Opinion
Case No. 2:05-cv-0588.
January 6, 2006
ORDER and REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the instant petition, respondent's return of writ, petitioner's traverse, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's request for the appointment of counsel, Doc. No. 3, is DENIED.
I. PROCEDURAL HISTORY
Petitioner was indicted by the January 25, 2002, term of the Harrison County grand jury on two counts of aggravated murder, in violation of O.R.C. § 2903.01(A), with firearm specifications, aggravated burglary, in violation of O.R.C. § 2911.11(A)(2), and theft, in violation of O.R.C. § 2911.13(A)(2). Exhibit 1 to Return of Writ. While represented by counsel, petitioner proceeded to jury trial, and was found guilty of all charges with the exception of theft. On June 26, 2002, petitioner was sentenced to twenty years to life and ten years, such sentences to be served concurrently to each other, with an additional one year on the firearm specifications. Exhibit 5 to Return of Writ. Represented by new counsel, petitioner filed a timely appeal to the Seventh District Court of Appeals. He asserted the following assignment of error:
1. The trial court committed plain error by failing to instruct the jury on the inferior charge of voluntary manslaughter.
Exhibit 6 to Return of Writ. On April 6, 2003, petitioner filed a pro se supplemental brief to include the following additional assignments of error:
1. Defendant appellant was deprived of the effective assistance of counsel as guaranteed by the 6th and 14th Amendments of the United States Constitution and Article I, Section 10.
2. The trial court erred in failing to grant the motion for change of venue and failing to address said request until the jury was already picked.
3. Appellant was deprived [of] due process of law by his conviction for aggravated burglary which was not supported by the manifest weight of evidence.
Exhibit 8 to Return of Writ. On September 8, 2003, the appellate court affirmed the judgment of the trial court. Exhibit 11 to Return of Writ. On September 19, 2003, petitioner filed a pro se motion for reconsideration, which motion was denied on October 10, 2003. Exhibits 12 and 13 to Return of Writ. Petitioner apparently never filed an appeal to the Ohio Supreme Court.
On June 17, 2005, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds:
1. Ineffective assistance of counsel.
2. Conviction obtained by the use of an unconstitutionally selected jury.
3. Petitioner was forced to be a witness against himself and give incriminating testimony.
4. Petitioner requests [to be excused from] any procedural defaults.
It is the position of the respondent that this action must be dismissed as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d)(2).
II. STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became effective on April 24, 1996, provides for a one-year statute of limitations on the filing of habeas corpus actions. 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.Id.
Petitioner's conviction in this case became final on October 23, 2003, forty-five days after the appellate court's September 8, 2003, dismissal of his direct appeal, when the time period expired to file a timely appeal to the Ohio Supreme Court. See Rule II, Section 2(A)(1)(a) of the Ohio Supreme Court Rules of Practice; Lopez v. Wilson, 426 F.3d 339, 345 (6th Cir. 2005); Searcy v. Carter, 246 F.3d 515, 518-19 (6th Cir. 2001). The statute of limitations expired one year later, on October 23, 2004. The instant petition was not filed until June 2005. Further, even assuming that the statute of limitations did not begin to run until November 24, 2003 (forty-five days after the appellate court's October 10, 2003, denial of petitioner's motion for reconsideration of its decision denying his appeal), and therefore expired on November 24, 2004, the instant petition still would be untimely.
Petitioner nonetheless asserts that equitable tolling of the statute of limitations is appropriate in this case due to his pro se status, his age of eighty-five years, and because he has been transferred to three different prisons, and is
completely unable, on any level, to prepare anything of legal substance.Traverse, at 3.
"[P]etitioner bears the . . . burden of persuading the court that he or she is entitled to equitable tolling." Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). Equitable tolling should be used sparingly. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002); Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000) (citations omitted). "Typically, equitable tolling applies only when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control." Id. at 560-61.
The Supreme Court has explained that "[w]e have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). However, "[w]e have generally been much less forgiving . . . where the claimant failed to exercise due diligence in preserving his legal rights." Id.; cf. Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) ("One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.").Jurado v. Burt, 337 F.3d 638, 642-43 (2003). In order to determine whether to equitably toll the statute of limitations, the Court must consider the following five factors:
(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.Id., at 643, citing Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir. 2001); Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988).
There is no reason to conclude that petitioner lacked notice or constructive knowledge of the one-year filing requirement in habeas corpus cases, nor would petitioner have been reasonable in remaining ignorant of the statute of limitations in habeas corpus cases during the time period at issue here. Lack of actual notice, and "ignorance of the law, even for an incarcerated pro se petitioner generally does not excuse [late] filing." Fisher v. Johnson, 174 F.3d 710, 714-15 (5th Cir. 1999); see also United States v. Baker, 197 F.3d 211, 218 (6th Cir. 1999); Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); Winkfield v. Bagley, 66 Fed.Appx. 578, unpublished, 2003 WL 21259699 (6th Cir. May 28, 2003).
Even those not versed in the law recognize the centuries-old maxim that "ignorance of the law is no excuse." This maxim, deeply embedded in our American legal tradition, reflects a presumption that citizens know the requirements of the law. The benefits of such a presumption are manifest. To allow an ignorance of the law excuse would encourage and reward indifference to the law. Further, the difficulty in proving a defendant's subjective knowledge of the law would hamper criminal prosecutions.United States v. Baker, supra, 197 F.3d at 218. Additionally, the record fails to reflect that petitioner's lack of education, age, transfer between prisons, or illness prevented him from litigating his claims during the time period at issue. See Price v. Lewis, 119 Fed.Appx. 725, 726-27, unpublished, 2005 Fed.App. 0012N (6th Cir. Jan. 5, 2005), rehearing en banc denied, April 6, 2005:
Price claims that during the limitations period: he suffered from a variety of mental illnesses; he was in a "lock down" psychiatric unit for psychiatric treatment for approximately two months; he underwent ear surgery; and he began experiencing symptoms of tardive dyskinesia, a neurological syndrome caused by long-term use of neuroleptic drugs. . . .
Illness — mental or physical — tolls a statute of limitations only if it actually prevents the sufferer from pursuing his legal rights during the limitations period. Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996) (discussing mental illness); Rhodes v. Senkowski, 82 F.Supp.2d 160, 168-70 (S.D.N.Y. 2000) (discussing physical and mental illness and collecting cases). Price fails to satisfy this burden because, as the Warden argues, Price actively pursued his claims during the limitations period by seeking and obtaining help completing legal paperwork. (J.A. at 85.) "The exceptional circumstances that would justify equitable tolling on the basis of mental incapacity are not present when the party who seeks the tolling has been able to pursue his or her legal claims during the period of his or her alleged mental incapacity." Brown v. McKee, 232 F.Supp.2d 761, 768 (E.D.Mich. 2002). See also, Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001) ("We will permit equitable tolling of AEDPA's limitations period only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time" (citation and internal quotation marks omitted) (emphasis added)); Biester v. Midwest Health Serv., Inc., 77 F.3d 1264, 1268 (10th Cir. 1996) (finding equitable tolling inappropriate where the evidence demonstrated the plaintiff's ability to file his claim, in spite of his mental condition); Lopez v. Citibank, N.A., 808 F.2d 905, 907(1st Cir. 1987) (same).Id. Additionally, contrary to petitioner's allegation here that he is "completely unable . . . to prepare anything of legal substance," see supra, the record reflects that petitioner filed a pro se supplemental brief on direct appeal, and thereafter filed a pro se motion for reconsideration of the appellate court's decision denying his direct appeal. See Exhibits 8 and 12 to Return of Writ. The record fails to reflect that petitioner exercised due diligence in pursuing his rights. Finally, the respondent certainly will suffer some prejudice, if only in terms of time and expense, were this Court to equitably toll the statute of limitations in this case.
Based upon all of the foregoing, the Magistrate Judge RECOMMENDS that this action be DISMISSED for failure to comply with the one-year statute of limitations under 28 U.S.C. § 2244(d).
If any party objects to this Report and Recommendation, that party may, within ten (10) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.