Brown v. Warden Noble Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DYLAN M. BROWN,

CASE NO. 2:20-CV-01295

Petitioner, JUDGE SARAH D. MORRISON

Chief Magistrate Judge Elizabeth P. Deavers

v.

WARDEN, NOBLE

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 Reply, and the exhibits of the parties. For the reasons that follow, it is

RECOMMENDED that the 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 in the Franklin County Court

of Common Pleas on eight counts of robbery. The Ohio Tenth District Court of Appeals

summarized the facts and procedural history of the case as follows:

{¶ 2} Brown was indicted on June 23, 2016, on 16 counts of robbery, 6 counts of

aggravated robbery, and 1 count of having a weapon under disability, relating to

multiple robberies committed earlier that month. Brown initially entered a plea of

not guilty and was provided with appointed counsel. On December 6, 2016, Brown

entered guilty pleas on 8 counts of robbery; the plea agreement included a joint

recommendation of 16 years’ incarceration and the prosecution requested a nolle

prosequi on the other counts in the indictment. The same day, the trial court

conducted a sentencing hearing and imposed a sentence of 2 years on each count to

which Brown pled guilty, to be served consecutively to each other, for a total

sentence of 16 years’ imprisonment.

{¶ 3} On November 16, 2017, Brown filed a pro se motion to withdraw his guilty

plea, asserting he was not competent to enter a guilty plea at the time of the plea

hearing and that he received ineffective assistance of counsel because his counsel

did not assert an insanity defense or seek a competency hearing. Plaintiff-appellee,

State of Ohio, filed a memorandum in opposition to Brown’s motion to withdraw

the guilty plea. The trial court denied Brown’s motion, concluding he failed to

establish that a manifest injustice occurred when the court accepted his guilty plea.

The court found that although Brown claimed he was denied medical assistance

while in the county jail and suffered from ongoing mental health issues that

prevented him from entering a knowing, voluntary, and intelligent plea, he failed

to provide any evidence or affidavit to support these claims. The court also found

Brown failed to establish he received ineffective assistance of counsel because there

was no evidence of behavior that would have warranted a competency hearing;

therefore, the court concluded his counsel did not perform deficiently by failing to

request a competency hearing or mental evaluation.

Assignments of Error

{¶ 4} Brown appeals and assigns the following two assignments of error:

[I.] The Trial Court abused its discretion in denying Appellant’s Motion to

Withdraw Guilty Plea in violation of Appellant’s rights under Ohio Criminal Rule

32.1 and the United States and Ohio Constitutions.

[II.] Appellant did not receive effective assistance of counsel in entering his guilty

plea in violation of his rights under the Ohio Constitution and the 14th and 6th

Amendments to the United States Constitution.

State v. Brown, 10th Dist. No. 18AP-112, 2018 WL 6571195, at * (Ohio Ct. App. Dec. 13, 2018).

On December 13, 2018, the appellate court affirmed the trial court’s judgment. Id. On March 6,

2019, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Brown, 154

Ohio St.3d 1522 (Ohio 2019). On March 4, 2019, Petitioner filed an application to reopen the

appeal pursuant to Ohio Appellate Rule 26(B). (ECF No. 9, PAGEID # 177.) On April 30, 2019,

the appellate court denied the Rule 26(B) application. (PAGEID # 190.) Petitioner did not file an

appeal.

On March 5, 2020, Petitioner executed this pro se habeas corpus petition pursuant to 28

U.S.C. § 2254. (ECF No. 1, PAGEID # 11.) He asserts that he was denied the effective assistance

of counsel because his attorney failed to request a competency hearing or a psychological

evaluation and failed to file a motion to suppress his statements to police (claims one and three);

and that his guilty plea was not knowing, intelligent, or voluntary (claim two). It is the

Respondent’s position that this action should be dismissed as barred by the on-year statute of

limitations.

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 as follows:

(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.

Construing the running of the statute of limitations to the benefit of the Petitioner, the

Petitioner’s judgment of conviction became final under the provision of § 2244(d)(1)(A) on

January 16, 2017,1 when the time period expired to file a timely appeal from the trial court’s

December 15, 2016, amended entry of judgment. (ECF No. 9, PAGEID # 67.) See Watkins v.

Warden, Dayton Corr. Inst., No. 2:16-cv-501, 2016 WL 3855206, at * (S.D. Ohio July 15, 2016)

(citing Worthy v. Warden, No. 2:12-cv-652, 2013 WL 4458798, at *2 (S.D. Ohio Aug. 19, 2013)

(citing 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)); Coffey v. Warden, Warren Corr. Inst., No. 1:06CV717,

2007 WL 951619, at *3-4 (S.D. Ohio March 28, 2007) (the filing of a motion to withdraw guilty

plea tolls, but does not re-start, the running of the statute of limitations)(citations omitted). The

statute of limitations began to run on the following day, and ran for a period of 304 days, until

November 16, 2017, when Petitioner filed a motion to withdraw his guilty plea. That action, and

Petitioner’s subsequent Rule 26(B) application, tolled the running of the statute of limitations

under § 2244(d)(2) until June 14, 2019, when the time period expired to file an appeal to the Ohio

Supreme Court from the appellate court’s April 30, 2019 denial of Petitioner’s 26(B) application.

See Marrero v. Belmont Corr. Inst., No. 1:13-cv-216, 2014 WL 2949331, at *7 (N.D. Ohio June

10, 2014) (“While not clearly established, authority in [the Sixth Circuit] suggests that a

petitioner’s one-year period of time is tolled during the period of time during which he may appeal

a state appellate court’s decision to the Ohio Supreme Court, regardless of whether he does so.”)

(citing Applegarth v. Warden, 377 F. App’x 448, 449 (6th Cir. 2010); Nunez v. Coleman, No.

1:12–CV–903, 2014 WL 809206, *3, n. 10 (N.D. Ohio Feb.25, 2014) (Lioi, J.). The statute of

limitations began to run on the following day and expired 65 days later, on August 19, 2019.

Petitioner waited more than six months, until March 5, 2020, to execute this federal habeas corpus

1 Petitioner had thirty days to file an appeal. See Ohio Appellate Rule 4(A). That date, however,

fell on a weekend and so the deadline is extended to the following Monday.

petition. Moreover, Petitioner 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, however, contends that this action is timely under the provision of 28 U.S.C. §

2244(d)(1)(D), that he acted diligently in pursuing his claims, and that the statute of limitations

did not begin to run until September 3, 2019, the date that he exhausted Rule 26(B) proceedings.

(Reply, ECF No. 12, PAGEID # 268.) Petitioner does not clarify, and this Court is unable to

determine from the record, the basis for the proposed September 3, 2019, starting date. In any

event, these arguments do not assist him.

Under the provision of 28 U.S.C. § 2244(d)(1)(D), the statute of limitations may not begin

to run until “the date on which the factual predicate of the claim or claims presented could have

been discovered through the exercise of due diligence.”

[T]he time commences under § 2244(d)(1)(D) when the factual predicate for a

petitioner’s claim could have been discovered through the exercise of due diligence,

not when it was actually discovered by a given prisoner. Owens v. Boyd, 235 F.3d

356, 359 (7th Cir. 2000). Also, under § 2244(d)(1)(D), the time under the

limitations period begins to run is when a petitioner knows, or through due

diligence, could have discovered, the important facts for his claims, not when the

petitioner recognizes the legal significance of the facts. Id. In other words, §

2244(d)(1)(D) does not convey a statutory right to an extended delay while a

petitioner gathers every possible scrap of evidence that might support his claim.

Sorce v. Artuz, 73 F.Supp.2d 292, 294-95 (E.D.N.Y. 1999). Rather, it is the actual

or putative knowledge of the pertinent facts of a claim that starts the clock running

on the date on which the factual predicate of the claim could have been discovered

through due diligence, and the running of the limitations period does not await the

collection of evidence which supports the facts[.] Tate v. Pierson, 177 F.Supp.2d

792, 800 (N.D. Ill. 2001)(citing to Flanagan v. Johnson, 154 F.3d 196, 198-99 (5th

Cir. 1998)). Furthermore, a habeas petitioner has the burden of proof in establishing

that he exercised due diligence in searching for the factual predicate of the habeas

claims. Stokes v. Leonard, 36 Fed.Appx. 801, 804 (6th Cir. 2002).

Monford v. Shoop, No. 2:19-cv-3491, 2019 WL 6044160, at *1 (S.D. Ohio Nov. 15, 2019) (quoting

Gilbert v. CCA Halfway House, No. 2:16-cv-00781, 2016 WL 4417494, at *3 (S.D. Ohio Aug. 19,

2016)) (quoting Redmond v. Jackson, 295 F.Supp.2d 767, 771 (E.D. Mich. 2003)).

Here, the factual predicate for Petitioner’s claims would have been known to him at the

time of the entry of his guilty plea. Nonetheless, Petitioner failed to file a timely appeal. He did

not pursue a delayed appeal. He waited 304 days to pursue his claims through the filing of a

motion to withdraw his guilty plea. Further, he never filed an appeal to the Ohio Supreme Court

in Rule 26(B) proceedings. He waited more than ten months after the appellate court had dismissed

that action to execute this habeas corpus petition. Petitioner does not explain this delay. Petitioner

does not allege, and the record does not reflect, that any state action prevented him from timely

filing. Further, as discussed, this Court has rejected the argument that the filing of a motion to

withdraw a guilty plea re-starts the running of the one-year statute of limitations under the

provision of 2244(d)(1)(A). See Threats v. Warden, Trumbull Corr. Inst., No. 2:19-cv-5020, 2020

WL 2193282, at *3 (S.D. Ohio May 6, 2020) (citations omitted); Coffey v. Warden, Warren Corr.

Inst., 2007 WL 951619, at *3-4.

Thus, this action is time-barred.

III. DISPOSITION

Accordingly, it is RECOMMENDED that the 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/ Elizabeth A. Preston Deavers____________

ELIZABETH A. PRESTON DEAVERS

CHIEF UNITED STATES MAGISTRATE JUDGE