United States District Court, S.D. Ohio, Eastern Division
Edward B. Avery, Sr., Petitioner,
Warden, Marion Correctional Institution, Respondent.
Kimberly A. Jolson, Magistrate Judge
OPINION AND ORDER
MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT
March 28, 2019, after conducting an evidentiary hearing, the
Magistrate Judge issued an Order and Report and
Recommendation ("Order and R&R") recommending
that Respondent's Motion to Dismiss this action as barred
by the one-year statute of limitations, ECF No. 6, be denied
and that Petitioner's Request to Hold Action in Abeyance,
ECF No. 2, be denied as moot. ECF No. 21. Both the Petitioner
and the Respondent have filed Objections to the Order and
R&R. ECF Nos. 24, 25. Respondent has responded to
Petitioner's objections. ECF No. 26.
challenges his August 4, 1997, convictions after a jury trial
in the Union County Court of Common Pleas on rape, robbery,
aggravated burglary, and kidnapping with a sexual motivation
specification. On May 12, 1999, he filed his first §
2254 petition. On June 9, 2000, this Court dismissed that
action without prejudice at Petitioner's request.
Avery v. Brigano, No. 2:99-cv-459. On February 13,
2002, Petitioner filed a second § 2254 petition. On
January 13, 2002, this Court dismissed that action as
time-barred. Avery v. Wilson, No. 2:02-cv-139.
Subsequently, on November 23, 2010, the trial court conducted
a de novo sentencing hearing due to its prior failure to
properly notify Petitioner of post-release control
("PRC"), and on November 24, 2010, re-sentenced him
to an aggregate term of thirty years. See State v.
Avery, 3rd Dist. No. 14-10-35, 2011 WL 3656470 (Ohio Ct.
App. Aug. 22, 2011). The state appellate court affirmed the
trial court's judgment. Id. On January 18, 2012,
the Ohio Supreme Court declined to accept jurisdiction of the
appeal. State v. Avery, 131 Ohio St.3d 1412 (Ohio
on January 23, 2013, Petitioner filed a third § 2254
petition; however, on September 13, 2013, this Court
transferred that action to the United States Court of Appeals
for the Sixth Circuit as successive. Avery v.
Bunting, No. 2:13-cv-00097. On May 21, 2014, the Sixth
Circuit denied authorization for the filing of a successive
habeas corpus action. ECF No. 5-2, PAGEID # 886. On July 21,
2017, Petitioner filed a second motion for authorization for
the filing of a successive habeas corpus petition.
Id. at PAGEID # 898. On February 21, 2018, the Sixth
Circuit issued an Order denying that motion as unnecessary,
in view of Petitioner's 2010 re-sentencing hearing, and
under King v. Morgan, 807 F.3d 154 (6th Cir. 2015)
(holding that a new judgment of sentence issued after a full
re-sentencing permits a Petitioner to challenge his
conviction without triggering the second or successive
requirements), and In re Stansell, 828 F.3d 412, 417
(6th Cir. 2016) (even a partial re-sentencing to include a
term of post-release control creates "a new judgment,
which reopens challenges to any aspect of that judgment,
whether related to the conviction, the sentence, or
both."). ECF No. 7-1, PAGEID # 949-51.
on April 12, 2018, Petitioner submitted this, his fourth
habeas corpus petition, to prison officials for mailing. ECF
No. 1, PAGEID # 16. Respondent seeks dismissal of this action
as time-barred. The Court appointed counsel to represent
Petitioner at an evidentiary hearing for the limited purpose
of determining whether Petitioner diligently pursued relief
following the Sixth Circuit's May 23, 2014 Order denying
him authorization for the filing of a successive § 2254
petition. On March 28, 2019, the Magistrate Judge issued the
Order and R&R recommending denial of Respondent's
Motion to Dismiss this action as time barred. ECF No. 21. As
discussed, both the Petitioner and the Respondent have filed
objections to the R&R. ECF Nos. 24, 25. Pursuant to 28
U.S.C. § 636(b), this Court has conducted a de novo
review. For the following reasons, Petitioner's
Objections, ECF No. 25, and Respondent's Objections, ECF
No. 24, are OVERRULED. The Order and
R&R, ECF No. 21, is ADOPTED and
AFFIRMED. Respondent's Motion to
Dismiss, ECF No. 6, is DENIED.
Petitioner's Request to Hold Action in Abeyance, ECF No.
2, is DENIED, as moot.
shall file a response to the Petition that conforms to the
requirements of Rule 5 of the Rules Governing § 2254
Cases within thirty (30) days. Petitioner may file a reply
within thirty (30) days thereafter.
objects to Respondent's filing of any further response
after the filing of the Motion to Dismiss, arguing that the
doctrine of waiver precluded any such additional response.
Petitioner also opposes the characterization of his September
8, 2017 Motion to Vacate, see ECF No. 5-1, PAGEID #
779, as a postconviction or collateral proceeding, but
indicates that he has now exhausted state court proceedings
and does not object to the dismissal of his Request to Hold
Action in Abeyance, ECF No. 2, as moot.
"well within the discretion of the Court to permit and
consider a response to an order to respond to the Petition in
the form of a motion to dismiss." Small v. Warden,
Ross Correctional Inst., 2013 WL 9894270, at *1 (S.D.
Ohio Aug. 9, 2013). Thus, Respondent's filing of a Motion
to Dismiss does not bar the Respondent from arguing for
dismissal of the petitioner's claims on other grounds.
See also Davison v. Warden, Warren Correctional
Inst, No. 2:18-cv-00495, 2019 WL 1109566, at *4 (S.D.
Ohio March 11, 2019) (noting that it has been this
Court's practice to accept such responsive pleadings by
the Respondent in response to a show cause order).
of the Rules Governing § 2254 Cases in the United States
District Courts provides that "the judge must order the
respondent to file an answer, motion, or other response ...
or to take other action the judge may order." The
Advisory Committee Notes to original Rule 4 (1976) explain
that although "it has been suggested that an answer
should be required in every habeas proceeding ... However,
under § 2243 it is the duty of the court to screen out
frivolous applications and eliminate the burden that would be
placed on the respondent by ordering an unnecessary
answer." Advisory Committee Notes to Rule 4, 1976
Adoption, relying approvingly on Allen v. Perini,
424 F.2d 131, 141 (6th Cir.1970). Additionally, the Advisory
Committee Notes discussing the amended Rule 4 (2004) state
that "[t]he amended rule reflects that the response to a
habeas petition may be a motion." Advisory Committee
Notes to Rule 4, 2004 Amendments.
5(a) of the Rules Governing § 2254 Cases in the District
Courts, 28 U.S.C. foil. § 2254 (effective Dec. 1, 2004),
reinforces the discretion afforded the court to consider a
motion to dismiss prior to requiring an answer from a
respondent in a habeas proceeding. Rule 5(a) provides that
"[t]he respondent is not required to answer the petition
unless a judge so orders." As explained by the Advisory
Committee Notes to Rule 5:
The revised rule [5(a)] does not address the practice in some
districts, where the respondent files a pre-answer motion to
dismiss the petition. But revised Rule 4 permits that
practice and reflects the view that if the court does not
dismiss the ...