Hager v. Warden, Ross Correctional Institution

Filing 2

REPORT AND RECOMMENDATIONS that this action be DISMISSED. Objections to R&R due by 6/18/2021. Signed by Magistrate Judge Kimberly A. Jolson on 6/4/2021. (kk2)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOSHUA E. HAGER,
v.

Petitioner,

WARDEN, ROSS CORRECTIONAL
INSTITUTION,

Case No. 2:21-cv-2472
Judge Edmund A. Sargus
Magistrate Judge Jolson

Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This case has been referred to the Undersigned pursuant to 28 U.S.C. § 636(b) and
Columbus’ General Order 14-1 regarding assignments and references to United States Magistrate
Judges. This matter is before the Court on its own motion under Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts (“Rule 4”). Pursuant to Rule 4, the Court
conducts a preliminary review to determine whether “it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief . . .” If it does so appear, the petition
must be dismissed. Id. With this standard in mind, and for the reasons that follow, it is
RECOMMENDED that this action be DISMISSED.
I.

BACKGROUND
On October 9, 2018, Petitioner pleaded no contest to the charge of drug trafficking in the
Licking County Court of Common Pleas. The Ohio Fifth District Court of Appeals summarized
the facts and procedural history of the case as follows:
¶ 2} On February 1, 2018, Licking County Sheriff’s Deputy Dan Pennington
stopped a vehicle for a missing front license plate. Appellant was the driver of the
vehicle. Deputy Pennington advised appellant and his passenger the reason for the
stop (“no visible front plate on the vehicle”), and asked for their identification.

Appellant explained to the deputy that the front license plate was not displayed
because of recent damage to the vehicle, and showed the deputy the plate which
was on the vehicle’s dashboard. A check of appellant’s driver’s license revealed his
license had been suspended. The passenger was the owner of the vehicle and was
aware of appellant’s license suspension, yet she permitted him to drive her vehicle.
Because of the two violations, driving under suspension and wrongful entrustment
of a motor vehicle, Deputy Pennington decided to impound the vehicle. Thereafter,
he was granted consent to search appellant, the passenger, and the vehicle,
whereupon contraband was discovered in the trunk.
{¶ 3} On February 15, 2018, the Licking County Grand Jury indicted appellant on
one count of trafficking in drugs in violation of R.C. 2925.03. On May 15, 2018,
appellant filed a motion to suppress, claiming an illegal “custodial” interrogation.
A hearing was held on June 19, 2018. By decision and entry filed August 17, 2018,
the trial court denied the motion, finding the deputy had probable cause to stop the
vehicle and extend the detention.
{¶ 4} On October 9, 2018, appellant pled no contest to the charge. By judgment
entry filed same date, the trial court found appellant guilty and sentenced him to
eleven years in prison.
{¶ 5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
{¶ 6} “The trial ourt committed reversible error when it overruled Appellant’s
motion to suppress his unlawful continued detention, and the evidence gathered
following his unlawful continued detention by the police, in violation of
Appellant’s rights under the Fourth, Sixth, and Fourteenth Amendments to the
United States Constitution, and Sections 10, 14, and 16, Article i of the Ohio
Constitution.”
{¶ 7} In his sole assignment of error, appellant claims the trial court erred in
denying his motion to suppress. We disagree.
State v. Hager, 5th Dist. No. 18-CA-102, 2019 WL 2613338, at *1 (Ohio Ct. App. June 18, 2019).
On June 18, 2019, the appellate court affirmed the trial court’s judgment. Id. And on October 15,
2019, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Hager, 157
Ohio St. 3d 1441 (Ohio 2019).
On May 3, 2021, Petitioner executed this habeas corpus petition. (Doc. 1, PAGEID # 12).
As his sole ground for relief, Petitioner asserts that his conviction violates the Fourth Amendment.

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As discussed below, however, this claim is most likely time barred and does not provide a basis
for federal habeas corpus relief.
II.

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:
(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.
Id.
A District Court is permitted, but not obligated, to address sua sponte the timeliness of a
federal habeas corpus petition, Day v. McDonough, 547 U.S. 198 (2006), and may do so when
conducting an initial review under Rule 4. See Wogenstahl v. Charlotte, No. 1:17-cv-298, 2017
WL 3053645, at *2 (S.D. Ohio July 19, 2017) (citing McDonough, 547 U.S. at 198).

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Petitioner’s judgment of conviction became final under the provision of § 2244(d)(1)(A)
in January 2020, when the ninety-day period expired to file a petition for a writ of certiorari with
the United States Supreme Court from the Ohio Supreme Court’s October 15, 2019 dismissal of
his direct appeal. See Smith v. Ohio, Dept. of Rehab. and Corr., 331 F. Supp. 2d 605, 613 (N.D.
Ohio 2004) (citing Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000)). The statute of limitations
expired one year later, in January 2021. Petitioner waited until May 2021, to file this habeas corpus
petition. Therefore, it is untimely.
Petitioner states that the prison’s law library has been closed until recently due to the
COVID-19 pandemic. (Doc. 1, PAGEID # 11). A habeas corpus petitioner may obtain equitable
tolling of the statute of limitations where he has diligently pursued relief and extraordinary
circumstances prevented his timely filing. See Holland v. Florida, 560 U.S. 631, 649 (2010)
(citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). A petitioner’s pro se status, ignorance of
the law, or limited access to the law library do not constitute extraordinary circumstances
warranting equitable tolling of the statute of limitations. See McCall v. Bradley, No. 1:18-cv02835-JGC, 2020 WL 3520092, at *10 (N.D. Ohio May 5, 2020) (citations omitted). The COVID19 pandemic may qualify as an extraordinary circumstance justifying equitable tolling of the
statute of limitations. See Taylor v. Valentine, No. 5:20-cv-0139-TBR, 2021 WL 864145, at *2
(W.D. Ky. Mar. 8, 2021). Still, it is the petitioner’s burden to establish equitable tolling. See Spice
v. Davids, No. 1:21-CV-180, 2021 WL 790772, at *7 (W.D. Mich. Mar. 2, 2021) (citing Allen v.
Yukins, 366 F.3d 396, 401 (6th Cir. 2004)). The record does not indicate that Petitioner can meet
this burden here. As such, his claim is most likely time barred.

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III.

FOURTH AMENDMENT
But even if Petitioner’s claim is timely, his Petition still should be dismissed. In his sole
claim for relief, Petitioner argues that the State violated the Fourth Amendment. But claims under
the Fourth Amendment do not provide a basis for federal habeas corpus relief so long as the
petitioner had an opportunity to present the claim to the state courts. Stone v. Powell, 428 U.S.
465, 482 (1976); Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982) (holding that opportunity for
full and fair litigation of a Fourth Amendment claim exists where the state procedural mechanism
presents an opportunity to raise the claim, and presentation of the claim was not frustrated by a
failure of that mechanism.). The Sixth Circuit has explained that the “key purpose” of habeas
corpus is to “free innocent prisoners.” Good v. Berghuis, 729 F.3d 636, 637 (6th Cir. 2013).
Whether an investigation violated the Fourth Amendment “has no bearing on whether the
defendant is guilty.” Id. Further, the Fourth Amendment’s exclusionary rule is a “prudential
deterrent,” rather than a “personal right guaranteed by the Constitution.” Id.
Ohio provides a procedural mechanism to adjudicate Fourth Amendment rights.
Specifically, Ohio permits a criminal defendant to file a motion to suppress evidence prior to trial.
Ohio R. Crim. P. 12(C)(3). Here, Petitioner used that process, and the trial court held a hearing
on Petitioner’s motion to suppress evidence. Petitioner lost, and then raised the issue in the Ohio
Court of Appeals and had the opportunity to do so in the Ohio Supreme Court. Thus, although
Petitioner did not obtain a ruling in his favor, he had multiple opportunities to litigate the claim.
Moreover, although Petitioner complains that the state courts improperly applied or ignored federal
law, “the Sixth Circuit has rejected the argument that ‘egregious misapplication of a controlling
Supreme Court precedent’ could justify a federal habeas court in concluding that a petitioner had
been denied a full and fair opportunity for presentment of his Fourth Amendment claim.” Neil v.

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Warden, Noble Corr. Inst., No. 2:18-cv-1721, 2020 WL 489326, at *38 (S.D. Ohio Jan. 30, 2020)
(citing Eatmon v. Warden, Noble Corr. Inst., No. 1:14-cv-741, 2016 WL 882097, at *6-7 (S.D.
Ohio March 1, 2016)) (citing Gilbert v. Parke, 763 F.2d 821, 824 (6th Cir. 1985)).
Thus, Petitioner’s sole claim under the Fourth Amendment does not provide him a basis
for relief.
IV.

CONCLUSION
For the foregoing reasons, it is RECOMMENDED that this action be DISMISSED.
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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IT IS SO ORDERED.
Date: June 4, 2021

/s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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