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Darden v. Coleman

United States District Court, Sixth Circuit

June 5, 2013

ALPHONSO DARDEN, Petitioner,
v.
JOHN COLEMAN, Warden, Respondent.

ORDER & OPINION [Resolving Docs. No. 1, 11, 16.]

JAMES S. GWIN, District Judge.

Alphonso Darden petitions for a writ of habeas corpus under 28 U.S.C. § 2254.[1] Darden seeks relief from Ohio convictions for receiving stolen property, tampering with evidence, theft, and aggravated robbery with firearm and physical harm specifications.[2] Respondent, Warden John Coleman, opposes the petition and says that it is time-barred.[3] On April 3, 2012, Magistrate Judge Vernelis K. Armstrong filed a Report and Recommendation that recommended the Court deny Darden's petition because Darden filed the petition outside the statute of limitations.[4] Darden objects to the Magistrate Judge's Report and Recommendation because he says that tolling applies.[5] For the reasons described below, the Court ADOPTS the Magistrate Judge's Report and Recommendation and DENIES Darden's petition for a writ of habeas corpus.

I.

The Ohio Court of Appeals summarized the case:

On June 8, 2000, appellant was indicted on twelve counts: two counts of robbery in violation of R.C. 2911.02(A)(2); one count of receiving stolen property in violation of R.C. 2913.51; one count of tampering with evidence in violation of R.C. 2921.12(A); two counts of theft in violation of R.C. 2913.02(A)(1); one count of intimidating a crime victim in violation of R.C. 2921.04(B); four counts of aggravated robbery in violation of R.C. 2911.01(A)(1); and one count of felonious assault in violation of R.C. 2903.11(A)(1). Each of the last six counts contained a firearm specification. Each of the last five counts and the first two counts contained a specification that appellant did cause or threatened to cause physical harm during the commission of the offense.
{¶ 3} Appellant entered pleas of not guilty on June 21, 2000. Appellant's trial commenced on October 2, 2000. On October 5, 2000, the jury found appellant guilty of one count of receiving stolen property; one count of tampering with evidence; one count of theft; one count of aggravated robbery with a firearm specification and a specification that appellant did cause physical harm during the commission of the offense. Appellant was found not guilty of the other charges.

{¶ 4} Appellant's sentencing hearing was held on October 19, 2000. Appellant was sentenced to eleven months on the receiving stolen property count, to four years on the tampering with evidence count, to six months on the theft count, all to be served concurrently to a term of nine years on the aggravated robbery count. Appellant was also sentenced to three years on the firearm specification charge to be served consecutively and prior to the sentences imposed on the other counts. At sentencing, appellate counsel was appointed by the court. However, that attorney did not file a notice of appeal and another attorney agreed to file the appeal. The second attorney then lost his license to practice and an appeal was never filed. No motions to withdraw were ever filed.

{¶ 5} On March 30, 2001, appellant filed a petition to vacate and set aside sentence pursuant to R.C. 2953.21, arguing that appointed appellate counsel provided ineffective assistance by failing to file a timely notice of appeal. The state filed a motion to dismiss appellant's petition and appellant filed an answer to the state's motion to dismiss. On October 19, 2001, the trial court entered a judgment entry granting appellant's motion to vacate his sentence and re-imposed appellant's sentence. On November 7, 2001, appellant filed a timely notice of appeal.[6]

On November 8, 2002, the Ohio Court of Appeals affirmed Darden's conviction and sentence.[7] On April 1, 2009, Darden filed a petition for state post-conviction relief.[8] The Court of Common Pleas dismissed the petition as beyond the statute of limitations, and on January 8, 2010, the Ohio Court of Appeals affirmed the dismissal.[9] The Ohio Supreme Court declined to hear Darden's petition on September 29, 2010.[10]

On January 3, 2011, Darden filed a "Motion to Vacate Judgment of Sentence and for Scheduling of a Re-Sentencing Hearing Pursuant to Ohio Revised Code § 2929.191" in the Court of Common Pleas. With that filing, Darden argued that he received insufficient notice of the term of post-release control to which he would be subject following his incarceration. He said that this defect required a "de novo resentencing hearing." On February 4, 2011, the state filed a response acknowledging that Darden is "entitled to be brought before [the] Court for imposition of postrelease control but is not entitled to a de novo re-sentencing hearing." No decision was ever rendered on these motions, and no subsequent filings appear on Darden's state-court docket.

On March 18, 2011, Darden filed this habeas petition.[11] With his petition, Darden says that the jury failed to find him guilty of the firearm specification, and, thus, the corresponding three-year penalty enhancement was unlawful.[12] He says that his habeas petition is timely because the issue he raises only became ripe for review when the Ohio Supreme Court declined jurisdiction on September 29, 2010.[13] In response to Darden's habeas petition, the warden says that 28 U.S.C. § 2244(d) imposes a one-year statue of limitations on 28 U.S.C. § 2254 petitions, that no tolling applies to Darden's petition, and that it is untimely.[14] The Warden also says that Darden failed to exhaust state remedies as to this claim and that the petition should also lose on the merits.[15]

Pursuant to Local Rule 72.2, this Court referred this case to Magistrate Judge Vernelis K. Armstrong for a Report and Recommendation.[16] On April 3, 2012, Magistrate Judge Armstrong filed a Report and Recommendation that recommends that the statute of limitations bars this Court from adjudicating the merits of Darden's petition.[17] Darden objects and says that on February 4, 2011, the Warden "conceded[d] to motion to vacate judgment of sentence, " rendering his petition timely.[18]

II.

A. Federal ...


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