Hertel v. State of Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

FRANK K. C. HERTEL, SR.,

Petitioner, : Case No. 2:19-cv-1205

- vs - District Judge George C. Smith

Magistrate Judge Michael R. Merz

DAVE YOST, Attorney General,

State of Ohio,

:

Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

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 (9th

Cir. 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

conclusions he made by his legal research before filing his habeas corpus petition (Objections,

ECF No. 18, PageID 1602-03 (citations omitted)). Again, legal conclusions are not facts which

form the basis of his claim.

State-Created Impediments to Filing

Hertel also relied on 28 U.S.C. § 2244(d)(1)(B), asserting Ohio and Arizona created

impediments to his filing. The Repot rejected this defense on the basis of Keeling v. Warden,

Lebanon Corr. Inst., 673 F.3d 452 (6th Cir. 2012), and Bonilla v. Hurley, 370 F.3d 494 (6th Cir.

2004) (ECF No. 17, PageID 1593).

The Objections criticize the Report for not considering each of Hertel’s specific asserted

deficiencies in Ohio and Arizona prison law libraries and finding whether these constitute a denial

of access to the courts under Bounds v. Smith (ECF No. 18, PageID 1605, citing 430 U.S. 817

(1977)). Hertel relies on Jackson v. Jamrog, id., citing 411 F.3d 615 (6th Cir. 2005)), which he

says stands for the proposition that the State has “an affirmative duty to help inmates prepare and

file legal papers by establishing an adequate law library or by providing adequate assistance from

persons trained in the law.” Id. Jackson is a habeas corpus case in which the circuit court upheld

the district court’s dismissal where the claim was that the Michigan statute giving prosecutors and

crime victims a right to appeal parole board decisions, but no such right to inmates, was an

unconstitutional denial of equal protection. Along the way, the court recognized the authority of

Bounds, but in no way held as a matter of law the proposition for which Hertel cites it. Jackson,

411 F.3d at 619, 620. The Magistrate Judge is not aware of any case authority for the proposition

that failure to the State to provide a law library that meets Bounds requirements would constitute

a state-created impediment to filing a habeas petition. Such a holding would contravene Keeling

and Bonilla.

Hertel relies on Martinez v. Ryan, 566 U.S. 1 (2012), for the proposition that ineffective

assistance of trial counsel and ineffective assistance of appellate counsel constitute state-created

impediments to filing (Objections, ECF No. 18, PageID 1606). In Martinez the Supreme Court

held:

[W]hen a State requires a prisoner to raise an ineffective-assistance-

of-trial-counsel claim in a collateral proceeding, a prisoner may

establish cause for a default of an ineffective-assistance claim in two

circumstances. The first is where the state courts did not appoint

counsel in the initial-review collateral proceeding for a claim of

ineffective assistance at trial. The second is where appointed counsel

in the initial-review collateral proceeding, where the claim should

have been raised, was ineffective under the standards of Strickland

v. Washington, 466 U. S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). To overcome the default, a prisoner must also demonstrate

that the underlying ineffective-assistance-of-trial-counsel claim is a

substantial one, which is to say that the prisoner must demonstrate

that the claim has some merit. Cf. Miller-El v. Cockrell, 537 U. S.

322, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (describing standards

for certificates of appealability to issue).

566 U.S. at 14. Martinez allows a habeas petitioner in certain instances to excuse a procedural

default in presenting a claim by showing that the petitioner received ineffective assistance of

counsel rising to the Strickland level in presenting a post-conviction claim of ineffective assistance

of trial counsel. The Magistrate Judge is unaware of any case law holding that ineffective

assistance of trial counsel or ineffective assistance of appellate counsel constitutes a state-created

impediment that would qualify under § 2244(d).

Extraordinary Circumstances

In his fourth defense of the timeliness of his Petition, Hertel relied in part on the lack of

Ohio legal resources and the fact that his crimes happened many years ago (Memo in Opp., ECF

No. 16, PageID 1554-59). The Report rejected this defense for reasons given above and because

the age of the case was mostly attributable to Hertel’s flight to Germany to avoid prosecution

(Report, ECF No. 17, PageID 1594).

Hertel objects (ECF No. 18, PageID 1608-09), but does not raise any new argument that

requires additional analysis.

Actual Innocence of Being a Tier Three Sex Offender

In his fifth defense of the timeliness of his Petition, Hertel asserts he is actually innocent

of being a Tier III sex offender. In response, Hertel again relied on Does (ECF No. 16, PageID

1560-61), where the circuit court held retroactive application of Michigan’s Sexual Offender

Registration Act was unconstitutional retroactive punishment. The Report rejected this argument

because Does says nothing about statute of limitations issues and, if anything, makes Hertel

legally, not factually, innocent of being a Tier III sex offender (ECF No. 17, PageID 1594-95).

Hertel objects and says he has produced new evidence that he is actually innocent of being

a Tier III sex offender under “old” Ohio law, Ohio Revised Code 2950 as it existed at the time of

his conviction (Objections, ECF No. 18, PageID 1611, citing Response, ECF No. 16, PageID 1561-

62)). What appears at those pages is not any “new evidence” at all. but new argument about how

the Sexual Offender Registration Act, as interpreted in State v. Cook, 83 Ohio St. 3d 404 (1998),

does not apply to him.

Actual innocence of the crime in suit will excuse procedural defaults in presenting the

claim, including failing to file within the statute of limitations. The controlling precedent on this

point is now the Supreme Court’s decision in McQuiggin v. Perkins:

[A]ctual innocence, if proved, serves as a gateway through which a

petitioner may pass whether the impediment is a procedural bar, as

it was in Schlup and House, or, as in this case, expiration of the

statute of limitations. We caution, however, that tenable actual-

innocence gateway pleas are rare: “[A] petitioner does not meet the

threshold requirement unless he persuades the district court that, in

light of the new evidence, no juror, acting reasonably, would have

voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.

S., at 329, 115 S. Ct. 851, 130 L. Ed. 2d 808; see House, 547 U. S.,

at 538, 126 S. Ct. 2064, 165 L. Ed. 2d. 1 (emphasizing that the

Schlup standard is “demanding” and seldom met). And in making

an assessment of the kind Schlup envisioned, “the timing of the

[petition]” is a factor bearing on the “reliability of th[e] evidence”

purporting to show actual innocence. Schlup, 513 U. S., at 332, 115

S. Ct. 851, 130 L. Ed. 2d. 808.

* * *

[A] federal habeas court, faced with an actual-innocence gateway

claim, should count unjustifiable delay on a habeas petitioner’s part,

not as an absolute barrier to relief, but as a factor in determining

whether actual innocence has been reliably shown.

569 U.S. 383, 386-87 (2013).

In Souter v. Jones, 395 F.3d 577 (6th Cir. 2005), the Sixth Circuit, anticipating McQuiggin,

held Congress enacted the statute of limitations in 28 U.S.C. § 2244(d)(1) “consistent with the

Schlup [v. Delo] actual innocence exception.” 395 F.3d at 599. The Souter court also held:

[I]f a habeas petitioner "presents evidence of innocence so strong

that a court cannot have confidence in the outcome of the trial unless

the court is also satisfied that the trial was free of nonharmless

constitutional error, the petitioner should be allowed to pass through

the gateway and argue the merits of his underlying claims." Schlup

v. Delo, 513 U.S. 298, 316 (1995)." Thus, the threshold inquiry is

whether "new facts raise[] sufficient doubt about [the petitioner's]

guilt to undermine confidence in the result of the trial." Id. at 317.

To establish actual innocence, "a petitioner must show that it is more

likely than not that no reasonable juror would have found petitioner

guilty beyond a reasonable doubt." Id. at 327. The Court has noted

that "actual innocence means factual innocence, not mere legal

insufficiency." Bousley v. United States, 523 U.S. 614, 623, 140 L.

Ed. 2d 828, 118 S. Ct. 1604 (1998). "To be credible, such a claim

requires petitioner to support his allegations of constitutional error

with new reliable evidence -- whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence -- that was not presented at trial." Schlup, 513 U.S. at 324.

The Court counseled however, that the actual innocence exception

should "remain rare" and "only be applied in the 'extraordinary

case.'" Id. at 321.

Id. at 589-90 (6th Cir. 2005). The Souter exception does not apply when a petitioner’s assertion of

actual innocence is based solely on his interpretation of the law; new exculpatory evidence is

required. Ross v. Berghuis, 417 F.3d 552, 555 (6th Cir. 2005).

Hertel has presented no new evidence of the type required by McQuiggin, Schlup, and

Souter of his actual innocence of the underlying crime.

Relation Back

Hertel’s sixth defense of the timeliness argues that the claims made in his Petition relate

back to the claims made in his prior habeas corpus case because they arise from the same common

core of operative facts (Response, ECF No. 16, PageID 1563-64, relying on Mayle v. Felix, 545

U.S. 644, 650 (2005).

The Report rejected this argument because Hertel was not seeking to amend a pending

habeas petition, but claiming relation back to a prior habeas petition, which had been dismissed

with prejudice and remains subject to final judgment (Report, ECF No. 17, PageID 1595, citing

Case No. 2:16-cv-435.)

Hertel objects that Mayle should be extended to a case such as this (Objections, ECF No.

18, PageID 1612, relying on Parr v. United States, 351 U.S. 513 (1956); United States v. Bratcher,

833 F.2d 69 (6th Cir. 1988)). In Parr, the Supreme Court held that a dismissal of an indictment

without prejudice was not a final order appealable by the defendant. 351 U.S. at 518-19. In

Bratcher, the district court granted dismissal without prejudice of a superseding indictment for

violation of the Speedy Trial Act. The Sixth Circuit held the dismissal order was not final and

appealable. 833 F.3d at 71-72.

Neither Parr nor Bratcher has any application to this case. Judge James L. Graham’s

dismissal of Hertel’s prior habeas action was with prejudice, allowing an immediate appeal under

28 U.S.C. § 1291. Hertel took no appeal and the judgment in the prior case is thus final. Hertel

has not sought to reopen that judgment and the time for doing so has expired (Fed.R.Civ.P. 60(b)).

Only if that judgment were reopened and Hertel then sought to amend the prior petition could the

Court even make any sense of a relation back argument.

Cause and Prejudice to Excuse Procedural Default

In his Objections, Hertel faults the Report for not discussing his claim that ineffective

assistance of trial counsel and ineffective assistance of appellate counsel excuse any procedural

defaults he may have incurred (Objections, ECF No. 18, PageID 1613). Instead of the six defenses

to Respondent’s untimeliness assertion which the Report discusses, Hertel claims he factually

offered eight defenses. Id.

In his Memorandum in Opposition, Hertel does argue that ineffective assistance of trial

counsel and ineffective assistance of appellate counsel will excuse procedural defaults (ECF No.

16, PageID 1564). The reason the Report did not deal with this argument is that Respondent did

not raise any procedural default as a ground for finding the Petition was untimely. In other words,

procedural default doctrine is irrelevant to the pending Motion.

Pending Ohio Cases

Hertel also objects that the Report does not deal with his claim that his Petition is timely

because he will still be able to file an Ohio habeas corpus action when he is returned to Ohio

custody after expiration of his Arizona sentence (ECF No. 18, PageID 1615).

The Objections are correct that the Report does not deal with this claim. However, the

claim is without merit. The Respondent pointed out that Ohio courts will not hear a habeas corpus

claim brought by a person who is not presently in custody in Ohio (Motion to Dismiss, ECF No.

12, PageID 1523). This bar to an Ohio habeas action will presumably be lifted when Hertel is

returned to Ohio custody, although the Magistrate Judge offers no opinion on the scope of

consideration in such an action. But the fact that Ohio may eventually have habeas corpus

jurisdiction over Hertel does not impact the federal statute of limitations. Under 28 U.S.C. §

2254(d)(2), a properly filed collateral attack on a state judgment will toll the AEDPA statute of

limitations, but filing a new collateral attack after the statute has run does not resurrect the

limitations period. Searcy v. Carter, 246 F.3d 515 (6th Cir. 2001).

Jurisdiction to Vacate Void Sentences

In a ninth argument in his Objections, Hertel asks this Court to ignore the statute of

limitations and adjudicate his claim that his conviction and sentence are void (ECF No. 18, PageID

1616). However, Hertel cites no federal authority that this Court may ignore the validly-enacted

AEDPA statute of limitations to hear a claim that a state conviction is void.

Certificate of Appealability

Hertel argues that, if the Court does not grant him relief, it should in the alternative grant

him a certificate of appealability. Although he cites the controlling Supreme Court opinion on

granting a certificate (Objections, ECF No. 18, PageID 1617, citing Slack v. McDaniel, 529 U.S.

473 (2000)), he cites no case authority in which a reasonable jurist has disagreed with any of the

conclusions reached by the Magistrate Judge. His citation to Jennings v. Woodford, id., citing 290

F.3d 1006 (9th Cir. 2000), is unpersuasive because, again, Ninth Circuit precedent does not control

in the Sixth Circuit.

To obtain a certificate of appealability, a petitioner must show at least that jurists of reason

would find it debatable whether the petition states a valid claim of denial of a constitutional right.”

Slack, 529 U.S. at 484. That is, it must find that reasonable jurists would find the district court’s

assessment of the petitioner’s constitutional claims debatable or wrong or that they warrant

encouragement to proceed further. Banks v. Dretke, 540 U.S. 668, 705 (2004), citing Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003. Issuance of blanket grants or denials of certificates of

appealability is error. Porterfield v. Bell, 258 F.3d 484(6th Cir. 2001); Murphy v. Ohio, 263 F.3d

466 (6th Cir. 2001). If this Court is in error in denying a certificate, the Sixth Circuit retains

authority, granted by the AEDPA itself, to consider that question de novo.

Conclusion

Having reconsidered the matter, the Magistrate Judge again concludes the Petition should

be dismissed as barred by the statute of limitations. Because reasonable jurists would not disagree

with this conclusion, it is also recommended that Petitioner be denied a certificate of appealability

and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and

should not be permitted to proceed in forma pauperis.

January 14, 2020.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6. 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. A party may respond to

another party’s objections within fourteen days after being served with a copy thereof. Failure to

make objections in accordance with this procedure may forfeit rights on appeal.