Billingsley v. Haviland

Filing 9

OPINION AND ORDER adopting Report and Recommendations re 7 Report and Recommendations.. Signed by Judge James L. Graham on 11/13/2017. (ds)(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
DONALD BILLINGSLEY,
Petitioner,

CASE NO. 2:17-CV-00951
JUDGE JAMES L. GRAHAM
Magistrate Judge Chelsey M. Vascura

v.
JOHN HAVILAND, WARDEN,
Respondent.
OPINION AND ORDER
On October 30, 2017, the Magistrate Judge issued a Report and Recommendation
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts recommending that the petition for a writ of habeas corpus be dismissed as barred by the
one-year statute of limitations provided for under 28 U.S.C. § 2244(d). (Doc. 7.) Petitioner has
filed an Objection to the Magistrate Judge’s Report and Recommendation. (Doc. 8.) Pursuant to
28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow,
Petitioner’s Objection (Doc. 8) is OVERRULED. The Report and Recommendation (Doc. 7) is
ADOPTED and AFFIRMED. This action is hereby DISMISSED.
The Court DECLINES to issue a certificate of appealability.
Petitioner objects to the Magistrate Judge’s recommendation of dismissal of this action as
time-barred. He asserts that he was denied the effective assistance of counsel, that his guilty plea
was not knowing, intelligent or voluntary in view of his mental health issues and incompetence,
which constitutes extraordinary circumstances justifying equitable tolling of the statute of
limitations. Petitioner states that he is currently housed in a mental health institution at the Allen
Correctional Facility, taking psychotropic medication, which has prevented him from timely

filing. He maintains that he has acted diligently in pursuing relief, and refers to his pro se
incarcerated status as grounds for equitable tolling of the statute of limitations. Petitioner also
indicates the state courts did not advise him that he would be required to register as a sex
offender and re-sentenced him after he had completed 14 years of his sentence.
However, Petitioner has provided neither the date of any such re-sentencing hearing, nor
a copy of any judgment entry of sentence subsequent to his December 22, 1992, guilty plea.
Entry (Doc. 1-1, PageID# 14.) Moreover, even assuming, arguendo, that he did so, the one-year
statute of limitations nonetheless would have long since expired.

However, based on the

allegations set forth in the Petition, the statute of limitations expired in April 1997, more than
twenty years and six months prior to the filing of this action. Moreover, Petitioner has failed to
demonstrate that equitable tolling of the statute of limitations is warranted.

In order to

demonstrate that he is entitled to equitable tolling of the statute of limitations, the Petitioner must
establish that he has diligently pursued relief and that “some extraordinary circumstance stood in
his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (citation
omitted). 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

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the statute of limitations. Hall, 662 F.3d at 751 (citation omitted); see also Keeling v. Warden,
Lebanon Correctional Inst., 673 F.3d 452, 464 (6th Cir. 2012) (citations 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)). Further,
[t]o obtain equitable tolling based on mental incompetency, “a
petitioner must demonstrate that (1) he is mentally incompetent
and (2) his mental incompetence caused his failure to comply with
AEDPA's statute of limitations.” Ata, 662 F.3d at 742. However,
equitable tolling should be applied “sparingly,” id. at 741, and
mental incompetency is not a per se reason to toll the statute of
limitations. McSwain v. Davis, 287 Fed.Appx. 450, 456 (6th
Cir.2008). Rather, a petitioner must show “a causal link between
the mental condition and untimely filing.” Ata, 662 F.3d at 742.
The burden of production and persuasion rests on the petitioner to
show he or she is entitled to equitable tolling. Id. at 741.
Kitchen v. Bauman, 629 Fed.Appx. 743, 747 (6th Cir. 2015). Petitioner has failed to meet this
burden here.
For these reasons, and for the reasons detailed in the Magistrate Judge’s Report and
Recommendation, Petitioner’s Objection (Doc. 8) is OVERRULED.
Recommendation (Doc. 7) is ADOPTED and AFFIRMED.

The Report and

This action is hereby

DISMISSED.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts, the Court now considers whether to issue a certificate of appealability. “In
contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal
court holds no automatic right to appeal from an adverse decision by a district court.” Jordan v.
Fisher, –––U.S. ––––. ––––, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1) (requiring a
habeas petitioner to obtain a certificate of appealability in order to appeal.)

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When a claim has been denied on the merits, a certificate of appealability may issue only
if the petitioner “has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). To make a substantial showing of the denial of a constitutional right, a
petitioner must show “that reasonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)). When a claim has been
denied on procedural grounds, a certificate of appealability may issue if the petitioner establishes
that jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right, and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. Id.
This Court is not persuaded that reasonable jurists would debate the dismissal of this
action as time-barred. Therefore, the Court DECLINES to issue a certificate of appealability.
The Clerk is DIRECTED to enter FINAL JUDGMENT.
Date: November 13, 2017
_______s/James L. Graham _____
JAMES L. GRAHAM
United States District Judge

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