United States District Court, N.D. Ohio
OPINION & ORDER [RESOLVING DOC. 8]
S. GWIN, UNITED STATES DISTRICT JUDGE:
Robert Law seeks habeas corpus relief under 28 U.S.C. §
2254 from his consecutive sentences for rape and gross sexual
imposition. Magistrate Judge Jonathan Greenberg recommends
dismissing Petitioner's § 2254 habeas petition as
time-barred. Petitioner objects.
following reasons, this Court OVERRULES Petitioner's
objections, ADOPTS Magistrate Judge Greenberg's Report
and Recommendation, and DISMISSES Petitioner's §
November 27, 2013, Law pled guilty to rape and gross sexual
imposition. On February 5, 2014, the state court
sentenced Law to consecutive prison terms of ten years for
rape and four to ten years for gross sexual
imposition. The state court also determined that Law
was a Tier III Sexually Oriented Offender and was subject to
five years mandatory post-release control. The state court
journalized Law's sentence on February 11,
not appeal his sentence to the state appellate court.
29, 2015, Law filed a pro se motion in the state
trial court captioned “Limitation of Sentence
2901.13(A)(1)(a), Period of Sentence, Evidence Review”
and “Sentence Contrary to Law.” With this motion,
Petitioner seemingly argued that his offenses' statute of
limitations had expired; there was insufficient evidence in
his case; and his sentence was contrary to law. The state trial
court treated the motion as a motion to vacate Law's
sentence. On July 1, 2015, the state trial court
found that the statute of limitations had not expired for his
offenses. The state trial court also denied the
motion as untimely.
October 19, 2015, Law filed a pro se notice of
appeal in the state appellate court. On November 25, 2015, the
state appellate court dismissed Law's appeal as
untimely. On both December 14, 2015 and January 4,
2016, Law filed a motion for reconsideration. The state
appellate court denied both those motions as
20, 2016, Law filed a pro se notice of appeal of the
state appellate court's November 25, 2015 order and a
motion for delayed appeal in the Ohio Supreme
Court. The Ohio Supreme Court denied the motion
for delayed appeal on July 27, 2016.
filed his § 2254 habeas petition with this Court on
December 6, 2016 asserting four grounds of
relief. On March 6, 2017, Respondent filed a
motion to dismiss, arguing that Law's petition was
time-barred. Law did not file an opposition, or
September 20, 2017, Magistrate Judge Greenberg issued a
Report and Recommendation. The Report and Recommendation
recommends that the Court dismiss Law's § 2254
habeas petition as time-barred. The Report and
Recommendation also finds that Petitioner is not entitled to
tolling because of properly filed applications for
post-conviction or collateral proceedings, equity, or actual
October 10, 2017, Petitioner objected to the Report and
Recommendation. Petitioner seems to argue that the
statute of limitations for his crimes had expired; there was
insufficient evidence to secure his conviction; and his
sentence was contrary to law.
Federal Magistrates Act requires a district court to conduct
a de novo review only of those portions of the
Report and Recommendation to which the parties have properly
objected.A district court may adopt without review
parts of the Report and Recommendation to which no party has
Antiterrorism and Effective Death Penalty Act of 1996
controls habeas review of state court
proceedings. A petitioner seeking relief under §
2254 must file his petition within one year of the date on
which his state court conviction became final, subject to
tolling. The conviction becomes final “by
the conclusion of direct review or the expiration of the time
for seeking such review.”
are several ways a limitations period can be tolled.
limitations period is tolled while “properly
filed” applications for state post-conviction or
collateral proceedings are pending.
limitations period can also be tolled through
equity. In order to be entitled to equitable
tolling, a habeas petitioner bears the burden of establishing
that (1) he has been pursuing his rights diligently; and (2)
some extraordinary circumstance stood in his way and
prevented timely filing.
a petitioner's claim of actual innocence can also
overcome the one-year statute of limitations.
A. Statute of Limitations
December 6, 2016 § 2254 petition is untimely.
state court journalized Law's sentence on February 11,
2014. Law had until March 13, 2014, thirty days after his
sentence was final, to timely file an appeal to the state
appellate court. Law failed to do so.
Law's conviction and sentence became “final”
for purposes of AEDPA's statute of limitations on March
14, 2014, when the time for direct review expired.
AEDPA, Law had until March 14, 2015 to file his habeas
petition. Because Law filed his petition on December 6, 2016,
his petition is time-barred unless tolling applies.