Carlier v. Warden, Chillicothe Correctional Institution

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JEFFREY D. CARLIER, Case No. 1:18-cv-839

Petitioner,

Bertelsman, J.

VS. Litkovitz, M.J.

WARDEN, CHILLICOTHE REPORT AND

CORRECTIONAL INSTITUTION, RECOMMENDATION

Respondent.

Petitioner, an inmate in state custody at the Chillicothe Correctional Institution, has filed

a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter

is before the Court on respondent’s motion to dismiss (Doc. 9), to which petitioner has not

replied. For the reasons stated below, the undersigned recommends that the motion to dismiss be

granted and the petition be denied on the ground that it is time-barred pursuant to 28 U.S.C. §

2241(d)(1).

I. PROCEDURAL HISTORY

State Trial Proceedings

On October 29, 2015, the Scioto County, Ohio, grand jury returned a twenty-nine-count

indictment charging petitioner with twenty-two counts of burglary, four counts of grand theft,

two counts of safecracking, and one count of possessing criminal tools. (Doc. 8, Ex. 1). After

initially entering a plea of not guilty, petitioner withdrew his former plea and entered a written

guilty plea to the twenty-two counts of burglary, two counts of safecracking, and one count each

of grand theft and possessing criminal tools. (Doc. 8, Ex. 2,3). The prosecution agreed to

dismiss the remaining three charges in exchange for the plea. On July 1, 2016, the trial court

accepted petitioner’s guilty plea, found him guilty, and sentenced petitioner to serve a total

aggregate prison sentence of forty-seven years in the Ohio Department of Corrections. (Doc. 8,

Ex. 4),

Delayed Appeal

On November 14, 2016, petitioner filed a pro se notice of appeal and a motion for leave

to file a delayed appeal. (Doc. 8, Ex. 5, 6). As cause for his failure to timely appeal his

conviction and sentence, petitioner claimed that his trial attorney failed to inform him of his

appellate rights. (See Doc. 8, Ex. 6 at PageID 74). Petitioner’s motion was denied by the Ohio

Court of Appeals on January12, 2017. (Doc. 8, Ex. 7).

Petitioner did not timely appeal the decision to the Ohio Supreme Court.

Delayed Appeal to the Ohio Supreme Court

On June 16, 2017, petitioner filed a pro se notice of appeal and motion for leave to file a

delayed appeal to the Ohio Supreme Court. (Doc. 8, Ex. 8, 9). On September 13, 2017, the Ohio

Supreme Court denied petitioner’s motion and dismissed the case. (Doc. 8, Ex. 10).

Federal Habeas Corpus

On November 28, 2018, petitioner commenced the instant federal habeas corpus action.!

Petitioner raises the following two grounds for relief in the petition:

GROUND ONE: Petitioners In Ohio Have A Right to Appeal Their Sentence

Imposed As A Part Of An “Open Plea” Agreement, Notice Should Be Given By

Counsel.

' The petition was received by the Court on November 29, 2018. (See Doc. 1). Petitioner avers, however, that he

placed the petition in the prison mailing system for delivery to the Court on November 28, 2018. (See Doc. 7 at

PageID 48). Because under Houston v. Lack, 487 U.S. 266 (1988), the filing date of a federal habeas corpus petition

submitted by a pro se prisoner is the date on which the prisoner provides his papers to prison authorities for mailing,

see In re Sims, 111 F.3d 45, 47 (6th Cir. 1997), it is presumed that the petition was “filed” on November 28, 2018.

Supporting facts: Where counsel completely mislead petitioner regarding the

felony degree of charges, and trial court failed to substantially comply with the

provisions of Crim. R. 11(c). Sixth and Fourteenth Amendments Due Process And

Equal Protection of the Law. Petitioner’s guilty plea was not knowingly,

voluntarily or intelligently entered, but forced upon petitioner. The Trial Court

failed to follow the plea agreement in relation to Crim. R. 11. Petitioner’s plea was

unintelligent due to counsel.

GROUND TWO: The Trial Court Erred To The Prejudice Of Petitioner In

Sentencing Him To Forty-Seven (47) Years In Prison.

Supporting facts: Petitioner claims that he was denied equal protection of the law

while co-defendants received sentences much different from petitioner’s, violating

equal protection of Ohio Law. Further, information of how petitioner would be

sentenced if found guilty was withheld and petitioner had not a reasonable

opportunity to defend, or due notice of such from counsel or the court.

(Doc. 7 at PageID 38, 40).

Respondent has filed a motion to dismiss the petition (Doc. 9), to which petitioner has not

replied.

Il. THE PETITION SHOULD BE DISMISSED AS TIME BARRED.

Under 28 U.S.C. § 2244(d)(1), as amended by § 101 of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, a person in custody

pursuant to the judgment of a state court must file an application for a writ of habeas corpus

within one year 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.

28 U.S.C. § 2244(d)(1). Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled during the

pendency of a properly filed application for state post-conviction relief or other collateral review.

There is no evidence in the record in this case to suggest that the provisions set forth in

§§ 2244(d)(1)(B) through (D) apply to petitioner’s grounds for relief. Petitioner has not alleged

that a State created impediment prevented him from filing the instant petition or that his claims

are governed by a newly recognized constitutional right made retroactively applicable to his

case. Furthermore, petitioner’s grounds for habeas relief are based on alleged errors that

occurred during the trial court proceedings. Because petitioner was aware of the facts underlying

his claims or the claims could have been discovered through the exercise of due diligence by the

close of the direct review, his grounds for relief are governed by the one-year statute of

limitations set forth in 28 U.S.C. § 2244(d)(1)(A), which began to run when petitioner’s

conviction became final “by the conclusion of direct review or the expiration for the time for

seeking such review.”

In this case, under § 2244(d)(1)(A), petitioner’s conviction became final on August 1,

2016, upon the expiration of the 30-day period for filing an appeal as of right from the trial

court’s July 1, 2016 final judgment entry. See Ohio R. App. P. 4(A). The statute commenced

running August 2, 2016, the next business day after petitioner’s conviction became final, see

Fed. R. Civ. P. 6(a); Bronaugh v. Ohio, 235 F.3d 280, 285 (6th Cir. 2000), and expired one year

later on August 2, 2017, absent the application of statutory or equitable tolling principles.

During the one-year limitations period, petitioner was entitled to tolling of the statute

under 28 U.S.C. § 2244(d)(2) based on any pending “properly filed” applications for state post-

conviction relief or other collateral review. See 28 U.S.C. § 2244(d)(2); see also Holland y.

Florida, 560 U.S. 631, 635 (2010); Allen v. Siebert, 552 U.S. 3, 4 (2007) (per curiam); Vroman

v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003). “The tolling provision does not, however,

‘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, 346 F.3d at 602 (quoting Rashid v. Khulmann, 991 F. Supp.

254, 259 (S.D.N.Y. 1998)). Once the limitations period is expired, state collateral review

proceedings can no longer serve to avoid the statute-of-limitations bar. Jd.

It is well-settled that a state application for post-conviction relief is “properly filed”

within the meaning of § 2244(d)(2) “when its delivery and acceptance are in compliance with the

applicable laws and rules governing filings,” such as those prescribing the time limits for filing.

Artuz v. Bennett, 531 U.S. 4, 8 (2000). State post-conviction or collateral review applications

rejected by the state courts on timeliness grounds are not “properly filed” and, therefore, are not

subject to statutory tolling under § 2244(d)(2). See Allen, 552 U.S. at 5-6; see also Pace v.

DiGuglielmo, 544 U.S. 408, 413-14 (2005): Vroman, 346 F.3d at 603.

In this case, the limitations period ran 104 days—from August 2, 2016 until November

14, 2016—before petitioner filed his motion for leave to file a delayed appeal in the Ohio Court

of Appeals. (Doc. 8, Ex. 5, 6). The limitations period was tolled until the Ohio appeals court

denied the motion on January 12, 2017. (See Doc. 8, Ex. 7). See Board v. Bradshaw, 805 F.3d

769, 771-76 (6th Cir. 2015) (reaffirming prior precedents in holding that a motion for delayed

appeal to the Ohio Court of Appeals, even if “ultimately unsuccessful,” is a “properly filed”

motion under Ohio R. App. P. 5 for state collateral relief that serves to toll the limitations period

under § 2244(d)(2)).

The statute of limitations ran an additional 154 days, until June 16, 2017, when petitioner

filed a delayed appeal motion to the Ohio Supreme Court. (See Doc. 8, Ex. 9). On September

13, 2017, the Ohio Supreme Court denied petitioner’s motion and the limitations period ran the

remaining 107 days and expired on December 29, 2017. Because petitioner did not file his

habeas petition until November 28, 2018, the petition is time barred absent equitable tolling.

The AEDPA’s statute of limitations is subject to equitable tolling, see Holland, 560 U.S.

at 645, “when a litigant’s failure to meet a legally-mandated deadline unavoidably arose from

circumstances beyond the litigant’s control.” Hall v. Warden, Lebanon Corr. Inst., 662 F.3d

745, 749 (6th Cir. 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)).

Equitable tolling is granted “sparingly.” Jd. (quoting Robertson, 624 F.3d at 784). A habeas

petitioner is entitled to equitable tolling only if he establishes that (1) “he has been pursuing his

rights diligently;” and (2) “some extraordinary circumstance stood in his way and prevented

timely filing.” Jd. (quoting Holland, 560 U.S. at 649 (internal quotations omitted)); see also

Pace, 544 U.S. at 418. Although the Sixth Circuit previously utilized a five-factor approach in

determining whether a habeas petitioner is entitled to equitable tolling, Ho/land’s two-part test

has replaced the five-factor inquiry as the “governing framework” to apply. Hall, 662 F.3d at

750 (citing Robinson v. Easterling, 424 F. App’x 439, 442 n.1 (6th Cir. 2011)). “With Holland

now on the books, the ‘extraordinary circumstances’ test, which requires both reasonable

diligence and an extraordinary circumstance, has become the law of this circuit.” Jd.; see also

Patterson v. Lafler, 455 F. App’x 606, 609 n.1 (6th Cir. 2012).

Petitioner is not entitled to equitable tolling in this case. As noted above, petitioner did

not respond to the motion to dismiss or otherwise argue that he is entitled to equitable tolling.

However, in his motion for leave to file a delayed appeal, he did argue that he was not informed

by trial counsel of his right to appeal. Petitioner noted that it was not until he got to jail that he

discovered that he was able to appeal his conviction and sentence. (See Doc. 8, Ex. 6 at PageID

74). However, even assuming without deciding that petitioner is entitled to equitable tolling for

the 104 days between August 1, 2016—the time petitioner’s conviction became final—and

November 14, 2016—the date upon which petitioner filed his delayed appeal motion and was

aware of his appellate rights—the petition is still untimely.”

In any event, the Sixth Circuit has indicated that the relevant inquiry in determining

whether equitable tolling applies is whether petitioner was diligent in pursuing federal habeas

relief. In this case, petitioner waited more than two years—from August 1, 2016 until November

28, 2018—41o file his habeas petition after his conviction and sentence became final.

Accordingly, petitioner has not demonstrated that he was diligent in pursuing his federal rights.

Vroman, 346 F.3d at 605 (finding that the petitioner’s decision to proceed solely in state court

“rather than filing his federal habeas petition and protecting his federal constitutional rights,

demonstrates a lack of diligence”). Petitioner is therefore not entitled to equitable tolling.

Finally, petitioner has neither argued nor otherwise demonstrated that the procedural bar

* As noted above, petitioner waited 154 days to file his delayed appeal to the Ohio Supreme Court, following the

Ohio Court of Appeals’ January 12, 2017 denial of his motion for a delayed appeal. The limitations period ran

another 440 days between the Ohio Supreme Court’s September 13, 2017 denial of his delayed appeal motion and

November 28, 2018, when petitioner filed his habeas corpus petition. Therefore, even if petitioner was entitled to

104 days of equitable tolling based on his allegation that he was not informed of his appellate rights, the petition

would still be untimely.

to review should be excused based on a colorable showing of actual innocence. “To invoke the

miscarriage of justice exception to AEDPA’s statute of limitations, . . . a petitioner ‘must show

that it is more likely than not that no reasonable juror would have convicted him in the light of . .

. new evidence.” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup v. Delo, 513

U.S. 298, 327 (1995)). No such showing has been made in this case.

Accordingly, in sum, the undersigned concludes that the instant federal habeas corpus

petition is barred from review by the one-year statute of limitations governing habeas corpus

actions brought pursuant to 28 U.S.C. § 2254. Under the applicable provision set forth in 28

U.S.C. § 2244(d)(1)(A), petitioner’s conviction and sentence became final on August 1, 2016.

The limitations period ran for 104 days, from August 2, 2016 until November 14, 2016, when

petition filed his delayed appeal motion. The statute of limitations ran another 154 days, from

the Ohio Court of Appeals’ January 12, 2017 denial of his delayed appeal motion until June 16,

2017, when petitioner filed a delayed appeal motion to the Ohio Supreme Court. The limitations

period began to run again on September 13, 2017, when the Ohio Supreme Court denied his

motion, and expired 107 days later, on December 29, 2017. Statutory or equitable tolling

principles do not apply to further extend the limitations period or otherwise avoid the statute-of-

limitations bar to review in this case. Therefore, petitioner’s habeas corpus petition, filed on

November 28, 2018, is time-barred.

IT IS THEREFORE RECOMMENDED THAT:

1. The motion to dismiss (Doc. 9) be GRANTED and the petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 (Doc. 7) be DISMISSED with prejudice on the ground that

the petition is time-barred under 28 U.S.C. § 2244(d).

2. A certificate of appealability should not issue with respect to any of the claims for

relief alleged in the petition, which this Court has concluded are barred from review on a

procedural ground, because under the first prong of the applicable two-part standard enunciated

in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), “jurists of reason” would not find it

debatable whether the Court is correct in its procedural ruling.*

3. With respect to any application by petitioner to proceed on appeal in forma pauperis,

the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting

this Report and Recommendation would not be taken in “good faith,” and therefore DENY

petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R.

App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

Date:_/A hols 9

Karen L. Litkovitz

United States Magistrate Judge

3 Because the first prong of the S/ack test has not been met, the Court need not address the second prong of Slack as

to whether “jurists of reason” would find it debatable whether petitioner has stated a viable constitutional claim in

his time-barred grounds for relief. See Slack, 529 U.S. at 484.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JEFFREY D. CARLIER, Case No. 1:18-cv-839

Petitioner,

Bertelsman, J.

VS. Litkovitz, M.J.

WARDEN, CHILLICOTHE

CORRECTIONAL INSTITUTION,

Respondent.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report objected

to and shall be accompanied by a memorandum of law in support of the objections. Ifthe Report

and Recommendation is based in whole or in part upon matters occurring on the record at an oral

hearing, the objecting party shall promptly arrange for the transcription of the record, or such

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the

assigned District Judge otherwise directs. A party may respond to another party’s objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas vy. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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