The opinion of the court was delivered by: Terence P. Kemp United States Magistrate Judge
JUDGE ALGENON L. MARBLEY Magistrate Judge Kemp
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. This matter is before the Court on that petition, respondent's return of writ, the exhibits of the parties, and petitioner's reply. For the reasons that follow, the Magistrate Judge RECOMMENDS that petitioner's claims be DISMISSED as time-barred.
I. RELEVANT PROCEDURAL HISTORY
Because the Court will recommend disposition of this case because the petition was clearly filed outside of the one-year limitations period provided for in 28 U.S.C. §2244(d), the Court's recitation of the procedural history of the case will be limited to those filings which have an impact on the statute of limitations question. Before reaching that issue, however, the Court responds to respondent's suggestion that some portion of the petition is a second or successive petition over which the Court lacks jurisdiction absent a determination by the Court of Appeals that petitioner may proceed with a successive petition.
As background for this argument, respondent correctly notes that petitioner previously filed a habeas corpus petition in this Court. See Lathan v. Warden Southeastern Correctional Institution, Case No. 2:09-cv-1002. This Court dismissed the petition as unexhausted, see Lathan v. Duffey, 2010 WL 419437 (S.D. Ohio January 27, 2010), and the Court of Appeals affirmed this Court's decision not to issue a certificate of appealability as to that ruling. Lathan v. Duffey, No. 10-3253 (6th Cir. Nov. 3, 2010).
In the current case, according to respondent, the petition contains not only those claims previously dismissed on exhaustion grounds, but new claims which were not raised in the prior action. Citing to 28 U.S.C. §2244(b)(3)(A), respondent contends that grounds one, three and four in the instant petition are all new, and that the case should either be dismissed outright or transferred to the Court of Appeals as a second petition, which are the only two options available to the district court under 28 U.S.C. §1631, the statutory section under which successive petitions are to be transferred to the Court of Appeals. See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
The problem with this argument is that in Carlson v. Pitcher, 137 F.3d 416, 420 (6th Cir. 1998). the Court of Appeals specifically rejected this argument, stating:
We join with every other court to consider the question, and hold that a habeas petition filed after a previous petition has been dismissed on exhaustion grounds is not a "second or successive" petition implicating the pre-filing requirement of obtaining an order of authority from the court of appeals. Further, the very sound rationales supporting this result are not altered by the additional consideration that the second-in-time petition may contain new habeas claims not presented in the first petition. (Emphasis supplied).
Given this unequivocal holding, this Court cannot find that the instant petition is a second or successive petition. Were it otherwise, the Court would have no jurisdiction either to enter a judgment on the merits or to determine that the petition is time-barred. However, because there is no jurisdictional obstacle to the Court's reaching these issues, it now turns to the question of whether petitioner has filed his petition in a timely fashion under the one-year statute of limitations found in §2244(d)(1).
The key facts relating to whether a habeas corpus petition is timely filed are the dates on which certain actions were taken in or by the state courts. See 28 U.S.C. §2244(d)(1)(A), which provides that the statute of limitations begins to run from "the date on which the [state court] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review ...." Here, petitioner was convicted and sentenced pursuant to a guilty plea on December 14, 2007. Return of Writ, Exhibit 6; see also State v. Lathan, 2010 WL 3722630 (Guernsey Co. App. September 23, 2010). The Court notes that the return, at 4, recites that the judgment was entered on December 1, 2007, but this is incorrect, as the judgment entry itself recites that the sentencing hearing took place on December 14, 2007. Under Ohio law, see Ohio App. R. 4(A), petitioner had thirty days, or until Monday, January 14, 2008, within which to file a timely appeal. He did not. Rather, on September 2, 2009, he filed a motion for leave to file a delayed appeal. Return of Writ, Exhibit 7. Finding that petitioner had not established cause for the delay, the court of appeals denied his motion. Return of Writ, Exhibit 10. Petitioner unsuccessfully sought review from the Ohio Supreme Court.
On August 28, 2009, shortly before filing his motion for leave to file a delayed appeal, petitioner filed a motion for leave to withdraw his guilty plea. He followed that motion up with a post-conviction petition, which was filed on September 8, 2009. Both of these requests for relief were denied by the trial court on October 26, 2009, and petitioner's appeal of that decision was denied on grounds that the trial court did not abuse its discretion in denying the motion for leave to withdraw the guilty plea and that the post-conviction petition was untimely. State v. Lathan, supra. Petitioner again sought review from the Ohio Supreme Court, but review was denied. State v. Lathan, 127 Ohio St.3d 1534(February 2, 2011). Petitioner filed other motions in the state court as well, but all of them were filed after August 28, 2009, so that is the earliest date on which petitioner made any effort to appeal or otherwise contest the validity of his conviction and sentence.
As noted above, petitioner also filed a habeas corpus petition in this court on November 5, 2009, with an effective filing date of October 19, 2009. That petition was dismissed on January 27, 2010, and the Court of Appeals denied a certificate of appealability by way of an order dated November 3, 2010. The current ...