The controversy in the present case was precipitated by a so-called Glenn order issued by the Ohio Supreme Court on November 30, 1998. That order provided as follows: IT IS FURTHER ORDERED by the court that, pursuant to State v. Glenn (1987), 33 Ohio St.3d 601, 514 N.E.2d 869, a stay is granted for a period of six months, beginning October 23, 1998 and ending April 23, 1999, to allow appellant an opportunity to file a petition for post-conviction relief.State v. Keenan, 84 Ohio St.3d 1425, 702 N.E.2d 901 (Ohio 1998) (unpublished).
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.
Id. at 12-13. Thereafter, Keenan filed a Motion to Alter or Amend Judgment pursuant to Rule 59, arguing, inter alia, that the Court erred in dismissing the Petition because Keenan's state post-conviction relief petition was timely pursuant to the Ohio Supreme Court's order issued under State v. Glenn, 514 N.E.2d 869 (Ohio 1987). The Court denied the Motion, (Doc. No. 100). It held that Keenan could not have relied on the Glenn order because the Ohio Supreme Court issued it almost a year and a half after Keenan's time for filing a post-conviction relief petition had expired.
1. Are the time limits of Ohio Revised Code §§ 2953.21(A)(2) and 2953.23(A) jurisdictional or are they statutes of limitation that work as affirmative defenses that must be pleaded or waived? 2. Is a petition for post-conviction relief timely filed pursuant to a Glenn order, State v. Glenn, 514 N.E.2d 869 (Ohio 1987), in fact timely filed? 3.
Moreover, the nature of the Ohio Supreme Court order, called a Glenn order in Ohio courts, is not meant to provide a post-conviction petitioner with a means to supercede § 2953.21. A review of the original State v. Glenn, 514 N.E.2d 869 (Ohio 1987) reveals that a Glenn order merely grants a stay of execution for a six-month period so that a death-sentenced prisoner can pursue state post-conviction relief. That order makes no provision for extending the 180-day time limitation but merely grants a petitioner a stay of execution so that he or she may pursue post-conviction remedies. Notably, the Eighth District Court of Appeals rejected the very same argument Keenan raises here when Keenan's counsel raised it during oral argument on this issue.
IT IS FURTHER ORDERED that a certified copy of this entry and a warrant under the seal of this court be duly certified to the Warden of the Southern Ohio Correctional Facility and that the Warden shall make due return thereof to the Clerk of the Court of Common Pleas of Hamilton County. IT IS FURTHER ORDERED by the court that, upon written application of appellant, and pursuant to State v. Glenn (1987), 33 Ohio St.3d 601, 514 N.E.2d 869, this court will grant one additional stay for a period ending six months from the date of this entry to allow appellant an opportunity to file a petition for post-conviction relief.
IT IS FURTHER ORDERED that a certified copy of this entry and a warrant under the seal of this court be duly certified to the Warden of the Southern Ohio Correctional Facility and that the Warden shall make due return thereof to the Clerk of the Court of Common Pleas of Marion County. IT IS FURTHER ORDERED by the court that, upon written application of appellant, and pursuant to State v. Glenn (1987), 33 Ohio St.3d 601, 514 N.E.2d 869, this court will grant one additional stay for a period ending six months from the date of this entry to allow appellant an opportunity to file a petition for post-conviction relief.
IT IS ORDERED by the court that the motion be, and hereby is, granted. IT IS FURTHER ORDERED by the court that, pursuant to State v. Glenn (1987), 33 Ohio St.3d 601, 514 N.E.2d 869, a stay is granted for a period of six months, beginning October 23, 1998 and ending April 23, 1999, to allow appellant an opportunity to file a petition for post-conviction relief. If a petition for post-conviction relief is not filed within the time allotted, this stay will expire. No further time for the filing of the petition will be granted except in unusual circumstances.
IT IS ORDERED by the court that the motion be, and is hereby, granted. IT IS FURTHER ORDERED by the court that, pursuant to State v. Glenn (1987), 33 Ohio St.3d 601, 514 N.E.2d 869, a stay is granted for a period of six months, beginning October 23, 1998, and ending February 22, 1999 to allow appellant an opportunity to file a petition for post-conviction relief. If a petition for post-conviction relief is notified within the time allotted, this stay will expire. No further time for the filing of the petition will be granted except in unusual circumstances.
IT IS FURTHER ORDERED that a certified copy of this entry and a warrant under the seal of this court be duly certified to the Warden of the Southern Ohio Correctional Facility and that the Warden shall make due return thereof to the Clerk of the Court of Common Pleas of Cuyahoga County. IT IS FURTHER ORDERED by the court that, upon written application of appellant, and pursuant to State v. Glenn (1987), 33 Ohio St.3d 601, 514 N.E.2d 869, this court will grant one additional stay for a period ending six months from the date of this entry to allow appellant an opportunity to file a petition for post-conviction relief.