Glenn v. Warden, Warren Correctional Institution et al
SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS - The Magistrate Judge again recommends the Petition be dismissed with prejudice as barred by the statute of limitations. A state court collateral attack filed after the statute of limitations expires d oes not restart the statute.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 frivolou s and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 3/20/2018. Signed by Magistrate Judge Michael R. Merz on 3/7/2018. (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
- vs -
Case No. 3:17-cv-435
District Judge Walter H. Rice
Magistrate Judge Michael R. Merz
PREBLE COUNTY SHERIFF
DEPARTMENT AND STATE OF
SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 14) to the
Magistrate Judge’s Supplemental Report and Recommendations recommending the Petition be
dismissed (ECF No. 13). District Judge Rice has recommitted the case for reconsideration in light
of the Objections (ECF No. 15).
Glenn objects that the Magistrate Judge did not order the Respondent to answer the Petition
and file the relevant portions of the state court record (ECF No. 14, PageID 129). As noted in the
original Report and Recommendations, Rule 4 of the Rules Governing § 2254 Cases provides for
initial review by the Court and “[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.” (ECF No. 4, PageID ___). Rule 5(a) specifically
provides that a respondent is not required to answer the petition unless ordered by the Court. Thus
the Habeas Rules, promulgated by the Supreme Court, contemplate that a case may be dismissed
without ordering an answer if it appears from the Petition that it is barred. Here the original and
Supplemental Reports both found the Petition was not timely filed.
In his Objections Glenn purports to amend his Petition so that his Ground One now reads:
Petitioner’s U.S. Constitutional right to counsel was violated AND when no waiver of counsel was
executed,” the addition of “and” being the amendment.
Glenn’s next objection is that his due process rights were violated when he was denied a
delayed appeal. In the Supplemental Report, the Magistrate Judge pointed out that the States are
not required as a matter of due process to provide any appellate review at all (ECF No.
objects by citing Evitts v. Lucey, 469 U.S. 387 (1985). Evitts followed earlier law holding that
counsel must be appointed on appeal of right for indigent criminal defendants. Douglas v.
California, 372 U.S. 353 (1963). Douglas followed even earlier precedent holding that if a State
provides for appeal of right and requires a transcript, the transcript must be, as a matter of equal
protection, furnished to the indigent appellate Griffin v. Illinois, 351 U.S. 12 (1956). But no
Supreme Court case law holds that a State cannot impose time limits on filing notices of appeal
and Glenn does not suggest that wealthy litigants get favorable treatment over the indigent in filing
for delayed appeal.
Glenn’s next objection is that without a full record this Court cannot determine whether his
waiver of counsel was valid or not. Glenn’s claim as he first made it was that the waiver was not
valid because there was no signed waiver form. But the Constitution does not require a written
waiver. Glenn’s claim now seems to be that the waiver was invalid for other reasons (See ECF
No. 14, PageID 132). It could be the case that this Court could not fully adjudicate that claim
without the record. But that is a question of the merits and the Court cannot reach the merits if the
Petition as a whole is barred by the statute of limitations.
Glen claims his Grounds One and Three 1 are currently pending at all three levels of the
Ohio court system, although he provides no proof of that claim (ECF No. 14, PageID 133). But
the only way that fact could be relevant is if one or more of those state court filings is a “properly
filed” collateral attack on the judgment in this case, filed before the statute of limitations expired.
See 28 U.S.C. § 2254(d)(2). By the calculation set forth in the original Report, the statute of
limitations began to run July 11, 2014, and would have expired July 12, 2015, but this case was
not filed until December 28, 2017. If Glen has some proof of a collateral attack on the conviction
that he properly filed before July 12, 2015, he needs to submit it to this Court. Absent any such
proof, the Magistrate Judge again recommends the Petition be dismissed with prejudice as barred
by the statute of limitations. A state court collateral attack filed after the statute of limitations
expires does not restart the statute.
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.
March 6, 2018.
s/ Michael R. Merz
United States Magistrate Judge
Glenn has withdrawn Ground Two (ECF No. 14, PageID 133).
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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