Green v. Warden, Chillicothe Correctional Institution

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DANNY M. GREEN,

Plaintiff,

Case No. 1:20-cv-381

v. JUDGE DOUGLAS R. COLE

Magistrate Judge Merz

WARDEN, CHILLICOTHE

CORRECTIONAL INSTITUTION,

Defendant.

OPINION AND ORDER

Petitioner Danny Green waited some four years after his state conviction

became final to file his pro se petition in this Court for a Writ of Habeas Corpus under

28 U.S.C. § 2254. (Doc. 1). That matters because the statute of limitations for such

actions is typically one year. Green argues that his delay in filing is permissible

because tolling of one form or another fills the remaining three-year gap. The

Magistrate Judge disagreed and issued a Report and Recommendation (R&R, Doc.

15) and Supplemental Report and Recommendation (Supplemental R&R, Doc. 20)

recommending that this Court dismiss Green’s petition with prejudice. Green

objected to both. (Doc. 18; Doc. 21). The matter is now before the Court on the two

R&Rs and Green’s objections to them.

For the reasons discussed below, the Court agrees with the Magistrate Judge.

Accordingly, the Court DISMISSES Green’s Petition (Doc. 1) WITH PREJUDICE.

Moreover, because no reasonable jurist could disagree with that conclusion, the Court

DENIES Green a certificate of appealability under 28 U.S.C. § 2253(c)(2). And for

similar reasons, the Court finds that an appeal would not be in good faith under 28

U.S.C. § 1915(a)(3) and DENIES Green leave to appeal in forma pauperis.

PROCEDURAL HISTORY

A. The State Court Proceedings

On January 23, 2013, the Middletown, Ohio, Municipal Court issued a criminal

complaint against Green, charging him with rape. (State Ct. R., Doc. 6, Ex. 1, #46).

He appeared on that complaint two days later, and the court held a preliminary

hearing on the charge on February 1, 2013. (Id.). The court ordered him held subject

to posting a $500,000 bond. (Id. at #47).

On March 6, a grand jury in Butler County, Ohio, followed up by indicting

Green on four counts of rape of a person less than 13 years of age in violation of Ohio

Revised Code § 2907.02(A)(1)(b) (Counts 1, 2, 3, and 6), one count of attempted sexual

battery in violation of Ohio Revised Code § 2923.02(A)/2907.03(A)(5) (Count 4), one

count of gross sexual imposition in violation of Ohio Revised Code § 2907.05(A)(4)

(Count 5), and one count of rape in violation of Ohio Revised Code § 2907.02(A)(2)

(Count 7). (Id. at Ex. 2, #51–52). Roughly a month later, Green pleaded guilty to

Counts 1 and 6, each of which carried a maximum prison term of 10 years. (Id. at Ex.

10, #63).1 On June 28, though, he moved to withdraw that plea, based on “new

exculpatory evidence that had been discovered.” (Id. at Ex. 22, #93). But at a July 22

hearing, he withdrew that motion. (Id.). On July 31, 2013, the state court sentenced

1 Green pleaded guilty under Ohio Revised Code § 2970.02(A)(1)(c), rather than

§ 2970.02(A)(1)(b), the statute the grand jury indictment charged him with violating. (Id.).

him to nine years imprisonment on each count, to be served concurrently. (Id. at Ex.

19, #88).

Green did not file a timely direct appeal, but roughly a year after his

sentencing, he began filing several pro se motions. First, despite his guilty plea, on

June 6, 2014, he moved to dismiss the Indictment under Ohio Rule of Criminal

Procedure 48(B). (Id. at Ex. 22, #92). The state trial court denied that motion. (Id. at

Ex. 25, #145). He did not appeal that denial.

Soon after, on July 29, 2014, he filed his first pro se motion to withdraw his

guilty plea under Ohio Rule of Criminal Procedure 32.1. (Id. at Ex. 26, #146). On

November 13, 2014 (a date important to Green’s argument regarding the timeliness

of this habeas petition), the trial court denied that motion. (Id. at Ex. 30, #193). Green

appealed that denial, but the Twelfth District Court of Appeals affirmed. (Id. at Ex.

38, #270–83). After the appeals court also denied motions to certify a conflict and for

reconsideration (id. at Ex. 46, #319–23), Green appealed to the Supreme Court of

Ohio, which declined jurisdiction. State v. Green, 143 Ohio St.3d 1502 (2015). (Id. at

Ex. 50, #350).

Green then filed his first petition for postconviction review on December 11,

2015, under Ross County Common Pleas Court Case No. 15CI 547. The court denied

that petition on April 19, 2016. (Id. at Ex. 87, #674). Green did not appeal.

After that, Green filed a second pro se motion to withdraw his guilty plea on

May 16, 2016. (Doc. 6, Ex. 51, #351). The trial court also denied that motion (id. at

Ex. 57, #395) and the appellate court affirmed that judgment. State v. Green, 2017-

Ohio-2800 (Ohio App. 12th Dist. 2017); (Doc. 6, Ex. 62, #453–59). The Twelfth District

once again denied motions to certify a conflict and for reconsideration (Doc. 6, Ex. 69,

#501–02; id. at Ex. 70, #503–04) and Green did not appeal further.

Green did, however, move for leave to file a delayed direct appeal of his

conviction on August 14, 2017. He claimed he was not notified of his appellate rights

at his sentencing hearing. (Doc. 6, Ex. 81, #648–59). The appellate court denied

Green’s motion to file a delayed direct appeal and dismissed the appeal on September

12, 2017, another date that figures into his statute of limitations argument here. (Id.

at Ex. 84, #664). He did not appeal that denial to the Supreme Court of Ohio.

Next, Green moved for a new sentencing hearing. (Id. at Ex. 71, #505). Once

again, the trial court denied relief, Green appealed, and the appellate court affirmed.

State v. Green, 12th Dist. Butler Cty. No. CA2018-03-051 (Aug. 6, 2018); (Doc. 6, Ex.

79, #644). Green did not appeal the appellate court’s ruling to the Supreme Court of

Ohio.

Then, on March 15, 2019, Green filed a second petition for state postconviction

review—this time in the Ohio Court of Appeals for the Fourth District. (Id. at Ex. 88,

#678–728). After that court denied relief (id. at Ex. 91, #749–53), Green appealed and

the Supreme Court of Ohio affirmed. Green v. Shoop, 159 Ohio St.3d 439 (2020); (Doc.

6-1, #872–75).

B. The Federal Court Proceedings

Green then shifted his focus to federal court. On May 11, 2020, he mailed his

Petition for Writ of Habeas Corpus to this Court. (Doc. 1, #31 (showing the

postmarked envelope)). The Petition, which he filed pro se, is not the model of clarity.

But it pleads three grounds for relief. First, he says the trial court lacked jurisdiction

to convict Green, because the prosecution did not file a “complaint or affidavit” before

arresting him as Ohio law requires, therefore presumably rendering the remainder

of his criminal proceedings void. (Id. at #8). Second, he alleges his plea was not

knowing and voluntary because the trial court was threatening a severe sentence if

he did not plead, leaving him “under duress and with no real choice,” thereby

violating the Fifth, Sixth, and Fourteenth Amendments. (Id. at #11). Finally, he

argues that the state violated his due process and equal protection rights under the

Fourteenth Amendment because neither the sentencing court nor his counsel

originally informed him of his appellate rights, and when he later tried to file a

delayed appeal, the courts said no. (Id. at #13).

On January 13, 2021, the Magistrate Judge issued an R&R that recommended

dismissing the Petition with prejudice because all three claims are time-barred under

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). (Doc. 15, #1061).

The R&R also recommended alternate grounds for dismissal: that Grounds One and

Three lack merit, and that all three grounds are procedurally defaulted. (Id. at #1064,

1069, 1071).

Green raised four objections to the R&R’s conclusion that AEDPA’s statute of

limitations barred his claims. (Doc. 18, #1080–83). According to Green, the

Magistrate Judge (1) misread what Green said in his filings (id. at #1080–81),

(2) incorrectly determined that DiCenzi v. Rose, 452 F.3d 465 (6th Cir. 2006), did not

entitle Green to relief (id. at #1081), (3) incorrectly concluded that Green’s state court

filings did not toll the statute of limitations (id. at #1082), and (4) failed to consider

that Green had needed to exhaust his state court remedies (thus justifying the delay

in filing his federal habeas petition) (id. at #1082–83).

The then-assigned judge recommitted the matter to the Magistrate Judge to

consider Green’s objections. (Doc. 19). The Magistrate Judge issued a Supplemental

R&R recommending overruling the objections and suggesting the same conclusion as

the initial R&R: the Petition was time-barred. (Doc. 20, #1093). Green objected again.

(Doc. 21). His objections to the Supplemental R&R’s analysis of the statute of

limitations issue are substantially the same as his objections to the original R&R.

(Doc. 21, #1096–102). The Warden responded, asserting that “Green’s non-specific,

non-responsive, and repetitive arguments are not proper 28 U.S.C. § 636(b)(1)(C)

objections, and Green has not shown that the Magistrate Judge’s Supplemental

Report & Recommendation is clearly erroneous or contrary to law.” (Doc. 22, #1106).

The matters are ripe for the Court’s review.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 72(b)(3), “district courts review a report

and recommendation de novo after a party files a timely objection.” Bates v. Ohio

Dep’t of Rehab. & Corr., No. 1:22-cv-337, 2023 WL 4348835, at *1 (S.D. Ohio July 5,

2023). But that de novo review requirement extends only to “any portion to which a

proper objection was made.” Id. (citation omitted). In response to such an objection,

“the district court may accept, reject, or modify the recommended disposition; receive

further evidence; or return the matter to the magistrate judge with instructions.” Id.

(quoting Fed. R. Civ. P. 72(b)(3)) (cleaned up).

By contrast, if a party makes only a general objection, that “has the same

effect[] as would a failure to object.” Howard v. Sec'y of Health & Hum. Servs., 932

F.2d 505, 509 (6th Cir. 1991). A litigant must identify each issue in the report and

recommendation to which he objects with sufficient clarity for the Court to identify

it, or else the litigant forfeits the Court’s de novo review of the issue. Miller v. Currie,

50 F.3d 373, 380 (6th Cir. 1995) (“The objections must be clear enough to enable the

district court to discern those issues that are dispositive and contentious.”).

That said, Green is proceeding pro se. A pro se litigant’s pleadings should be

construed liberally and are subject to less stringent standards than formal pleadings

filed by attorneys. Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Franklin v. Rose,

765 F.2d 82, 84–85 (6th Cir. 1985). But pro se litigants still must comply with the

procedural rules that govern civil cases. McNeil v. United States, 508 U.S. 106, 113

(1993). And “[t]he liberal treatment of pro se pleadings does not require the lenient

treatment of substantive law.” Johnson v. Stewart, No. 08-1521, 2010 WL 8738105,

at *3 (6th Cir. May 5, 2010) (citations omitted).

For unobjected portions of the R&R, “the advisory committee notes to Federal

Rule of Civil Procedure 72(b) suggest that the Court still must ‘satisfy itself that there

is no clear error on the face of the record in order to accept the recommendation.’”

Redmon v. Noel, No. 1:21-cv-445, 2021 WL 4771259, at *1 (S.D. Ohio Oct. 13, 2021)

(collecting cases).

And importantly, while courts need not review unobjected portions of the R&R

de novo, nothing precludes them from doing so. See Thomas v. Arn, 474 U.S. 140, 154

(1985) (“[W]hile [28 U.S.C. § 636(b)(1)(C)] does not require the judge to review an

issue de novo if no objections are filed, it does not preclude further review by the

district judge, sua sponte or at the request of a party, under a de novo or any other

standard.”).

LAW AND ANALYSIS

The Magistrate Judge begins his analysis by addressing the statute of

limitations issue, which applies to all three grounds for relief. (Doc. 15 #1056–61).

And he finds that the statute of limitations bars Green’s claims. He then also provides

alternate grounds for dismissing those claims: a lack of merit (Grounds One and

Three) and procedural default (all three grounds). (Id. at #1061–73). The statute of

limitations issue, though, along with the inapplicability of equitable tolling, is

dispositive. Accordingly, the Court will discuss only the statute of limitations and

equitable tolling issues and will not address the Magistrate Judge’s alternate reasons

for recommending dismissal or their attendant objections. And the Court elects to

review the issue de novo, meaning the Court will consider all arguments that Green

made, whether initially or in his objections.

A. The Statute of Limitations

Green asserts his petition is timely for a combination of two reasons:

(1) AEDPA’s statute of limitations began to run later than the Magistrate Judge

claimed; and (2) Green is entitled to tolling that suffices to cover the remaining gap.

As to the first of those, Green asserts that the “trigger date”—that is, the date when

the statute of limitations began running—for Grounds One and Two (the conviction-

based claims) is November 13, 2014, when the trial court denied his motion to

withdraw his plea. (Traverse, Doc. 11, #1030). For Ground Three (the appeal-based

claim), Green asserts a trigger date of September 12, 2017. (Id. at #1028). As for his

tolling theory, Green argues that he is entitled to statutory and equitable tolling for

all three claims. (Id. at #1028–31). Green does not make any actual innocence

argument.

AEDPA governs Green’s claim. Pub. L. No 104-132, 110 Stat. 1214. As relevant

here, that statute provides:

(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; … 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.

28 U.S.C. § 2244(d).

1. The Trigger Dates

The first step in analyzing a statute of limitations argument is determining

the appropriate trigger dates—when did the limitations period begin running? Under

AEDPA’s plain language, the answer appears straightforward. For claims where the

facts underlying the claim are known to the defendant at the time of conviction, the

clock begins ticking upon the conclusion of direct review of the criminal conviction.

28 U.S.C. § 2244(d)(1)(A). For claims where the facts underlying the claim are

unknown to the defendant at the time of conviction, the clock starts to run when the

defendant could have discovered those facts with due diligence. Id. at § 2244(d)(1)(D).

Green’s conviction-based claims (Grounds One and Two) fall into the former

category. So, absent extenuating circumstances, the trigger date for those grounds is

August 30, 2013—when Green’s opportunity for direct review of his conviction

lapsed.2 Green’s appeal-based claim (Ground Three) arguably falls into the latter

category. He alleges that the trial court did not inform him at his sentencing, and he

did not know, of his right to appeal his conviction, and that therefore the factual

predicate of his third ground for relief (the denial of his right to an appeal) occurred

when the state court denied leave to file a late appeal on September 12, 2017. (Doc.

1, #12–13, 15). Assuming the factual predicate of his claim was actually when the

Twelfth District Court of Appeals denied leave to file a belated appeal (which the

Court doubts3), Green is correct as to the trigger date for Ground Three. See DiCenzi

2 Green’s conviction became final when he was sentenced on July 31, 2013. He then had 30

days to appeal that conviction under Ohio Rule of Appellate Procedure 4(A)(1). Because he

did not appeal his conviction, the AEDPA clock started upon the “expiration of the time for

seeking such review.” 28 U.S.C. § 2244(d)(1). So his clock started 30 days after July 31, 2013:

August 30, 2013.

3 Green claims he was not informed of his appellate rights at the sentencing hearing. But the

record belies that assertion. Green signed a plea form indicating that he understood his right

to appeal. (Doc. 6, #63–64). He also (1) admitted in open court that he signed the guilty plea

form, and (2) “had a full and fair opportunity to read, review, and discuss” the plea form with

his attorney. (Doc. 6-2, #907, 915). That suffices to show that the court informed him of his

appellate rights. Kelley v. Brunsman, 625 F. Supp. 2d 586, 600 (S.D. Ohio 2009) (“[P]etitioner

signed a guilty plea agreement indicating he understood the nature of the charges … [T]he

v. Rose, 452 F.3d 465, 468 (6th Cir. 2006) (holding that the trigger date for a claim

asserting a denial of the right to appeal was when the state court denied leave to file

the delayed appeal).

Green argues for later trigger dates for the conviction-based claims (Grounds

One and Two). He contends that the trigger date for those claims should be November

13, 2014. (Doc. 11, #1030). That is the date when the state trial court denied his Ohio

Crim R. 32.1 motion to withdraw his plea and did so at least partially on the ground

that he could have made the same arguments on direct appeal but failed to do so.

(Doc. 6, #198). Green contends that this trial court order is what first made him aware

of his right to appeal and that that knowledge (that he had a right to appeal) is

somehow the factual predicate for his involuntary plea claim and lack of jurisdiction

claim. (See Doc. 11, #1030; Doc. 18, #1080–81 (stating that Green exercised due

diligence in “discovering his right to appeal, the factual predicate of his conviction

based [sic] claims”)).

That argument doesn’t work. His substantive conviction-based constitutional

claims are that (1) the trial court lacked jurisdiction to convict him, and (2) his plea

was unknowing or involuntary. (Doc. 1, #7–12). The factual predicate for the first

guilty plea and sentencing transcript confirms that petitioner read, understood, and

discussed with his counsel the guilty plea … [I]t is clear that petitioner was informed and

aware of his appellate rights.”). If the Court understands his claim to allege a generalized

denial of his right to appeal based on his lack of knowledge of his appellate rights, one could

argue that Green could have known of the factual predicate of his claim the day he was

sentenced. In that case, the clock would start on July 31, 2013. If on the other hand his claim

is that the denial of a delayed appeal violated the Constitution, then that predicate did not

occur until September 12, 2017. Using either trigger date, Green’s appeal-based claim was

untimely.

occurred when the court exercised jurisdiction, and certainly no later than when it

sentenced him on July 31, 2013 (because that is when the supposed damage was

done). And as for the second, he appears to claim that his plea was not knowing or

voluntary because he felt “under duress” and that he had “no real choice,” because

the judge had indicated that if Green did not accept the plea deal he would most likely

“sentence [Green] to the maximum on both charges and run the sentences

consecutively.” (Doc. 1, #11). Of course, by Green’s own admission, those facts were

known to him at the time of his plea. So because he knew the factual predicate of his

claims well before the conclusion of direct review of his conviction, AEDPA

automatically chooses that later date—August 30, 2013. See 28 U.S.C. § 2244(d)(1)

(the statute of limitation runs “from the latest of” the listed events).

Green argues for a later “actual knowledge” date as to Ground One, because

he claims that he did not know that the criminal complaint that led to his arrest in

January of 2013 was defective. In particular, he highlights the fact that the criminal

complaint attached to the state court record does not contain the substance of the

testimony allegedly supporting the complaint, and that the complaint is dated

February 7, 2013, rather than January 23, 2013, when the complaint allegedly issued.

(Doc. 6, #46).

That argument fails regardless of whether the complaint was defective.4 To the

extent that the complaint was defective, presumably Green’s counsel would have

4 The document to which Green points is labeled “Transcript – Criminal Docket.” In other

words, the document does not even necessarily purport to be the actual criminal complaint.

Rather, it appears to be a record of the various preliminary matters related to that complaint.

(For example, the bottom portion contains reference to the preliminary hearing date, bond

known that. And information known to a defendant’s counsel is imputed to the

defendant. See Lampe v. Kash, 735 F.3d 942, 944 (6th Cir. 2013) (“When a lawyer

represents a client, his acts become the client’s acts, his knowledge the client’s

knowledge.”); Lollis v. Warden, Ohio State Penitentiary, No. 15-CV-703, 2016 WL

3619360, at *3–4 (N.D. Ohio July 6, 2016) (footnote omitted) (relying on Lampe in the

habeas context). True, assuming both (1) that the defect had legal significance, and

(2) that Green’s counsel did not share (or learn) that knowledge, that may give rise

to an ineffective assistance claim. But it does not change that Green is charged with

knowledge of the defective complaint (if it indeed was defective) in the first instance.

And Green has not made an ineffective assistance claim. So, even assuming the

complaint was defective, he cannot lay claim to a later trigger date for his claim that

the trial court lacked jurisdiction.

Separately, Green’s citation to Dicenzi does not help him. (Doc. 18, #1081

(citing Dicenzi, 452 F.3d at 465)). That case involved a man who pleaded guilty to

vehicular homicide and received the maximum sentence under Ohio law. 452 F.3d at

466–67. Although the defendant was unaware of it, Ohio law provided a non-waivable

right to appeal a maximum sentence, regardless of whether the defendant pleaded

guilty. Id. When he learned of his non-waivable right, the defendant sought leave to

file a delayed appeal. Id. at 467. The Ohio court of appeals denied him leave. Id. The

defendant eventually brought a federal habeas claim, arguing that the state appellate

information, etc.) So, it offers no support for Green’s argument that the criminal complaint

itself was invalid. But the Court need not determine the validity of the complaint because

Green’s argument fails even if the complaint was defective.

court’s refusal to allow him to file a delayed appeal violated the Constitution. Id. The

Sixth Circuit, for AEDPA timeliness purposes, held that the trigger date for that

claim was when the Ohio court of appeals denied leave to appeal. Id. at 468.

But Dicenzi is limited to claims based on the denial of leave to appeal (Green’s

Ground Three), not substantive constitutional claims rooted in the defendant’s

criminal conviction. Dicenzi has nothing to say about when the factual predicate for

a jurisdictional or involuntary plea claim occurs. Accordingly, Green’s trigger date for

his conviction-based claims is still the day direct review concluded—August 30, 2013.

Based on these trigger dates, all three of Green’s claims are untimely. For

Grounds One and Two, the clock began to run on August 30, 2013. Assuming no

tolling, 2,446 days elapsed between the trigger date and Green filing his federal

petition (May 11, 2020). This is far outside the one-year window.

For Ground Three, the trigger date admittedly is later, but the claim is still

untimely. To the extent that Green’s claim rests on the notion that the state court’s

denial of leave to file a delayed appeal independently violated the Constitution, the

factual predicate for that claim, as stated above, occurred the date the state court

denied leave to appeal—September 12, 2017. See DiCenzi, 452 F.3d at 468. But that

means the statute of limitations would have expired 365 days later, on September 12,

2018. And Green did not raise his appeal-based claim until May 11, 2020—607 days

after September 12, 2018. This also falls outside the one-year window.

In sum, based on the trigger dates for Green’s claims, his habeas petition is

untimely under AEDPA assuming no tolling. The Court thus proceeds to the tolling

issue.

2. Tolling Does Not Help Green

Two types of tolling potentially apply to AEDPA claims—statutory and

equitable. Take them in order.

a. Statutory Tolling

Statutory tolling arises because “[t]he 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.” 28 U.S.C. § 2244(d)(2). As the language suggests,

though, tolling occurs only when a motion is “properly filed.” “A petition is properly

filed when ‘its delivery and acceptance are in compliance with the applicable laws

and rules governing legal filings.’ Hardin v. Genovese, No. 21-5867, 2023 WL

1992036, at *2 (6th Cir. Feb. 14, 2023) (citing Artuz v. Bennett, 531 U.S. 4, 8 (2000)).

A state time bar is a rule that governs legal filings. See id. at *3 (citing Pace v.

DiGuglielmo, 544 U.S. 408, 417 (2005).

With respect to the issues he raises in Grounds One and Two, Green “properly

filed” his motion to withdraw his guilty plea under Ohio Rule of Criminal Procedure

32.1. He filed that motion on July 29, 2014, (Doc. 6, Ex. 26, #146), pausing the AEDPA

clock until the state court system finally adjudicated the motion. The state trial court

did its part, denying the motion on the merits. (Id. at Ex. 30, #193). The Twelfth

District Court of Appeals then followed suit, affirming that decision on the merits.

(Id. at Ex. 38, #270–83). And that decision became final when the Ohio Supreme

Court declined jurisdiction on October 28, 2015. State v. Green, 143 Ohio St.3d 1502

(2015). (Id. at Ex. 50, #350). Because none of the Ohio courts disposed of the motion

as improperly filed, Green is entitled to statutory tolling from the date of filing—July

29, 2014—through October 28, 2015, when the Ohio Supreme Court declined

jurisdiction. See 28 U.S.C. § 2244(d).

But Green’s other motions do not provide any additional statutory tolling.

Green’s motion to dismiss his indictment, for example, which he filed on June 9, 2014,

and which the court decided on November 13, 2014, was not properly filed because

the state court found that it was untimely. (Doc. 6, Ex. 25, #141–45); Pace, 544 U.S.

at 417 (“[T]ime limits, no matter their form, are ‘filing’ conditions.”). And his

subsequent filings were either filed and adjudicated during the tolling period for his

motion to withdraw his guilty plea (meaning that they did not provide him any

additional tolling), or they were filed after the statute of limitations had expired.

Green is therefore entitled to statutory tolling from July 29, 2014, to October

28, 2015. But recall the original trigger date for these two claims was August 30,

2013. That means that 333 days of AEDPA’s one-year statute of limitations had

already passed by the time tolling started on July 29, 2014. So when the tolling ended

on October 28, 2015, only 32 days of the one-year limitations period remained. But

Green’s next filing after that date—his postconviction petition—did not occur until

December 11, 2015, some 44 days later. So that filing occurred 12 days after the

statute of limitations expired. (Doc. 6, Ex. 87, #674). The same goes for any remaining

motions that Green filed following his postconviction petition. Even assuming those

filings were “proper,” there was no limitations period left to toll. Tolling, after all,

cannot revive an already time-barred claim. See Payton v. Brigano, 256 F.3d 405, 408

(6th Cir. 2001). So, considering only statutory tolling, the statute of limitations for

Grounds One and Two expired on November 29, 2015, 32 days after the decision on

the motion to withdraw his guilty plea became final.

Green argues otherwise, but only because he says he is entitled to a later

trigger date for his conviction-based claims. Assuming a trigger date of November 13,

2014 (which is what Green argues for), the 333 days referred to immediately above

would not have elapsed before Green moved to withdraw his guilty plea on July 29,

2014. So, he argues, with those 333 days still in the bank when the denial of that

motion became final on October 28, 2015, his later filings that were timely would still

have a remaining AEDPA limitations period on which to act. (See Doc. 21, #1101

(“The AEDPA clock cannot run while it has not started … As of [November 29, 2015],

zero days had elapsed.”)) But, as discussed above, Green is wrong about the trigger

date, and using the correct trigger date the statute of limitations period expired (as

described above) before his December 11, 2015, filing. So his statutory tolling

argument as to Grounds One and Two fails on the facts.

As to Ground Three, Green was not entitled to statutory tolling for one simple

reason. He cannot point to any “properly filed” motion that would have tolled the

period. His two candidates are (1) his appeal of his resentencing denial, which he filed

March 9, 2018, and (2) his Ohio Supreme Court postconviction appeal, which he filed

August 1, 2019. The problem is that he properly filed neither. When denying Green’s

appeal of resentencing denial, the Twelfth District Court of Appeals held, without

elaboration, that Green’s “assignments of error [we]re overruled on the basis of State

v. Watkins, 12 Dist. Butler No. CA20170-05-066, 2018-Ohio-45; and R.C.

2953.21(A)(2).” (Doc. 6 Ex. 79, #644). But relying on Watkins and R.C. 2953.21(A)(2)

necessarily means that the appeals court determined that Green’s petition was

untimely. See Watkins, 2018-Ohio-45, at ¶ 15 (“[W]e find no error in the trial court’s

decision for its [sic] clear that Watkins’ motion, properly recast as a petition for

postconviction relief, was untimely and otherwise barred by the doctrine of res

judicata.”); Ohio Rev. Code § 2953.21(A)(2)(a) (requiring petitions to be filed within

365 days of the expiration of the right to appeal the conviction if no appeal is taken).

And, as stated above, untimely petitions are not “properly filed” for AEDPA purposes,

so they do not toll AEDPA’s statute of limitations. Pace, 544 U.S. at 417. Accordingly,

the statute of limitations for Ground Three lapsed on September 12, 2018. And Green

filed the Ohio Supreme Court state postconviction petition in 2019, after the statute

of limitations had expired. So the claim was already time-barred at that point and

subsequent filings, even if “proper,” could not revive it.

In short, considering only statutory tolling, Green filed his petition as to

Grounds One and Two 1,625 days (over four years) late, and as to Ground Three 607

days (about a year and a half) late.

b. Equitable Tolling

Perhaps all is not lost, though. Along with statutory tolling, a petitioner can,

in appropriate circumstances, lay claim to equitable tolling. But those circumstances

are narrow. Although “§ 2244(d) is subject to equitable tolling,” Holland v. Florida,

560 U.S. 631, 645 (2010), that relief is granted sparingly, Hall v. Warden, Lebanon

Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011). “A habeas petitioner is entitled to

equitable tolling only if two requirements are met.” Id. He must show that (1) “he has

been pursuing his rights diligently” and (2) “some extraordinary circumstance stood

in his way and prevented timely filing.” Id. (cleaned up). Pro se status, limited law

library access, lack of knowledge, and lack of access to trial transcripts are not

extraordinary circumstances that excuse late filing. Id. at 751–52; Keeling v. Warden,

Lebanon Corr. Inst., 673 F.3d 452, 464 (6th Cir. 2012).

Applying those standards here, Green is not entitled to equitable tolling as to

any of his three grounds. First, “[t]he petitioner bears the burden of demonstrating

his diligence.” Moore v. Brown, No. 21-1514, 2022 WL 3572979, at *3 (6th Cir. Aug.

19, 2022) (unpublished) (citing DiCenzi, 452 F.3d at 471). And Green has not shown

that he was diligent. He made various requests for legal assistance and sought copies

of his transcripts, but he did not file his first state action until June 9, 2014. (Doc. 1,

#16).

Second, and more importantly, Green he has not shown an extraordinary

circumstance that prevented him from filing his habeas petition to satisfy the second

prong. Therefore, Green cannot prevail on either equitable or statutory tolling even

if the Court determines that he pursued his rights diligently.

Green says that is not right. He claims an entitlement to equitable tolling

based on three arguments: (1) transcript delays (Doc. 1, #16); (2) lack of prison law

library access (id. at #16–17); and (3) efforts to secure counsel (id. at #16; Doc. 11,

#1029). He is wrong as to each. First, “the unavailability of or delay in receiving

transcripts is not enough to entitle a habeas petitioner to equitable tolling.” Hall, 662

F.3d at 750–51. Second, a pro se petitioner’s lack of legal knowledge and limited law

library access are similarly inadequate. Id. at 751; Keeling, 673 F.3d at 464. And any

alleged error by Green’s counsel or the state courts in failing to inform him of his

appellate rights would not change this determination because neither error

constitutes a state-created impediment to filing a federal habeas petition. Jurado v.

Burt, 337 F.3d 638, 644–45 (6th Cir. 2003); Miller v. Cason, 49 F. App’x 495, 497 (6th

Cir. 2002) (unpublished). Finally, his failure to secure representation does not

constitute an extraordinary circumstance justifying equitable tolling because, as

discussed above, pro se status is not an extraordinary circumstance. So even if the

Court were to consider Green’s efforts to secure representation sufficient diligence to

satisfy the first prong of the equitable tolling analysis, Green has not shown that he

satisfies the second prong of that analysis.

That leaves only one outstanding issue: whether Green’s need to exhaust state

court remedies should excuse his tardily filed federal habeas petition. (Doc. 18,

#1082–83). The Court concludes it should not. Had Green filed his habeas corpus

petition within the specified limitations period, the Court could have stayed that

petition pending the outcome of state exhaustion efforts. Rhines v. Weber, 544 U.S.

269, 277–79 (2005). Alternatively, if the petition was a so-called mixed petition,

containing both exhausted and unexhausted claims, the Court could have dismissed

it, entitling Green to “mandatory equitable tolling” for the time needed to return to

state court, exhaust the unexhausted claims, and then refile in federal court. See

Bozsik v. Bagley, 534 F. Appx. 427, 430 (6th Cir. 2013) (citing Palmer v. Carlton, 276

F.3d 777 (6th Cir. 2002)). In short, Green had options, but not the option to just wait

years based on a claimed need to further exhaust, and then file. So the Court will not

excuse Green’s tardiness based on his claim that he needed to exhaust state court

remedies.

Green disagrees with the Magistrate Judge’s interpretation of Rhines and

claims that he “was still required to exhaust all of his state remedies prior to seeking

habeas relief.” (Doc. 18, #1082–83). But, once again, Green is the one who has

misunderstood the law. Yes, “stay and abeyance should be available only in limited

circumstances … [and] is only appropriate when the district court determines there

was good cause for the petitioner's failure to exhaust his claims first in state court.”

Rhines, 544 U.S. at 277. But “it likely would be an abuse of discretion for a district

court to deny a stay and to dismiss a mixed petition if the petitioner had good cause

for his failure to exhaust, his unexhausted claims are potentially meritorious, and

there is no indication that the petitioner engaged in intentionally dilatory litigation

tactics.” Id. at 278. And nothing else in Rhines suggests that Green would have been

precluded from filing his federal habeas corpus petition within the limitations period

if his claims were potentially meritorious.

In short, then, none of Green’s objections persuade the Court to disagree with

the Magistrate Judge’s recommendation to dismiss the Petition. Therefore, the Court

will dismiss Green’s Petition as time-barred.

B. Appeal Of This Opinion

Next, the Court must decide whether to issue a certificate of appealability and

whether an appeal of this Opinion would be in good faith. Start with the certificate of

appealability. A court may grant a certificate of appealability only if the applicant

“has made a substantial showing of the denial of a constitutional right.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003) (quoting 28 U.S.C. § 2253(c)(2)); see also id. at 349

(Scalia, J. concurring) (“A ‘substantial showing’ does not entitle an applicant to a COA;

it is a necessary and not a sufficient condition.”) (emphasis in original). That standard

is met when the movant demonstrates “that jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that jurists could conclude

the issues presented are adequate to deserve encouragement to proceed further.” Id.

at 327. The Court concludes that Green has not shown denial of a constitutional right,

and that reasonable jurists could not disagree with its conclusion here—the statute

of limitations issue is clear and dispositive. So the Court denies Green a certificate of

appealability.

Finally, the Court considers whether to certify that an appeal of this decision

would be in good faith. That certification matters because “[a]n appeal may not be

taken in forma pauperis if the trial court certifies in writing that it is not taken in

good faith.” 28 U.S.C. § 1915(a)(8). “A frivolous appeal, one that lacks an arguable

basis either in law or in fact, would not be taken in good faith.” Tallent v. Knight, No.

22-5126, 2022 WL 18862074, at *2 (6th Cir. Sept. 7, 2022), cert. dented, 143 S. Ct. 793

(2023) (cleaned up). The Court certifies that an appeal would not be in good faith for

the same reason it declined to issue a certificate of appealability. The statute of

limitations issue is clear and dispositive and Green’s arguments to the contrary do

not have an arguable basis in law or fact. Therefore, an appeal of this Opinion would

not be in good faith.

CONCLUSION

For the above reasons, the Court OVERRULES Green’s Objections (Docs. 18,

21) and ADOPTS both the R&R (Doc. 15) and the Supplemental R&R (Doc. 20). The

Court thus DISMISSES Green’s Petition (Doc. 1) WITH PREJUDICE. The Court

also CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of this Opinion

would not be made in good faith, thereby DENYING Green leave to appeal in forma

pauperis. Finally, it DENIES Green a certificate of appealability pursuant to § 28

U.S.C. § 2253(c)(2). The Court ORDERS the Clerk to enter judgment and

TERMINATE this matter on the Court’s docket.

SO ORDERED.

December 20, 2023 :

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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