United States District Court, N.D. Ohio, Eastern Division
ERIC LEWIS, Petitioner.
WARDEN CHARMAINE BRACY, Respondent..
ORDER ADOPTING REPORT AND RECOMMENDATION
C. NUGENT, United States District Judge
matter comes before the Court upon the Report and
Recommendation of Magistrate Judge James R. Knepp, H, which
was issued on January 18, 2018 (ECF #14). For the following
reasons, the Report and Recommendation, is hereby ADOPTED.
March 27, 2017, Petitioner Eric Lewis ("Mr. Lewis")
filed a pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (ECF #1). Mr. Lewis
challenges the constitutionality of his sentence after being
found guilty by a jury in the Mahoning County Court of Common
Pleas of complicity to commit aggravated murder in violation
of Ohio Revised Code § ' 2903.01 (A)(F), along with
a firearm specification in violation of R.C. §
2941.145(A). Petitioner was sentenced to life imprisonment
with parole eligibility after 30 years, and a consecutive
sentence of three years for the firearm specification. Mr.
Lewis raises the following as his ground for relief:
GROUND ONE: Petitioner was denied his rights to Due Process
under the Sixth and Fourteenth Amendments to the U.S.
Constitution when the Ohio Seventh District Court of Appeals
dismissed his App.R. 26(B) Application for reopening, which
effectively denied his opportunity to receive a full and fair
appeal of his conviction, as provided for by the Ohio
Supporting Facts: After being convicted of
complicity to aggravated murder, Petitioner filed a timely
notice of Appeal through his trial counsel. Petitioner was
appointed Attorney Douglas King as his appellate counsel on
November 5, 2007. However, no appellate brief was ever filed
by King. Instead, nearly two years later, King filed a motion
to withdraw as Petitioner's counsel. The motion was
granted on September 22, 2009 and on that same day the
Seventh District Court of Appeals rendered a decision to
affirm the trial court's judgment. Petitioner was never
informed that King was filing a motion to withdraw as
appellate counsel, nor that the motion was granted - nor of
the appellate court's decision to affirm the trial
court's judgment. Because he was not informed in a timely
manner of the foregoing, he was not provided the opportunity
at that time to file a pro se appellate brief. In
late 2015 Petitioner requested from the clerk of courts
copies of the appellate court's decisions above and for
the first time finally received them. Petitioner subsequently
filed an App.R. 26(B) Application for Reopening in February
of 2016, asking the appellate court to reopen his appeal and
to provide him with the opportunity to file a pro se
appellate brief. The application was denied by the appellate
Warden Charmaine Bracy ("Warden Bracy") filed a
Motion to Dismiss the petition on August 9, 2017, arguing
that Mr. Lewis' claims are time-barred. (ECF #7). Mr.
Lewis did not reply directly to the Motion to Dismiss,
despite obtaining additional time in which to file a Reply.
(See ECF #10), but argued in opposition of such dismissal in
other pleadings. (See ECF #13).
Judge Knepp II found that Mr. Lewis' writ is time-barred
under Section 2244(d)(1)(A) of the AEDPA, and recommends that
such petition be DISMISSED. Mr. Lewis did not file a timely
objection to the Report and Recommendation, and this Court
denied Mr. Lews' motion for extension of time in which to
file an objection. (See ECF #16). The Court adopts the
Magistrate Judge's recommendations for the reasons set
Standard of Review for a Magistrate Judge's Report
applicable district court standard of review for a magistrate
judge's report and recommendation depends upon whether
objections were made to that report. When objections are made
to a report and recommendation of a magistrate judge, the
district court reviews the case de novo. Fed. R.
Civ. P. 72(b) provides this standard of review. It states, in
pertinent part, the following:
The district judge to whom the case is assigned shall make a
de novo determination upon the record, or after
additional evidence, of any portion of the magistrate
judge's disposition to which specific written objection
has been made in accordance with this rule. The district
judge may accept, reject, or modify the recommended decision,
receive further evidence, or recommit the matter to the
magistrate judge with instructions.
text of Rule 72(b) addresses only the review of reports to
which objections have been made; it does not indicate the
appropriate standard of review for those reports to which no
objections have been properly made. The Advisory Committee on
Civil Rules commented on a district court's review of
unopposed reports by magistrate judges. In regard to
subsection (b) of Rule 72, the advisory committee states:
"When no timely objection is filed, the court need only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation."
Fed.R.Civ.P. 72 advisory committee's notes (citation
U.S. Supreme Court stated in Thomas v. Am, 474 U.S.
140, 150 (1985): "It does not appear that Congress
intended to require district court review of a magistrate
judge's factual or legal conclusions, under a de
novo or any other standard, when neither party objects
to those findings."
Magistrate Judge Knepp II outlined, the AEDPA requires a
state prisoner seeking a writ of habeas corpus to file his
petition within one year after his state conviction becomes
final by the conclusion of direct review or the expiration of
the time for seeking such review. 28 U.S.C. §
2244(d)(1)(A). Magistrate Judge Knepp II reviewed and
outlined the extensive procedural history in this matter, and
found that Petitioner was required to file his habeas
petition on or before November 7, 2010, absent tolling. (ECF
#14, p. 7). Statutory tolling exists under the AEDPA, which
under proper circumstances, extends the one-year statute of
limitations. Under § 2244(d)(2), the time during which a
properly filed application for post-conviction or other
collateral relief is pending ...