Grenoble v. Warden Hocking Correctional Facility

Filing 3

REPORT AND RECOMMENDATIONS - It is 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. Objections to R&R due by 4/21/2014. Signed by Magistrate Judge Michael R Merz on 4/4/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DEAN O. GRENOBLE,
Petitioner,

:

- vs -

Case No. 3:14-cv-104
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

SHERRI DUFFEY, WARDEN,
Hocking Correctional Facility,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Dean Grenoble to obtain relief
from his conviction in the Preble County Common Pleas Court and his consequent imprisonment
in Respondent’s custody. Grenoble pleads that he was convicted in a bench trial of possession of
marijuana and possession of criminal tools and sentenced to eight years imprisonment (Petition,
Doc. No. 2, PageID 2.) The case is before the Court for initial review pursuant to Rule 4 of the
Rules Governing § 2254 Cases which provides in pertinent part: “[i]f 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.”
After conviction, Grenoble appealed to the Ohio Twelfth District Court of Appeals which
affirmed the conviction. State v. Grenoble, 2011-Ohio-2343, 2011 Ohio App. LEXIS 2005 (12th
Dist. May 16, 2011). The Ohio Supreme Court declined jurisdiction over a subsequent appeal on
October 19, 2011. State v. Grenoble, 129 Ohio St. 3d 1505 (2011). Thereafter Grenoble moved
to modify his sentence under House Bill 86. The trial court denied relief and the court of appeals
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affirmed. State v. Grenoble, 2012-Ohio-5961, 2012 Ohio App LEXIS 5113 (12th Dist. Dec. 17,
2012). Grenoble took no appeal to the Ohio Supreme Court, but later filed a petition for writ of
habeas corpus in that court which was dismissed January 22, 2014. Grenoble v. Duffey, 2014
Ohio 176, 2014 Ohio LEXIS 46 (2014). The Petition was filed in this Court on March 31, 2014.
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
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).
Grenoble reasons that his federal Petition is timely because “state habeas corpus in Ohio

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Supreme Court became final on January 22, 2014 and this Federal Petition is filed within one
year from that date.”
Grenoble’s assertion of timeliness is incorrect. Under 28 U.S.C. §2244(d), a habeas
petitioner has one year from the date his conviction becomes final. In this case, that occurred
ninety days after the Ohio Supreme Court declined jurisdiction over his direct appeal because a
criminal defendant has ninety days to petition the United States Supreme Court to hear his case
on certiorari. Cases become final on direct review when certiorari is denied or when the time to
file a petition for certiorari expires. Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000); Smith
v. Bowersox, 159 F.3d 345 (8th Cir. 1998); see also Clay v. United States, 537 U.S. 522 (2003)(as
to § 2255), Lawrence v. Florida, 549 U.S. 327 (2007)(indicating Clay analysis would also
apply to § 2244). In this case the ninetieth day after the Ohio Supreme Court denied the appeal
was January 17, 2012. The one-year statute of limitations began to run on that date and expired
one year later on January 17, 2013. Grenoble did not file his petition for writ of habeas corpus in
the Ohio Supreme Court until October 23, 2013. A state petition for collateral review filed after
the statute of limitations has expired does not re-start the statute. Because the federal Petition
was not filed until more than fourteen months after the statute of limitations expired, it should be
dismissed with prejudice.

Conclusion

In accordance with the foregoing analysis, it is 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

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Court should certify to the Sixth Circuit that any appeal would be objectively frivolous.

April 4, 2014.
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(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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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