The opinion of the court was delivered by: Magistrate Judge King
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on its own motion to consider the sufficiency of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED as barred by the one-year statute of limitations under 28 U.S.C. §2244(d).
Petitioner seeks to challenge his May 10, 1997 conviction upon his guilty plea in the Franklin County Court of Common Pleas for attempted felonious sexual penetration. On May 16, 1997, petitioner was sentenced to seven to fifteen years incarceration. Petitioner never filed an appeal; however, [o]n May 26, 1998, appellant, proceeding pro se, filed a "motion to suspend further execution of sentence for aggravated felony" pursuant to R.C. 2947.061. Attached to his motion was a copy of the "criminal sentencing sheet" with the "Shock after one year by agreement" language highlighted. The trial court set the matter for hearing, and the state filed a memorandum contra to appellant's motion. On June 17, 1998, the state filed a "motion to correct the criminal sentencing sheet," requesting that the criminal sentencing sheet be corrected to reflect that the defendant agreed not to request shock probation prior to the passing of one year of incarceration.
State v. Wooten, 1999 WL 333321 (Ohio App. 10 Dist. May 18, 1999). On July 30, 1998, the trial court denied petitioner's motion for shock probation. See id. On May 18, 1999, the appellate court affirmed the judgment of the trial court. Id. On September 22, 1999, the Ohio Supreme Court dismissed petitioner's subsequent appeal. State v. Wooten, 86 Ohio St.3d 1489 (1999). Petitioner indicates that he filed a state habeas corpus petition which also was denied by the Ohio Court of Appeals and by the Ohio Supreme Court; however, he has not attached a copy of his state habeas corpus petition, and he does not indicate the date(s) that he filed such actions.
On February 2, 2007, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. He executed the petition on January 22, 2007. He alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds:
1. The Court of Appeals erred when it dismissed petitioner's habeas corpus petition under Ohio Revised Code 2725.01(D) stating that petitioner did not attach a copy of the commitment papers in violation of petitioner's Fourth and Fourteenth Amendment rights to due process and equal protection of law.
2. The Ohio Supreme Court erred to the prejudice of petitioner when it dismissed his habeas corpus petition by not adhering to its own policy of dismissing all habeas corpus petitions that do not comply with Ohio Revised Code 2925.04(D)'s filing [sic] of commitment papers.
3. The Ohio Supreme Court erred to the prejudice of petitioner by sua sponte raising defenses for the respondent.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which became effective on April 24, 1996, imposes a one-year statute of limitations on the filing of habeas corpus petitions in federal courts. 28 U.S.C. §2244(d) provides:
(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;
(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 ...