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