United States District Court, N.D. Ohio, Eastern Division
VALAUGHN D. GRIGGS, Pro Se, Petitioner
WARDEN DAVID MARQUIS, Respondent
SOLOMON OLIVER, JR. UNITED STATES DISTRICT JUDGE
19, 2017, Petitioner Valaughn D. Griggs
(“Petitioner” or “Mr. Griggs”) filed
a Petition for Writ of Habeas Corpus (“Petition”)
(Pet., ECF No. 1) pursuant to 28 U.S.C. § 2254 in the
above-captioned case, challenging his conviction and sentence
on ten counts of robbery. As a result of the conviction,
Petitioner was sentenced to seventeen years in prison. He
argues that his Petition should be granted based on the
following three grounds:
Ground One: Appellate counsel failed to raise assignment of
error explaining how the Appellant was denied the effective
assistance of trial counsel, due to trial counsel failing to
object, move for a mistrial and request for a continuance.
Supporting facts: (1) Appellate counsel did not raise winning
issues regarding trial counsel's failure to object to all
testimony of phone pings from witnesses not deemed or
qualified as experts. (2) Appellate counsel did not raise
assignment of error regarding trial counsel's failure to
object to State's Exhibit 13. (3) Appellate counsel did
not raise an assignment of error pointing to trial
counsel's failure to move for a Rule 29/Mistrial on solid
grounds of conflicting testimony of State's witnesses.
(4) Appellate counsel was ineffective because he failed to
exploit trial counsel's ineffectiveness in failing to
make a motion for continuance after being surprised by
exculpatory evidence on Day 2 of the trial.
Ground Two: Appellate counsel did not raise an assignment of
error concerning prosecutor misconduct.
Supporting facts: Tr.P. 812-842 shows a clear image of
missing photo line-ups and unknown witnesses not disclosed to
defense. Prosecution has knowledge of at least one
photo-lineup that is exculpatory to the defendant but still
has not disclosed to appellate and is withholding and
withheld. The police are a part of the prosecution.
Ground Three: Appellate counsel failed to raise [cumulative]
Supporting facts: (A) Cumulative error analysis constituting
to [sic] reversal. (B) Appellate court stated in the entry in
response to application to re-open pursuant to App.R. 26(B)
that analysis only applies in the trial court[.]
to Local Rule 72.2, the case was referred to Magistrate Judge
Kathleen B. Burke (“Magistrate Judge” or
“Judge Burke”), on August 16, 2017, for
preparation of a Report and Recommendation (“R &
R”). On October 27, 2017, Respondent David Marquis
(“Respondent”) filed a Motion to Dismiss, arguing
that the Petition is barred by the statute of limitations
established in 28 U.S.C. § 2244(d) (1). (ECF No. 7.) Mr.
Griggs did not respond to Respondent's Motion to Dismiss.
January 23, 2018, Judge Burke submitted an R & R,
recommending that Mr. Griggs' Petition be dismissed as
barred by the one-year statute of limitations set forth in
the Antiterrorism and Effective Death Penalty Act of 1996, 28
U.S.C. § 2244. (R & R at 12.) First, the Magistrate
Judge indicated that Mr. Griggs' “case became final
on December 24, 2015, because the Ohio Court of Appeals
affirmed his conviction and sentence in his direct appeal on
November 9, 2015, and Griggs had forty-five days to appeal to
the Ohio Supreme Court, which he did not do.”
(Id. at 10.) The Magistrate Judge determined that
the limitations period was tolled between January 27, 2016,
when Mr. Griggs filed a Rule 26(B) Application with the Ohio
Court of Appeals to reopen his direct appeal, and June 29,
2016, when the Ohio Supreme Court denied Mr. Griggs leave to
appeal the ruling of the Ohio Court of Appeals. (Id.
at 11.) The Magistrate Judge explained that the limitations
period, of which 332 days remained, began running again the
day after the Ohio Supreme Court denied Mr. Griggs leave to
appeal, June 30, 2016. (Id.) Consequently, the
Magistrate Judge found that the statute of limitations
expired on May 28, 2017. (Id.) Because Mr. Griggs
filed the instant Petition on July 19, 2017, Judge Burke
determined that the Petition was filed 52 days after the
deadline for doing so.
the Magistrate Judge explained that Mr. Griggs provided no
basis for equitable tolling. She noted that Mr. Griggs did
not file a response to Respondent's Motion to Dismiss. As
a result, Judge Burke determined that Mr. Griggs failed to
satisfy his burden for establishing an entitlement to
the date of this Order, Petitioner has not filed objections
to the R & R. By failing to timely object, Petitioner has
waived the right to appeal this court's Order. See
Thomas v. Arn, 474 U.S. 140, 152 (1985); United
States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
After careful review of Judge Burke's R & R and all
other relevant documents in the record, the court finds no
clear error. See Fed. R. Civ. P. 72(b) advisory
committee's note to 1983 addition; Arn, 474 U.S.
at 150 (“It does not appear that Congress intended to
require the 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.”). Accordingly, the court adopts Judge
Burke's R & R in its entirety and hereby dismisses
Mr. Griggs' Petition for Writ of Habeas Corpus (ECF No.
1) as time-barred. The court also certifies ...