granados filed his Petition September 13,
2016 (ECF No. 1). Upon initial review under Rule 4, Chief Magistrate Judge Elizabeth A. Preston
Deavers recommended dismissal of the Petition as time-barred (Report and Recommendations,
ECF No. 2). District Judge Marbley sustained Petitioner’s Objections (ECF No. 5, PageID 17,
citing Holland v. Florida, 560 U.S. 631, 648 (2010)) on the basis of Petitioner’s claim that the
statute should be equitably tolled
[B]ecause his attorneys failed to advise him of the procedures for
seeking federal habeas corpus relief or of the time limitations to do
so, and due to his inability to read or understand the English
language. Petitioner contends that he diligently pursued relief by
attending the prison's law library and seeking the assistance of a
translator. Petitioner maintains that his inability to understand
English prevented him from timely filing. He states that prison
officials failed to provide him access to Spanish legal materials, and
he was unable to procure the assistance of a translator until after the
statute of limitations had already expired.
(Opinion and Order, ECF No. 6, PageID 40.) Having recited the standard for equitable tolling
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applicable to a person in Petitioner’s circumstances, Judge Marbley concluded that
Petitioner “has pointed to no specific steps that he took during the
limitations period - such as requesting that Spanish language legal
materials be brought to the prison, petitioning for access to an
interpreter, seeking out a bilingual inmate to provide assistance, or
attempting to improve his own English skills that might constitute
‘reasonable diligence.’” [Roldan v. Reilley, No. 13-cv-447-PB, 2014
WL 3573596,] at *4 (citing [Pabon v. Mahoney, 654 F.3d 385, 402
(3rd Cir. 2011); Ramos-Martinez v. United States, 638 F.3d 315, 324
(1st Cir. 2011))]. Therefore, the Court does not conclude at this time
that Petitioner has established that he acted diligently or that his lack
of proficiency with the English language prevented him from timely
filing. However, because Petitioner has alleged facts which, if true,
may entitle him to equitable tolling of the statute of limitations, and
because the statute of limitations is an affirmative defense, see
Howard v. Tibbals, No. 1:12-cv-1661, 2014 WL 201481, at *9
(N.D. Ohio Jan. 17, 2014)(citation omitted), Petitioner's Objection
(ECF No. 5) is SUSTAINED.
Id. at PageID 41.
Pursuant to Judge Marbley’s Order, the Respondent filed a return of Writ, with the State
Court Record attached, on February 17, 2017 (ECF Nos. 13, 13-1). The next filing in the case is
Petitioner’s July 16, 2018, Motion for an Order Directing Respondent to Comply with
Fed.R.Civ.P. 5(b)(2)(C), complaining that he had never received a copy of the Answer and State
Court Record (ECF No. 14). Chief Magistrate Judge Deavers granted the Motion and set a date
for a reply by petitioner of twenty-one days after service (ECF No. 15).
The State responded with a cover letter, dated February 17, 2017, showing it had complied
with Fed.R.Civ.P. 5 by sending Mr. Granados a copy when it was filed (ECF No. 16-1). This letter
corroborates the Certificate of Service on the Return of Writ (ECF No. 13, PageID 77).
Nevertheless, the State again sent the Return and State Court Record to Petitioner on July 20, 2018
(ECF No. 16).
Petitioner’s time to file a reply expired August 13, 2018, and no reply has been filed. Thus,

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the case is ripe for decision. The Magistrate Judge reference of the case was recently transferred
to the undersigned to help balance the workload in the District. Ultimate decision of the case
remains with District Judge Marbley.
On initial review, Chief Magistrate Judge Deavers raised the statute of limitations defense
sua sponte, but it has now been pleaded by the Respondent in the Return of Writ (ECF No. 13,
PageID 61). Respondent argues that the statutory time is properly calculated under 28 U.S.C. §
2244(d)(1) from the date on which Granados’ conviction became final on direct appeal. The Ohio
Supreme Court declined jurisdiction over the direct appeal on September 24, 2014. State v.
Granados, 140 Ohio St. 3d 1440 (2014). The conviction therefore became final on direct appeal
ninety days later on December 23, 2014, when Granados’s time for seeking a writ of certiorari
from the United States Supreme Court expired. The time for filing expired one year later on
December 23, 2015. 28 U.S.C. § 2244(d)(1). The petition here was not filed until September 13,
2016, when Granados placed it in the prison mailing system (Petition, ECF No. 1, PageID 4).1
This is the calculation of time made by Chief Magistrate Judge Deavers upon initial review
(Report, ECF No. 2).
In his Objections to Chief Magistrate Judge Deavers’ recommendation of dismissal,
Granados made the claim that the time should be equitably tolled (ECF No. 5). As Judge Marbley
concluded, he had not established entitlement to equitable tolling on the basis of the facts in his
Objections (Opinion and Order, ECF No. 6, PageID 41).
The one-year statute of limitations in 28 U.S.C. § 2244 is subject to equitable tolling.
Holland, 560 U.S. at 645. “Under Holland, a litigant is entitled to equitable tolling’ only if he
shows ‘(1) that he has been pursuing his rights diligently and (2) that some extraordinary

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Inmates are entitled to a filing date for court papers of the date they place the paper in the prison mailing system.
Houston v. Lack, 487 U.S. 266, 279 (1988); Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002).

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circumstance stood in his way and prevented timely filing.’”

Menominee Indian Tribe of

Wisconsin v. United States, 136 S. Ct. 750 (2016), quoting Holland, 560 U.S. at 649; Ata v. Scutt,
662 F.3d 736 (6th Cir. 2011), quoting Holland, 560 U.S. at 649; Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005). “[T]he second prong of the equitable tolling test is met only where the
circumstances that caused a litigant’s delay are both extraordinary and beyond its control.”
Menominee Indian Tribe, 136 S. Ct. at 756 (emphasis in original), citing Holland, 560 U.S. at 649.
Despite the opportunity provided by Judge Marbley, Petitioner has provided no additional
facts beyond those that Judge Marbley found insufficient.

Conclusion

Based on Petitioner’s inability to prove equitable tolling, it is respectfully recommended
that the Petition be dismissed as barred by the statute of limitations. Because reasonable jurists
would not disagree with this conclusion, Petitioner should be denied a certificate of appealability
and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous
and therefore should not be permitted to proceed in forma pauperis.

May 6, 2019.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
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proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days
because this Report is being served by mail. . Such objections shall specify the portions of the
Report objected to and shall be accompanied by a memorandum of law in support of the objections.
If the Report and Recommendations are based in whole or in part upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or
such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless
the assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140,
153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

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