Hill v. Warden, Chillicothe Correctional Institution

Filing 2

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by David M. Hill in that it is RECOMMENDED this action be DISMISSED as barred by the one-year statute of limitations. Objections to R&R due by 10/24/2017. Signed by Magistrate Judge Chelsey M. Vascura on 10/10/2017. (kdp)(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
DAVID HILL,
CASE NO. 2:17-CV-864
JUDGE GEORGE C. SMITH
Magistrate Judge Chelsey M. Vascura

Petitioner,
v.
CHARLOTTE JENKINS, WARDEN,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings 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, it is RECOMMENDED that this action be
DISMISSED as barred by the one-year statute of limitations provided for under 28 U.S.C. §
2244(d).
Facts and Procedural History
Petitioner challenges his November 29, 2012 convictions pursuant to his guilty plea in the
Licking County Court of Common Pleas on two counts of rape and two counts of unlawful
sexual conduct. The Ohio Fifth District Court of Appeals summarized the facts and procedural
history of the case as follows:
Appellant negotiated a plea agreement wherein the State moved to
amend the indictment from two counts of rape of a child under 13
which would carry a life sentence to two counts of rape by force
which carried a maximum sentence of 11 years for each count. On
November 29, 2012, Appellant plead guilty to the two amended
rape counts and also plead guilty to two counts of unlawful sexual
conduct with a minor. Appellant was sentenced to an agreed upon
sentence of 12 years in prison. The 12 year sentence was reached

by imposing a four year sentence on each rape count to run
concurrent with each other. In addition, four years on each
unlawful sexual conduct count consecutive to each other and
consecutive to the rape count for a total sentence of 12 years.
Appellant did not appeal his initial conviction and sentence.
Rather, approximately two years lately, Appellant filed a “Motion
to Re–Sentence” based upon Appellant's contention the trial court
lacked any evidence to support findings sufficient to impose
consecutive sentences. The trial court denied the motion, and
Appellant has appealed.
Counsel for Appellant has filed a Motion to Withdraw and a brief
pursuant to Anders v. California (1967), 386 U.S. 738, rehearing
den. (1967), 388 U.S. 924, indicating that the within appeal was
wholly frivolous and setting forth one proposed Assignments of
Error. Appellant has also raised assignments of error pro se.
In Anders, the United States Supreme Court held if, after a
conscientious examination of the record, a defendant's counsel
concludes the case is wholly frivolous, then he should so advise the
court and request permission to withdraw. Id. at 744. Counsel must
accompany his request with a brief identifying anything in the
record that could arguably support his client's appeal. Id. Counsel
also must: (1) furnish his client with a copy of the brief and request
to withdraw; and, (2) allow his client sufficient time to raise any
matters that the client chooses. Id. Once the defendant's counsel
satisfies these requirements, the appellate court must fully examine
the proceedings below to determine if any arguably meritorious
issues exist. If the appellate court also determines that the appeal is
wholly frivolous, it may grant counsel's request to withdraw and
dismiss the appeal without violating constitutional requirements, or
may proceed to a decision on the merits if state law so requires. Id.
Counsel in this matter has followed the procedure in Anders v.
California (1967), 386 U.S. 738.
POTENTIAL ASSIGNMENTS OF ERROR
ASSIGNMENT OF ERROR FROM COUNSEL
I.
“THE TRIAL COURT ERRED BY DENYING APPELLANT'S
MOTION FOR RESENTENCING TO ADDRESS AN ERROR IN
IMPOSING CONSECUTIVE SENTENCES.”
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ASSIGNMENTS OF ERROR FROM APPELLANT PRO SE
II.
“THE TRIAL COURT COUNSEL WAS INEFFECTIVE WHEN
HE FAILED TO ADDRESS THE CONSECUTIVE SENTENCES
DURING SENTENCING.”
III.
“THE TRIAL COURT COUNSEL WAS INEFFECTIVE WHEN
HE FAILED TO FILE A NOTICE OF APPEAL FOR HIS
CLIENT WITHIN 30 DAYS OF HIS CLIENT BEING
SENTENCED.”
State v. Hill, No. 15-CA-13, 2016 WL 1176036, at *1-2 (Ohio App. 5th Dist. Mar. 17, 2016).
On March 17, 2016, the appellate court affirmed the judgment of the trial court, denying
Petitioner’s claims as barred under Ohio’s doctrine of res judicata, and for failure to file a
motion for a delayed appeal. Id. On October 26, 2016, the Ohio Supreme Court declined to
accept jurisdiction of the appeal. State v. Hill, 147 Ohio St.3d 1412 (Ohio 2016).
On October 2, 2017, Petitioner filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He asserts that the trial court erred by denying the motion for re-sentencing to
address an error in the imposition of consecutive sentences (claim one); that he was denied the
effective assistance of trial counsel based on his attorney’s failure to object to imposition of
consecutive terms of incarceration (claim two); that he was denied the effective assistance of
counsel because his attorney failed to file a timely notice of appeal (claim three); and that he was
denied his 5th and 14th Amendment right to “adjudicate for the first time in a post-conviction
proceeding the claim that he received incompetent counsel” (claim four).

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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). The statute provides as follows:
(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
review;
(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
diligence.
(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 30, 2012, thirty days after Petitioner's November 29, 2012, entry of sentence, when
the time period expired to file a timely appeal. See Watkins v. Dayton Corr. Inst., No. 2:16-cv501, 2016 WL 3855206, at *2 (S.D. Ohio July 15, 2016) (citing Worthy v. Warden, No. 2:12-cv652, 2013 WL 4458798, at *2 (S.D. Ohio Aug. 19, 2013) (citing Searcy v. Carter, 246 F.3d 515,

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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 December 2013. Petitioner, however,
waited more than three years and eight months, until September 2017, before executing this
habeas corpus petition. (ECF No. 1, PageID# 16.) Petitioner’s December 8, 2014 motion for resentencing did not toll or otherwise affect the running of the statute of limitations because the
statute of limitations had already 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 that equitable tolling of the statute of limitations is appropriate. See
Holland v. Florida, 560 U.S. 631, 649 (2010) (“A ‘petitioner’ is ‘entitled to equitable tolling’ 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” (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)).
Recommended Disposition
For the reasons set forth above, it is RECOMMENDED that this action be DISMISSED
as barred by the one-year 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

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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.
/s/ Chelsey M. Vascura___
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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