Opinion
Case No. 3:06-cv-220.
October 3, 2006
DECISION AND ORDER
Petitioner Betty A. Welles brought this action pro se seeking a writ of mandamus to compel the Respondent Greene County Common Pleas Court to instruct the Ohio Adult Parole Authority to give her an additional sixty-nine days credit against the prison sentence she is presently serving (Motion, Doc. No. 1). After considering the nature of the relief sought, the Court ordered Petitioner to file a petition for a writ of habeas corpus (which she did at Doc. No. 6) and ordered an answer (Doc. No. 7). The State has now filed an Answer (Doc. No. 9) and Petitioner has filed a Reply as ordered (Answer and Memorandum, Doc. No. 12).
The parties have unanimously consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) and the case has been referred on that basis (Doc. No. 10). Pat Andrews is the Warden at the Marysville Ohio Reformatory for Women where Petitioner was incarcerated at the time the Petition was filed. Because the custodian is the proper respondent in a habeas corpus case, Warden Andrews is hereby substituted for the Greene County Common Pleas Court as Respondent.
Petitioner has advised the Court that she has since been transferred to the Franklin Pre-Release Center.
Procedural History
On December 5, 2003, Petitioner was convicted of one count of theft in the Miami County Common Pleas Court and sentenced to seventeen months imprisonment (Answer, Doc. No. 9, Ex. 1). Two days earlier, on December 3, 2003, while she was incarcerated at Marysville, she was indicted by the Greene County Grand Jury on one count of theft and one count of passing bad checks. Id., Ex. 2. The case was assigned Case No. 2003 CR 870 on the docket of the Greene County Common Pleas Court and Petitioner entered a guilty plea to both counts on January 15, 2004. Id. Ex. 4. On March 10, 2004, she was sentenced to seventeen months confinement on each count, to be served concurrently with each other and with the Miami County sentence. Id., Ex. 5. The judgment entry expressly finds that she is entitled to no jail credit time. ("The Defendant is entitled to jail time credit of 0 days as of this date along with future custody days while Defendant awaits transportation to the state institution.") In the judgement entry, which Petitioner signed, she was advised in writing of her right to appeal.
On June 1, 2004, Petitioner was sentenced in the Clark County Common Pleas Court to eighteen months confinement on a conviction of one count of theft with twelve days jail credit, the sentence to be served consecutively to the other sentences. Id., Exs. 6 and 7. In September, 2005, Petitioner was sentenced to eleven months imprisonment on another Greene County theft conviction (Case No. 2005 CR 453), the time to be served concurrently with the time then being served.
On April 27, 2004, Petitioner filed a Motion to Jail-Time Credit on 2003 CR 870, claiming entitlement to sixty-seven days. Id., Ex. 10, Judge Wolaver overruled that Motion, finding that Petitioner "was serving a sentence at the Department of Rehabilitation and Corrections (Ohio Reformatory for Women) for Miami County Common Pleas Court Case No. 2003-CR-327 at the time she was brought to Greene County Common Pleas Court for the above captioned action." Id. at Ex. 11. On March 6, 2006, Petitioner filed another Motion for Jail Time Credit with Judge Wolaver, seeking 60 days additional credit. Id., Ex. 13. The next day Judge Wolaver denied the Motion on the same basis as he had denied the prior Motion. Id., Ex. 14. On March 17, 2006, Judge Wolaver filed another Entry, presumably on a request for reconsideration, reaching the same conclusion for the same reasons. Id., Ex. 15. On March 27, 2006, Judge Wolaver again considered the matter and found that Defendant should have been given two days' jail time credit. However, the Motion was overruled because "the defendant has essentially served this sentence and the Bureau of Sentencing Computation does not fine Greene County Case No. 03-CR-870 to be the controlling sentence keeping her in prison." Id., Ex. 17. An additional motion by Petitioner and order by Judge Wolaver, both to the same effect, are also of record. Id., Exs. 18, 19.
Analysis
Petitioner pleads one ground for relief as follows:
Ground One: Denial of Defendant's motion for jail time credit is forcing Defendant to serve more time of confinement than is provided by law and is a deprivation of liberty without due process of law.
Supporting facts: Defendant was confined in Greene County Jail for 69 days awaiting conviction and sentencing. Defendant was confined from December 15, 2003 to February 12, 2004 and March 9, 2004, to March 18, 2004. Greene County Common Pleas Court failed to credit Defendant with jail time credit. Subsequently Defendant served 69 more days on Greene County case 2003-CR-870 then [sic] she should have which means she did not start consecutive case in Clarke [sic] County for 69 days later than she should, pushing out date back 69 days. Defendant is serving 69 more days than she should.
(Petition, Doc. No. 6, at 6.)
Respondent asserts Petitioner's claim is barred by the statute of limitations. 28 U.S.C. § 2244 (d) 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.
Respondent correctly notes that Petitioner had until April 9, 2004, to appeal from the judgment and sentence in this case. Because she did not, her conviction became final on that date and the statute of limitations began to ran. It expired on April 9, 2005, absent any tolling under § 2244(d)(2).
Respondent concedes that the time was tolled by Petitioner's first motion for jail time credit which was pending from April 27, 2004, to May 14, 2004, a total of 17 days. Thus the time for filing a petition for writ of habeas corpus expired April 26, 2005. Since the Petition here was not filed until July 20, 2006, it is more than a year late and is barred by the statute of limitations.
Respondent argues that Petitioner's later motions for jail-time credit were not "properly filed" as required by § 2244(d)(2) and therefore do not toll the time for filing a petition. Since all of the additional motions were filed well after the time expired, they are not material. Were they material, the Court would find them to be properly filed because Judge Wolaver dealt with each of them on the merits.
Respondent argues that the claims in the Petition are not exhausted because Petitioner could still file a delayed appeal from her conviction in 2003-CR-870. The Court finds that any such delayed appeal would be ineffective at this time because of amount of time left on Petitioner's sentence. Because the claim is technically not exhausted, the Court declines to find that it is procedurally defaulted.
There is no question in the Court's mind that the Petition states a claim for relief in habeas corpus. The Ohio statute in question, Ohio Revised Code § 2967.191, creates a liberty interest in jail time credit. That is, a person is entitled to be released from custody in Ohio prisons if he or she has earned jail time credit under that statute. However, this Court does not have jurisdiction to reach the merits of Petitioner's claim because she is no longer in custody on Case No. 2003-CR-870. As Judge Wolaver found in March, 2006, the sentence on that case had expired and Petitioner was being held on the consecutive sentence from Clark County. In order for a federal court to have subject matter jurisdiction of a habeas corpus claim, the person making the claim must be in custody on the sentence being challenged. When a sentence expires before a habeas petition is filed, the petitioner is not sufficiently in custody to invoke the federal habeas jurisdiction, Maleng v. Cook, 490 U.S. 488, 109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989). A person whose current sentence was enhanced because of a prior conviction cannot, even if he is still in custody on the second conviction, challenge the legality of the first in habeas. Steverson v. Summers, 258 F.3d 520, (6th Cir. 2001), citing Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001); and Lackawanna County District Atty. v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001).
Because this Court lacks subject matter jurisdiction of Petitioner's claims and the Petition is in any event barred by the statute of limitations, the Petition is denied. The Clerk will enter judgment dismissing the Petition with prejudice. Because these conclusions would not be debatable among reasonable jurists, any motion for certificate of appealability will be denied.