Chafin v. Warden, Pickaway Correctional Institution

Filing 2

REPORT AND RECOMMENDATION: It is RECOMMENDED that this action be DISMISSED as barred by the one-year statute of limitations re 1 Petition for Writ of Habeas Corpus filed by Russell Chafin, Jr. Objections to R&R due by 2/8/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on January 25, 2018. (jlk) (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
RUSSELL CHAFIN, JR.,
CASE NO. 2:17-CV-1143
JUDGE JAMES L. GRAHAM
Chief Magistrate Judge Elizabeth P. Deavers

Petitioner,
v.
CHARLES BRADLEY, WARDEN,
PICKAWAY CORRECTIONAL INST.,
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, the Magistrate Judge RECOMMENDS that this
action be DISMISSED.
Facts and Procedural History
Petitioner challenges his September 20, 1993, convictions pursuant to his guilty plea in
the Franklin County Court of Common Pleas on murder, attempted burglary, and attempted
abduction, with specifications. The Ohio Tenth District Court of Appeals summarized the facts
and procedural history of the case as follows:
On September 20, 1993, appellant pled guilty to murder, attempted
burglary, and attempted abduction. State v. Chafin (May 12, 1998),
Franklin App. No. 97APA09-1181, unreported (1998 Opinions
1783). Appellant was sentenced by the trial court and he did not
file a direct appeal of his convictions or his sentence. On
September 20, 1997, appellant filed a petition for postconviction
relief alleging the following constitutional violations: (1) appellant
was denied the right to effective assistance of counsel; (2)
appellant’s indictment was defective; (3) appellant’s sentence

violated the Double Jeopardy Clause; (4) appellant was denied his
right to a speedy trial; (5) the prosecution used “improper methods
calculated to produce a wrongful conviction”; (6) the trial court
failed to advise appellant of the nature of the charges; and (7)
appellant’s plea was not knowingly and intelligently made.
Appellant also attached to his petition three affidavits that were not
included in the original trial record.
On May 7, 1997, the trial court denied appellant’s petition without
an evidentiary hearing. Appellant appealed the decision to this
court and asserted in his second assignment of error:
“‘Trial court erred in denying [appellant’s] postconviction relief
without addressing [appellant’s] claim that the plea bargain was
coerced and [appellant] should have been afforded an evidentiary
hearing to prove his claim.’” State v. Chafin, at 1784.
We sustained appellant’s second assignment of error and reversed
the trial court’s decision holding that: “The facts set forth by the
trial court in its decision and entry are not specific enough to
permit meaningful appellate review.” Id. at 1787.
On remand, the trial court again held that appellant’s petition did
not warrant an evidentiary hearing. In its June 3, 1998 entry, the
trial court reviewed the three affidavits appellant submitted with
his petition and addressed his claim that he was coerced to plead
guilty. The court found that exhibit E, an affidavit from appellant’s
mother, was not “factually compelling.” The court also found that
even if the affidavit was compelling, “there is still no evidence that
[appellant] was coerced by his mother, or his counsel. Exhibit E
merely relates a conversation, with no indication that this impacted
on [appellant’s] decision making process.” The court held that the
other two affidavits had “no bearing on this matter.” Appellant
appeals the trial court’s decision and presents two assignments of
error:
“FIRST ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN NOT PROVIDING
PETITIONER AN EVIDENTIARY HEARING PURSUANT TO
O.R.C. § 2953.21[.]

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“SECOND ASSIGNMENT OF ERROR
“PETITIONER’S
VOLUNTARILY
MADE[.]

PLEA
OF
KNOWINGLY

GUILTY
WAS
NOT
AND INTELLIGENTLY

State v. Chafin, No. 98AP-865, 1999 WL 163386, at *1-2 (Ohio App. 10th Dist. March 25,
1999). On March 25, 1999, the appellate court affirmed the judgment of the trial court. Id. On
August 4, 1999, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v.
Chafin, 86 Ohio St.3d 1437 (Ohio 1999). Petitioner indicates that, on August 4, 2003, he filed a
motion for leave to file a delayed appeal in the state appellate court, claiming that neither the trial
court nor his defense counsel had advised him of his right to appeal. However, on September 16,
2003, the appellate court denied the motion for a delayed appeal. Petitioner did not file an
appeal to the Ohio Supreme Court. On May 7, 2013, however, he filed a motion for declaratory
judgment and injunctive relief in the state trial court alleging that the Ohio Adult Parole
Authority had denied him meaningful consideration for release on parole. See Chafin v. Ohio
Adult Parole Authority, No. 13AP-646, 2014 WL 1350964 (Ohio App. 10th Dist. March 25,
2014). The trial court denied the motion. On March 25, 2014, the appellate court affirmed the
judgment of the trial court. Id. On July 23, 2014, the Ohio Supreme Court declined to accept
jurisdiction of the appeal. Chafin v. Ohio Adult Parole Authority, 139 Ohio St.3d 1485 (Ohio
2014). On February 2, 2016, Petitioner filed a motion to withdraw his guilty plea. On August 15,
2016, the trial court denied the motion to withdraw guilty plea. Petitioner indicates that, on
March 22, 2017, he filed a motion for a delayed appeal;1 however, on May 23, 2017, the
appellate court denied the motion.

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Petitioner states that he was not timely served with a copy of the trial court’s decision denying
his motion to withdraw guilty plea, and therefore could not timely appeal. Petition (ECF No. 1,
PageID# 7.)
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On December 27, 2017, Petitioner filed this pro se habeas corpus petition pursuant to 28
U.S.C. § 2254. He asserts that he was denied due process and equal protection, because he did
not waive his right to appeal, and the state appellate court has refused to permit the filing of a
delayed appeal when neither the trial court nor defense counsel advised him of his right to an
appeal (claim one); and that he was denied the effective assistance of counsel for the filing of an
appeal (claim two).
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.

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(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.

Where, as here, the Petitioner’s conviction became final prior to the effective date of the
AEDPA, Petitioner had one year from the effective date, or until April 24, 1997, within which to
file his 2254 petition. See Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001) (citing Searcy v.
Carter, 246 F.3d 515, 517 (6th Cir. 2001) (other citations omitted). However, Petitioner asserts
that he was not informed of his right to an appeal, and that he was denied the right to an appeal.
Where a defendant is not advised of his right to appeal, the statute of limitations may not
begin to run on a claim that the state appellate court improperly denied a motion for delayed
appeal until the date on which the state appellate court denies the motion for delayed appeal.
DiCenzi v. Rose, 452 F.3d 465, 469 (6th Cir. 2006). Moreover, claims that relate to events that
occurred at the time of sentencing may be timely under 28 U.S.C. 2244(d)(1)(D), if the petitioner
acted in a reasonably diligent manner in learning about his right to appeal:
The proper task in a case such as this one is to determine when a
duly diligent person in petitioner’s circumstances would have
discovered [his right to an appeal]. After that date, petitioner was
entitled to further delay (whether in actually making the discovery,
or in acting on a previously made discovery, or for any other
reason whatsoever), so long as he filed his petition within one year
of the date in which the discovery would have been made in the
exercise of due diligence.
....
[T]he date on which the limitations clock began to tick is a factspecific issue the resolution of which depends, among other things,
on the details of [a defendant’s] post-sentence conversation with
his lawyer and on the conditions of his confinement in the period
after [sentencing].
Wims [v. United States], 225 F.3d [186,]190-91 [(2d Cir. 2000)]
(citing Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir.
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2000) (taking into account “the realities of the prison system” in
determining due diligence)).
DeCinzi, 452 F.3d at 470-471. “[P]etitioner bears the burden of proving that he exercised due
diligence, in order for the statute of limitations to begin running from the date he discovered the
factual predicate of his claim, pursuant to 28 U.S.C. § 2244(d)(1)(D).” Id. at 471 (citing Lott v.
Coyle, 261 F.3d 594, 605-06 (6th Cir. 2001)). The Court also construes DiCenzi in conjunction
with Johnson v. United States, 544 U.S. 295 (2005), which requires consideration of the
petitioner’s exercise of due diligence. Thus, a petition will not be deemed timely where the
petitioner fails to act with reasonable diligence. Hysell v. Warden, No. 2:16-cv-00139, 2016 WL
6165986, at *3 (S.D. Ohio Oct. 24, 2016) (collecting cases).
Here, when the appellate court affirmed the trial court’s dismissal of Petitioner’s postconviction petition, it noted that his claims were barred under Ohio’s doctrine of res judicata,
because he could have raised them on direct appeal:
A review of appellant’s petition for postconviction relief shows
that most of the issues he presents are barred by res judicata.
Appellant could have presented his arguments in a direct appeal
that: (1) his counsel was ineffective, (2) his indictment was
defective, (3) his sentence violated the Double Jeopardy Clause,
(4) he was denied the right to a speedy trial, (5) the prosecution
engaged in misconduct, (6) he was not advised of the nature of his
charges, and (7) his plea was not voluntarily, knowingly and
intelligently made. Most of the evidence appellant relies upon in
his allegations were contained in the original trial court record and,
therefore, the issues could have been discovered and presented in a
direct appeal.
State v. Chafin, 1999 WL 263386, at *3. Thus, Petitioner should have learned about his right to
appeal, at least as of March 25, 1999, the date of the appellate court’s decision denying his post
conviction appeal. Nonetheless, Petitioner waited for years, until August 4, 2003, to file a
motion for a delayed appeal with the state appellate court. He waited more than fourteen years

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after the appellate court’s September 16, 2003, denial of his motion for a delayed appeal, to file
this habeas corpus petition. Under these circumstances, the record fails to reflect that Petitioner
acted diligently in discovering the basis for his claims. This action plainly is time-barred.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS 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
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.

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_s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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