Bolling v. Morgan

Filing 6

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be dismissed with prejudice as time-barred under 28 U.S.C. § 2244. Objections to R&R due by 7/19/2013. Signed by Magistrate Judge Michael R Merz on 7/2/2013. (kpf1)

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.

REPORT AND RECOMMENDATIONS

This is an action on a Petition for Writ of Habeas Corpus. Bolling, represented by
counsel, pleads the following Grounds for Relief:
Ground One: Due Process violation speedy sentencing.
Supporting facts: Under Ohio law a judgment of conviction must
state how the conviction was made; jury, judge. Failure to do so
constitutes a void sentence. This was the situation for eight years.
The Petitioner filed his motion when the Ohio Supreme Court
announced this requirement in 2008.
Ground Two: Sixth Amendment violation speedy sentencing.
Supporting Facts: Under Ohio law a judgment of conviction
must state how the conviction was made; jury, judge. Failure to do
so constitutes a void sentence. This was the situation for eight
years. The Petitioner filed his motion when the Ohio Supreme
Court announced this requirement in 2008.
(Petition, Doc. No. 1, PageID 6-8.)
After service of the Petition and within the time allowed for answer, Respondent filed a
Motion to Dismiss the Petition as time-barred (Doc. No. 5).

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That Motion was served

electronically on Petitioner’s counsel on May 31, 2013. As a result of the manner of service,
Petitioner’s memorandum contra was due to be filed not later than June 24, 2013, but no such
memorandum has been filed.
The Magistrate Judge finds the time analysis proffered by Respondent is correct. 28
U.S.C. § 2244 provides a one-year statute of limitations which runs from the date a conviction
becomes final on direct appeal. 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. The
statute ran for eighteen days until it was tolled by Bolling’s timely appeal of the trial court’s
denial of his motion for new trial and remained tolled until the Ohio Supreme Court dismissed
his appeal April 12, 2008. The statute expired on March 24, 2009. The Petition in this case was
not filed until April 17, 2013.
It is therefore respectfully recommended that the Petition be dismissed with prejudice as
time-barred under 28 U.S.C. § 2244.
July 2, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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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(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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