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Avery v. Warden, Marion Correctional Institution

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

July 9, 2019

Edward B. Avery, Sr., Petitioner,
v.
Warden, Marion Correctional Institution, Respondent.

          Kimberly A. Jolson, Magistrate Judge

          OPINION AND ORDER

          MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT

         On 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.

         Petitioner 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 2012).

         Thereafter, 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.

         Thus, 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.[1]

         Respondent 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.

         Petitioner's Objections

         Petitioner 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.

         It is "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).

         Rule 4 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.

         Rule 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 ...

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