United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
L. GRAHAM Magistrate Judge Chelsey M. Vascura
October 30, 2017, the Magistrate Judge issued a Report
and Recommendation pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts recommending that the petition for a writ of habeas
corpus be dismissed as barred by the one-year statute of
limitations provided for under 28 U.S.C. §
2244(d). (Doc. 7.) Petitioner has filed an
Objection to the Magistrate Judge's Report
and Recommendation. (Doc. 8.) 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. 8) is OVERRULED.
The Report and Recommendation (Doc. 7) 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 asserts that he
was denied the effective assistance of counsel, that his
guilty plea was not knowing, intelligent or voluntary in view
of his mental health issues and incompetence, which
constitutes extraordinary circumstances justifying equitable
tolling of the statute of limitations. Petitioner states that
he is currently housed in a mental health institution at the
Allen Correctional Facility, taking psychotropic medication,
which has prevented him from timely filing. He maintains that
he has acted diligently in pursuing relief, and refers to his
pro se incarcerated status as grounds for equitable
tolling of the statute of limitations. Petitioner also
indicates the state courts did not advise him that he would
be required to register as a sex offender and re-sentenced
him after he had completed 14 years of his sentence.
Petitioner has provided neither the date of any such
re-sentencing hearing, nor a copy of any judgment entry of
sentence subsequent to his December 22, 1992, guilty plea.
Entry (Doc. 1-1, PageID# 14.) Moreover, even
assuming, arguendo, that he did so, the one-year
statute of limitations nonetheless would have long since
expired. However, based on the allegations set forth in the
Petition, the statute of limitations expired in
April 1997, more than twenty years and six months prior to
the filing of this action. Moreover, Petitioner has failed to
demonstrate that equitable tolling of the statute of
limitations is warranted. 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)). Further,
[t]o obtain equitable tolling based on mental incompetency,
“a petitioner must demonstrate that (1) he is mentally
incompetent and (2) his mental incompetence caused his
failure to comply with AEDPA's statute of
limitations.” Ata, 662 F.3d at 742. However,
equitable tolling should be applied “sparingly, ”
Id. at 741, and mental incompetency is not a per se
reason to toll the statute of limitations. McSwain v.
Davis, 287 Fed.Appx. 450, 456 (6th Cir.2008). Rather, a
petitioner must show “a causal link between the mental
condition and untimely filing.” Ata, 662 F.3d
at 742. The burden of production and persuasion rests on the
petitioner to show he or she is entitled to equitable
tolling. Id. at 741.
Kitchen v. Bauman, 629 Fed.Appx. 743, 747 (6th Cir.
2015). Petitioner has failed to meet this burden here.
these reasons, and for the reasons detailed in the Magistrate
Judge's Report and Recommendation,
Petitioner's Objection (Doc. 8) is
OVERRULED. The Report and
Recommendation (Doc. 7) 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
encouragement to proceed further.' ” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot
v. Estelle, 463 U.S. 880, 893, n. 4 (1983)). When a
claim has been denied on procedural grounds, a certificate of
appealability may issue if the petitioner establishes that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right, and that jurists of reason would find
it debatable whether the district court was correct in its
procedural ruling. Id.
Court is not persuaded that reasonable jurists would debate
the dismissal of this action as time-barred. Therefore, the
Court DECLINES to issue a certificate of
Clerk is DIRECTED to enter FI ...