In Board v. Bradshaw, this Circuit determined that a motion for leave to file a delayed appeal brought under Ohio Appellate Rule 5(A) was properly filed and tolled AEDPA's statute of limitations. 805 F.3d 769, 776 (6th Cir. 2015).
Garrett urges the Court to go a different direction and follow Board v. Bradshaw, 805 F.3d 769 (6th Cir. 2015), and other Sixth Circuit Court of Appeals cases. In Board, the Court found that a petitioner's motion for leave to file late notice of appeal tolled the federal habeas limitations period.
When determining whether a state court application was timely filed, the federal court must look to the language of the applicable state court rule. See Board v. Bradshaw, 805 F.3d 769, 773 (6th Cir. 2015). If a state court rule contains time limitations, then “a petition filed after a time limit, and which does not fit within any exceptions to that limit, is no more ‘properly filed' than a petition filed after a time limit that permits no exception.”
The Sixth Circuit has determined that “a petitioner's failure to follow Ohio Rule of Appellate Procedure 5(A) can serve as the basis for a procedural default of a petitioner's habeas claims.” Stone v. Moore, 644 F.3d 342, 348 (6th Cir. 2011); Boardv. Bradshaw, 805 F.3d 769, 774 (6th Cir. 2015) (citing Stone). See also Genous v. Gray, No. 2:19-CV-3742, 2020 WL 619759, *4 (S.D. Ohio Feb. 10, 2020) (Merz, M.J.) (citing Stone and noting Ohio appellate court “enforced the time limit on direct appeals” by denying petitioner's Rule 5 motion), report and recommendation adopted, 2020 WL 1316432 (S.D. Ohio Mar. 20, 2020).
Petitioner was convicted and sentenced on November 2, 2011. Ordinarily, that judgment would have become final on December 5, 2011, when the time to file a timely appeal of that judgment in the state appellate court expired.See § 2244(d)(1)(A); Ohio App.R. 4(A)). The statute of limitations for federal habeas relief would also have started running the next day, on December 6, 2011, and it would have continued running for one hundred and twenty-two days, or until April 16, 2012, when Petitioner filed a motion seeking leave to file a delayed appeal. Pursuant to § 2244(d)(2), the statute of limitations would have been tolled for thirty-five days while that motion for a delayed appeal was pending. Board v. Bradshaw, 805 F.3d 769, 773 (6th Cir. 2015) (a motion for a delayed appeal under Ohio App. R. 5(A) can toll the running of the statute of limitations if it is filed before the statute has already expired). After the motion for delayed appeal was denied on May 21, 2012, the statute of limitations would have started running again the following day, May 22, 2012, and continued running for two hundred and forty-three days before expiring on January 21, 2013.
He did not do so, and his judgment of conviction therefore became final under the provision of § 2244(d)(1)(A) on May 7, 2014, when the time period to file an appeal expired. See Board v. Bradshaw, 805 F.3d 769, 772 (6th Cir. 2015); Ohio App. R. 4(A). The statute of limitations began to run on the following day, and expired one year later, on May 8, 2015.
Although petitioner later unsuccessfully sought leave to file a delayed appeal with the Ohio Supreme Court, it is well-settled that, in contrast to cases where the delayed appeal motion is granted, unsuccessful motions for delayed appeal do not restart the running of the statute under § 2244(d)(1)(A), but rather can only serve to toll an unexpired limitations period under § 2244(d)(2). See, e.g., Board v. Bradshaw, 805 F.3d 769, 771-72 (6th Cir. 2015) (and Sixth Circuit cases cited therein); see also Lung v. Warden, Chillicothe Corr. Inst., No. 1:14cv149, 2015 WL 539430, at *2 (S.D. Ohio Feb. 9, 2015) (Litkovitz, M.J.) (Report & Recommendation) (and numerous cases cited therein), adopted, 2015 WL 1020303 (S.D. Ohio Mar. 9, 2015) (Dlott, J.). During the one-year limitations period, petitioner was entitled to tolling of the statute under 28 U.S.C. § 2244(d)(2) based on any pending "properly filed" applications for state post-conviction relief or other collateral review.
Although petitioner later unsuccessfully sought leave to file a delayed appeal with the Ohio Supreme Court, it is well-settled that, in contrast to cases where the delayed appeal motion is granted, unsuccessful motions for delayed appeal do not restart the running of the statute under § 2244(d)(1)(A), but rather can only serve to toll an unexpired limitations period under § 2244(d)(2). See, e.g., Board v. Bradshaw, 805 F.3d 769, 771-72 (6th Cir. 2015) (and Sixth Circuit cases cited therein); see also Lung v. Warden, Chillicothe Corr. Inst., No. 1:14cv149, 2015 WL 539430, at *2 (S.D. Ohio Feb. 9, 2015) (Litkovitz, M.J.) (Report & Recommendation) (and numerous cases cited therein), adopted, 2015 WL 1020303 (S.D. Ohio Mar. 9, 2015) (Dlott, J.). Therefore, absent application of tolling principles, the statute of limitations commenced running on October 3, 2014, one day after petitioner's conviction became final.
We likewise review de novo the dismissal of a habeas petition as untimely under 28 U.S.C. § 2244. Board v. Bradshaw, 805 F.3d 769, 771 (6th Cir. 2015). The district court's factual findings are
(PageID 174.) Rule 5 of Ohio's Rules of Appellate Procedure allows for delayed criminal appeals and places no restriction on how long the delay may be, but the defendant must move in the Court of Appeals for leave to do so. Ohio App. R. 5(A)(2) ; Board v. Bradshaw , 805 F.3d 769, 773 (6th Cir. 2015). So, on July 23, 2017, Sexton filed an application for leave to file a delayed appeal along with a motion for appointed counsel.