Shorter v. Warden, Lebanon Correctional Institution
REPORT AND RECOMMENDATIONS - The Petition in this case should be dismissed with prejudice as barred by the statute of limitations. 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 10/20/2014. Signed by Magistrate Judge Michael R Merz on 10/2/2014. (kpf1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
- vs -
Case No. 3:14-cv-222
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
WARDEN, Lebanon Correctional
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought by Petitioner Charles Shorter under 28 U.S.C. § 2254,
is before the Court on Respondent’s Motion to Dismiss (Doc. No. 7). Shorter was notified by the
Court of his obligation to respond to that Motion not later than September 22, 2014 (Order to
Petitioner, Doc. No. 8). The time for a response has expired and no response has been filed.
Shorter pleads the following grounds for relief:
GROUND ONE: Petitioner was denied due process and equal
protection of the law, when the trial court did not inform him of his
appellate rights and his subsequent application for leave to file a
delayed appeal was denied, in violation of the Fourteenth
Amendment to the United States Constitution.
GROUND TWO: Petitioner was denied effective assistance of
trial counsel when counsel failed to ensure that petitioner was
properly instructed as to his right to appeal, and fails to ensure that
a timely notice of appeal is filed, and petitioner was denied the
effective assistance of counsel as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution.
(Petition, Doc. No. 1, PageID 13, 20.)
Respondent asserts that the Petition should be dismissed with prejudice as barred by the
one-year statute of limitations in 28 U.S.C. § 2244. Under that statute, the time to file a habeas
corpus petition runs when a criminal conviction becomes final and expires one year later unless
interrupted by the proper filing of a state court collateral attack on the conviction.
The Motion to Dismiss shows that the trial court entered judgment in this case on
December 17, 2008 (Return of Writ, Doc. No. 5, PageID 70). Shorter filed nothing thereafter
until, on November 18, 2013, he sought leave to file a delayed appeal in the Montgomery County
Court of Appeals. That request was denied and the judgment of conviction thus remained final.
Therefore the statute of limitations ran one year after the date on which Shorter could have filed
a notice of appeal of right, to wit, January 16, 2010.1
The Petition in this case should therefore be dismissed with prejudice as barred by the
statute of limitations.
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.
October 2, 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
Ohio law allows a notice of appeal to be filed not later than thirty days after judgment. That time expired January
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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