United States District Court, S.D. Ohio, Western Division
Michael R. Merz Magistrate Judge
OPINION AND ORDER
MICHAEL R. BARRETT UNITED STATES DISTRICT JUDGE
matter is before the Court on the Report and Recommendations
of the Magistrate Judge (Doc. 13), Petitioner's pro
se objections (Doc. 14), the Supplemental Report and
Recommendations of the Magistrate Judge (Doc. 17), and
Petitioner's pro se supplemental objections
(Doc. 20). Having considered the filings de novo, the Court
will dismiss the petition.
was convicted after a jury trial for kidnapping, aggravated
robbery, aggravated burglary, theft, and having weapons while
under disability. State v. Houston, 2014-Ohio-3111,
¶ 8 (Ohio Ct. App.). On the record, the trial court
sentenced him to 65 and a half years in prison. Id.
at ¶ 9. Petitioner's direct appeal was unsuccessful,
but Ohio's First District Court of Appeals (the
“First District”) did note that his sentencing
judgment entry had missed a count that, per the manifest
intention of the trial court, was supposed to run
consecutively to the other counts. Id. at ¶ 41.
It remanded the cause to the trial court for a nunc pro
tunc corrected sentencing judgment entry. Id.
at ¶ 42.
a year following the decision rendered by the First District,
Petitioner filed a state court habeas petition, which
(Respondent concedes) tolled the federal habeas statute of
limitations. Immediately upon the dismissal of that
petition, Petitioner filed his first federal habeas petition,
which Judge Dlott ultimately dismissed without prejudice on
exhaustion grounds as it related to his ineffective
assistance of appellate counsel claim. (Doc. 9 at PAGEID 66).
Shortly thereafter, Petitioner sought leave to file a delayed
Ohio App. R. 26(B) application, which was denied in early
2017. The present petition followed in March of 2017.
grounds, this petition raises (1) the ineffective assistance
of appellate counsel and (2) the trial court's error in
imposing consecutive maximum sentences. (Doc. 1 at PAGEID
5-6). The Magistrate Judge recommended that the petition be
dismissed as barred by the statute of
limitations and not appropriate for equitable tolling.
(Doc. 13 at PAGEID 171). In his objections thereto,
Petitioner first pointed to the nunc pro tunc
sentencing judgment entry in the state trial court (Doc. 9,
Ex. 25) and argued that the federal habeas statute of
limitations reset to begin running on the date of this entry:
November 23, 2016. Second, he challenged the Magistrate
Judge's determination that that he had not demonstrated
entitlement to equitable tolling. In his Supplemental Report
and Recommendations, the Magistrate Judge distinguished the
case authority offered by Petitioner to support his
contention that the statute of limitations reset with the
nunc pro tunc sentencing judgment entry. (Doc. 17 at
PAGEID 401-03). The Magistrate Judge also concluded that the
trial transcript was not required in order for Petitioner to
file his Ohio App. R. 26(B) application, because it was not
dispositive of his ineffective assistance of appellate
counsel claim. (Id. at PAGEID 404-05).
pending supplemental objections (Doc. 20), Petitioner first
asks the Court to give greater weight to his cited authority
in support of the proposition that the nunc pro tunc
sentencing judgment entry reset the federal habeas statute of
limitations: State v. Juan, 2016-Ohio-5339 (Ohio Ct.
App.). He further maintains that the alleged improper service
of the nunc pro tunc sentencing judgment entry has
some bearing on the pending federal habeas petition.
Petitioner additionally argues that the trial transcript was
a prerequisite to his Ohio App. R. 26(B) application.
reference, the timeline of relevant events is as
July 16, 2014 The First District decided Petitioner's
December 24, 2014 Supreme Court of Ohio declined review.
March 24, 2015 Time for seeking United States Supreme Court
review expired and federal habeas statute of limitations
began to run.
September 16, 2015 State court habeas petition filed.
November 10, 2015 State court habeas petition dismissed and
first federal habeas petition ...