Opinion
Case No. C-2-01-288
June 11, 2002
OPINION AND ORDER
On May 23, 2002, the Magistrate Judge issued a Report and Recommendation recommending that respondent's motion to dismiss the petition for failing to comply with the one-year statute of limitations imposed under 28 U.S.C. § 2244 (d) be denied. Respondent has objected to that recommendation. Pursuant to 28 U.S.C. § 636 (b)(1), this Court has conducted a de novo review of those portions of the Report and Recommendation objected to by respondent. For the following reasons, the Court overrules respondent's objections and adopts the Report and Recommendation.
Respondent objects to the Magistrate Judge's conclusion that, although the one-year statute of limitations in this case expired long before the instant petition was filed, in April 2001, nonetheless, equitable tolling is justified.
As noted by the Magistrate Judge, the Court must consider the following five factors in order to determine whether equitable tolling of the statute of limitations is appropriate in this case:
(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim.Dunlap v. United States, 520 F.3d 1001, 1008 (6th Cir. 2001), citing Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988).
Here, it is undisputed that petitioner's first federal habeas corpus petition was timely, and that on June 8, 1999, this Court denied petitioner's request for a stay of proceedings in order to exhaust state court remedies, and instead dismissed the petition without prejudice. Again, as noted by the Magistrate Judge, this Court's decision was based upon the specific conclusion that the petition had been timely and that the statute of limitations would be tolled while petitioner completed state court proceedings. See Exhibit W to Return of Writ. Since that time, the United States Court of Appeals for the Sixth Circuit has held that, under these circumstances, a district court should instead
dismiss only the unexhausted claims in the habeas petition and stay further proceedings on the remaining portion until the petitioner has exhausted his/her remedies in state court.Palmer v. Carlton, 276 F.3d 777, 780 (6th Cir. 2002), citing Zarvela v. Artuz, 254 F.3d 374, 380 (2nd Cir. 2001). In light of petitioner's reliance on this Court's previous decision dismissing the petition and indicating that the statute of limitations would, in fact, be tolled while he was pursuing a delayed post conviction action and a delayed application for reopening of his appeal in the state courts, the Magistrate Judge concluded that, although petitioner certainly was aware of or had constructive knowledge of the one-year statute of limitations, petitioner did not have notice or constructive knowledge of the filing requirement for his second federal habeas petition. See Dunlap, supra. This Court agrees. Further, unlike the scenario in United States v. Bobadilla, 26 Fed.Appx. 645, 2001 WL 158880122 (9th Cir. Dec. 11, 2001), referred to by respondent, the Court concludes that it was not unreasonable for petitioner to remain ignorant of the legal requirement for filing the petition. See Dunlap, supra. The decisions holding that the statute of limitations will not be tolled by an untimely state post conviction action, Israfil v. Russell, 276 F.3d 768, 771 (6th Cir. 2001), or during the time during which the first federal habeas action is pending, Duncan v. Walker, 533 U.S. 167, 171-72 (2001), were not issued until after petitioner had already filed this federal habeas corpus action.
Respondent also argues that petitioner was not diligent in pursuing his rights because the record reflects that petitioner waited almost one year after completing state court remedies before filing this petition. Additionally, respondent argues that attorney negligence does not warrant equitable tolling of the statute of limitations. See Elliott v. DeWitt, 10 Fed. Appx. 311, 2001 WL 523527 (6th Cir. May 8, 2001)[attorney mistake which results in missing the filing deadline is not a basis for equitable tolling.]; Brown v. United States of America, 20 Fed. Appx. 373, 2001 WL 1136000 (6th Cir. Sept.21, 2001)[ineffective assistance of counsel does not justify equitable tolling, as petitioner had no right to counsel.] Again, however, petitioner's decision to obtain counsel before filing his second federal habeas corpus petition, and counsel's failure to earlier file this action, is attributable to the language in this Court's previous decision dismissing the case. Although this Court agrees that respondent will suffer some prejudice upon this Court's refusal to dismiss the petition as time-barred, the Court nevertheless concludes that, under the unusual circumstances of this case, and upon weighing the factors set forth in Dunlap, equitable tolling of the statute of limitations is justified.
On April 19, 2000, the Ohio Supreme Court dismissed the appeal regarding petitioner's delayed post conviction action. Exhibit V to Return of Writ. Petitioner indicates that his attorney withdrew from his representation, and that he was without counsel from September 1999 to April 2000, when he retained Attorney John Gideon to represent him. According to petitioner, Gideon then failed to file this federal habeas action as had been promised, and in a letter dated October 16, 2000, petitioner dismissed Gideon as counsel. Petitioner's present attorney, Kenneth Spiert, states in his affidavit that he was retained by petitioner on November 22, 2000. He waited until March 29, 2001, before filing this action on petitioner's behalf due to his reliance on this Court's June 8, 1999, decision dismissing this case without prejudice. See Exhibits to Memorandum in Opposition to Motion to Dismiss.
Respondent's objections are OVERRULED. The Magistrate Judge's Report and Recommendation is hereby ADOPTED AND AFFIRMED. Respondent's motion to dismiss the petition as time-barred is DENIED. Respondent is ordered to file a return of writ within thirty days of the date of this order.