United States District Court, S.D. Ohio, Eastern Division
Elizabeth P. Deavers Judge
OPINION AND ORDER
ALGENON L. MARBLEY JUDGE
December 4, 2018, the Magistrate Judge issued a Report
and Recommendation pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts recommending that this action be dismissed as barred
by the one-year statute of limitations under 28 U.S.C. §
2244(d). (ECF No. 5.) Petitioner has filed an
Objection to the Magistrate Judge's Report
and Recommendation. (ECF No. 8.) Pursuant to 28 U.S.C.
§ 636(b), this Court has conducted a de novo
review. For the reasons that follow, Petitioner's
Objection (ECF No. 8) is OVERRULED.
The Report and Recommendation (ECF No. 5) is
ADOPTED and AFFIRMED. This
action is hereby DISMISSED.
Court DECLINES to issue a certificate of
objects to the recommendation of dismissal of this action as
time-barred. He states that he could not timely appeal,
because he did not know about, and neither the trial court
nor his attorney advised him of his right to appeal. He
argues that, under these circumstances, the statute of
limitations did not begin to run until August 3, 2017, when
the state appellate court denied his motion for a delayed
appeal. Petitioner asserts that he was denied the right to
counsel on appeal, denied the effective assistance of counsel
based on his attorney's failure to consult with him
regarding the filing of an appeal, that his convictions
involve allied offenses of similar import, and that the trial
court improperly imposed the same restitution twice due to
the State's improper failure to join offenses. According
to the Petitioner, the dismissal of this action as
time-barred would violate the Equal Protection Clause in view
of other cases with differing results and ignores the
exhaustion requirement. Petitioner maintains that he acted
diligently in pursuing relief. He acknowledges that he signed
a Plea Agreement indicating that he understood he had a right
to appeal within thirty days, but complains that this
information was “shrunken and buried” in 6-point
“fine print” type face, and that it failed to
advise him of his right to court-appointed counsel.
Petitioner also states that the trial court erroneously
informed him at sentence that he did not have the right to
appeal, thereby preventing his timely appeal.
Objection (ECF No. 8, PAGEID # 45.) Petitioner argues
that he had one year from the date that the Ohio Supreme
Court declined to accept jurisdiction of his appeal, or until
December 21, 2018, to file this action.
arguments are not persuasive. As discussed by the Magistrate
Judge, under the provision of 28 U.S.C. § 2244(d)(1)(A),
Petitioner's judgment of conviction became final on April
14, 2014, when the time for filing a timely appeal expired.
It began to run on the following day, and expired one year
later, April 15, 2015. Petitioner waited approximately three
years and five months, until September 14, 2018, to file this
action. Under the provision of 28 U.S.C. §
2244(d)(1)(D), and DiCenzi v. Rose, 452 F.3d 465
(6th Cir. 2006), where a criminal defendant is not advised of
and does not know about his right to appeal, claims relating
to events that occurred at sentencing may be timely if the
petitioner acted reasonably diligently in learning about his
right to appeal. Here, however, the state appellate court
found that Petitioner had been advised of his right to appeal
and the time limits for filing an appeal. See State v.
Mcfarlane, 10th Dist. Nos. 17AP-424, 425 (Ohio Ct. App.
Aug. 3, 2017). Petitioner has failed to rebut the presumption
of correctness afforded to these factual findings.
See 28 U.S.C. § 2254(e). The docket of the
Franklin County Court of Common Pleas does not support his
claim that the language in the Plea Agreement advising him of
his right to appeal was hidden or unreadable. Further,
Petitioner waited more than one year and one month after the
appellate court's denial of his motion for a delayed
appeal to file this action. He offers no explanation, or
justification, for that delay, and he does not indicate the
manner in which he learned about his right to appeal. He
fails to identify any factor that would have prevented him
from earlier learning about the right to appeal. He has
failed to establish he acted diligently in pursuing relief or
that equitable tolling of the statute of limitations should
be applied. Under these circumstances, this action plainly is
to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court now considers
whether to issue a certificate of appealability. “In
contrast to an ordinary civil litigant, a state prisoner who
seeks a writ of habeas corpus in federal court holds no
automatic right to appeal from an adverse decision by a
district court.” Jordan v. Fisher, ___U.S.___.
___, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1)
(requiring a habeas petitioner to obtain a certificate of
appealability in order to appeal).
claim has been denied on the merits, a certificate of
appealability may issue only if the petitioner “has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make a
substantial showing of the denial of a constitutional right,
a petitioner must show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were ‘adequate to deserve
encouragement to proceed further.'” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot
v. Estelle, 463 U.S. 880, 893, n.4 (1983)). When a claim
has been denied on procedural grounds, a certificate of
appealability may issue if the petitioner establishes that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling. Id.
Court is not persuaded that reasonable jurists would debate
the dismissal of this action as barred by the one-year
statute of limitations under 28 U.S.C. § 2244(d). The
Court therefore DECLINES to issue a
certificate of appealability.
Court certifies that the appeal would not be in good faith
and that an application to proceed in forma pauperis
on appeal should be DENIED.
Clerk is DIRECTED to enter final