Threats v. Warden, Trumbull Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

STEPHEN D. THREATS,

CASE NO. 2:19-CV-5020

Petitioner, JUDGE SARAH D. MORRISON

MAGISTRATE JUDGE CHELSEY VASCURA

v.

WARDEN, TRUMBULL

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. This matter is before the Court on the Petition, Respondent’s Motion to Dismiss,

Petitioner’s Response in Opposition, and the parties’ exhibits. For the reasons that follow, it is

RECOMMENDED that Respondent’s Motion to Dismiss (ECF No. 11) be GRANTED and

that this action be DISMISSED.

I. BACKGROUND

Petitioner challenges his convictions pursuant to his guilty plea on charges of murder and

tampering with evidence in the Jefferson County Court of Common Pleas. On December 18,

2014, the trial court sentenced Petitioner pursuant to the joint recommendation of the parties to

an aggregate term of eighteen years to life incarceration. (ECF No. 10, PAGEID # 49-52.)

Petitioner did not file a timely appeal. On March 16, 2015, he filed a motion for a delayed

appeal. (PAGEID # 53.)1 The appellate court granted the motion for a delayed appeal.

(PAGEID # 81.) On December 19, 2016, the appellate court affirmed the trial court’s judgment,

1 As cause for his untimely filing, Petitioner stated that neither the trial court nor his attorney had

advised him of his right to appeal. (ECF No. 10, PAGEID # 58.)

but reversed Petitioner’s sentence on tampering with evidence and remanded the case to the trial

court for re-sentencing in regard to imposition of post-release control. (Judgment Entry, ECF

No. 10, PAGEID # 123, 125.) Petitioner apparently did not file an appeal. On March 17, 2017,

the trial court re-imposed an aggregate term of 18 years to life incarceration. (PAGEID # 253.)

Petitioner did not file an appeal.

Meanwhile, on June 19, 2015, Petitioner filed a petition for post-conviction relief in the

state trial court, asserting that his guilty plea was not voluntary due to the ineffective assistance

of trial counsel and that his attorney suffered a conflict of interest. (PAGEID # 141-42.) On

March 3, 2016, the trial court denied the post-conviction petition. (PAGEID # 198.) Petitioner

did not file a timely appeal.2 On July 24, 2017, he filed a motion for a delayed appeal.

(PAGEID # 231.) On September 8, 2017, the appellate court denied the motion for a delayed

appeal as not permissible in post-conviction proceedings. (PAGEID # 252.)

On November 7, 2017, Petitioner filed a motion to withdraw his guilty plea, again

asserting that his attorney suffered a conflict of interest and that his guilty plea was coerced.

(PAGEID # 256.) On February 6, 2018, the trial court denied that motion. (PAGEID # 299.)

On September 19, 2018, the appellate court affirmed the trial court’s decision. (Opinion and

Judgment Entry, PAGEID # 335.) On January 23, 2019, the Ohio Supreme Court declined to

accept jurisdiction of the appeal. (Entry, PAGEID # 386.)

On October 23, 2019, Petitioner executed this habeas corpus petition. (Petition, ECF No.

1, PAGEID # 19.) He asserts that he was denied the effective assistance of counsel because his

attorney suffered a conflict of interest (claim one); that he was denied the effective assistance of

2 On June 28, 2016, the trial court vacated its March 3, 2016 Entry denying the post-conviction

petition for the purpose of reinstating Petitioner’s time to appeal. The appellate court found that

to be improper, and on November 28, 2016, dismissed Petitioner’s subsequent appeal pursuant to

the trial court’s reinstatement as untimely. (Judgment Entry, PAGEID # 227-28.)

counsel based on his attorney’s reliance on an unqualified paralegal (claim two); and that his

guilty plea was involuntary and coerced (claim three). It is the position of the Respondent that

this action should be dismissed as time-barred.

II. STATUTE OF LIMITATIONS

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which became

effective on April 24, 1996, imposes a one-year statute of limitations on the filing of habeas

corpus petitions. 28 U.S.C. § 2244(d). The statute 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.

III. APPLICATION

Here, Petitioner’s judgment of conviction became final under the provision of §

2244(d)(1)(A) on April 16, 2017, thirty days after the trial court’s March 17, 2017 re-sentencing,

when the time period expired to file an appeal. See Searcy v. Carter, 246 F.3d 515, 518–19 (6th

Cir. 2001); Marcum v. Lazarof, 301 F.3d 480, 481 (6th Cir. 2002); Ohio App. R. 4(A). The

statute of limitations began to run on the following day, and ran for a period of 204 days, until

November 7, 2017, when Petitioner filed a motion to withdraw his guilty plea. That action tolled

the running of the statute of limitations under § 2244(d)(2) until January 23, 2019, when the

Ohio Supreme Court dismissed the appeal. See Coffey v. Warden, No. 1:06-cv-717, 2007 WL

951619, at *4-5 (S.D. Ohio Mar. 28, 2007) (citing Goodballet v. Mack, 266 F.Supp.2d 702, 706

(N.D. Ohio 2003)) (other citations omitted). The statute of limitations began to run on the

following day and expired 161 days later, on July 5, 2019.3 Petitioner waited approximately 110

days, until October 23, 2019, to execute this habeas corpus petition. He does not allege, and the

record does not reflect, any extraordinary circumstances that would justify equitable tolling of

the statute of limitations. See Holland v. Florida, 560 U.S. 631, 649 (2010) (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)).

Petitioner argues that the statute of limitations did not begin to run until January 23,

2019, because his conviction was void, and his guilty plea was not knowing, intelligent, and

voluntary, based on the ineffective assistance of counsel. Alternatively, Petitioner maintains that

he acted diligently in pursuing relief by filing his motion to withdraw his guilty plea upon

obtaining the transcripts from his 2016 state post-conviction evidentiary hearing. Petitioner

refers to his pro se incarcerated status as a prisoner who lacks understanding of the law or the

requirements imposed under 28 U.S.C. § 2244(d) on the filing of federal habeas corpus petitions.

Additionally, he argues that the statute of limitations should not begin to run until the time period

3 The date is extended by one day due to the holiday on July 4, 2019.

expired for him to file a petition for a writ of certiorari from the Ohio Supreme Court’s dismissal

of the appeal on his motion to withdraw his guilty plea. (Reply, ECF No. 14.)

Petitioner’s argument that his judgment was void because his guilty plea was invalid does

not provide a basis to delay the start date for the running of the statute of limitations under §

2244(d).

[T]he fact that the state court judgment may have been procured in violation of

state or federal law does not . . . render the judgment null under § 2244(d).”

[Frazier v. Moore, 252 F. App’x 1, 5 (6th Cir. 2007) ]. Rather,

In order to constitute a “judgment” under §§ 2244(d) and 2254, a

state court judgment need not be unassailable, or even prima facie

correct. If a judgment that was procured by a procedure that

violated federal constitutional rights were sufficient to render a

petitioner not in custody “pursuant to the judgment of a state

court” for the purpose of §§ 2244(d) and 2254, then the habeas

regime embodied in these provisions would be substantially

undermined.

Id.; see also Williams v. Knab, No. 2:11cv00537, 2011 WL 2551030, at *23 (S.D.

Ohio June 24, 2011) (same).

Thus, it does not matter, for purposes of determining if the statute of limitations

has run that petitioner claims to be in custody pursuant to a defective, void, or

illegal judgment rendered by a state court. The fact remains that this claim had to

be brought within one year of the date on which the judgment became final and

non-appealable[.]

Weaver v. Chillicothe Corr. Inst., No. 2:13-cv-790, 2013 WL 6116897, at *1-2 (S.D. Ohio Nov.

20, 2013) (quoting Worthy v. Warden, Chillicothe Corr. Inst., No. 2:12–cv–652, 2013 WL

4458798, at *2 (S.D. Ohio Aug.19, 2013). Moreover, the bases for Petitioner’s claims were

known to him at the time of entry of his guilty plea. Nothing prevented Petitioner from earlier

raising his claims. The motion to withdraw guilty plea tolled the running of the statute of

limitations under the provision of 28 U.S.C. § 2244(d)(2) only during the time period that it

remained pending. See Aquila v. Eppinger, No. 1:18-cv-1118, 2019 WL 6221289, at *7 (N.D.

Ohio Feb. 27, 2019) (citing Lawrence v. Florida, 549 U.S. 327, 337 (2007) (“the filing of a

petition for certiorari . . . does not toll the statute of limitations under § 2244(d)(2)” for post-

conviction proceedings); Ru Liu v. Kelly, No. 5:11-cv-2027, 2012 WL 3112401, at *7 (N.D.

Ohio July 11, 2012) (“Petitioner was not entitled to the additional ninety days of tolling in order

to seek a writ of certiorari in the United States Supreme Court because a motion to withdraw a

guilty plea is part of collateral review, not direct review.”), report and recommendation adopted,

2012 WL 3112397; Brown v. Timmerman-Cooper, No. 3:10-cv-1941, 2011 WL 5966871, at *3

(N.D. Ohio Aug. 18, 2011) (“Here, the matter under review was a [m]otion to withdraw his

guilty plea and to vacate or set aside judgment of conviction or sentence—a collateral review

measure. Therefore, Petitioner is not entitled to an additional 90 days after the dismissal by the

Ohio Supreme Court.”), report and recommendation adopted, 2011 WL 5966867.

AEDPA’s limitations period is not jurisdictional and is subject to equitable tolling.

Equitable tolling of the statute of limitations, however, is granted sparingly in habeas cases. See

Hall v. Warden, Lebannon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011). In order to establish

entitlement to equitable tolling, a petitioner must establish that (1) he has been pursuing his

rights diligently and (2) some extraordinary circumstance stood in his way and prevented him

from filing in a timely fashion. Holland v. Florida, 560 U.S. 641, 649 (2010) (citing Pace, 544

U.S. at 418). The petitioner bears the burden of demonstrating that he is entitled to equitable

tolling. Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011).

The Supreme Court has allowed equitable tolling where a claimant actively pursued

judicial remedies by filing a timely, but defective, pleading or where he was induced or tricked

by his opponent’s misconduct into allowing the filing deadline to pass. Irwin v. Dep’t of

Veterans Affairs, 498 U.S. 89, 96 (1990). Where the claimant failed to exercise due diligence in

preserving his legal rights, courts are much less forgiving. Id.; Jurado v. Burt, 337 F.3d 638,

642–13 (6th Cir. 2003). A prisoner’s pro se incarcerated status, lack of knowledge regarding the

law, and limited access to the prison’s law library or to legal materials do not provide a sufficient

justification to apply equitable tolling of the statute of limitations. Hall, 662 F.3d at 751 (citation

omitted); Johnson v. United States, 544 U.S. 295, 311 (2005) (“[W]e have never accepted pro se

representation alone or procedural ignorance as an excuse for prolonged inattention when a

statute’s clear policy calls for promptness”); Taylor v. Palmer, No. 2:14–cv–14107, 2014 WL

6669474, at *4 (E.D. Mich. Nov. 11, 2014) (citing Rodriguez v. Elo, 195 F.Supp.2d 934, 936

(E.D. Mich. 2002) (“Neither a prisoner’s pro se status nor his lack of knowledge of the law

constitute[s] extraordinary circumstances justifying equitable tolling.”). Rather, these are

conditions typical for many prisoners and do not rise to the level of exceptional circumstances.

Groomes v. Parker, No. 3:07–cv–0124, 2008 WL 123935, at *5 (M.D. Tenn. Jan. 9, 2008)

(citing Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004)).

In short, Petitioner does not allege, and the record does not reflect, any extraordinary

circumstances that would justify equitable tolling of the statute of limitations. Holland, 560 U.S.

at 649. His petition must therefore be dismissed as untimely.

IV. RECOMMENDED DISPOSITION

For the reasons set forth above, it is RECOMMENDED that Respondent’s Motion to

Dismiss (ECF No. 11) be GRANTED and 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