Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hubal v. Warden, Belmont Correctional Institution

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

December 10, 2019

TIMOTHY A. HUBAL, JR., Petitioner,
v.
WARDEN, BELMONT CORRECTIONAL INSTITUTION, et al., Respondents.

          JUDGE EDMUND A. SARGUS, JR.

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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 Judges.

         It appears from the docket that Petitioner has paid the required filing fees.

         Pursuant 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.

         Facts and Procedural Background

         On 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. (Id.)

         Petitioner 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.)

         The 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.

         Over 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.)

         Law and Analysis

         The 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.