The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
MATTHEW E. ELLIOTT,
Petitioner, : Case No. 1:24-cv-00449
- vs - District Judge Jeffery P. Hopkins
Magistrate Judge Michael R. Merz
WARDEN, Southern Ohio
Correctional Facility,
:
Respondent.
REPORT AND RECOMMENDATIONS
This is a habeas corpus case brought pro se by Petitioner Matthew Elliott under 28 U.S.C.
§ 2254 to obtain relief from his conviction of violations of prison rules and consequent extension
of his minimum sentence for one year by the Ohio Adult Parole Authority (Petition, ECF No. 3).
On the Court’s Order (ECF No. 5), Respondent Warden of the Southern Ohio Correctional Facility
has filed the relevant record of proceedings (ECF No. 7) and a Return of Writ (ECF No. 8).
Although notified by the Court that his reply was due by November 14, 2024 (ECF No. 9),
Petitioner has failed to file a reply and the deadline for doing so has passed. Thus the case is ripe
for decision.
Whether the Court reads the Petition as directed at the underlying conviction or the results
of the post-conviction Rules Infraction Board and Parole Board proceedings, Respondent asserts
the petition is barred by the statute of limitations enacted by the Antiterrorism and Effective Death
Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"). That statute is codified
at 28 U.S.C. § 2244(d) which 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;
(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
post-conviction 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.
Petitioner does not claim a later start date than that provided in § 2244(d)(1) nor has he
filed any State post-conviction or other collateral review proceedings which would have tolled the
statute. As noted above, he has failed to file a reply by the deadline set by the Court. In the Petition
he asserts the case is timely because of the difficulties of litigating from prison. However, pro se
status is not a justification for delay. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004). He also
mentions the civil action under 42 U.S.C. § 1983 which he filed in this Court challenging the same
matters he raised in the Petition. However, because a federal § 1983 proceeding is not a state
collateral challenge, it does not toll the statute under 28 U.S.C. § 2244(d)(2). Duncan v. Walker,
533 U.S. 167 (2001).
Conclusion
On the basis of the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
December 4, 2024.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #