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West v. Warden, Warren Correctional Institution

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

July 20, 2018

KENNETH RYAN WEST, Petitioner,
v.
WARDEN, WARREN CORRECTIONAL INSTITUTION, Respondent.

          EDMUND A. SARGUS, JR. CHIEF JUDGE

          ORDER AND REPORT AND RECOMMENDATION

          Elizabeth A. Preston Deavers United States Magistrate Judge

         Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 1.) Petitioner seeks release from confinement pursuant to a state court judgment in a criminal action. This case has been referred to the Undersigned pursuant to 28 U.S.C § 636(b) and Columbus' General Order 14-1 regarding assignments and references to United States Magistrate Judges. Petitioner also moves to proceed with this action in forma pauperis. (ECF No. 2.) The Court finds that Petitioner's motion is meritorious, and thus, the motion is GRANTED. Petitioner shall be permitted to prosecute this action without prepayment of fees or costs and judicial officers who render services in this action will do so as if costs had been prepaid.

         Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court ("Rule 4"), this Court must conduct a preliminary review to determine whether “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4. If it does so appear, the petition must be dismissed. Id. Rule 4 allows for the dismissal of petitions which raise legally frivolous claims, as well as petitions that contain factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). For the reasons that follow, it plainly appears Petitioner is not entitled to relief because his claims are time-barred. Accordingly, the Undersigned RECOMMENDS that this action be DISMISSED.

         Facts and Procedural Background

         On July 30, 2015, Petitioner was tried and convicted of one count of robbery in the Court of Common Pleas for Muskingham County, Ohio. State v. West, No. CT2015-0050, 2016 WL 3961995, at * 1 (Ohio Ct. App. July 18, 2016). On September 8, 2015, Petitioner was sentenced to an aggregated term of 13 years for robbery with a Repeat Violent Offender specification. Id. On direct appeal, Petitioner alleged that the trial court erred by failing to suppress evidence obtained by a police officer during a warrantless stop of his vehicle because the officer lacked a reasonable, articulable suspicion to justify the stop. Id. at * 2. On July 18, 2016, the state appellate court overruled that single assignment of error and affirmed the trial court's judgment. Id. at *2-5.

         Petitioner did not timely appeal that determination to the Ohio Supreme Court. The online docket for the Muskingham County Clerk of Court indicates, however, that on December 1, 2016, Petitioner moved to re-open his appeal pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure. The appellate court denied Petitioner's Rule 26(B) motion on January 9, 2017.[1] Petitioner did timely appeal that determination to the Ohio Supreme Court either. Instead, the on-line docket for the Ohio Supreme Court indicates that on July 25, 2017, Petitioner executed a motion to file a delayed appeal in the Ohio Supreme Court pursuant to Rule 7.01(A)(4)(a). The Ohio Supreme Court denied Petitioner's motion for a delayed appeal on September 27, 2017. State v. West, 150 Ohio St.3d 1441 (2017). Petitioner executed his federal habeas corpus petition on April 7, 2018.

         Law and Analysis

         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 retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward ...

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