United States District Court, S.D. Ohio, Western Division, Dayton
CORY O. BLACK, Petitioner,
Warden, Southern Ohio Correctional Facility, Respondent.
H. Rice District Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
habeas corpus case is before the Court on Petitioner's
Objections (ECF No. 9) to the Magistrate Judge's Report
(ECF No. 8) which recommended dismissal of the Petition as
barred by the statute of limitations. Judge Rice has
recommitted the case for reconsideration in light of the
Objections (ECF No. 10).
Petition itself shows Mr. Black pled no contest to three
counts of felonious assault, discharging a firearm at or near
prohibited premises, having weapons while under disability,
and tampering with evidence. (Amended Petition, ECF No. 7,
PageID 28. He took no appeal, so his conviction became final
July 30, 2009, thirty days after he was sentenced. Under the
one-year statute of limitations codified at 28 U.S.C. §
2244(d), the habeas corpus petition was required to be filed
not later than July 30, 2010, but was not in fact filed until
December 8, 2017.
Report discounts Black's claim of a later starting date
arising from a letter he wrote to Judge Singer asking for
clarification of the judgment. In response, Judge Singer
specifically refused to amend the judgment, although he
ordered the docket changed to be clearer. A docket amendment
is not the same as a judgment amendment for habeas corpus
purposes. Compare King v. Morgan, 807 F.3d 154
(6th Cir. 2015). The original sentencing judgment
has never been amended. (See ECF No. 7-1, PageID 42.)
excuse the delay, Black blames medication he was taking at
unspecified dates which he says caused memory loss and
dysfunctional behavior. He asserts the Court should
investigate that and gives a telephone number at the Southern
Ohio Correctional Facility. Federal courts are not authorized
to investigate claims like this on behalf of litigants.
Rather, Petitioner has the obligation to furnish proof, by
documentation or affidavit from SOCF personnel, of the
diagnoses and medications.
further attempt to excuse the delay, Black says the Court has
not investigated whether attorneys Bobby Jo Cox, Chris
Wesner, and Ben Swift have been “unresponsive.”
But Black offers no proof that he has sought responses from
them or what information they have that would have permitted
him to file earlier. Black is not entitled to appointed
counsel to pursue a habeas corpus claim. The right to
appointed counsel extends to the first appeal of right and no
further, so the unresponsiveness of his prior counsel,
assuming it occurred, would be immaterial. Pennsylvania
v. Finley, 481 U.S. 551, 555 (1987); Ross v.
Moffitt, 417 U.S. 600 (1974).
Black also offers a defense on the merits to his original
charges, claiming he acted in self defense and claiming the
benefit of the “stand your ground” law. But the
time to do that was when the charges were initially brought.
Mr. Black with the assistance of counsel pled no contest to
the charges that resulted in his imprisonment. It is simply
too late now to claim innocence and in fact Mr. Black offers
no new evidence of innocence such as might excuse his delay
in filing. See Souter v. Jones, 395 F.3d 577
(6th Cir. 2005).
reconsidered the case in light of the Objections, the
Magistrate Judge again respectfully recommends that Petition
herein be dismissed with prejudice as barred by the statute
of limitations. Because reasonable jurists would not disagree
with this conclusion, Petitioner should be denied a
certificate of appealability and the Court should certify to
the Sixth Circuit that any appeal would be objectively
frivolous and therefore should not be permitted to proceed
in forma pauperis.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within fourteen days after being served with
this Report and Recommendations. Pursuant to Fed.R.Civ.P.
6(d), this period is extended to seventeen days because this
Report is being served by mail. .Such objections shall
specify the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in
whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all
parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party's
objections within fourteen days after ...