The opinion of the court was delivered by: Judge Michael R. Barrett
Before the Court is the August 10, 2006 Magistrate Judge's Report and Recommendation ("R&R") (Doc. 10) regarding Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and Respondent's Motion to Dismiss (Doc. 7).
The parties were given proper notice, pursuant to 28 U.S.C. § 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Petitioner filed timely objections to the R&R. (Doc. 11)
On September 15, 1994, a jury convicted Petitioner of two counts of aggravated robbery with firearm specifications, one count of aggravated burglary with firearm specification, and two counts of robbery. (Doc. 7, Ex. 7) With the assistance of new counsel, Petitioner filed a timely appeal to the Ohio Court of Appeals, which affirmed the trial court's judgment. (Id., Exs. 8, 10) The Ohio Supreme Court denied leave to appeal and dismissed the appeal on March 6, 1996. (Id., Exs. 14, 16)
On September 20, 1996, Petitioner filed for post-conviction relief pursuant to Ohio Revised Code § 2953.21, claiming that he was denied effective assistance of counsel by his trial attorney because he represented him "while intoxicated or under the influence of a mind altering substance." (Id., Ex. 17) The trial court denied Petitioner's post-conviction petition. (Id., Ex. 19) Petitioner appealed to the Ohio Court of Appeals, which affirmed the trial court's judgment. (Id., Exs. 22, 24) The Ohio Supreme Court declined jurisdiction and dismissed the appeal on February 18, 1998.
On March 3, 1998, Petitioner filed pro se a "second or successive petition for relief after judgment." Petitioner claimed that his conviction and sentences were void because his trial counsel "was not a certified and qualified practicing attorney of good standing in Ohio on September 1, 1994, when he served as counsel of record and defense counsel at [petitioner's] trial." (Id., Ex. 28) The petition was denied, as was Petitioner's motion for reconsideration. (Id., Exs. 30, 31) Respondent states that Petitioner did not appeal these decisions.
On June 15, 1998, Petitioner filed pro se a "successive petition for relief after judgment," raising essentially the same claim as in his March 3, 1998 petition. (Id., Ex. 32) The trial court declined to entertain the petition. (Id., Ex. 33) Petitioner appealed, but the Ohio Court of Appeals affirmed. (Id., Exs. 34, 36) Respondent states that Petitioner did not appeal this decision.
On December 17, 1999, Petitioner filed pro se a "nunc pro tunc request for modification of void sentence," which challenges the enhancements of his sentences for three firearm specifications as opposed to one. (Id., Ex. 37) The trial court denied the motion, and Petitioner appealed. (Id., Exs. 38, 39) The Ohio Court of Appeals dismissed the appeal "for failure to comply with the Ohio Rules of Appellate Procedure, to wit: the Notice of Appeal was not timely filed."
Petitioner filed this federal habeas action on August 23, 2005.*fn1 Petitioner asserts two grounds for relief: (1) he was denied his Sixth Amendment right to counsel because his trial attorney was not a properly licensed attorney in good standing with the Ohio Supreme Court during the time he represented Petitioner; and (2) his trial attorney provided ineffective assistance in violation of the Sixth Amendment his attorney was intoxicated and failed to inform him that the prosecution had offered a plea bargain.
II. MAGISTRATE JUDGE'S R&R
The Magistrate Judge determined that Petitioner's petition, filed on August 23, 2005 was untimely because the statute of limitations governing the claims alleged in Grounds Two and One expired, respectively, on June 8, 2000 and September 23, 2000.
The Magistrate Judge found that Petitioner's claim in Ground Two is governed by 28 U.S.C. § 2224(d)(1)(A), which provides that the statute of limitations begins to run from the date on which the challenged judgment became "final" by conclusion of direct review or the expiration of time for seeking such review. The Magistrate Judge found that Petitioner's claim in Ground One is governed by 28 U.S.C. § 224(d)(1)(D), which provides that the statute of limitations begins to run from the date on which the factual predicate of the claim presented could have been discovered through the existence of due diligence.
Accordingly, the Magistrate Judge found that the statute of limitations on the claim in Ground Two began to run on the day after Petitioner's conviction became final, or when the ninety day period expired for filing a petition for writ of certiorari with the United States Supreme Court.*fn2 As to Ground One, the Magistrate Judge found that the statute of limitations began to run on the day after Petitioner received communication from the General Counsel of the Clerk of the Supreme Court of Ohio ...