In order to obtain equitable tolling of the statute of limitations, a litigant must establish that he has been diligently pursued relief and that some extraordinary circumstance stood in his way of timely filing.
How later courts described this case
- In order to obtain equitable tolling of the statute of limitations, a litigant must establish that he has been diligently pursued relief and that some extraordinary circumstance stood in his way of timely filing.
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LARUE A. MONFORD,
CASE NO. 2:19-CV-3491
Petitioner, JUDGE JAMES L. GRAHAM
Magistrate Judge Chelsey M. Vascura
v.
TIMOTHY SHOOP, WARDEN,
CHILLICOTHE CORRECTIONAL
INSTITUTION,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Petitioner seeks release from confinement imposed 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.
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 face of the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court . . . .” If it does so appear, the petition must be dismissed.
Id. Rule 4 allows for the dismissal of petitions that 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). Here, for the reasons that follow, it plainly appears from
the face of the petition that Petitioner is not entitled to relief, as this action is barred by the one-
year statute of limitations provided for under 28 U.S.C. § 2244(d). It is therefore
RECOMMENDED that this action be dismissed.
I. FACTS & PROCEDURAL HISTORY
Petitioner challenges his December 17, 2008 convictions after a jury trial in the Franklin
County Court of Common Pleas on murder, attempted murder, felonious assault, and carrying a
concealed firearm, with specifications. The Ohio Tenth District Court of Appeals summarized
the facts and procedural history of the case as follows:
{¶ 2} On February 15, 2008, appellant was indicted by the Franklin County Grand
Jury for murder, attempted murder, felonious assault, carrying a concealed
weapon, and three firearm specifications.
{¶ 3} The relevant underlying facts of this case were fully set forth in detail in
appellant's direct appeal in State v. Monford, 10th Dist. No. 09AP–274, 2010–
Ohio–4732, ¶ 2–33. For purposes of this appeal, the following are the pertinent
facts and procedural history. Appellant's convictions arise from an incident that
occurred on the afternoon of February 7, 2008, at a bar known as D # 1 Happy
Family, located on St. Clair Avenue in Columbus. On that date, Alicia Brown
went to D # 1 Happy Family to meet Eugene Brown, a local disc jockey, to pick
up concert tickets. Upon her arrival, Alicia saw appellant. Although the two had
never previously met, they exchanged brief pleasantries. A short while later,
Eugene arrived at the bar and he and Alicia sat next to one another and had a few
drinks. Alicia testified that appellant shot Eugene from behind, and also shot her
in the left hip and the right buttocks when she was running away. She made a
positive identification of appellant in court as the shooter.
{¶ 4} In all, there were five witnesses who testified that appellant was the shooter.
Two of those witnesses were familiar with appellant and had seen him on prior
occasions. Three of the witnesses viewed photo arrays and identified appellant as
the shooter. An additional witness, Frank McKnight, testified that he had been
acquainted with appellant for approximately 16 years and saw appellant driving
away from the crime scene. A vehicle matching the description given by
witnesses as the vehicle used by the suspect to drive away from the scene was
located at the address listed on appellant's driver's license.
{¶ 5} In his opening statement, appellant's counsel referenced an alibi defense,
claiming appellant was not at the bar at the time of the shooting. However,
appellant did not provide any evidence of an alibi. Appellant presented the
testimony of Solomon M. Fulero, Ph.D., J.D., an expert witness to challenge the
reliability of the appellee's identification evidence. “[T]hroughout the entire trial
proceedings, [appellant's] theory of the case was clearly one of misidentification.
His entire defense was * * * that he was simply not the shooter and that the
witnesses had gotten it wrong.” Monford at ¶ 74.
{¶ 6} The jury believed the eyewitnesses. On December 17, 2008, the jury found
appellant guilty of murder in the shooting death of Eugene Brown, attempted
murder and felonious assault in the shooting of Alicia Brown, carrying a
concealed weapon, and the three-year firearm specifications. The trial court
imposed an aggregate sentence of 28 years to life in prison.
{¶ 7} Appellant filed a timely direct appeal, asserting eight assignments of error.
We found that the evidence was sufficient to support appellant's convictions for
murder, attempted murder, felonious assault, and carrying a concealed weapon.
Accordingly, we overruled all of appellant's assignments of error and affirmed the
trial court. Monford at ¶ 131.
{¶ 8} In the years after his trial, appellant filed several motions, petitions, and
other requests with the trial court—all to no avail. On September 9, 2016, almost
eight years after appellant's convictions, he filed a “Motion for Leave to File
Motion for New Trial on Account of Newly Discovered Evidence and/or Due to
Withholding of Exculpatory Evidence” (“motion for leave”). Appellee responded
to the motion for leave, arguing that appellant failed to show that he was
“unavoidably prevented” from discovering any of the evidence attached to the
petition. On November 23, 2016, the trial court denied appellant's motion for
leave.
II. ASSIGNMENTS OF ERROR
{¶ 9} Appellant appeals assigning the following errors for our review:
[I.] The states [sic] suppression of forensic material evidence and repeatedly
asserting materially false testimony constitutes structural error.
[II.] Defense counsel's failure to request and or investigate discovery, fully,
constitutes denial of due process and structural error. This fundamental deficiency
of counsel caused and evidenced prejudice, adversely affecting framework within
which trial proceeded and constitutional issues herein.
State v. Monford, 10th Dist. No. 16AP-866, 2018 WL 1611400, at *1-2 (Ohio Ct. App. Apr. 3,
2018). On April 3, 2018, the appellate court affirmed the judgment of the trial court denying the
motion for leave to file a delayed motion for a new trial. Id. On August 1, 2018, the Ohio
Supreme Court declined to accept jurisdiction of the appeal. State v. Monford, 153 Ohio St.3d
1453 (Ohio 2018).
On August 1, 2019, Petitioner signed and filed this pro se habeas corpus petition. He
asserts that he was denied the effective assistance of trial counsel (claim one); that he was denied
the effective assistance of appellate counsel (claim two); that the evidence is constitutionally
insufficient to sustain his convictions (claim three); and that he was denied a fair trial based on
prosecutorial misconduct (claim four). Plainly, however, the one-year statute of limitations bars
review of this action.
II. STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), effective April 24,
1996, imposes a one-year statute of limitations on the filing of habeas corpus petitions. 28
U.S.C. § 2244(d). Section 2244(d) provides:
(d)(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 for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or
other collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this subsection.
Id.
A District Court is permitted, but not obligated, to sua sponte address the timeliness of a
federal habeas corpus petition, Day v. McDonough, 547 U.S. 198 (2006), and may do so when
conducting an initial review under Rule 4. See Wogenstahl v. Charlotte, No. 1:17-cv-298, 2017
WL 3053645, at *2 (S.D. Ohio July 19, 2017) (citing McDonough, 547 U.S. at 198).
III. APPLICATION
Under the provision of § 2244(d)(1)(A), Petitioner’s judgment became final in March
2012, ninety days after the Ohio Supreme Court’s December 11, 2011 dismissal of Petitioner’s
direct appeal, State v. Monford, 131 Ohio St.3d 40 (Ohio 2011), when the time period expired to
file a petition for a writ of certiorari to the United States Supreme Court. See Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012) (citing Clay v. United States, 537 U.S. 522 (2003)); see also
Smith v. Ohio, Dep’t of Rehab. & Corr., 331 F.Supp.2d 605, 613 (N.D. Ohio Aug. 26, 2004)
(citing Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000)). The statute of limitations expired
one year later, in March 2013. Petitioner waited more than six years, until August 2019, to
execute this habeas corpus petition.
Petitioner indicates that on December 31, 2009, he filed a motion to vacate in the state
trial court; however, the trial court denied it as untimely. (Petition, ECF No. 1, PAGEID # 7.)
On September 2, 2010, he filed another motion to vacate. The trial court also denied this motion.
(Id.) On December 27, 2010, Petitioner filed an application to reopen the appeal pursuant to
Ohio Appellate Rule 26(B). On November 13, 2012, the appellate court denied the Rule 26(B)
application. (PAGEID # 9.) These actions could not provide sufficient tolling of the statute of
limitations to assist Petitioner here. Further, a post-conviction petition rejected as untimely by
the state courts will not toll the running of the statute of limitations under § 2244(d)(2). Burns v.
Warden, No. 2:18-cv-00055, 2018 WL 684647, at *2 (S.D. Ohio Feb. 1, 2018) (quoting
Henderson v. Bunting, 698 F. App’x 244, 246-47 (6th Cir. 2017) (citing Allen v. Siebert, 552
U.S. 3, 7 (2007)). Petitioner’s September 9, 2016 delayed motion for a new trial likewise does
not affect the running of the statute of limitations in this case. The state trial court denied the
motion as untimely, and Petitioner filed it long after the statute of limitations had already
expired. Further, the tolling provision of § 2244(d)(2) does not “‘revive’ the limitations period
(i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run.”
Vroman v. Brigano, 346 F.3d 598, 601 (6th Cir. 2003) (citing Rashid v. Khulmann, 991 F. Supp.
254, 259 (S.D.N.Y. 1998)). Addtionally, Petitioner does not allege, and the record does not
reflect, any extraordinary circumstances that would justify equitable tolling of the statute of
limitations, particularly for the time period at issue here. See Holland v. Florida, 560 U.S. 631,
649 (2010) (In order to obtain equitable tolling of the statute of limitations, a litigant must
establish that he has been diligently pursued relief and that some extraordinary circumstance
stood in his way of timely filing.) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
IV. DISPOSITION
For the foregoing reasons, the undersigned RECOMMENDS that this action be
DISMISSED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision
of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are further
advised that, if they intend to file an appeal of any adverse decision, they may submit arguments
in any objections filed, regarding whether a certificate of appealability should issue.
/s/ Chelsey M. Vascura___
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE