Opinion
CASE NO. 2:13-CV-00617
09-08-2015
TYRONE BERRY, Petitioner, v. MICK OPPY, WARDEN, Respondent.
MAGISTRATE JUDGE KEMP
OPINION AND ORDER
On August 20, 2015, the Magistrate Judge issued a Report and Recommendation recommending that Respondent's Motion to Dismiss be granted and that this action be dismissed as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d). Doc. #19. Petitioner has filed an Objection to the Magistrate Judge's Report and Recommendation. Doc. #20. Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner's Objection, Doc. #20 is OVERRULED. The Report and Recommendation, Doc. #19, is ADOPTED and AFFIRMED. Respondent's Motion to Dismiss, Doc. #15, is GRANTED and this case is hereby DISMISSED.
On June 10, 2013, Petitioner executed this Petition challenging the state trial court's February 21, 2006, Amended Judgment Entry clarifying that he is to serve thirty "full" years to life on his aggravated murder convictions. Doc. #3, PageID# 44. However, Petitioner argues that the one-year statute of limitations provided for in 28 U.S.C. § 2244(d) did not begin to run until May 23, 2012, when the Ohio Supreme Court sua sponte dismissed his petition for a writ of habeas corpus, or on July 25, 2012. He complains that the state courts failed to notify him of the re-sentencing hearing and denied him the right to be present. He again argues regarding the merits of his claims.
Petitioner indicates that on July 25, 2012, the state courts denied his last motions attacking the Amended Judgment Entry. Doc. #20, PageID# 509-510. --------
Petitioner's Objection is not well taken. At issue is solely whether the one-year statute of limitations bars review of Petitioner's claims. The record reflects that it does. As noted by the Magistrate Judge, even giving Petitioner the benefit of assuming that the statute of limitations did not begin to run until November 18, 2009, when the Ohio Supreme Court dismissed his post conviction appeal, the statute of limitations expired years before Petitioner signed his habeas corpus petition. Petitioner's challenges to the trial court's Amended Judgment Entry denied by the state courts as untimely or filed after expiration of the statute of limitations do not toll the running of the statute of limitations or begin anew the start date for the running of the statute of limitations. Pace v. Diguglielmo, 544 U.S. 408, 417 (2008); see Ross v. Freeman, 2015 WL 1285366, at *2 (E.D. Tenn. March 20, 2015)(citing Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) At least as of April 9, 2008, Petitioner knew that in February 2006, the trial court had amended his judgment entry of sentence. Further, in March 2009, the state appellate court advised him that his proper remedy would be to file a motion for a delayed appeal. He failed to do so. The record reflects neither that Petitioner acted diligently in pursuing relief nor that he is actually innocent so as to justify equitable tolling of the statute of limitations.
Petitioner's Objection, Doc. #20, therefore is OVERRULED. The Report and Recommendation, Doc. #19, is ADOPTED and AFFIRMED. Respondent's Motion to Dismiss, Doc. #15, is GRANTED and this case is hereby DISMISSED.
IT IS SO ORDERED.
\s\ George C. Smith
GEORGE C. SMITH
United States District Judge