Bolling v. Morgan
Filing
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SUPPLEMENTAL REPORT AND RECOMMENDATIONS - re 6 - Petitioner's Objections are without merit and it is again respectfully recommended that the Petition be dismissed with prejudice as time-barred. Because reasonable jurists would notdisagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous. Objections to R&R due by 8/19/2013. Signed by Magistrate Judge Michael R Merz on 8/2/13. (kje1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ANTHONY K. BOLLING,
Petitioner,
:
- vs -
Case No. 3:13-cv-116
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
DONALD MORGAN, Warden,
:
Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This case is before the Court on Petitioner=s Objections (Doc. No. 7) to the Magistrate
Judge’s Report and Recommendations (the “Report,” Doc. No. 6). Judge Rice has recommitted
the case for reconsideration in light of the Objections (Doc. No. 8).
Upon initial review under Rule 4 of the Rules Governing § 2254 Cases, the Magistrate
Judge concluded that it did “not plainly appear from the face of the Petition” that Bolling was not
entitled to relief and ordered the Warden to file an answer (Doc. No. 2). The Warden then
moved to dismiss the case as barred by the one-year statute of limitations in 28 U.S.C. § 2244
(Doc. No. 5). Petitioner, although represented by counsel, never responded to that Motion. The
Magistrate Judge therefore analyzed the limitations issue without any input from Petitioner’s
counsel and determined that the case was time-barred (Report, Doc. No. 6).
28 U.S.C. §2244 (d) 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
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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.
In the Report, the Magistrate Judge concluded that Bolling’s conviction became final on
direct appeal on October 11, 2006, when the United States Supreme Court denied his petition for
writ of certiorari (Report, Doc. No. 6, PageID 577). The statute then ran for eighteen days until
tolled by Bolling’s properly filed appeal of the trial court’s denial of his motion for new trial and
remained tolled until the Ohio Supreme Court denied relief on April 12, 2008. The statute then
had 347 days left to run and therefore expired on March 24, 2009. Id. The Petition herein was not
filed until April 17, 2013, more than four years later, and was therefore deemed time-barred. Id.
Bolling offers a competing analysis. He says his state court motions were based on State
v. Baker, 119 Ohio St. 3d 163 (2008), and United States v. Ray, 578 F.3d 184 (2nd Cir.
2009)(Objections, Doc. No. 7, PageID 580). Furthermore, he did not learn of these two cases
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“until he was ordered back for re-sentencing on November 16, 2010 and discovered the Trial
Court’s error.” Id. Therefore, Petitioner claims, the one-year statute did not run until a year after
he learned of these cases, to wit, on November 16, 2011. Id. Furthermore, he says, his time was
tolled by operation of § 2244(d)(2) because he filed an application for post-conviction relief on
January 31, 2011, which the state courts decided on the merits. It is for the States, says
Petitioner’s counsel, to set time limits on state post-conviction relief. For the federal government
to attempt to do so would violate “the Ninth Amendment, the Tenth Amendment, the due process
clause of the Fourteenth Amendment and principles of federalism.” (Objections, Doc. No. 7,
PageID 581.)
Petitioner’s counsel offered absolutely no citations to the state court record which the
Warden had filed (Doc. No. 4).1 The Magistrate Judge accordingly ordered Petitioner to amend
his Objections and make citations to the record for the following factual claims made in the
Objections:
1. The date on which the record shows Petitioner became aware of
State v. Baker, 119 Ohio St. 3d 197 (2008);
2. The date on which the record shows Petitioner became aware of
United States v. Ray, 578 F.3d 184 (2nd Cir. 2009);
3. Any record reference which shows that Petitioner “was ordered
back for resentencing on November 16, 2010” or on any other
date; and
4. Any record reference which shows that Petitioner filed a timely
petition for postconviction relief on January 31, 2011.
(Order, Doc. No. 9, PageID 584-585.) Disdaining to comply with the Court’s Order as written,
Petitioner’s counsel instead filed a one-sentence “Response to Order to Amend” with the
following attached documents:
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The Warden’s counsel has also not been very helpful: the state court record was filed without any index.
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1.
Opinion of the Second District Court of Appeals in State v. Bolling, Case No. 24571
(Dec. 16, 2011), PageID 614-618;
2.
Decision and Entry of Judge Dennis Langer, State v. Bolling, Case No. 2003-CR-73
(March 29, 2011), PageID 619-620;
3.
Supplement to Motion to Dismiss, filed by present counsel on behalf of Mr. Bolling in
Case No. 2003-CR-73 (March 14, 2011), PageID 621-623;
4.
Motion to Dismiss for Speedy Trial Violation, Speedy Sentencing Violation and Lack of
Final Appealable Order, filed pro se by Mr. Bolling in Case No. 2003-CR-73 (January 31, 2011),
with attached copies of the November 13, 2003, Termination Entry in that case, a copy of a
decision in United States v. Galan, 2007 WL 656682 (E.D. Pa. Feb. 27, 2007), and a January 11,
2011, Affidavit of Mr. Bolling’s indigence. PageID 624-637.
Petitioner’s counsel offered no excuse for failing to make this argument about why the
Petition was timely within the time allowed for opposing the Motion to Dismiss. Counsel also
offers no citations of authority for his Ninth, Tenth, Fourteenth, and federalism arguments.
Nevertheless, Judge Rice recommitted the case for consideration of the merits of the Objections,
rather than an evaluation of counsel’s advocacy.
The Objections are without merit, for reasons patent in the state court documents attached
to Petitioner’s Response. The relevant chronology is as follows:
November 13, 2003 Bolling is convicted of four counts of
forcible rape of a person under thirteen and sentenced to life
imprisonment. The Termination Entry (PageID 631-32) does not
reflect that Bolling was convicted by a jury. State v. Bolling,
supra, ¶ 4. The court of appeals affirmed without any question
raised as to whether the Termination Entry was a final appealable
order. State v. Bolling, 2005 Ohio 2509, 2005 Ohio App. LEXIS
2402 (2nd Dist. May 20, 2005). The Ohio Supreme Court accepted
jurisdiction but later dismissed it as improvidently allowed. 109
Ohio St. 3d 313 (2006).
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October 11, 2006
Bolling’s conviction becomes final on direct
appeal when the United States Supreme Court denies his petition
for writ of certiorari. Bolling v. Ohio, 549 U.S. 852 (2006). One
year statute of limitations begins to run.
October 29, 2006
Statute tolled by Bolling’s appeal of the
denial of his motion for new trial in the Common Pleas Court.
April 12, 2008
Ohio Supreme Court dismisses Bolling’s
appeal from the denial of new trial. Statute begins to run again and
expires 347 days later on March 24, 2009.
January 31, 2011
Bolling files his Motion to Dismiss for
Speedy Trial Violation in the Common Pleas Court (PageID 624 et
seq.)
December 16, 2011 The Second District Court of Appeals
affirms Judge Langer’s denial of Bolling’s Motion to Dismiss for
Speedy Trial Violation. State v. Bolling, 2011 Ohio 6487, 2011
Ohio App. LEXIS 5354 (2nd Dist. Dec. 16, 2011).
April 18, 2012
The Ohio Supreme Court declines to review
this decision on April 18, 2012. State v. Bolling, 131 Ohio St. 3d,
1511 (2012).
April 17, 2013
Bolling, represented by counsel, files his
Petition in this Court (Doc. No. 1).
( I don’t know that the above needs to be single spaced but I would
indent to set it off as it is a timeline and easier to read if it doesn’t
just blend in to the rest of the document.)
28 U.S.C. § 2244(d)(2) provides that the statute of limitations is to be tolled during the
time that a properly filed state collateral attack on the judgment is pending.
Petitioner’s
“federalism” point seems to be that this Court must respect the state courts’ determination of
whether a collateral attack has been properly filed, and the Magistrate Judge agrees. In Artuz v.
Bennett, 531 U.S. 4 (2000), Justice Scalia wrote for a unanimous court:
[A]n application is “properly filed” when its delivery and
acceptance are in compliance with the applicable laws and rules
governing filings. These usually prescribe, for example, the form
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of the document, the time limits upon its delivery, (footnote
omitted) the court and office in which it must be lodged, and the
requisite filing fee.
531 U.S. at 8. The Ohio courts obviously treated Bolling’s Motion to Dismiss as properly filed:
they dealt with it on the merits and did not deny it on some procedural basis. In Wall v. Kholi,
562 U.S. ___, 131 S. Ct. 1278, 179 L. Ed. 2d 252 (2011), the Supreme Court unanimously held
that collateral review means judicial review of a sentence in a proceeding that is not part of direct
review. The Motion to Dismiss qualifies under Wall. Therefore, if the Motion to Dismiss had
been filed before the statute of limitations ran, it would have tolled the statute. However, the
Motion to Dismiss was not filed until January 31, 2011, twenty-three months after the statute of
limitations had expired on March 24, 2009. A tolling statute does not re-start the statute of
limitations.
If the Ohio courts had accepted Bolling’s argument that his Termination Entry was void
and had remanded the case for resentencing or even for the entry of a corrected judgment, then
the federal statute of limitations would have begun to run again whenever direct review of that
sentence was final. Burton v. Stewart, 549 U.S. 147 (2007); Rashad v. Lafler, 675 F.3d 564 (6th
Cir. 2012). But that is not what happened. Instead, the Court of Appeals held the November,
2003, Termination Entry was valid under Ohio R. Crim. P. 32 on the basis of the Ohio Supreme
Court’s decision in State v. Lester, 130 Ohio St. 3d 303 (2011), overruling State v. Baker, 119
Ohio St. 3d 197 (2008), on which Bolling relied in his Motion to Dismiss. State v. Bolling, 2011
Ohio 6487, ¶¶ 11-14, 2011 Ohio App. LEXIS 5354 Of course the question of whether a state
criminal judgment satisfies the procedural requirements of the state rules of criminal procedure is
entirely and completely a state law question, one on which this Court must defer to the Ohio
courts’ decision in this case.
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28 U.S.C. § 2244 is a federal statute of limitations, enacted by Congress as part of the
AEDPA. It is an explicit federal statute, not a borrowed statute like the limitations period which
governs actions under 42 U.S.C. § 1983. Thus Petitioner’s citation of Johnson v. Railway
Express Agency, 421 U.S. 454 (1975), is inapposite.
Petitioner argues that, because he based his state Motion to Dismiss on State v. Baker,
supra, it is relevant when he learned of that case. He claims he was not alerted to that case “until
he was ordered back for re-sentencing on November 16, 2010 and discovered the Trial Court’s
error.” (Objections, Doc. No. 7, PageID 580.) Because a re-sentencing with a new judgment
would be relevant under Burton, supra, the Magistrate Judge ordered Petitioner’s counsel to
furnish “ [3.] Any record reference which shows that Petitioner “was ordered back for
resentencing on November 16, 2010” or on any other date. . .” (Order, Doc. No. 9, PageID 584585.) No reference has been furnished and nothing in the documents attached to the Response or
in Juge Fain’s opinion suggests that there was a re-sentencing.
Petitioner’s Objections are without merit and it is again respectfully recommended that
the Petition be dismissed with prejudice as time-barred. Because reasonable jurists would not
disagree with this conclusion, Petitioner should be denied a certificate of appealability and the
Court should certify to the Sixth Circuit that any appeal would be objectively frivolous.
August 2, 2013.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
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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(d), this period is 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)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law 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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