United States District Court, N.D. Ohio, Eastern Division
STANLEY E. REDD, JR., Petitioner,
TOM SCHWEITZER, Respondent.
MEMORANDUM OF OPINION AND ORDER
CHRISTOPHER A. BOYKO, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Petitioner Stanley E. Redd,
Jr.'s Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (ECF #1). For the
following reasons, the Court accepts and adopts the
Magistrate Judge's Report and Recommendation, and
dismisses Petitioner's Petition as time barred.
following is a factual synopsis of Petitioner's claims.
The Magistrate Judge's Report and Recommendation, adopted
and incorporated, provides a more complete and detailed
discussion of the facts.
2011, the Trumbull County Grand Jury indicted Petitioner on
two counts of Trafficking in Cocaine and one count of
Possession of Cocaine. All three counts included Forfeiture
Specifications. In January 2013, Petitioner withdrew his not
guilty plea and entered a plea of no contest to an amended
Indictment, which included two counts of Drug Trafficking and
one count of Possession of Cocaine, including the Forfeiture
Specifications. The Plea Agreement included an explanation of
Petitioner's appeal rights. On April 17, 2013, Petitioner
was sentenced to eleven months in prison on each of Counts
One and Two and four years in prison on Count Three, to be
served concurrent to each other for a total prison sentence
of four years.
23, 2013, Petitioner filed a Notice of Appeal to the Eleventh
District Court of Appeals. On August 1, 2013, the State filed
a Motion to Dismiss the appeal for failure to prosecute,
arguing that Petitioner had failed to file an Appellate Brief
as required by the appellate rules and had not filed a Motion
for Extension of Time to file his Brief. Petitioner did not
file an opposition to the State's Motion to Dismiss. On
September 16, 2013, the Court of Appeals granted the
State's Motion to Dismiss and dismissed the Appeal for
failure to prosecute.
December 4, 2013, Petitioner filed a Motion to Reinstate
Case. The State filed an Opposition. On March 11, 2014, the
Court of Appeals denied Petitioner's Motion to Reinstate
Case. The Court of Appeals explained that Petitioner's
brief was due on July 22, 2013 and was not dismissed by the
Court of Appeals for failure to prosecute until September 16,
2013. Petitioner did not file a Motion to Reinstate until
December 4, 2013.
March 23, 2015, Petitioner filed a Notice of Appeal and
Motion for Leave to File Delayed Appeal in the Court of
Appeals. On August 3, 2015, the Court of Appeals overruled
Petitioner's Motion for Leave and dismissed his Appeal.
On September 17, 2015, Petitioner filed a Notice of Appeal
from the Eleventh District Court of Appeals' August 3,
2015 Judgment with the Supreme Court of Ohio. On October 16,
2015, the State filed a Memorandum in Opposition. On February
10, 2016, the Supreme Court of Ohio declined to accept
jurisdiction of Petitioner's Appeal.
filed the instant Petition on February 8, 2017, asserting one
ground for relief:
GROUND ONE: Petitioner's
constitutional rights pursuant to, inter alia, the due
process clause of the federal constitution, were violated
when the Ohio state courts failed to liberally construe
Petitioner's filings and ignored a stark violation of
Petitioner's right to effective assistance of counsel.
February 13, 2017, this Court referred Petitioner's
Petition to the Magistrate Judge for a Report and
Recommendation. Respondent filed a Motion to Dismiss the
Petition as Time-Barred on April 26, 2017. The Magistrate
Judge issued his Report and Recommendation on January 21,
2016. On February 8, 2016, Petitioner filed an Objection to
the Magistrate's Judge's Report and Recommendation.
federal habeas claim has been adjudicated by the state
courts, 28 U.S.C. § 2254(d)(1) provides the writ shall
not issue unless the state decision “was contrary to,
or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court of
the United States.” Further, a federal court may grant
habeas relief if the state court arrives at a decision
opposite to that reached by the Supreme Court of the United
States on a question of law, or if the state court decides a
case differently than did the Supreme Court on a set of
materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405-406 (2000). The appropriate
measure of whether or not a state court decision unreasonably
applied clearly established federal law is whether that state
adjudication was “objectively unreasonable” and
not merely erroneous or incorrect. Williams, 529
U.S. at 409-411.
to 28 U.S.C. § 2254(e)(1), findings of fact made by the
state court are presumed correct, rebuttable only by clear
and convincing evidence to the contrary. McAdoo v.
Elo, 365 F.3d 487, 493-494 (6th Cir. ...