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Amnathphonthip v. Warden, North Central Correctional Complex

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

July 26, 2018

XAY X. AMNATHPHONTHIP, Petitioner,
v.
WARDEN, NORTH CENTRAL CORRECTIONAL COMPLEX, Respondent.

          Michael H. Watson Judge.

          ORDER AND REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON 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 Response in Opposition, and the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that Respondent's Motion to Dismiss (Doc. 10) be GRANTED and that this action be DISMISSED.

         Petitioner's request to expand the record with a copy of the transcript of his guilty plea hearing (see Response in Opposition, Doc. 13, PAGEID #: 188) is also DENIED.

         I. FACTS AND PROCEDURAL HISTORY

         On August 15, 2015, Petitioner pleaded guilty in the Franklin County Court of Common Pleas to two counts of conspiracy, in violation of O.R.C. § 2923.01. On September 11, 2015, the trial court imposed an aggregate term of eight years' incarceration. Judgment Entry (Doc. 9, PAGEID #: 68). Petitioner did not file a timely appeal. On May 2, 2016, he filed a Notice of Appeal and motion for a delayed appeal. (PAGEID #: 71, 73). As cause for his untimely filing, Petitioner stated that his attorney failed to inform him that he could appeal his sentence, and that he was under the “reasonable belief upon meeting with a representative from the Ohio Public Defender's Office at the Ohio Correctional Reception Center, that they were going to file my appeal.” (PAGEID #: 75). In that filing, Petitioner stated that he learned, in the first week of April 2016, that the Ohio Public Defender had not filed the appeal. (PAGEID #: 93). On June 28, 2016, the appellate court denied the motion for a delayed appeal. (PAGEID #: 88). On September 27, 2016, the appellate court denied Petitioner's motion for reconsideration. (PAGEID #: 104). Nearly a year later, on July 24, 2017, Petitioner filed a motion for a delayed appeal with the Ohio Supreme Court. (PAGEID #: 147). Petitioner stated that his limited English abilities prevented him from filing a timely appeal. (PAGEID #: 148). On September 13, 2017, the Ohio Supreme Court denied the motion for a delayed appeal. (PAGEID #: 156). Meanwhile, on September 9, 2016, Petitioner pursued a post-conviction petition in the state trial court, asserting that he had been denied the effective assistance of trial counsel, and denied a fair trial due to police and prosecutorial misconduct. (PAGEID #: 107). On August 11, 2017, the trial court denied the post-conviction petition. (PAGEID #: 139). Petitioner did not file an appeal.

         On December 21, 2017, Petitioner filed this pro se Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1-1, PAGEID #: 15). He asserts that he was denied due process and equal protection when the state appellate court and Ohio Supreme Court denied his motion for a delayed appeal, and that he did not make a knowing, intelligent, or voluntary plea because he pleaded guilty without the assistance of an interpreter (claim one); and that he was denied the effective assistance of trial counsel because his attorney failed to obtain an interpreter, failed to explain the ramifications of his guilty plea, failed to contact defense witnesses or present a defense, failed to file a timely appeal, and failed to provide Petitioner with a copy of the case file (claim two). Respondent argues that this action should be dismissed as procedurally defaulted.

         II. DISCUSSION

         A. Statute of Limitations

         The Undersigned concludes that Petitioner's claims are time barred.

         1. Standard

         Although Respondent has not raised a statute of limitations defense, the Court may sua sponte do so. See Rembert v. Wainwright, No. 2:18-cv-188, 2018 WL 1887264, at *1 (S.D. Ohio April 20, 2018) (noting that the court is permitted, but not obligated, to sua sponte address the timeliness of a federal habeas corpus petition) (citing Day v. McDonough, 547 U.S. 198 (2006); Wogenstahl v. Charlotte, No. 1:17-cv-298, 2017 WL 3053645, at *2 (S.D. Ohio July 19, 2017)). The standards of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) govern this case and provide:

(d) (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 any period of limitation under this subsection.

28 U.S.C. § 2244(d).

         2. ...


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