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LaCroix v. Wolfe

April 10, 2007

RICHARD LACROIX, PETITIONER,
v.
JEFFREY WOLFE, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Judge Watson

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 the instant petition, respondent's return of writ, petitioner's traverse, and the exhibits of the parties. 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's request that the Court order respondent to submit a copy of petitioner's sentencing transcript, see Doc. No. 8, is DENIED.

I. PROCEDURAL HISTORY

On March 2, 2002, petitioner, while represented by counsel, pleaded guilty in the Guernsey County Court of Common Pleas to endangering children, in violation of O.R.C. §2919.22(B)(1), and involuntary manslaughter, in violation of O.R.C. §2903.04, with a firearm specification. Exhibits B and C to Return of Writ. On March 25, 2002, petitioner was sentenced pursuant to the joint agreed upon recommendation of the parties to an aggregate term of fifteen years incarceration. Id. He never filed a timely appeal. On December 20, 2005, petitioner filed a motion for delayed appeal with the state appellate court. Petitioner asserted that he did not know he had the right to appeal, and was not informed by either the trial court or his attorney regarding his right to appeal, or the time limits for filing an appeal. Exhibit D to Return of Writ. On February 6, 2006, the appellate court denied petitioner's motion for delayed appeal. Exhibit E to Return of Writ. Petitioner filed a timely appeal to the Ohio Supreme Court. Exhibit F to Return of Writ. On May 24, 2006, the Ohio Supreme Court denied leave to appeal and dismissed the appeal as not involving any substantial constitutional question. Exhibit H to Return of Writ.

On July 31, 2006, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. 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. Petitioner was denied equal protection and due process as guaranteed by the United States Constitution when the trial court failed to notify petitioner of his right to appeal.

2. Petitioner was denied equal protection and due process as guaranteed by the Fourteenth Amendment to the United States Constitution when the state appellate court refused to accept his delayed appeal.

It is the position of the respondent that this action is barred by the one-year statute of limitations under 28 U.S.C. §2244(d).

II. STATUTE OF LIMITATIONS

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. 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 2 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 was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...


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