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Hertel v. Yost

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

January 14, 2020

FRANK K. C. HERTEL, SR., Petitioner,
v.
DAVE YOST, Attorney General, State of Ohio, Respondent.

          George C. Smith District Judge

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This habeas corpus case is before the Court on Petitioner's Objections (ECF No. 18) to the Magistrate Judge's Report and Recommendations (the “Report, ” ECF No. 17), recommending granting Respondent's Motion to Dismiss this case as untimely filed (ECF No. 12). District Judge Smith has recommitted the case for reconsideration in light of the Objections (ECF No. 19).

         In his Memorandum in Opposition to the Motion to Dismiss, Hertel raised six defenses. The Report dealt with each of them in turn and this Supplemental Report follows the same form.

         Expiration of Direct Review

         The default date from which to calculate the expiration of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) one-year statute of limitations is the conclusion of direct review. 28 U.S.C. § 2244(d)(1). Respondent argued the conviction became final on direct review on December 15, 2015, the last date on which Hertel could have sought direct review in the United States Supreme Court (Motion to Dismiss, ECF No. 12, PageID 1510). Hertel argued that, as part of his plea agreement, he had reserved the right to appeal consecutive sentences. He did not exercise that reserved right in his first appeal, but attempted to do so in a delayed appeal. However, no delayed appeal was granted and the Report noted lack of any Ohio authority for a second, delayed, appeal when a first appeal of right had been taken (Report, ECF No. 17, PageID 1590-91).

         In his Objections, Hertel does not take issue with this analysis. Instead he claims his time to file under 28 U.S.C. § 2244(d)(1) was tolled by his filing his post-conviction relief petition on February 10, 2017 (ECF No. 18, PageID 1598). To substantiate that filing date, rather than the February 21, 2017, date claimed by Respondent, Hertel points to the text of his post-conviction relief petition at, which at PageID 1138 claims it was mailed on February 10, 2017. Hertel claims to be entitled to the date of mailing as his date of filing. Id., citing State Court Record, ECF No. 11-2, PageID 1138.

         Incarcerated federal litigants are entitled to the benefit of the prison mailbox rule, the rule Hertel is invoking. Houston v. Lack, 487 U.S. 266, 275-76 (1988); Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). However, the mailbox rule is not binding on the States. Maples v. Stegall, 340 F.3d 433, 439 (6th Cir. 2003), citing Houston, 487 U.S. 266; Adams v. LeMaster, 223 F.3d 1177, 1183 (10th Cir. 2000). Ohio has refused to adopt the mailbox rule. State, ex rel Tyler, v. Alexander, 52 Ohio St.3d 84 (1990) (noting that Houston is not a constitutional decision and finding its logic unpersuasive.) Under Ohio law, Hertel's petition for post-conviction relief was not filed until it was received and docketed by the Clerk of the Delaware County Court of Common Pleas on February 21, 2017.

         In considering his post-conviction petition, the Common Pleas Court found that the “final transcripts [from trial] were filed in the Fifth District Court of Appeals on December 2, 2014.” (Judgment Entry, State Court Record, ECF No. 11-2, PageID 1253). Under Ohio Revised Code § 2953.21(A)(2), Hertel had 365 days from that date to file a petition for post-conviction relief, or until December 3, 2015. Both February 10, 2017 (the mailing date) and February 21, 2017 (the received and docketed date) are more than a year after the time to file expired. The Common Pleas Court accordingly held “Defendant has filed his petition outside of the time frame set forth in [Ohio Revised Code §] 2953.21 .” Id.

         Because Hertel's post-conviction petition was not a properly filed collateral attack on his conviction, it does not toll the time to file federal habeas under 28 U.S.C. § 2244(d)(2). In Pace v. DiGuglielmo, the Supreme Court held that a postconviction petition rejected by the state courts as untimely is not “properly filed” within 28 U.S.C. § 2244(d)(2) 544 U.S. 408, 413 (2005); accord: Allen v. Siebert, 552 U.S. 3 (2007) (per curiam) (an untimely post-conviction petition is not properly filed regardless of whether the time element is jurisdictional or an affirmative defense.)

         In his Objections, Hertel claims the support of Hemmerle v. Schriro, 495 F.3d 1069 (9thCir. 2007) regarding the gaps between filings of collateral attacks (ECF No. 18, PageID 1599). The Magistrate Judge merely notes that this is Ninth Circuit precedent, which is not binding in the Sixth Circuit. Neither has Hertel cited any instance where a court in the Sixth Circuit has followed Hemmerle.

         Hertel's Petition was not filed within one year of the conclusion of direct review in his case.

         Late Discovery of Factual Predicates

         In his second defense of timeliness, Hertel relies on 28 U.S.C. § 2244(d)(1)(D) which provides that the statute of limitations will run from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Hertel had argued that Magistrate Judge Chelsey Vascura's issuance of the Order to Answer implied a finding that he met this standard. The Report rejected that claim (Report, ECF No. 17, PageID 1591-93).

         Hertel now claims that the relevant factual predicate which started the statute running under 28 U.S.C. § 2244(d)(1)(D) is that classification under the Sexual Offenders Registration Act (“SORA”) constitutes punishment and he did not learn that until he read the April 2018 issue of the “NARSOL Digest” or until “he had a copy of [Ohio Revised Code Ch.] 2950 in May of 2018” (Objections, ECF No. 18, PageID 1600). As he did in his opposition to the Motion to Dismiss, Hertel relies on Does #1-5 v. Snyder. Id., citing 834 F.3d 696 (6th Cir. 2016). In that case the circuit court held that the 2006 and 2011 amendments to the Michigan Sexual Offender Registration Act imposed punishment on those subjected to them and therefore could not be applied retroactively because of the Ex Post Facto Clause. Does, 834 F.3d at 700.

         Hertel does not dispute the finding in the Report that Ohio's SORA was applied retroactively to him at his re-sentencing in 2014 (ECF No. 17, PageID 1595). Yet, while he asks this Court “to find that [Ohio Revised Code Ch.] 2950 is the factual predicate, ” (Objections, ECF No. 18, PageID 1600), the Court should not do so. Hertel had Ohio's SORA applied retroactively to him in 2014. If he did not learn the legal significance of that fact (to wit, that such application is unconstitutional) until 2018, that is not the discovery of a fact. His acquiring of Ohio Revised Code Ch. 2950 four years after he was sentenced retroactively under it is not shown by him to have been done in the exercise of due diligence. Finally, Hertel recites the various discoveries of legal ...


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