DeJarnette v. Warden, Warren Correctional Institution

Filing 12

ORDER and REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's 9 Motion to Clarify is DENIED as moot. Objections to R&R due by 6/18/2018. Signed by Magistrate Judge Chelsey M. Vascura on 6/4/2018. (kpt)(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
JAMES T. DeJARNETTE,
Case No. 2:18-cv-291
Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura

Petitioner,
v.
CHAE HARRIS, WARDEN,
WARREN CORRECTIONAL INST.,
Respondent.

ORDER and
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 the Petition, Respondent’s Return of Writ and
Amended Return of Writ, Petitioner’s Traverse, and the exhibits of the parties. For the reasons
that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Petitioner’s Motion to Clarify (ECF No. 9) is DENIED.
Facts and Procedural History
On July 8, 2015, while represented by counsel, Petitioner pleaded guilty in the Franklin
County Court of Common Pleas in Case Number 14 CR 2733 to trafficking in cocaine and
trafficking in heroin. The parties agreed to a jointly recommended sentence of twelve months on
each of the charges, such sentence to be served consecutively to the sentences imposed in
Petitioner’s other pending criminal cases, i.e., Case Numbers 14 CR 2737 and 14 CR 3508, for
an aggregate term of twenty-five years. (ECF No. 5-1, PAGEID # 65, 67.) In Case Number 14
CR 2737, represented by the same counsel and on the same date, Petitioner pleaded guilty to
trafficking in drugs and trafficking in cocaine (PAGEID # 80-81); in Case Number 14 CR 3508,

he pleaded guilty to engaging in a pattern of corrupt activity, aggravated trafficking in drugs,
trafficking in cocaine, and trafficking in heroin. (PAGEID # 114, 116.) The parties agreed to
jointly recommend the same sentence in those cases. Petitioner did not file a timely appeal. On
August 1, 2016, he filed a pro se Notice of Appeal. (PAGEID # 119.) The appellate court sua
sponte consolidated the cases for purposes of the appeal. (Journal Entry, ECF No. 5-1, PAGEID
# 121.) On August 25, 2016, the appellate court dismissed the Notice of Appeal as untimely.
(PAGEID # 123.) On June 5, 2017, Petitioner filed a Motion for Leave to File Delayed Appeal.
(PAGEID # 127.) As cause for his untimely filing, Petitioner stated that neither the trial court
nor his attorney had advised him of his right to appeal, and he did not learn about his right to an
appeal until he arrived at the Warren Correctional facility. (PAGEID # 130-131.) On August
22, 2017, the appellate court denied that motion. (PAGEID # 169.) On December 20, 2017, the
Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to S.Ct.Prac.R.
7.08(B)(4). (PAGEID # 202.)
On February 19, 2018, Petitioner executed this habeas corpus Petition. (ECF No. 1,
PAGEID # 8.) As his sole claim for relief, Petitioner asserts that the appellate court abused its
discretion and violated due process and equal protection when it denied his motion for a delayed
appeal and request for the appointment of counsel because neither the trial court nor defense
counsel had advised him of his right to appeal. It is the position of the Respondent that this
action is time-barred and that this claim is procedurally defaulted or waived by the entry of
Petitioner’s guilty plea.
Motion to Clarify
On April 28, 2018, Petitioner filed a Motion to Clarify inquiring as to whether he should
respond to the Return of Writ or Amended Return of Writ. (ECF No. 9, PAGEID # 310.)

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Respondent subsequently has clarified that he filed the Amended Return of Writ for the sole
purpose of amending the record citations so as to comply with the Court’s Show Cause Order.
(ECF No. 10, PAGEID # 312.) Petitioner has filed a Traverse responding to Respondent’s
arguments for dismissal of this action. (ECF No. 11.) Petitioner’s Motion to Clarify (ECF No.
9) is therefore DENIED as moot.
Statute of Limitations
It is the position of the Respondent that this action should be dismissed as time-barred.
For the reasons that follow, the Court agrees. 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 in
pertinent part 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.
28 U.S.C. § 2244(d).
Here, Petitioner maintains that he was never advised about his right to appeal and that the
appellate court therefore improperly denied his motion for a delayed 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.”
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“[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].”
Id. at 470-471 (quoting Wims v. United States, 225 F.3d 186, 190-91 (2d Cir. 2000)). However,
the “petitioner 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

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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 v. Rose in conjunction with Johnson
v. United States, 544 U.S. 295 (2005), which requires consideration of the petitioner’s exercise
of due diligence. See Shorter v. Richard, 659 F. App’x 227, 230 (6th Cir. 2016) (“By its terms,
section 2244(d)(1)(D) ‘requires diligence.’” (citing McQuiggin v. Perkins, 569 U.S. 383, 395
(2013))). “The Supreme Court has cautioned against reading this requirement ‘out of the
statute.’ ” Id. (citing Johnson, 544 U.S. at 310). Thus, a petition will not be deemed timely
where the petitioner fails to act with reasonable diligence. See Hysell v. Warden, No. 2:16-cv00139, 2016 WL 6165986, at *3 (S.D. Ohio Oct. 24, 2016) (citations omitted). “Applying
DiCenzi and Johnson, Petitioner must demonstrate either that he exercised due diligence in
discovering the lack of notice of his right to appeal, the fact on which his conviction-based
claims are predicated, or that he filed for habeas within one-year from the time a person
exercising due diligence in Petitioner's position would have discovered that fact.” McIntosh v.
Hudson, 632 F. Supp. 2d 725, 734 (N.D. Ohio July 10, 2009) (“A person in Petitioner's position
exercising due diligence would have acted much sooner, seeking out his rights and remedies
rather than waiting [more than two and one half years after his conviction] for a law clerk . . . to
‘[notice] that [he] was never informed of his right to appeal[.]’”) See also Yavari v. Wolfe, No.
2:07-cv-480, 2008 WL 2078061, at *7 (S.D. Ohio May 13, 2008) (Petitioner failed to establish
that he acted diligently in learning about his right to appeal by waiting two years to file motion
for a delayed appeal).
Lack of actual notice and “ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse [late] filing.” Fisher v. Johnson, 174 F.3d 710, 714–15 (5th
Cir. 1999).

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Even those not versed in the law recognize the centuries-old maxim that
“ignorance of the law is no excuse.” This maxim, deeply embedded in our
American legal tradition, reflects a presumption that citizens know the
requirements of the law. The benefits of such a presumption are manifest. To
allow an ignorance of the law excuse would encourage and reward indifference to
the law. Further, the difficulty in proving a defendant's subjective knowledge of
the law would hamper criminal prosecutions.
United States v. Baker, 197 F.3d 211, 218 (6th Cir. 1999).
Petitioner has failed to establish that he acted diligently in learning about his right to
appeal. Significantly, although Petitioner argues at length that he was not advised of and did not
know about his right to appeal, the state appellate court found to the contrary:
Defendant’s claim that he was not aware of his right to appeal is not persuasive.
The entry of guilty plea form which defendant and his attorney signed when he
pled guilty states that he “understand(s) that I can appeal as a matter of right from
my plea and sentence within thirty days of the filing of my judgment of
conviction.” Therefore, we presume that defendant understood the plea form and
understood his statutory right to appeal. . . . Additionally, defendant filed appeals
from all of these judgments on August 1, 2016, which this court denied as
untimely on August 25, 2016. . . . Thus, it is clear that defendant knew of his right
to appeal by that date and still waited almost one year to file the present motion.
He does not explain that delay.
(Memorandum Decision, ECF No. 5-1, PAGEID # 170.) Petitioner has failed to rebut the
presumption of correctness provided to these factual findings. See 28 U.S.C. § 2254(e)(1) (“In a
proceeding instituted by an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.”). Further, “[c]ourts in this Circuit have
recognized that when a petitioner has access to retained counsel, due diligence requires that he
ask his counsel about his appellate rights. A period not greater than 90 days is a reasonable
amount of time in which to inquire of counsel.” Baker v. Wilson, No. 5:06-cv-1547, 2009 WL
313325, at *1 (N.D. Ohio Feb. 6, 2009) (citing Ramos v. Wilson, 1:06-cv-901, 2008 WL
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2556725 (N.D. Ohio 2008)). Petitioner, however, waited more than one year from the date of his
sentencing to file a Notice of Appeal. Thereafter, he waited almost ten months after the appellate
court dismissed his untimely Notice of Appeal to file a motion for delayed appeal. He does not
explain this length of delay. He waited until February 19, 2018, to execute this habeas corpus
petition challenging his July 8, 2015 judgment of sentence. Thus, this Court is not persuaded
that the record establishes either that Petitioner acted diligently or that this action is timely under
DiCenzi v. Rose, 452 F.3d at 465. Moreover, Petitioner does not allege, and the record likewise
does not reflect, that some extraordinary circumstance prevented his timely filing such that
equitable tolling of the statute of limitations would be appropriate. See Holland v. Florida, 560
U.S. 631, 649 (2010) (To obtain equitable tolling of the statute of limitations, a litigant must
establish that he has diligently pursued relief and that some extraordinary circumstance
prevented his timely filing) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Recommended Disposition
For the foregoing reasons, 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
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

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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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