Opinion

Brown v. Warden Noble Correctional Institution

Court
District Court, S.D. Ohio
Filed
Nov 12, 2020
Cited by
0 cases
Authority
More cited than 28.2%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DYLAN M. BROWN,

Case No. 2:20-cv-1295

Petitioner, Judge Sarah D. Morrison

Magistrate Judge Elizabeth Preston Deavers

v.

WARDEN, NOBLE

CORRECTIONAL INSTITUTION,

Respondent.

OPINION AND ORDER

On October 23, 2020, final Judgment was entered dismissing the petition for

a writ of habeas corpus as barred by the one-year statute of limitations. (ECF No.

15.) On November 5, Petitioner filed a Motion for Reconsideration (ECF No. 16),

requesting consideration of his objections to the Magistrate Judge’s Report and

Recommendation (“R&R”), filed on October 5. According to Petitioner, he did not

timely receive notification of the Magistrate Judge’s R&R and failed to timely file

objections in part due to delays caused by COVID-19. Therefore, Petitioner’s Motion

for Reconsideration is GRANTED. (ECF No. 16.) The Court VACATES the final

Judgment of dismissal of this action for consideration of Petitioner’s objections.

(ECF No. 15.)

Pursuant to 28 U.S.C. § 636(b), this Court conducts a de novo review of the

Magistrate Judge’s R&R. Petitioner objects to the Magistrate Judge’s

recommendation of dismissal of this action as time-barred under the provision of 28

U.S.C. § 2244(d)(1)(A). Pointing to Sexton v. Wainwright, 968 F.3d 607 (6th Cir.

2020), Petitioner argues that the one-year statute of limitations did not begin to run

under the provision of § 2244(d)(1)(D)1 until December 13, 2018, the date that the

state appellate court affirmed the trial court’s denial of Petitioner’ s motion to

withdraw his guilty plea. This argument is without merit.

The Sixth Circuit held in Sexton that the one-year statute of limitations does

not begin to run on a claim that the state appellate court violated due process in

denying a motion for a delayed appeal until the date that the appellate court denies

the motion for a delayed appeal. “Discovery of that predicate obviously cannot occur

[until] the denial occurs.” Duett v. Warden, No. 1:19-cv-725, 2020 WL 4933892, at *3

(S.D. Ohio Aug. 24, 2020). Thus, a habeas petition brought within one year of the

denial of a motion for a delayed appeal will be timely under the provision of 28

U.S.C. § 2244(d)(1)(D). Id. (citing Sexton, 968 F.3d at 613).

Petitioner, however, does not raise this same issue here. Petitioner never

pursued a motion for a delayed appeal. He challenges his December 6, 2016

convictions in the Franklin County Court of Common Pleas on eight counts of

robbery pursuant to his guilty plea. He asserts that he was denied the effective

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

mental health evaluation, and that his guilty plea was not knowing, intelligent or

voluntary. (Petition, ECF No. 1, PAGEID # 4, 6.) Petitioner raised these same issues

1 28 U.S.C. § 2244(d)(1)(D) provides that the one-year statute of limitations

does 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.”

in his November 16, 2017 motion to withdraw his guilty plea. See State v. Brown,

2018 WL 6571195 (Ohio App. 10th Dist. Dec. 13, 2018). On December 13, 2018, the

appellate court affirmed the trial court’s denial of that action. Id. However,

Petitioner waited until March 5, 2020, to execute this habeas corpus petition. Thus,

even assuming, arguendo, that the reasoning of Sexton applies, it does not assist

him. This action is plainly time-barred.

For these reasons and for the reasons detailed in the Magistrate Judge’s

R&R, Petitioner’s objections are OVERRULED. The R&R (ECF No. 13) is

ADOPTED and AFFIRMED. Respondent’s Motion to Dismiss (ECF No. 11) is

GRANTED. This action is hereby DISMISSED.

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United

States District Courts, the Court now considers whether to issue a certificate of

appealability. “In contrast to an ordinary civil litigant, a state prisoner who seeks a

writ of habeas corpus in federal court holds no automatic right to appeal from an

adverse decision by a district court.” Jordan v. Fisher, 576 U.S. 1071, 135 S.Ct.

2647, 2650 (2015) (Sotomayor, J., dissenting); 28 U.S.C. § 2253(c)(1) (requiring a

habeas petitioner to obtain a certificate of appealability in order to appeal).

When a claim has been denied on the merits, a certificate of appealability

may issue only if the petitioner “has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing of the

denial of a constitutional right, a petitioner must show “that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were ‘adequate to

deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). When a claim has

been denied on procedural grounds, a certificate of appealability may issue if the

petitioner establishes that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was correct in its

procedural ruling. Id.

The Court is not persuaded that reasonable jurists would debate the dismissal

of this action as unexhausted and time-barred. The Court therefore DECLINES to

issue a certificate of appealability.

The Court certifies that the appeal would not be in good faith and that an

application to proceed in forma pauperis on appeal should be DENIED.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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