Granados v. Warden Southeastern Correctional Institution
REPORT AND RECOMMENDATIONS - The Magistrate Judge RECOMMENDS that 1 Petition for Writ of Habeas Corpus be DISMISSED as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d). Objections to R&R due by 10/6/2016. Signed by Magistrate Judge Elizabeth Preston Deavers on 9/19/2016. (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
CASE NO. 2:16-CV-00879
JUDGE ALGENON L. MARBLEY
Magistrate Judge Elizabeth A. Preston Deavers
BRIAN COOK, WARDEN,
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 the its own motion to consider the
sufficiency of the petition under 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 under 28 U.S.C. §
Facts and Procedural History
Petitioner challenges his convictions after a jury trial in the Fairfield County Court of
Common Pleas on trafficking and possession of heroin. The trial court imposed a term of six
years incarceration. On April 24, 2014, the state appellate court affirmed the judgment of the
trial court. State v. Granados, No. 13-CA-50, 2014 WL 1691308 (Ohio App. 5th Dist. April 24,
2014). On September 24, 2014, the Ohio Supreme Court declined to accept jurisdiction of the
appeal. State v. Granados, 140 Ohio St.3d 1440 (Ohio 2014).
Over two years later, on September 13, 2016, Petitioner executed the instant habeas
He asserts that the evidence is constitutionally insufficient to sustain his
conviction on aggravated trafficking in drugs and that such conviction is against the manifest
weight of the evidence and the trial court abused its discretion by permitting admission of certain
evidence against him (claim one); that the trial court erred in denying his motion to suppress
evidence (claim two); and that he was denied the effective assistance of counsel because his
attorney declined a plea offer from the State without informing Petitioner of the plea offer and
failed to advise Petitioner that the trial court would likely take into account his lack of a prior
record at sentencing.
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
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
(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
(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.
Applying the language of § 2244(d)(1)(A), Petitioner’s conviction became final on
December 22, 2014, ninety days after the Ohio Supreme Court’s September 24, 2014 dismissal
of his appeal, when the time period expired for seeking a petition for a writ of certiorari in the
United States Supreme Court. See Weese v. Sloane, No. 1:15CV122, 2016 WL 614001, at *2-3
(N.D. Ohio Feb. 16, 2016) (citing Bronaugh v. Ohio, 235 F.3d 280, 282 (6th Cir. 2000); Ajumu
v. Goodrich, No. 1:13CV189, 2014 WL 1236268 at * 1 (N.D. Ohio March 24, 2014); Pimental v.
Hudson, No. 1:07-CV-01163, 2008 WL 4186922 at * 1 (N.D. Ohio Sept. 5, 2008)). The statute
of limitations began to run on the following day, and expired one year later, on December 23,
2015. Petitioner waited more than eight months later, until September 13, 2016, to execute this
habeas corpus petition.
Petitioner contends that the Court should equitably toll the statute of limitations,
however, because he has little knowledge of the English language, his attorney failed to advise
him of his right to seek post-conviction or habeas corpus relief, and he has acted diligently in
pursuing relief. Petitioner states that he attends the prison’s law library daily and has obtained
the assistance of another inmate to act as a translator. Petitioner argues that his attorney should
have advised him of the time limitations for filing a federal habeas petition.
The AEDPA’s limitations period is not jurisdictional and is subject to equitable tolling.
Equitable tolling of the statute of limitations, however, is granted sparingly in habeas cases. See
Hall v. Warden, Lebannon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011). In order to establish
entitlement to equitable tolling, a petitioner must establish that (1) he has been pursuing his
rights diligently and (2) some extraordinary circumstance stood in his way and prevented him
from filing in a timely fashion. Holland v. Florida, 560 U.S.641, 649 (2010) (citing Pace, 544
U.S. at 418)). The petitioner bears the burden of demonstrating that he is entitled to equitable
tolling. Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011).
The Supreme Court has allowed equitable tolling where a claimant actively pursued
judicial remedies by filing a timely, but defective, pleading or where he was induced or tricked
by his opponent’s misconduct into allowing the filing deadline to pass. Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 (1990). Where the claimant failed to exercise due diligence in
preserving his legal rights, courts are much less forgiving. Id.; Jurado v. Burt, 337 F.3d 638,
642–13 (6th Cir. 2003). A prisoner’s pro se incarcerated status, lack of knowledge regarding the
law, and limited access to the prison’s law library or to legal materials do not provide a sufficient
justification to apply equitable tolling of the statute of limitations. Hall, 662 F.3d at 751 (citation
omitted). These are conditions typical for many prisoners and do not rise to the level of
exceptional circumstances. Groomes v. Parker, No. 3:07–cv–0124, 2008 WL 123935, at *5
(M.D.Tenn. Jan.9, 2008) (citing Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004)). Similarly,
bad advice from a fellow inmate or other non-lawyers does not constitute grounds for equitable
tolling of the statute of limitations. Allison v. Smith, No. 2:14–cv–10423, 2014 WL 2217238, at
*5 (E.D. Mich. May 29, 2014) (citing Smith v. Beightler, 49 F. App’x 579, 580–81 (6th Cir.
2002); United States v. Cicero, 14 F.3d 199, 204–05 (D.C. Cir. 2000); Henderson v. Johnson, 1
F. Supp. 2d 650, 655 (N.D. Tex.1998)). A “[p]etitioner’s reliance on jailhouse lawyers is not an
extraordinary circumstance warranting equitable tolling.” Arriaga v. Gonzales, No. 13–1372–
AG (JPR), 2014 WL 5661023, at 12 (C.D. Cal. Oct.31, 2014) (citations omitted). “Generally, a
habeas petitioner’s reliance on unreasonable or incorrect legal advice from his attorney is not a
valid ground for equitable tolling of the statute of limitation.” Brown v. Bauman, No. 2:10–cv–
264, 2012 WL 1229397, at *9 (W.D. Mich. April 12, 2012) (citations omitted). “The fact that
Petitioner may be ignorant of the law and instead chose to rely on counsel, in itself, does not
provide a basis for equitable tolling. Neither a prisoner’s pro se status nor his lack of knowledge
of the law constitute[s] extraordinary circumstances justifying equitable tolling.” Taylor v.
Palmer, No. 2:14–cv–14107, 2014 WL 6669474, at *4 (E.D. Mich. Nov.11, 2014) (citing
Rodriguez v. Elo, 195 F.Supp.2d 934, 936 (E.D. Mich. 2002); Johnson v. United States, 544 U.S.
295, 311 (2005) (“[W]e have never accepted pro se representation alone or procedural ignorance
as an excuse for prolonged inattention when a statute’s clear policy calls for promptness”)).
“Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the
postconviction context where prisoners have no constitutional right to counsel.” Lawrence v.
Florida, 549 U.S. 327, 336–37 (2007) (citation omitted). In Holland, 560 U.S. 631, the Supreme
court held that egregious misconduct by an attorney may constitute an extraordinary
circumstance warranting equitable tolling of the statute of limitations, but noted that a “garden
variety claim of excusable neglect,” such as a miscalculation that leads a lawyer to miss a filing
deadline, would not justify the equitable tolling of the statute of limitations. Id. at 651-52
(citations omitted). However, “[g]enerally, ‘a lawyer’s mistake is not a valid basis for equitable
tolling.’ ” Hernandez v. Eberlin, No. 5:07CV399, 2008 WL 2967662, at *6 (N.D. Ohio July 25,
2008) (citing Whalen v. Randle, 37 F. App’x 113, 120 (6th Cir. 2002); Fahy v. Horn, 240 F.3d
239, 244 (3rd Cir. 2001) (“attorney error, miscalculation, inadequate research, or other mistakes
have not been found to rise to the ‘extraordinary’ circumstances required for equitable tolling.”).
“Moreover, an attorney’s mistake which results in missing the filing deadline imposed by the
AEDPA is not a basis for equitable tolling.” Elliott v. Dewitt, No. 00-3329, 2001 WL 523527, at
*2 (6th Cir. May 8, 2001) (citations omitted). Here, counsel’s alleged failure to advise Petitioner
of the time limitations for seeking federal habeas corpus relief does not justify equitable tolling
of the statute of limitations.
The record likewise fails to reflect that equitable tolling is warranted based on
Petitioner’s lack of proficiency with the English language.
[W]here a petitioner’s alleged lack of proficiency in English has
not prevented the petitioner from assessing the courts, the lack of
proficiency is insufficient to justify equitable tolling of the statute
of limitations. An inability to speak, write and/or understand
English, in and of itself, does not automatically give a petitioner
reasonable cause for failing to know about the legal requirements
for filing his claims.
Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002). Other courts agree, “the mere inability to
understand English is not itself sufficient to warrant equitable tolling.”
Levy v. Osborne, No.
1:10-0005, 2013 WL 3877816, at *3 (M.D. Tenn. July 26, 2013) (citing Perez v. Florida, 2013
WL 2319827 at *2 (11th Cir. May 28, 2013)). “[E]quitable tolling may be justified if language
barriers actually prevent timely filing.” Id. (citing Mendoza v. Carey, 449 F.3d 1065, 1069 (9th
Cir. 2006)). The record fails to reflect that Petitioner’s lack of proficiency in the English
language prevented him from timely filing. “Were this Court to allow equitable tolling because
of asserted language difficulties, AEDPA’s time requirement would essentially be eviscerated for
all petitioners claiming to be non-English speaking. Such a result is contrary to common sense.”
Soto v. Birkett, No. 5:06-CV-54, 2006 WL 2850578, at *7 (W.D. Mich. Oct. 3, 2006) (quoting
Cortez v. Petrovsky, No. 803 CV1482T30MSS, 2006 WL 289113, at *1-2 (M.D.Fla. Feb. 7,
2006) (failure to provide Spanish speaking interpreters to non-English speaking inmates in the
Florida prisons does not warrant equitable tolling); Fennell v. Artuz, 14 F.Supp.2d 374, 377 (S.D.
N.Y.1998) (tolling the statute of limitations for prisoners while they learn English and educate
themselves in the law, would defeat the limiting purposes of AEDPA). “The fact that Petitioner
is untrained in the law, denied access to a law library, was proceeding without a lawyer, or may
have been unaware of the statute of limitations for a certain period does not warrant tolling.”
Soto v. Birkett, 2006 WL 2850578, at *7 (citing Allen, 366 F.3d at 403; Brown v. United States,
No. 01-1481, 2001 WL 1136000, at *3 (6th Cir. Sept. 21, 2001) (citing United States v. Baker,
197 F.3d 211, 218-19 (6th Cir. 1999)); Fisher v. Johnson, 174 F.3d 710, 714-15 (5th Cir. 1999);
Burnett v. Birkett, No. 00-10144-BC, 2002 WL 31748843, at *6-7 (E.D. Mich. Nov. 26, 2002).
Petitioner fails to explain his delay in pursuing federal habeas corpus relief. The record
does not demonstrate that Petitioner acted with diligence or that an extraordinary circumstance
prevented his timely filing. Accordingly, Petitioner is not entitled to the equitable tolling of the
statute of limitations.
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED as
barred by the one-year statute of limitations under 28 U.S.C. § 2244(d).
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. §
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 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/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?