The opinion of the court was delivered by: Judge Michael R. Barrett
Before the Court is the February 21, 2007 Magistrate Judge's Report and Recommendation ("R&R") (Doc. 10) regarding Respondent's Motion to Dismiss (Doc. 4).
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)
Petitioner, an inmate currently in state custody at the Pickaway Correctional Institution in Orient, Ohio, brings this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his June 30, 2004 conviction and sentence in the Hamilton County, Ohio, Court of Common Pleas upon his entry of guilty pleas to four counts of an eleven-count indictment: three counts of trafficking in cocaine in violation of Ohio Rev. Code § 2925.03(A); and one count of possession of cocaine in violation of Ohio Rev. Code § 2925.11(A) with attached "Major Drug Offender" specification. Petitioner was sentenced to concurrent terms of imprisonment totaling ten years.
Petitioner did not pursue an appeal as of right from his conviction and sentence. One and one-half years later, on November 17, 2005, Petitioner filed a pro se notice of appeal and motion for leave to appeal to the Ohio Court of Appeals, First Appellate District. Petitioner claims that he argued to the state appellate court that he was prevented from perfecting a timely appeal "due to the trial court's and counsel's failure to advise [him] of [his] appellate rights." On December 14, 2005, the Ohio Court of Appeals overruled petitioner's motion for leave to file a delayed appeal on the ground that petitioner had "failed to provide sufficient reasons for failure to perfect an appeal as of right." Petitioner sought leave to appeal further to the Supreme Court of Ohio, but the court declined jurisdiction to hear the case and dismissed the appeal "as not involving any substantial constitutional question." (Id., Ex. O)
In June 2006, Petitioner commenced the instant federal habeas corpus action. The petition was signed by petitioner on June 5, 2006 and was stamped as "filed" on June 19, 2006. (Doc. 1). Petitioner alleges two grounds for relief: (1) Due to the trial court's failure to notify him of his right to appeal with the assistance of court-appointed counsel and at State's expense, he is detained in violation of the Fifth and Fourteenth Amendment; and (2) Due to counsel's failure to inform him of his appellate rights he is being detained in violation of the Sixth Amendment.
In his Motion to Dismiss, Respondent argues that the petition is barred from review by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d), as amended by § 101 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214.
II. MAGISTRATE JUDGE'S R&R
The Magistrate Judge concluded that the petition should be dismissed as time-barred. The Magistrate Judge determined that Petitioner's claims are governed y the one-year statute of limitations found in 28 U.S.C. § 2244(d)(1)(A). The Magistrate Judge noted that Petitioner had been advised of his right to an appeal withing a 30-day time frame before his conviction became "final" under 28 U.S.C. § 224(d)(1)(A) by the conclusion of direct review or the expiration of time for seeking such review, and therefore failed to act with the requisite "due diligence" necessary to trigger the applicability of the later limitations in § 2244(d)(1)(D). Therefore, the Magistrate Judge explained, Petitioner's conviction became "final" on July 30, 2004; and Petitioner's statute of limitations expired on July 31, 2005. The Magistrate Judge stated that the one-year limitation period was not tolled for any pending "properly filed" applications for state post-conviction relief or other collateral review because the statute of limitations had run its course before Petitioner took any action to challenge his conviction. The Magistrate Judge explained that Petitioner filed his motion for leave to file a delayed appeal on November 17, 2005, which was over three months after the statute of limitations had ceased running.
The Magistrate Judge determined that Petitioner was not entitled to equitable tolling. The Magistrate Judge determined that Petitioner has not demonstrated that some extraordinary circumstance prevented him from filing a timely federal habeas petition. The Magistrate Judge also determined that Petitioner has not demonstrated that he is entitled to equitable tolling under Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir), cert. denied, 534 U.S. 1057 (2001). The Magistrate Judge explained that Petitioner does not argue, nor is there evidence in the record to suggest that he was ignorant, or lacked notice or constructive knowledge, of the one-year filing requirement for federal habeas petitions. The Magistrate Judge also noted that there is evidence in the record that Petitioner has not been diligent in pursuing his rights. The Magistrate Judge explained that the plea agreement read and signed by Petitioner notified him of his right to an appeal, but Petitioner took no action to challenge his conviction or sentence until he filed his motion for leave to file a delayed appeal nearly one and one-half years after the final Judgment Entry issued.
Because Petitioner was not entitled to any tolling of the statute of limitations, the petition was filed over ten months past the expiration of the statue of limitations.
Petitioner objects to the Magistrate Judge's R&R in three respects: (1) Petitioner argues that his petition is not time-barred; (2) Petitioner objects to the Magistrate Judge's recommendation that a certificate of appealability should not issue; and (3) Petitioner objects to the Magistrate Judge's ...