United States District Court, S.D. Ohio, Western Division, Dayton
SHAWN R. BOLES, Petitioner,
EDWARD SHELDON, Warden, Mansfield Correctional Institution, Respondent.
M. Rose District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
habeas corpus case under 28 U.S.C. § 2254 is before the
Court for initial review pursuant to Rule 4 of the Rules
Governing § 2254 Proceedings. Upon initial review, it
appeared to the Magistrate Judge that the Petition was barred
by the statute of limitations, 28 U.S.C. § 2244(d). That
statute requires that a petition for habeas corpus be filed
within one year of the time a conviction becomes final on
direct appeal. Because it appeared that the Petition was
untimely, the Magistrate Judge ordered Petitioner to show
cause why his Petition was not time-barred. Petitioner has
filed a timely response (ECF No. 6).
Boles first refers this Court to State v. Boles,
2003-Ohio-2693, 2003 Ohio App. LEXIS 2448 (2nd
Dist. May 23, 2003). In that decision the appellate court
upheld Boles' conviction for rape of his twelve-year-old
daughter and firing shots into the house to which she fled
after the rape, but vacated convictions on other charges for
violation of the Ohio Speedy Trial Act, Ohio Revised Code
§ 2945.71. At the conclusion of its decision, the court
The judgment of the trial court will be reversed. Boles'
plea of no contest, the findings of guilty, and the sentence
will be vacated, and this matter will be remanded to the
trial court for further proceedings consistent with this
opinion. On remand, Boles will be required to decide whether
to proceed to trial on the charges of rape and improperly
discharging a firearm at or into a habitation or to dispose
of the charges by pleas of guilty or no contest.
remand Boles sought to have the rape and firearms charges
severed for trial. After initially declining to do so, the
trial judge severed the charges on the morning of trial
because genetic testing regarding the rape charge was not
complete. State v. Boles, 2005-Ohio-4490, ¶ 5,
2005 Ohio App. LEXIS 4068 (2nd Dist. Aug. 19,
2005). Boles was convicted by a jury on the firearms charge
and sentenced to seven years imprisonment. Id. The
conviction was affirmed on appeal. Id.
Boles was again before the Second District in 2007 when that
court affirmed denial of his petition for post-conviction
relief from the firearms conviction. State v. Boles,
2007-Ohio-6582, 2007 Ohio App. LEXIS 5758 (2nd
Dist. Dec. 7, 2007).
was eventually convicted on the rape charge and sentenced to
ten years imprisonment, consecutive to the firearms sentence.
That conviction was affirmed on direct appeal. State v.
Boles, 187 Ohio App.3d 345 (2nd Dist. Jan.
29, 2010), appellate jurisdiction declined, 125 Ohio St.3d
was again before the Second District in 2011, appealing from
the rape conviction on the principal ground that the charge
should have been dismissed because the State destroyed the
rape kit. The appellate court affirmed and remanded for the
filing of a judgment entry conforming to the verdict.
State v. Boles, 2011-Ohio-3720, 2011 Ohio App. LRXIS
3153 (2nd Dist. July 25, 2011), appellate
jurisdiction declined, 130 Ohio St.3d 1477 (2011). The remand
was the result of the appellate court's sustaining in
part the Third Assignment of Error. The court found that the
sentencing entry incorrectly recited that Boles had been
convicted of rape of a child under thirteen with use of force
and the force specification had been previously dismissed. It
concluded the error could be corrected with an amended
judgment entry, without a new trial or new sentencing
hearing. Id. at ¶¶ 31-39.
was next before the court of appeals in 2013 on appeal from
denial of a post-conviction petition in which he had sought
jail time credit and complained of his classification as a
sexually-oriented offender. The court affirmed. State v.
Boles, 2013-Ohio-3376, 2013 Ohio App. LEXIS 3453
(2nd Dist. Aug. 2, 2013), appellate jurisdiction
declined, 137 Ohio St.3d 1442 (2013).
Response to the Order to Show Cause, Mr. Boles claims the
benefit of 28 U.S.C. § 2244(d)(2) which tolls the
statute of limitations during the pendency of any properly
filed collateral attack on the judgment. However, the last
collateral attack of which the Magistrate Judge finds
evidence in the LEXIS database is the post-conviction
proceeding which ended December 24, 2013, when the Ohio
Supreme Court declined to hear an appeal. Boles lists titles
of other documents, but does not attach them. The last entry
on the Common Pleas docket for Case No. 2000 CR 1576 is a
notation of a Decision and Entry December 17, 2014, denying a
motion filed June 23, 2014. Assuming for sake of argument
that Mr. Boles had some collateral attack pending between the
original date of judgment and December 17, 2014, more than
two years expired between then and his filing in this Court.
calls the Court's attention to a case pending in the Ohio
Supreme Court, State v. Boles, Case No. 17-0557,
which he says is a habeas corpus action (Response, ECF No. 6,
PageID 76), but which is in fact his Motion (on April 24,
2017) for leave to file a delayed appeal from the decision of
the Second District on January 13, 2017, on a motion he filed
in that court to have Montgomery County Common Pleas Judge
Barbara Gorman held in contempt, a motion filed August 11,
has furnished a copy of the appellate court decision of that
contempt motion. State v. Boles, Case No. 18762
(2nd Dist. Jan. 13, 2017)(unreported; copy at ECF
No. 6, PageID 78-84). The court of appeals denied the sought
contempt finding, but also found there were unresolved counts
in the indictment and instructed the parties to file their
input on how best to resolve those issues within twenty days.
Id. at PageID 84. According to the docket of the
Second District in Case No. CA 18762, Mr. Boles responded
that the only way to resolve the matter was to dismiss all
charges against him. That docket shows the Second District
has taken no further action and Boles appealed to the Ohio
Supreme Court on May 1, 2017.
as the Magistrate Judge is aware, neither the Sixth Circuit
nor the Ohio appellate courts have ever held that a
proceeding to hold a trial judge in contempt is an
appropriate collateral attack on a judgment. Nevertheless,
assuming that it is, the Motion to hold Judge Gorman in
contempt was not filed until August 11, 2016, more than a
year after December 17, 2014. Thus Mr. Boles ...