Prado v. Warden, Chillicothe Correctional Institute
REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS dismissing 1 Petition for Writ of Habeas Corpus with prejudice. Objections to R&R due by 10/11/2017. Signed by Magistrate Judge Kimberly A. Jolson on 9/27/2017. (ew)(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
MANUEL B. PRADO,
CASE NO. 2:17-CV-00790
JUDGE JAMES L. GRAHAM
Magistrate Judge Kimberly A. Jolson
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.
FACTS AND PROCEDURAL HISTORY
Petitioner challenges his October 15, 2015, conviction on rape pursuant to his guilty plea
in the Madison County Court of Common Pleas. According to the Petition, the trial court
imposed a sentence of eight years pursuant to the joint agreement of the parties. Petitioner did
not file a timely appeal. On April 14, 2016, he filed a motion for a delayed appeal. On June 8,
2016, the appellate court denied the motion. On September 9, 2016, the appellate court denied
his motion for reconsideration pursuant to Ohio Appellate Rule 26(A). Petitioner apparently did
not file an appeal to the Ohio Supreme Court.
Approximately one year later, on September 6, 2017, Petitioner filed this federal habeas
corpus petition. He asserts that he was denied the effective assistance of counsel during the guilt
and penalty phases of trial because: his attorney failed to investigate, and gave the State an
unfair advantage over the defense at trail, forcing him to enter a guilty plea, and because his
attorney failed to procure grand jury testimony, depriving him of due process and equal
protection (claim one); that the trial court abused its discretion in sentencing him on facts not
presented in the Indictment or found by a jury (claim two); that the Indictment was multiplicitous
and defective on its face (claim three); and that he was denied due process, equal protection, and
his First Amendment right to petition the government for redress of grievances (claim four).
STATUTE OF LIMITATIONS
As a preliminarily matter, this action is time-barred. The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), which became effective on April 24, 1996, imposes a oneyear statute of limitations on the filing of habeas corpus petitions. 28 U.S.C. § 2244(d). The
(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 in
November 2015, thirty days after Petitioner’s October 15, 2015 entry of sentence, when the time
period expired to file a timely appeal. See Watkins v. Dayton Corr. Inst., No. 2:16-cv-501, 2016
WL 3855206, at *2 (S.D. Ohio July 15, 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); Ohio App.R. 4(A)). The
statute of limitations expired one year later, in November 2016. Petitioner waited approximately
ten months, until September 2017, to file this action.
Petitioner submits that this action is timely under the provision of 28 U.S.C.
§ 2244(d)(1)(B), because the State created an impediment, i.e., the prison’s failure to provide
Spanish speaking legal assistance to prison inmates, prevented his timely filing. “In order to
invoke § 2244(d)(1)(B), the prisoner must show that: (1) he was prevented from filing a petition
(2) by State action (3) in violation of the Constitution or federal law.” Johnson v. Birkett, No.
2:10-cv-14347, 2011 WL 4695132, at *4 (E.D. Mich. Sept. 8, 2011) (citing Egerton v. Cockrell,
334 F.3d 433, 436 (5th Cir. 2003)). “Section 2244(d)(1)(B) requires a causal relationship
between the unconstitutional state action and being prevented from filing the petition.”
Winkfield v. Bagley, 66 F. App’x 578, 583 (6th Cir. 2003) (quoting Dunker v. Bissonnette, 154
F.Supp.2d 95, 105 (D. Mass. 2001)); see also Heid v. Warden, Ross Corr. Inst., No. 1:16-cv-398,
2017 WL 2225458, at *7 (S.D. Ohio May 22, 2017) (citing Webb v. United States, 679 F. App’x
443 (6th Cir. 2017) (addressing analogous provision under 28 U.S.C. 2255)).
[t]he Constitution does not guarantee prisoners “an abstract,
freestanding right to a law library or legal assistance,” but only a
“right of access to the courts.” Lewis v. Casey, 518 U.S. 343, 350–
51, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Thus, the denial of
legal assistance alone does not amount to an unconstitutional
impediment to filing. See Harvey v. Addison, 390 F. App’x 840,
842 (10th Cir. 2010); Finch v. Miller, 491 F.3d 424, 427 (8th Cir.
2007); Smith v. Newland, 48 Fed. Appx. 233, 234 (9th Cir. 2002).
Johnson v. Birkett, 2011 WL 4695132, at *5.
Further, under § 2244(d)(1)(B), the Petitioner must demonstrate that the alleged
shortcomings in the prison’s legal assistance program actually prevented his timely filing. See
Finch v. Miller, 491 F.3d 424, 427 (8th Cir. 2007) (“Because there is not ‘an abstract,
freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual
injury simply by establishing that his prison’s law library or legal assistance program is subpar in
some theoretical sense.’”) (quoting Lewis v. Casey, 518 U.S. 343, 351 (1996)). Petitioner has not
done so here.
Likewise, the record fails to reflect that equitable tolling of the statute of
limitations is appropriate. See Holland v. Florida, 560 U.S. 631, 650 (2010) (A petitioner is
entitled to equitable tolling only if he shows “1) that he has been pursuing his rights diligently,
and 2) that some extraordinary circumstances stood in his way” and prevented timely filing)
(citing Pace, 544 U.S. at 418). Courts have made clear that “[t]he mere fact that Petitioner is a
Spanish speaker who does not understand English is insufficient to warrant tolling of the oneyear period.” Cruz-Rivera v. Palmer, 2017 WL 2213573, at *3 (E.D. Mich. May 19, 2017)
(citing Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002); Torres v. Willis, 416 F. App’x 480,
482 (6th Cir. 2011) (citing Cobas)). Indeed,
“[w]ere 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 non4
English speaking. Such a result is contrary to common sense.”
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); see also
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). Petitioner is not entitled to equitable tolling for his
lack of a Spanish-speaking interpreter. See Nguyen v. Golder, 133
F. App’x 521, 523-24 (10th Cir. 2005) (lack of Vietnamese
translator did not warrant equitable tolling); Huang v. United
States, Nos. 03 Civ. 3755(RPP), 91 Cr. 827(RPP), 2003 WL
22272584, at *3 (S.D.N.Y. Oct. 2, 2003) (lack of Chinese
interpreter failed to warrant equitable tolling). Complaining about
the lack of Spanish speaking interpreters is similar to complaining
about an inadequate law library, unfamiliarity with the legal
process, lack of representation, or illiteracy. Hurtado v. Cockrell,
No. 3:02-cv-0778-M, 2002 WL 32438776, at *5 (N.D. Tex. 2002).
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. See 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)
(“ignorance of the law, even for an incarcerated pro se petitioner,
generally does not excuse [late] filing.”); Burnett v. Birkett, No.
00-10144-BC, 2002 WL 31748843, at *6-7 (E.D. Mich. Nov. 26,
Soto v. Birkett, No. 5:06-cv-54, 2006 WL 2850578, at *7 (W.D. Mich. Oct. 3, 2006). Instead, “a
non–English-speaking petitioner seeking equitable tolling must, at a minimum, demonstrate that
during the running of the AEDPA time limitation, he was unable, despite diligent efforts, to
procure either legal materials in his own language or translation assistance from an inmate,
library personnel or other source.” Levy v. Osborne, No. 1:10-cv-00005, 2016 WL 7407301, at
*7 (M.D. Tenn. Dec. 22, 2016) (quoting Mendoza v. Carey, 449F.3d 1065, 1070 (9th Cir. 2006)
(citing Cobas, 306 F.3d at 441). Petitioner has failed to meet that burden here.
The undersigned additionally notes that, even if Petitioner could overcome AEDPA’s
statute of limitations, this action nonetheless would be subject to dismissal as unexhausted. A
state prisoner must exhaust his available remedies in the state courts before a federal habeas
court may grant relief. Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993). If a habeas
petitioner has the right under state law to raise a claim by any available procedure, the claim is
not exhausted. 28 U.S.C. § 2254(b), (c). Moreover, a constitutional claim for relief must be
presented to the state’s highest court in order to satisfy the exhaustion requirement. O’Sullivan v.
Boerckel, 526 U.S. 838, 844 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990).
A habeas petitioner bears the burden of demonstrating exhaustion of the available state court
remedies with respect to the claims presented for federal habeas review. Prather v. Rees, 822
F.2d 1418, 1420 n.3 (6th Cir. 1987).
According to Petitioner’s own pleading, he has not filed an appeal of the appellate court’s
decision denying his motion for a delayed appeal. He may still file a motion for a delayed appeal
to the Ohio Supreme Court pursuant to Ohio S.Ct. Prac. R. 7.01(A)(4). Therefore this action
remains unexhausted. See Hunter v. Warden, Ross Corr. Inst., No. 2:16-cv-506, 2017 WL
1957794, at *4 (S.D. Ohio April 25, 2017) (“In Ohio, this exhaustion requirement includes the
filing of a motion for leave to file a delayed appeal to the state court of appeals or to the Ohio
Supreme Court, if the time for filing a notice of appeal as of right in a felony case has expired.”).
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED with
prejudice as barred by AEDPA’s statute of limitations.
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).
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.
Date: September 27, 2017
/s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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