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Lamar v. Ishee

June 21, 2006

KEITH LAMAR, PETITIONER,
v.
TODD ISHEE, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Judge Thomas M. Rose

Chief Magistrate Judge Michael R. Merz

ENTRY AND ORDER GRANTING IN PART AND OVERRULING LAMAR'S OBJECTIONS TO CHIEF MAGISTRATE JUDGE MERZ'S SUPPLEMENTAL REPORT AND RECOMMENDATIONS (Doc. #79); OVERRULING THE WARDEN'S OBJECTIONS (Doc. #75) TO CHIEF MAGISTRATE JUDGE MERZ'S SUPPLEMENTAL REPORT AND RECOMMENDATIONS; ADOPTING THE CHIEF MAGISTRATE JUDGE'S SUPPLEMENTAL REPORT AND RECOMMENDATIONS REGARDING EQUITABLE TOLLING AND NOTICE OF INTENT TO FILE IN THEIR ENTIRETY; AND FINDING THAT LAMAR IS ENTITLED TO STATUTORY TOLLING.

This matter is before the Court pursuant to Petitioner Keith LaMar's Objections (doc. #79) and the Warden's Objections (doc. #75) to the Supplemental Report and Recommendations of Chief Magistrate Judge Michael R. Merz (doc. #70). The Supplemental Report and Recommendations addresses the Warden's Renewed Motion To Dismiss LaMar's Petition for a Writ of Habeas Corpus based upon the statute of limitations.

The Chief Magistrate Judge initially entered a Report and Recommendations regarding the Warden's Motion To Dismiss. (Doc. #62.) After receiving objections from LaMar and the Warden, the Chief Magistrate Judge issued a Supplemental Report and Recommendations. It is this Supplemental Report and Recommendations and LaMar and the Warden's Objections thereto that are now before the Court. Both LaMar and the Warden have entered responses to each other's Objections (doc. #80, 82) and the Objections are now ripe for decision.

As required by 28 U.S.C. §636(b) and Federal Rules of Civil Procedure Rule 72(b), the District Judge has made a de novo review of the record in this case regarding the Warden's Motion To Dismiss based upon the statute of limitations. The Chief Magistrate Judge addressed both statutory and equitable grounds for tolling the statute of limitations. He also addressed whether the statute of limitations was tolled by filing the Notice of Intent. Each of these issues will be addressed hereinafter.

STATUTORY TOLLING

The Chief Magistrate Judge withdrew his recommendation in the original Report and Recommendations granting statutory tolling on the basis of Bronaugh v. Ohio, 235 F.3d 280 (6th Cir. 2000), and now recommends that LaMar is not entitled to statutory tolling pursuant to the Supreme Court's holding in Pace v. DiGuglielmo, 544 U.S. 408 (2005). To this, LaMar objects.

However, following the de novo review required by 28 U.S.C. §636(b) and Federal Rules of Civil Procedure Rule 72(b), the Court finds that LaMar is entitled to statutory tolling. A brief background will first be set forth followed by an analysis of statutory tolling as it applies to this case.

Background

LaMar concedes that, based upon Bronaugh, the statute of limitations for filing a petition for a Writ of Habeas Corpus began to run on December 2, 2002, when the United States Supreme Court denied certiorari to review his conviction on direct appeal.*fn1 On December 1, 2003, the day before the statute would have run, LaMar filed his Notice of Intent To File a Habeas Corpus Petition. The Petition was then filed on August 16, 2004, shortly after LaMar's Ohio Appellate Rule 26(B)*fn2 (hereinafter "Rule 26(B)") case was dismissed. Therefore, LaMar's Petition was untimely unless the one-year statute of limitations is tolled by the filing of his Rule 26(B) application.

LaMar filed his Rule 26(B) application on November 19, 2003 when there were only twelve (12) days remaining in the AEDPA one-year statute of limitations period. LaMar's Rule 26(B) application was subsequently dismissed as untimely by the Ohio Supreme Court in August of 2004.

The key issue raised in the Warden's Motion To Dismiss is whether LaMar's petition was filed within the statute of limitations period. The inquiry as to whether LaMar's petition was filed within the statute of limitations begins, as it must, with a determination as to whether LaMar's Ohio App. Rule 26(B) application was a direct appeal or was seeking post-conviction or other collateral review. See Lambert v. Warden, Ross Correctional, 81 Fed.Appx.1, 2003 WL 22071466 at **2 (6th Cir. Sept. 2, 2003).

Direct Appeal or Post-Conviction Review

When the United States Supreme Court denied certiorari to review LaMar's conviction and when LaMar's Notice of Intent and his Petition were filed, the Sixth Circuit had clearly held that Ohio Rule 26(B) applications were direct appeals. The Sixth Circuit initially reached this conclusion on May 10, 2000, in White v. Schotten. 201 F.3d 743 (6th Cir. 2000), cert. denied, 531 U.S. 940 (2000). At first, Sixth Circuit panels disagreed with White and grounded their analyses on the basis that Rule 26(B) applications were post-conviction relief. See Scott v. Mitchell, 209 F.3d 854, 862 (6th Cir. 2000)(referring to proceedings claiming denial of effective assistance of appellate counsel as post-conviction relief), cert. denied, 531 U.S. 1021 (2000); Isham v. Randle, 226 F.3d 691 (6th Cir. 2000)(treating Rule 26(B) applications as collateral attacks throughout), cert. denied, 531 U.S. 1201 (2001).

Then, on December 19, 2000, Bronaugh was decided by a panel of the Sixth Circuit. The Bronaugh court clearly held that Rule 26(B) applications were part of the direct review process.*fn3 235 F.3d at 286. Following Bronaugh, Sixth Circuit panels generally agreed that Rule 26(B) applications were a part of the direct review process. See Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001)(this court has recently made clear that even a Rule 26(B) application is part of the direct appeal process), cert. denied, 534 U.S. 905 (2001); Miller v. Collins, 305 F.3d 491, 494 (6th Cir. 2002)(a Rule 26(B) application is part of the direct review process); Griffin v. Rogers, 308 F.3d 647, 655 (6th Cir. 2002)(Rule 26(B) applications are part of the direct review process); Lambert v. Warden, Ross Correctional, 81 Fed.Appx. 1, 2003 WL 22071466 at **8 (6th Cir. Sept. 2, 2003)("Rule 26(B) applications are best classified as parts of collateral review but we are bound to follow the holding of White that Rule 26(B) applications are part of the direct review process."). But see Martin v. Mitchell, 280 F.3d 594, 604 (6th Cir. 2002)(referring to ineffective assistance of appellate counsel claims as post-conviction applications), cert. denied, 537 U.S. 1004 (2002). Therefore, when LaMar filed his Rule 26(B) application, Bronaugh, Searcy, Miller, Griffin, Lambert and Martin had all been decided.

On November 22, 2004, the Ohio Supreme Court held that proceedings pursuant to Rule 26(B) to reopen an appeal based upon a claim of ineffective assistance of appellate counsel are collateral post-conviction proceedings and not a part of the direct appeal process. Morgan v. Eads, 818 N.E.2d 1157 (Ohio 2004). In Morgan, the Ohio Supreme Court specifically disagreed with the characterization given to Rule 26(B) by the White court. Id. at 1161. Following the Ohio Supreme Court's ruling in Morgan regarding Rule 26(B) applications, the Sixth Circuit, sitting en banc, expressly overturned White and indicated that an Ohio Rule 26(B) application to reopen is part of the collateral, post-conviction process and not a part of the direct review process. Lopez v. Wilson, 426 F.3d 339, 351 (6th Cir. 2005), cert. denied, 126 S.Ct. 1880 (2006)(holding ...


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