United States District Court, S.D. Ohio, Eastern Division, Columbus
FRANK K. C. HERTEL, SR., Petitioner,
DAVE YOST, Attorney General, State of Ohio, Respondent.
C. Smith District Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE
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).
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.
of Direct Review
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).
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.
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.
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.
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.)
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.
Petition was not filed within one year of the conclusion of
direct review in his case.
Discovery of Factual Predicates
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).
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.
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