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Alls v. Warden, Belmont Correctional Institution

United States District Court, S.D. Ohio, Eastern Division

January 11, 2018

JAMES ALLS, Petitioner,
v.
WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent.

          MICHAEL H. WATSON JUDGE

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Motion to Dismiss, Petitioner's Memorandum Contra Respondent's Motion to Dismiss, and the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that this action be DISMISSED.

         Facts and Procedural History

         On February 14, 2012, Petitioner was sentenced to a term of 15 years after pleading guilty to aggravated robbery and felonious assault charges in Case No. 11CR-02-1081, in the Court of Common Pleas for Franklin County, Ohio. (ECF Nos. 1-1, PAGEID # 7; 11-1, PAGEID # 103-04.) On February 28, 2012, Petitioner filed a direct appeal of that determination pro se in the state court. (ECF No. 11-1, PAGEID # 109-11.)[2] Petitioner alleges that he was unsure about what to do after filing the notice of appeal but that he assumed that he would receive instructions from the court of appeals. (ECF No. 1-2, PAGEID #21.) Petitioner further alleges that that he attempted "to contact his trial counsel several times to ask about appeal procedures, " and that his "family attempted to contact [his] trial counsel, " but that his "attorney never responded." (Id. at PAGEID #22.) Moreover, Petitioner alleges that "access to the law library was minimal at best, " but that in any event, he never visited it, believing instead that he would eventually hear back from the court or his attorney about his appeal. (Id)

         Petitioner's appeal was dismissed on April 19, 2012, for failure to file an appeal brief. (ECF Nos. 1-1, PAGEID # 7; 11-1, PAGEID # 108.) Petitioner alleges that he "did not become aware of the dismissal until he arrived at his parent institution and inquired with the Court about the status of his appeal." (ECF No. 1-2, PAGEID # 18.) Although he does not allege precisely when he made that inquiry, or when he received a response to the same, he alleges that "upon becoming aware" that the appeal had been dismissed, he "immediately filed ... a motion for delayed appeal." (Id.) The state-court docket indicates that Petitioner filed a motion for a delayed appeal on June 12, 2014- more than two years Petitioner's appeal was dismissed. (Franklin County Common Pleas, 14-AP-000469, Docket 6/12/14.) Petitioner's motion for a delayed appeal was denied on June 23, 2014. (ECF No. 11-1, PAGEID # 117.) Petitioner filed a notice of appeal from that determination with the Ohio Supreme Court on July 28, 2014. (ECF No. 11-1, PAGEID # 124.) On October 22, 2014, the Ohio Supreme Court declined to exercise jurisdiction over that appeal. (ECF No. 1-2, PAGEID # 26.)

         Approximately seven months later, on May 27, 2015, Petitioner executed the instant petition for a writ of habeas corpus under 28 U.S.C § 2254. (ECF Nos. 1-1, 1-2.) On June 22, 2015, Petitioner successfully moved to withdraw his federal habeas petition. (ECF Nos. 4, 5.) On July 8, 2015, Petitioner sought a petition of habeas corpus in the Ohio courts, but that relief was denied on April 26, 2016. Alls v. Miller, No. 15 BE 0043, 2016 WL 1730527, (Ohio Ct. App., Belmont County, April 25, 2016). After Petitioner's state habeas action was dismissed, this Court permitted him to reinstate his federal habeas petition on September 12, 2016, conditioned upon payment of the $5.00 filing fee. (ECF No. 7.) Instead of paying that fee, however, on October 19, 2016, Petitioner filed with this Court an identical copy of his petition in a new federal habeas corpus action, which was assigned Case No 2:16-CV-1001. On May 16, 2017, this Court found that the two federal habeas actions were, for all material purposes, identical, and thus consolidated them. (ECF No. 9.)

         In his single assignment of error, Petitioner asserts that the state court of appeals "erred when it did not allow [Petitioner] to proceed with a delayed appeal." (ECF No. 1-1, at 2.) Respondent asserts that Petitioner's claim is time-barred.

         Statute of Limitations

         The Undersigned agrees that Petitioner's claim is time-barred. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year statute of limitations on the filing of habeas corpus petitions. 28 U.S.C. § 2244(d) provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...

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