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Garrett v. Warden, Toledo Correctional Institution

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

June 24, 2019

DEVIN GARRETT, Petitioner,
v.
Warden, Toledo Correctional Institution, Respondent.

          Walter H. Rice District Judge

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This is a habeas corpus case brought pro se by petitioner Devin Garrett to obtain relief from his conviction in the Montgomery County Court of Common Pleas on charges of aggravated robbery and felonious assault with firearm specifications. The case has been referred to the undersigned under 28 U.S.C. § 636(b).

         The case is before the Court for initial review under Rule 4 of the Rules Governing § 2254 Cases which provides that the clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

         On the face of the Petition, Garrett shows that his conviction occurred on March 10, 2016, and he was sentenced on March 23 (ECF No. 1, PageID 1). He then appealed to the Second District Court of Appeals, which affirmed the conviction. State v. Garrett, 2nd Dist. Montgomery No. 27264, 2017-Ohio-8492 (Nov. 9, 2017). Garrett did not file a timely appeal to the Supreme Court of Ohio, so his time to file a petition for writ of habeas corpus began to run on the last day on which he could have done so, forty-five days after the appellate court judgment-no later than December 24, 2017. His conviction became final on that date.

         Habeas corpus actions under 28 U.S.C. § 2254 are subject to a one-year statute of limitations, codified at 28 U.S.C. § 2244(d) which provides:

(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 post-conviction 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.

         Garrett does not allege any events that would bring his case within § 2244(d)(1)(B), (C), or (D). The deadline for filing would therefore be one year from the date the conviction became final, December 24, 2018. Because Petitioner is incarcerated, his Petition would have been ...


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