United States District Court, S.D. Ohio, Eastern Division
Vascura Magistrate Judge.
OPINION AND ORDER
C. SMITH, JUDGE.
October 10, 2017, the Magistrate Judge issued a Report
and Recommendation pursuant to Rule 4 of the Rules
Governing Section 2254 Cases recommending that this action be
DISMISSED as barred by the one-year statute
of limitations provided for under 28 U.S.C. §
2244(d). (Doc. 2.) Petitioner has filed an
Objection to the Magistrate Judge's Report
and Recommendation. (Doc. 3.) Pursuant to 28 U.S.C.
§ 636(b), this Court has conducted a de novo
review. For the reasons that follow, Petitioner's
Objection (Doc. 3) is OVERRULED.
The Report and Recommendation (Doc. 2) is
ADOPTED and AFFIRMED. This
action is hereby DISMISSED.
Court DECLINES to issue a certificate of
objects to the Magistrate Judge's recommendation of
dismissal of this action as time-barred. He complains that
the Respondent has yet to respond to the merits of his
claims. Petitioner argues that his attorney's failure to
file a timely appeal or failure to file a motion for a
delayed appeal denied him the effective assistance of counsel
and excuses his untimely filing. Petitioner additionally
submits that this action is timely under the provision of 28
U.S.C. § 2244(d)(1)(D), which provides that that statute
of limitations does not begin to run until “the date on
which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due
diligence.” According to Petitioner, the statute of
limitations did not begin to run under the provision of
§ 2244(d)(1)(D), because his attorney provided him with
incorrect information regarding the impact of State v.
Foster, 109 Ohio St.3d 1 (Ohio 2006) (severing as
unconstitutional fact-finding portions of Ohio's
sentencing statutes) on his sentence, and the statute of
limitations therefore did not begin to run until December
2014, after he conducted legal research and discovered the
factual predicate for his claim that the trial court had
erred in imposing consecutive terms of incarceration.
Petitioner contends that he would have timely appealed but
for trial counsel's inaccurate advice regarding the
impact of Foster. Petitioner maintains that these
circumstances warrant equitable tolling of the statute of
limitations, because bad advice from counsel purportedly
prevented him from filing a timely appeal. These arguments
are not persuasive.
challenges his November 29, 2012, convictions in the Licking
County Court of Common Pleas on two counts of rape and two
counts of unlawful sexual conduct. He pleaded guilty pursuant
to the terms of his negotiated a plea agreement whereby the
State amended “the indictment from two counts of rape
of a child under 13 which would carry a life sentence to two
counts of rape by force which carried a maximum sentence of
11 years for each count.” State v. Hill, No.
15-CA-13, 2016 WL 1176036, at *1 (Ohio App. 5th Dist. March
17, 2016). The trial court imposed a sentence of twelve years
imprisonment pursuant to the agreement of the parties.
Id. “The 12 year sentence was reached by
imposing a four year sentence on each rape count to run
concurrent with each other. In addition, four years on each
unlawful sexual conduct count consecutive to each other and
consecutive to the rape count for a total sentence of 12
years.” Id. Petitioner did not file an appeal
or otherwise challenge his sentence until approximately two
years later, when he filed a “Motion to
Re-Sentence” arguing that the trial court lacked a
basis for imposition of consecutive terms of incarceration.
discussed by the Magistrate Judge, applying the provision of
§ 2244(d)(1)(A), Petitioner's conviction became
final on December 30, 2012, when the time period expired to
file a timely appeal. It expired one year later, in December
2013, long before Petitioner executed this habeas corpus
petition, in September 2017. Moreover, the record does not
reflect that application of the provision of §
2244(d)(1)(D) assists him. Petitioner “bears the burden
of proving that he exercised due diligence, in order for the
statute of limitations to begin running from the date he
discovered the factual predicate of his claim” under
§ 2244(d)(1)(D). DiCenzi v. Rose, 452
F.3d 465, 471 (6th Cir. 2006). Petitioner has failed to meet
this burden here. Despite his arguments to the contrary, the
factual predicate for Petitioner's claim was readily
apparent in 2012, when the trial court imposed sentence, not
two years later, after Petitioner had finished conducting his
legal research. See Houston v. Coleman, No.
3:16-cv-3043, 2017 WL 4174799, at * (N.D. Ohio Aug. 8, 2017)
(“ ‘[N]ewly discovered law' cannot restart
the limitations period for a § 2254 petition; only new
facts may do so.”) (citing Phillips v. United
States, 734 F.3d 573, 580 (6th Cir. 2013)).
§ 2244(d)(1)(D) is triggered by the inability to
discover the factual predicate of a claim, rather than the
inability to understand the legal issues that may be raised
based on known facts. Cf. Tatum v. Warden, Allen Corr.
Inst., No. 1:07-cv-355, 2008 WL 1766790, at *1, *7 n. 5
(S.D.Ohio Apr.11, 2008) (Beckwith, J.; Black, M.J.) (and
cases cited therein) (the § 2244(d)(1)(D) “inquiry
turns on the discovery of the facts giving rise to the
petitioner's claim, not the discovery of the legal basis
or all evidence supporting the claim”) (internal
citation and quotation omitted); see also Dixon v.
Jeffreys, No. 2:11-cv-86, 2011 WL 6009695, at *3
(S.D.Ohio Oct.5, 2011) (Deavers, M.J.) (Report &
Recommendation) (quoting Reese v.
Timmerman-Cooper, No. 3:10-cv-218, 2010 WL 2998880, at
*1 (S.D.Ohio June 28, 2010) (Merz, M.J.) (Report &
Recommendation) (“Nothing in § 2244 suggests
that the statute begins to run when a petitioner finally
understands the legal significance of facts relevant to his
claim.”)), adopted, No. 2:11- cv-86, 2011 WL 6019102
(S.D.Ohio Dec.1, 2011) (Graham, J.).
Harris v. Warden, No. 1:12-cv-261, 2013 WL 492993,
at *7 (S.D. Ohio Feb. 7, 2013).
the record does not reflect that equitable tolling of the
statute of limitations is warranted. The one-year statute of
limitations is subject to equitable tolling where the
litigant's failure to meet the legally-mandated deadline
unavoidably arose from circumstances beyond his control.
See Hall v. Warden, Lebanon Correctional Inst., 662
F.3d 745, 749 (6th Cir. 2011) (citing Robertson v.
Simpson, 624 F.3d 781, 783 (6th Cir. 2010)). Equitable
tolling is granted sparingly. Robertson, 624 F.3d at
783. In order to demonstrate that he is entitled to equitable
tolling of the statute of limitations, the Petitioner must
establish that he has diligently pursued relief and that
“some extraordinary circumstance stood in his way and
prevented timely filing.” Holland v. Florida,
560 U.S. 631, 649 (2010) (citation omitted). The petitioner
bears the burden of demonstrating that he is entitled to
equitable tolling. Ata v. Scutt, 662 F.3d 736, 741
(6th Cir. 2011). The Supreme Court has allowed equitable
tolling where a claimant actively pursued judicial remedies
by filing a timely, but defective, pleading or where he was
induced or tricked by his opponent's misconduct into
allowing the filing deadline to pass. Irwin v. Dep't
of Veterans Affairs, 498 U.S. 89, 96 (1990).
Where the claimant failed to exercise due diligence in
preserving his legal rights, courts are much less forgiving.
Id.; Jurado v. Burt, 337 F.3d 638, 642-13 (6th Cir.
2003). A prisoner's pro se incarcerated status,
lack of knowledge regarding the law, and limited access to
the prison's law library or to legal materials do not
provide a sufficient justification to apply equitable tolling
of the statute of limitations. Hall, 662 F.3d at 751
(citation omitted); see also Keeling v. Warden, Lebanon
Correctional Inst., 673 F.3d 452, 464 (6th Cir. 2012)
(citations omitted). These are conditions typical for many
prisoners and do not rise to the level of exceptional
circumstances. Groomes v. Parker, No. 3:07-cv-0124,
2008 WL 123935, at *5 (M.D.Tenn. Jan.9, 2008) (citing
Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004)).
Similarly, bad advice from a fellow inmate or other
non-lawyers does not constitute grounds for equitable tolling
of the statute of limitations. Allison v. Smith, No.
2:14-cv-10423, 2014 WL 2217238, at *5 (E.D.Mich. May 29,
2014) (citing Smith v. Beightler, 49 Fed.Appx. 579,
580-81 (6th Cir. 2002); United States v. Cicero, 14
F.3d 199, 204-05 (D.C.Cir. 2000); Henderson v.
Johnson, 1 F.Supp.2d 650, 655 (N.D.Tex.1998)).
“Generally, a habeas petitioner's reliance on
unreasonable or incorrect legal advice from his attorney is
not a valid ground for equitable tolling of the statute of
limitation.” Brown v. Bauman, No. 2:10-cv-
264, 2012 WL 1229397, at *9 (W.D.Mich. April 12, 2012)
(citations omitted). “The fact that Petitioner may be
ignorant of the law and instead chose to rely on counsel, in
itself, does not provide a basis for equitable tolling.
Neither a prisoner's pro se status nor his lack
of knowledge of the law constitute[s] extraordinary
circumstances justifying equitable tolling.” Taylor
v. Palmer, No. 2:14-cv-14107, 2014 WL 6669474, at *4
(E.D.Mich. Nov.11, 2014) (citing Rodriguez v. Elo,
195 F.Supp.2d 934, 936 (E.D.Mich. 2002); Johnson v.
United States, 544 U.S. 295, 311 (2005) (“[W]e
have never accepted pro se representation alone or
procedural ignorance as an excuse for prolonged inattention
when a statute's clear policy calls for
promptness”)). In Holland, 560 U.S. 631, the
Supreme Court held that egregious misconduct by an attorney
may constitute an extraordinary circumstance warranting
equitable tolling of the statute of limitations, but noted
that a “garden variety claim of excusable neglect,
” such as a miscalculation that leads a lawyer to miss
a filing deadline, would not justify the equitable tolling of
the statute of limitations. Id. at 651-52 (citations
has failed to establish either that he acted diligently in
pursuing relief, or that some extraordinary circumstances
prevented his timely filing. Petitioner does not allege any
egregious misconduct on the part of defense counsel. Further,
the Court does not require a response from the Respondent
regarding the merits of Petitioner's claims where the
record reflects that the case is plainly barred from review
as untimely. “A district court may dismiss a habeas
petition sua sponte on limitations grounds when
conducting an initial review under Rule 4 of the Rules
Governing § 2254 Cases.” Wogenstahl v.
Charlotte, No. 1:17-cv-298, 2017 WL 3053645, at *2 (S.D.
Ohio July 19, 2017) (citing Day v. McDonough, 547
U.S. 198 (2006)).
for the foregoing reasons and for the reasons discussed in
the Magistrate Judge's Report and
Recommendation, Petitioner's Objection
(Doc. 3) is OVERRULED. The Report and
Recommendation (Doc. 2) is ADOPTED and
AFFIRMED. This action is hereby
to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court now considers
whether to issue a certificate of appealability. “In
contrast to an ordinary civil litigant, a state prisoner who
seeks a writ of habeas corpus in federal court holds no
automatic right to appeal from an adverse decision by a
district court.” Jordan v. Fisher, ___ U.S.
___. ___, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. §
2253(c)(1) (requiring a habeas petitioner to obtain a
certificate of appealability in order to appeal.)
claim has been denied on the merits, a certificate of
appealability may issue only if the petitioner “has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make a
substantial showing of the denial of a constitutional right,
a petitioner must show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were ‘adequate to deserve