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Law v. Potter

United States District Court, N.D. Ohio

October 17, 2017

ROBERT LAW, Petitioner,
v.
MARY POTTER, WARDEN, Respondent.

          OPINION & ORDER [RESOLVING DOC. 8]

          JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

         Petitioner 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.[1] Petitioner objects.[2]

         For the following reasons, this Court OVERRULES Petitioner's objections, ADOPTS Magistrate Judge Greenberg's Report and Recommendation, and DISMISSES Petitioner's § 2254 petition.

         I. BACKGROUND

         On November 27, 2013, Law pled guilty to rape and gross sexual imposition.[3] 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.[4] The state court also determined that Law was a Tier III Sexually Oriented Offender and was subject to five years mandatory post-release control.[5] The state court journalized Law's sentence on February 11, 2014.[6]

         Law did not appeal his sentence to the state appellate court.

         On June 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.”[7] 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.[8] The state trial court treated the motion as a motion to vacate Law's sentence.[9] On July 1, 2015, the state trial court found that the statute of limitations had not expired for his offenses.[10] The state trial court also denied the motion as untimely.[11]

         On October 19, 2015, Law filed a pro se notice of appeal in the state appellate court.[12] On November 25, 2015, the state appellate court dismissed Law's appeal as untimely.[13] On both December 14, 2015 and January 4, 2016, Law filed a motion for reconsideration.[14] The state appellate court denied both those motions as untimely.[15]

         On May 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.[16] The Ohio Supreme Court denied the motion for delayed appeal on July 27, 2016.[17]

         Law filed his § 2254 habeas petition with this Court on December 6, 2016 asserting four grounds of relief.[18] On March 6, 2017, Respondent filed a motion to dismiss, arguing that Law's petition was time-barred.[19] Law did not file an opposition, or otherwise respond.

         On September 20, 2017, Magistrate Judge Greenberg issued a Report and Recommendation.[20] The Report and Recommendation recommends that the Court dismiss Law's § 2254 habeas petition as time-barred.[21] 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 innocence.[22]

         On October 10, 2017, Petitioner objected to the Report and Recommendation.[23] 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.[24]

         II. LEGAL STANDARD

         The 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.[25]A district court may adopt without review parts of the Report and Recommendation to which no party has objected.[26]

         The Antiterrorism and Effective Death Penalty Act of 1996 controls habeas review of state court proceedings.[27] 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.[28] The conviction becomes final “by the conclusion of direct review or the expiration of the time for seeking such review.”[29]

         There are several ways a limitations period can be tolled.

         The limitations period is tolled while “properly filed” applications for state post-conviction or collateral proceedings are pending.[30]

         The limitations period can also be tolled through equity.[31] 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.[32]

         Finally, a petitioner's claim of actual innocence can also overcome the one-year statute of limitations.[33]

         III. ANALYSIS

A. Statute of Limitations

         Law's December 6, 2016 § 2254 petition is untimely.

         The 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.[34] Law failed to do so.

         Therefore, 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.

         Under 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.

         B. ...


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