Royster v. Imbrogno et al

Filing 16

REPORT AND RECOMMENDATION re 9 MOTION to Dismiss filed by Andre Imbrogno and The Ohio Adult Parole Authority in that it is RECOMMENDED that Respondent's Motion to Dismiss be granted and that this case be DISMISSED. Objections to R&R due by 4/28/2017. Signed by Magistrate Judge Terence P. Kemp on 4/14/17. (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
EASTERN DIVISION
JEROME ROYSTER,

:

Petitioner,

:

v.

:
:

ANDRE IMBROGNO, ET AL.,

Case No. 2:16-cv-1174
JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

:
Respondents.
REPORT AND RECOMMENDATION
This case represents the second time that Petitioner has sought a federal writ of
habeas corpus in order to determine if the Ohio Adult Parole Authority followed the
law when it denied him parole in 2014. His first such petition was filed on April 20,
2015, almost a year after he was denied parole on April 29, 2014. He raised an Ex Post
Facto issue in that petition and asserted that he was “entitled to another meaningful
hearing which encompasses more that just a view of the circumstances as viewed from
the past ....” See Case No. 2:15-cv-1345, Doc. 1.
In that case, Respondent moved to dismiss the petition as unexhausted. A
Magistrate Judge of this Court recommended granting that motion. Id., Doc. 8. In
response, Petitioner moved for voluntary dismissal, and on November 17, 2015 the
Court granted that motion. See id., Doc. 11.
According to the motion to dismiss filed in the current case (Doc. 9), Petitioner
did file a mandamus action in state court in an effort to exhaust his state remedies. It

failed, apparently on procedural grounds. He then filed this case on December 15, 2016.
Respondent argues that the filing was untimely. For the following reasons, which
include reasons not advanced by Respondent, the Court agrees and will recommend
that the case be DISMISSED.

I. Procedural History
Only a brief procedural history is needed in order to understand the limitations
issues in this case. Some of it is recited in the Report and Recommendation filed in Case
No. 2:15-cv-1345, where the Court stated that “Petitioner was convicted of aggravated
murder, kidnapping, rape, aggravated robbery, and grand theft; his original death
sentence was commuted in 1978 and Petitioner was sentenced to a term of
imprisonment of 35 years to life.” See id., Doc. 8, at 1. As noted, Petitioner was
considered for parole in 2014, but was denied.
After he voluntarily dismissed the prior case, Petitioner returned to the state
courts to seek relief. According to the exhibits attached to the motion to dismiss (Doc.
9), Petitioner filed a petition for a writ of mandamus in the Tenth District Court of
Appeals on September 1, 2015. In it, he represented that he had not filed any prior
actions within the past five years in either state or federal court. Doc. 9, Ex. 1.
Respondent moved to dismiss on grounds that Petitioner’s prior-suit affidavit was false,
citing to two prior filings made in this Court, including Case No. 15-cv-1345. The court
of appeals agreed and dismissed the mandamus action on March 10, 2016. Ex. 6.
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Petitioner appealed. However, he did not file a merits brief. For that reason, the
Ohio Supreme Court dismissed his appeal. Ex. 11. That occurred on July 7, 2016.
Petitioner filed the current action some five months later.
II. Statute of Limitations
Respondent’s argument is based on the one-year statute of limitations found in
28 U.S.C. §2244(d). That statute, applicable to petitions filed by state prisoners under 28
U.S.C. §2254, gives the prisoner one year from the date that a state court conviction
becomes final to file an action for a writ of habeas corpus. Finality is defined as “the
conclusion of direct review or the expiration of the time for seeking such review.” 28
U.S.C. §2244(d)(1).
That concept does not fit neatly into the scenario involved in the present case,
which concerns not the finality of Petitioner’s original conviction but a decision denying
him parole. In such cases, the courts have held that the statute of limitations begins to
run on the date that the parole decision is final, without regard to the availability of any
subsequent state court remedies. Those remedies (which, as this Court has said, a state
prisoner “ would have been expected to exhaust before coming to federal court,” see
McBroom v. Richard, 2017 WL 1062496, *3 (S.D. Ohio March 21, 2017)), do not affect the
finality of the parole decision, but they can, under appropriate circumstances, toll the
running of the statute of limitations. McBroom, supra; see also Klopp v. Wolfe, 8 Fed.
Appx. 444 (6th Cir. April 30, 2001); Nedea v. Ohio Adult Parole Authority, 2005 WL
1073365 (S.D. Ohio March 29, 2005).
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Applying those principles here, the statute of limitations began to run on
Petitioner’s habeas claim on April 29, 2014. He filed his first challenge to the parole
decision (that is, his first federal habeas petition) 356 days later, on April 20, 2015. At
that point, nine days remained in the limitations period.

It expired nine days later,

because filing a federal challenge to a state court conviction or order (unlike a state
challenge) does not toll the running of the statute of limitations. See Griffin v. Rogers, 308
F.3d 647, 651 (6th Cir. 2002), citing Duncan v. Walker, 533 U.S. 167, 181-82 (2001)(holding
that “an application for federal habeas corpus review is not an ‘application for State
post-conviction or other collateral review’ within the meaning of 28 U.S.C. § 2244(d)(2)
[and]therefore did not toll the limitation period during the pendency of respondent's
first federal habeas petition”). At that point, Petitioner had not filed any state court
proceedings which would have the effect of tolling the running of the statute of
limitations. Consequently, although his initial habeas corpus case was timely filed,
once he obtained a dismissal of that case, he no longer had the ability to file a timely
federal habeas corpus action.
Petitioner argues, in his reply, that he should be given the benefit of equitable
tolling, and that under that doctrine, he should have been given a grace period to return
to federal court after exhausting his state court remedies. That argument fails for
numerous reasons. As the Court of Appeals explained in Giles v. Beckstrom, 826 F.3d
321, 325 (6th Cir. 2016),
“[A] petitioner is entitled to equitable tolling only if he shows (1) that he
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has been pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way and prevented timely filing.” Holland v.
Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (internal
quotation marks and citation omitted).
Petitioner cannot make that showing. The rule that the filing of a federal habeas corpus
action does not toll the running of the statute of limitations has been in place at least
since the Supreme Court’s Duncan decision, which was handed down in 2001.
Petitioner should have realized that, if he dismissed that case, the statute of limitations
would be a bar to a second petition. Even if he did not know that, the Court of Appeals
“has repeatedly held that ‘ignorance of the law alone is not sufficient to warrant
equitable tolling.’” Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004). Further, although
he did pursue his rights in state court, it is hard to conclude that he did so “diligently”
given that he did not complete an accurate statement of his prior litigation history when
he filed his mandamus petition and that he did not file a brief in the Ohio Supreme
Court.
Petitioner has also not shown that any circumstances beyond his control
prevented him from pursuing his rights in a timely fashion. He voluntarily dismissed
the prior action. Had he wished to preserve that action while pursuing state court
remedies, he could have asked the Court to employ the “stay and abeyance” procedure
explained in Rhines v. Weber, 544 U.S. 269 (2005). He did not. Further, there are a
multitude of decisions from this Court and from the Court of Appeals holding that a
habeas petitioner who challenges the validity of a decision denying parole must pursue

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state court remedies in order to satisfy the statutory exhaustion requirement found in 28
U.S.C. §2254(b), (c). See, e.g., McCardle v. Warden, London Corr. Inst., 2010 WL 3719241
(S.D. Ohio Sept. 15, 2010), adopted and affirmed 2010 WL 4384247 (S.D. Ohio Oct. 27,
2010), citing, inter alia, Williams v. Perini, 557 F.2d 1221 (6th Cir. 1977). The Ohio courts
have long held that they will review the actions of the Adult Parole Authority in the
context of a mandamus action. See, e.g., Wright v. Ghee, 74 Ohio St. 3d 465 (1996). Had
Petitioner pursued that remedy before filing his first habeas corpus petition, that might
have constituted diligence. But he waited until after he filed that action and until after
Respondent filed a motion to dismiss, raising the exhaustion issue, to bring his state
court mandamus action. That is not the type of diligence which will support a claim of
equitable tolling. For these reasons, the Court concludes that any relief which Petitioner
is seeking under 28 U.S.C. §2254 is barred by the statute of limitations contained in 28
U.S.C. §2244(d). The Court adds, parenthetically, that because Petitioner’s attempt at
state court exhaustion was denied on procedural grounds, it is also likely that even if
the Court were to excuse his failure to file timely, the Court would conclude that
Petitioner’s claims were procedurally defaulted and would not reach the merits. See
Maupin v. Smith, 85 F.2d 135 (6th Cir. 1986).
That does not end the Court’s inquiry, however. Although styled as a habeas
corpus petition, Petitioner is not necessarily asking for his immediate release from
prison, but only a hearing that is, in his view, free from procedural defects. That type of
claim can also be brought under 42 U.S.C. §1983. See Wilkinson v. Dotson, 544 U.S. 74
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(2005). Unfortunately for Petitioner, the statute of limitations applicable to claims under
§1983 also bars relief.
In Ohio, the statute of limitations for §1983 actions is the two-year statute found
in O.R.C. §2305.10. Browning v. Pendleton, 869 F.2d 989 (6th Cir. 1989). Since Petitioner’s
parole claim accrued on April 29, 2014, he had until April 29, 2016 to bring a §1983
claim challenging the denial of parole. The current action, which was not filed until
December of 2016, clearly falls outside the limitations period. Ohio does have a
“savings statute” which, under some circumstances, can extend the limitations period
when an action is timely filed and then dismissed, but it does not help Petitioner here.
That statute, O.R.C. §2305.19(A), says this about the effect of filing a prior case:
In any action that is commenced or attempted to be commenced, if in due
time a judgment for the plaintiff is reversed or if the plaintiff fails
otherwise than upon the merits, the plaintiff or, if the plaintiff dies and the
cause of action survives, the plaintiff's representative may commence a
new action within one year after the date of the reversal of the judgment
or the plaintiff's failure otherwise than upon the merits or within the
period of the original applicable statute of limitations, whichever occurs
later.

Petitioner’s prior case was dismissed other than on its merits, so that statutory
requirement has been satisfied. However, the statute gives a plaintiff the later of two
dates on which to refile in a timely manner: either the time left in the limitations period,
or one year from the date of the prior dismissal. See, e.g., CapitalSource Bank FBO Aeon
Fin., L.L.C. v. Donshirs Dev., Corp., 2013 WL 1697492 (Cuyahoga Co. App. April 18, 2013).
Here, the first of those dates was April 29, 2016. The second was November 17, 2016,
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since the prior action was dismissed on November 17, 2015. Petitioner missed both
dates. Consequently, even if this case is construed as making a claim under 42 U.S.C.
§1983, it is still time-barred.
III. Recommended Disposition
For the reasons set forth above, it is recommended that Respondent’s motion to
dismiss (Doc. 9) be granted and that this case be DISMISSED.
IV. Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within
fourteen 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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/s/ Terence P. Kemp
United States Magistrate Judge

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