Albert v. Warden, Chillicothe Correctional Institution
REPORT AND RECOMMENDATION re 5 MOTION to Dismiss filed by Warden Chillicothe Correctional Institution in that it is RECOMMENDED that Respondents Motion to Dismiss be GRANTED and that this action be DISMISSED as barred by the one-year sta tute of limitations established by 28U.S.C. § 2244(d). Objections to R&R due by 6/1/2017. Signed by Magistrate Judge Norah McCann King on 5/18/17. (sem)(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-1110
JUDGE GEORGE C. SMITH
Magistrate Judge King
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 1), Respondent’s
Motion to Dismiss (ECF No. 5), and the exhibits of the parties. For the reasons that follow, the
Magistrate Judge RECOMMENDS that Respondent’s Motion to Dismiss be GRANTED and
that this action be DISMISSED as barred by the one-year statute of limitations established by 28
U.S.C. § 2244(d).
Facts and Procedural History
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
this case as follows:
Defendant-appellant, Shane Albert, appeals from a judgment of
conviction entered by the Franklin County Court of Common
Pleas. For the following reasons, we affirm appellant's convictions
but remand the matter for resentencing.
Factual and Procedural Background
On October 14, 2005, Jatora Pruitt and her then boyfriend, Jay
Bradley, were at a house located at 274 S. Dakota Avenue in
Columbus, Ohio. Bradley, Pruitt, and another man, Ullman Taylor,
all sold drugs out of the house. Charles Calloway was also present.
He was the house's doorman and would keep people away that they
did not know. Calloway left the house to run an errand. When he
came back, Bradley opened the door to let him back inside.
Calloway ran inside the house and yelled that someone was
shooting at him. Bradley shot back but was shot twice. Pruitt saw
three people running away from the house but could not identify
Two days later, Pruitt, Taylor, and appellant were at the house
discussing the shooting.FN1 Inside the house, they began to
question Calloway about the shooting and who might have been
involved. Appellant and Taylor were standing over Calloway, who
was sitting on a couch. Calloway would not answer their questions
so they began beating him. Calloway still refused to answer their
questions. Appellant said that he knew how to get him to talk, so
he left the room and quickly returned with a gasoline can. (Tr.
113.) He poured gasoline on Calloway and then Taylor lit a piece
of paper on fire to intimidate Calloway to answer their questions.
The lit piece of paper then fellFN2 into Calloway's lap and he
became engulfed in flames. Calloway sustained burns over 95
percent of his body and died from the massive burns and soot
inhalation into his lungs.
For several years, Calloway's death remained unsolved until an
officer with the Columbus Police Department's cold case unit
began a new investigation. As a result of that investigation, on
October 24, 2012, a Franklin County Grand Jury indicted appellant
for counts of aggravated arson, in violation of R.C. 2909.02,
aggravated murder, in violation of R.C. 2903.01, murder, in
violation of R.C. 2903.02, and kidnapping, in violation of R.C.
2905 .01. Each count also contained a firearm specification
pursuant to R .C. 2941.141. Appellant entered a not guilty plea to
the charges and proceeded to a jury trial.
At trial, the state's witnesses testified to the above version of
events. Additionally, Janae Davis, who knows appellant because
he fathered a child with her mother, testified that appellant
confided to her that he was scared he might go to jail because he
had poured gasoline over someone but he denied he started the fire.
The jury found appellant guilty of the aggravated arson, murder,
and kidnapping charges (as well as the attendant firearm
specifications) but not guilty of aggravated murder. The trial court
sentenced appellant accordingly.FN3
Appellant appeals and assigns the following errors:
[1.] The Appellant was denied effective assistance of counsel at all
stages of the proceedings including pre-trial, trial and at
[2.] The Trial Court committed plain error, when the Court failed
to resolve allied offense and notify the Appellant of the required
post release control notification.
[3.] The Trial Court erred by admitting unnecessary and prejudicial
photographs of the victim.
[4.] The verdict is against the sufficiency and manifest weight of
FN1: Appellant and Taylor grew up together and previously had
sold drugs together.
FN2: Taylor, who pled guilty to a count of involuntary
manslaughter arising from these events, testified that he accidently
dropped the piece of paper when it started burning his hand. Pruitt
testified that he tossed it into Calloway's lap.
FN3: Although appellant did not raise this as error, the state points
out that the trial court improperly sentenced appellant for the
multiple firearm specifications. We agree. Appellant was found
guilty of three one-year firearm specifications and, upon the
merger of those specifications, should only have been sentenced to
one year in prison. The trial court sentenced him to three years.
Accordingly, this matter must be remanded with instructions for
the trial court to resentence him on these specifications.
State v. Albert, No. 14AP-30, 2015 WL 329463, at *1-2 (Ohio App. 10th Dist. Jan. 27, 2015).
On January 27, 2015, the appellate court affirmed in part and reversed in part, remanding the
case to the trial court for re-sentencing on Petitioner’s firearm specifications. Id. Petitioner did
not file a timely appeal. On August 10, 2016, he filed a motion for a delayed appeal. (ECF No.
5-1, PageID# 147). On October 5, 2016, the Ohio Supreme Court denied Petitioner’s motion for
a delayed appeal. State v. Albert, 146 Ohio St.3d 1513 (2016). Meanwhile, on May 7, 2015, the
trial court held a re-sentencing hearing, imposing a term of ten years on Count One, fifteen years
to life on Count Four, and ten years on Count Five, the sentences on Counts One and Five to be
served concurrently with each other but consecutively to Count Four, plus an additional
consecutive term of one year on the firearm specification. Re-Sentencing Judgment Entry (ECF
No. 5-1, PageID# 141). The re-sentencing Entry is dated May 11, 2015. (PageID# 144).
On November 17, 2016, Petitioner filed this action for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He alleges that he was denied the right to the effective assistance of counsel
at all stages of state court proceedings and the penalty phase (claim one); that the trial court
committed plain error when it failed to resolve allied offenses and to advise Petitioner regarding
the terms of post release control (claim two); that the trial court erred in admitting prejudicial
photographs of the victim (claim three); and that the evidence is constitutionally insufficient to
sustain his convictions and his convictions are against the manifest weight of the evidence (claim
four). Respondent contends that this action should be dismissed as barred by the one-year statute
of limitations under 28 U.S.C. § 2244(d).
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.
Here, Petitioner’s judgment of conviction became final on March 13, 2015, or forty-five
days after the appellate court’s January 27, 2015, affirming Petitioner’s convictions, and when
the time for filing a timely appeal to the Ohio Supreme Court expired. See Norris v. Bunting,
No. 2:15-cv-764, 2017 WL 749200, at *8 (S.D. Ohio Feb. 27, 2017)(citing Crangle v. Kelly, 838
F.3d 673, 679 (6th Cir. 2016)(when a re-sentencing benefits a defendant, the limitations period is
not restarted by the new judgment entry); Adams v. Chillicothe Correctional Institution, No.
2:16-cv-00563, 2016 WL 3906235, at *2 (S.D. Ohio July 19, 2016)(citing 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)).
The statute of limitations began to run the following day and expired one year later, on March
14, 2016. Petitioner waited more than eight months thereafter, until November 17, 2016, to file
this action.1 Petitioner’s August 10, 2016, motion for a delayed appeal did not toll or otherwise
affect the running of the statute of limitations, because the statute of limitations had already
Petitioner does not indicate the date on which he executed the Petition. See Petition (Doc. 1, PageID# 15).
expired prior to the filing of that motion. State collateral actions filed after the statute of
limitations has expired do not toll the running of the statute of limitations under 28 U.S.C. §
2244(d) (2). Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (“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. Once the limitations period is expired, collateral petitions can no
longer serve to avoid a statute of limitations.”). Further, 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)(a
petitioner is entitled to equitable tolling if he has diligently pursued his rights and some
extraordinary circumstances prevented his timely filing)(citations omitted). Consequently, this
action is untimely.
Therefore, the Magistrate Judge RECOMMENDS that Respondent’s Motion to Dismiss
(ECF No. 5) be GRANTED and that this action be DISMISSED as barred by the one-year
statute of limitations found in 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
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.
s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
May 18, 2017
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