Reece v. Warden, Chillicothe Correctional Institution

Filing 3

REPORT AND RECOMMENDATIONS - re 1 - Petition for Writ of Habeas Corpus. Because this case is barred by the statute of limitations, it is respectfully recommended that it be dismissed with prejudice. Reasonable jurists would not disagree with this c onclusion, so Mr. Reece should be denied a certificate of appealability. This Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and should therefore not be permitted to proceed in forma pauperis. Objections to R&R due by 7/13/2012. Signed by Magistrate Judge Michael R Merz on 6/25/2012. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JIMMIE LEE REECE,
:
Petitioner,

Case No. 3: 12-cv-198
:

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vsWARDEN, Chillicothe Correctional
Institution
:
Respondent.

REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court for initial review pursuant to Rule 4 of the
Rules Governing § 2254 Cases which provides in pertinent part:
If it plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the petitioner.

The Petition pleads that Mr. Reece pled no contest to one count of rape of a person under
thirteen and one count of gross sexual imposition on October 17, 1997 (Petition, Doc. No. 1,
PageID 2). The plea was pursuant to a plea agreement under which Counts 2, 3, 4, and 5 of the
Indictment were dismissed. Mr. Reece was sentenced to a term of imprisonment concurrent with
a sentence he was already serving in the State of Michigan. Id. ¶ 5. He did not appeal. Id. . ¶
8.
28 U.S.C. §2244 (d) provides:
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(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
post-conviction 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.

A district court may dismiss a habeas petition sua sponte on limitations grounds when conducting
an initial review under Rule 4 of the Rules Governing §2254 Cases. Day v. McDonough, 547 U.S.
198 (2006)(upholding sua sponte raising of defense even after answer which did not raise it); Scott
v. Collins, 286 F.3d 923 (6th Cir. 2002).
Because Mr. Reece did not appeal, his conviction became final on November 16, 1997, the
last date on which he could have appealed. The statute of limitations therefore expired on
November 16, 1998, unless somehow tolled. This case was not filed until June 25, 2012, more
than thirteen years after the statute ran. Mr. Reece does not cite any facts which would bring his
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case within one of the other starting dates for calculating the statute of limitations. He asserts in
the body of his Petition that he is actually innocent of these charges, but he presents no new
evidence of actual innocence sufficient to bring him within the actual innocence “gateway.”
Compate Souter v. Jones, 395 F.3d 577 (6th Cir. 2005).
Because this case is barred by the statute of limitations, it is respectfully recommended that
it be dismissed with prejudice. Reasonable jurists would not disagree with this conclusion, so Mr.
Reece should be denied a certificate of appealability. This Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and should therefore not be permitted to
proceed in forma pauperis
June 25, 2012.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See, United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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