Opinion
CASE NO. 2:07-cv-137.
January 24, 2008
OPINION AND ORDER
On December 10, 2007, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation. For the reasons that follow, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED and this action hereby is DISMISSED.
The Magistrate Judge recommended dismissal of the instant habeas corpus petition as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d). As detailed in the Report and Recommendation, petitioner's judgment of conviction became final on July 20, 2002, when the time period expired to file a timely appeal. The statute of limitations ran for 152 days until December 19, 2002, when petitioner filed a petition for post conviction relief in the state trial court. That action tolled the statute of limitations during the time that it was pending, until February 22, 2006. The statute of limitations therefore expired on September 23, 2006. Petitioner filed this habeas corpus petition on February 21, 2007.
Petitioner nonetheless objects to the Magistrate Judge's recommendation of dismissal of his habeas corpus petition as untimely, again contending that the statute of limitations should be tolled the 152 days between the date he was sentenced and the date he filed his petition for post conviction relief, because it took him that long to obtain an affidavit from defense counsel to support his post conviction petition. See Objections. Petitioner refers to Keenan v. Bagley, 400 F.3d 417 (6th Cir. 2005), after remand, Keenan v. Bagley, 2007 WL 838923 (N.D. Ohio March 15, 2007), and Granger v. Hurt, 90 Fed.Appx. 97, unpublished, 2004 WL 162549 (6th Cir. January 23, 2004), in support of this argument.
In Keenan v. Bagley, the United States Court of Appeals for the Sixth Circuit remanded the case to the District Court for an evidentiary hearing to determine whether equitable tolling of the statute of limitations was appropriate where defense counsel pursued post conviction relief in the state courts rather than filing a timely federal habeas corpus petition. Keenan, 400 F.3d 417. After an evidentiary hearing, the United States Court District Court for the Northern District of Ohio concluded that equitable tolling of the statute of limitations was appropriate, in part because counsel had reasonably construed State v. Glenn, 33 Ohio St.3d 601 (Ohio 1987), as making available a petition for state post conviction relief. Keenan v. Bagley, 2007 WL 838923 at ***6. These facts are not applicable here.
Similarly, in Granger v. Hurt, supra, the United States Court of Appeals for the Sixth Circuit held that petitioner's claim that he had been denied the effective assistance of counsel when his attorney failed to file a timely appeal arose on the date that petitioner discovered that his attorney had not filed the appeal. His habeas corpus petition was therefore timely filed.
Here, petitioner alleged in his petition for post conviction relief that he had been denied the effective assistance of counsel because his attorney advised him not to accept the plea offer and, as a result, petitioner received a harsher sentence. See Exhibit O to Return of Writ. These facts were known to petitioner at the time that he was sentenced. Further, assuming that it reasonably took petitioner 152 days to obtain an affidavit from defense counsel to support the filing of his post conviction petition, and although petitioner filed his habeas corpus petition within one year of the Ohio Supreme Court's dismissal of his post conviction appeal, petitioner nonetheless waited approximately five months after the Ohio Supreme Court dismissed his post conviction appeal before filing the instant habeas corpus petition. Under these circumstances, this Court agrees that petitioner did not exercise diligence in pursuing his claims and, for the reasons discussed more fully in the Magistrate Judge's Report and Recommendation, this Court concludes that equitable tolling of the statute of limitations is not appropriate. See Jurado v. Burt, 337 F.3d 638, 643 (6th Cir. 2003).
Pursuant to 28 U.S.C. 636(b)(1), this Court has conducted a de novo review of the Report and Recommendation. For the foregoing reasons and for the reasons discussed in the Magistrate Judge's Report and Recommendation, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
The Clerk shall enter FINAL JUDGMENT.
It is so ORDERED.