United States District Court, S.D. Ohio, Eastern Division
TIMOTHY A. HUBAL, JR., Petitioner,
WARDEN, BELMONT CORRECTIONAL INSTITUTION, et al., Respondents.
EDMUND A. SARGUS, JR.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
a state prisoner represented by counsel, has filed a petition
seeking a writ of habeas corpus under 28 U.S.C. § 2254.
(Doc. 1.) Petitioner seeks release from confinement pursuant
to a state court judgment in a criminal action. This case has
been referred to the Undersigned pursuant to 28 U.S.C §
636(b) and Columbus' General Order 14-1 regarding
assignments and references to United States Magistrate
appears from the docket that Petitioner has paid the required
to Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Court ("Rule 4"), this Court
must conduct a preliminary review to determine whether
“it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court . . . .” Rule 4. If it does so appear,
the petition must be dismissed. Id. Rule 4 allows
for the dismissal of petitions which raise legally frivolous
claims, as well as petitions that contain factual allegations
that are palpably incredible or false. Carson v.
Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). For the
reasons that follow, it plainly appears Petitioner is not
entitled to relief because his claims are time-barred.
Accordingly, the Undersigned RECOMMENDS that
this action be DISMISSED.
and Procedural Background
November 2, 2011, Petitioner was convicted, pursuant to a
plea agreement, of rape, a felony in the first degree, in
State of Ohio v. Hubal, No. 11 CR 10 0536, in the
Court of Common Pleas for Delaware County, Ohio. (Doc. 1, at
PAGE ID # 4.) Petitioner was sentenced that same day to life
imprisonment with the possibility of parole after 25 years.
alleges that his counsel failed to file an appeal on his
behalf. (Id., at PAGE 12.) Moreover, Petitioner
claims, he did not learn about the consequences of his plea
until he “discussed the matter with his Ohio Department
of Rehabilitations and Corrections caseworker.”
(Id., at PAGE ID # 14-15.) Although Petitioner does
not indicate exactly when that discussion occurred, he states
that it did not occur until “the thirty (30) day appeal
of right period had long passed and he was forced to attempt
to appeal pro se outside of time.”
(Id., at PAGE ID #15.)
on-line docket maintained by the Clerk of Court for Delaware
County, Ohio, indicates that Petitioner filed a motion for
delayed appeal on April, 16, 2012. (See Docket,
State of Ohio v. Hubal, No. 11 CR 10 0536, docket
entry April 16, 2012.) That docket further indicates that the
state appellate court denied Petitioner's motion for a
delayed appeal on May 21, 2012. (Id., docket entry
May 21, 2012.) A review of that docket, and the on-line
docket for the Ohio Supreme Court reveals that Petitioner did
not appeal the state appellate court's decision to deny
his motion for a delayed appeal.
seven years later, on November 27, 2019, Petitioner filed the
instant petition. (Doc. 1.) In it, he alleges that
he received ineffective assistance of trial counsel.
Specifically, he alleges that trial counsel performed
deficiently by failing to interview witnesses or otherwise
adequately investigate the charges; failing to meet regularly
with Petitioner and develop a defense; failing to take
Petitioner's case to trial even though Petitioner
indicated that he wanted to exercise his trial rights;
pressuring Petitioner to plead guilty; failing to explain the
consequences of entering a guilty plea pursuant to North
Carolina v. Alford, 400 U.S. 25 (1970); and failing to
file an appeal on Petitioner's behalf. (Id., at
PAGE ID # 7, 12, 13.)
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
imposes a one-year statute of limitations on the filing of
habeas corpus petitions. 28 U.S.C. § 2244(d) provides:
(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 ...