Nelson v. Warden, Chillicothe Correctional Institution

Filing 14

REPORT AND RECOMMENDATIONS - Because the Petition here is barred by the statute of limitations, it should be DISMISSED WITH PREJUDICE on that basis without reaching the other defenses. Because reasonable jurists would not disagree with this conclus ion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 8/3/2017. Signed by Magistrate Judge Michael R. Merz on 7/20/2017. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
FREDERICK NELSON, JR.,
Petitioner,

:

- vs -

Case No. 3:17-cv-062
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Respondent’s
Motion to Dismiss (ECF No. 10) which Petitioner opposes (ECF No. 13).

Timeliness of the Petition

The Warden moves to dismiss the case as barred by the statute of limitations set forth in
28 U.S.C. § 2244(d):
(d)(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;

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(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.
Respondent asserts the Petition is time-barred on the following chronology: After he was
convicted and sentenced on February 14, 2014, Nelson appealed to the Second District Court of
Appeals which affirmed the convictions for burglary and rape and reversed the conviction for
gross sexual imposition. State v. Nelson, No. 2014-CA-7, 2015 WL 179063 (2d Dist. Jan. 15,
2015). Nelson had forty-five days to appeal to the Ohio Supreme Court, but did not do so. The
one-year statute of limitations therefore began to run on the forty-fifth day, March 1, 2015.
Under § 2244(d)(2), the statute is tolled by the proper filing of a collateral attack on the
judgment. Nelson filed an application to reopen the judgment of the court of appeals on August
21, 2015. The Second District denied the application and the Ohio Supreme Court declined
jurisdiction over an appeal. State v. Nelson, 144 Ohio St. 3d 1479 (February 10, 2016). 173 days
elapsed between March 1, 2015, and August 21, 2015. More than a year elapsed between
February 10, 2016, and the filing of the Petition here on February 22, 2017.

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On initial review of the Petition under Rule 4, the Court sua sponte raised the question of
whether the Petition was timely and ordered Mr. Nelson to show cause (ECF No. 3). He
responded (ECF No. 4) and based on his Response the Court issued an Order for Answer (ECF
No. 5).
In the Order for Answer, the Court accepted Mr. Nelson’s representation that he had
appealed on direct review from the Second District to the Ohio Supreme Court and that court’s
decision declining jurisdiction was entered February 10, 2016. Id. at 23-24.

But now the

Respondent has filed the actual record which shows the appeal that the Ohio Supreme Court
declined on February 10, 2016, was from denial of the 26(B) application and not on direct
review. Thus the conclusion that the Petition was timely, made in the Order for Answer, was
wrong.
In support of the Magistrate Judge’s earlier conclusion, Mr. Nelson relies on Jimenez v.
Quarterman, 555 U.S. 113 (2009). In that case the state court had reopened the direct appeal and
the Supreme Court held the time when the conviction became final was when the permitted outof-time appeal was decided plus whatever time was allowed for appeal to the state supreme court
plus the ninety days allowed for certiorari. The critical difference in this case is that reopening
was not granted. Merely asking for reopening under Ohio R. App. P. 26(B) does not re-start the
statute of limitations. That would have happened if the application had been granted, but it was
not.

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Conclusion

Because the Petition here is barred by the statute of limitations, it should be DISMISSED
WITH PREJUDICE on that basis without reaching the other defenses. 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 and therefore should not be permitted to proceed in forma pauperis.

July 20, 2017.
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 mail. .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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