Fitts v. Eberlin

626 F.Supp.2d 724

Anthony Lamar FITTS, Petitioner, v. Michele EBERLIN, Respondent.

Case No. 5:08CV660.

United States District Court, N.D. Ohio, Eastern Division.

April 17, 2009.

Anthony Lamar Fitts, St. Clairsville, OH, pro se.

Gene D. Park, Office of the Attorney General, Columbus, OH, for Respondent.

MEMORANDUM OPINION AND ORDER

SARA LIOI, District Judge.

This Memorandum Opinion and Order arises out of the objections (Doc. No. 21) filed by Petitioner Anthony Lamar Fitts ("Fitts") to the Report and Recommendation of Magistrate Judge William Baughman, Jr., recommending that this Court dismiss Fitts's petition for writ of habeas corpus as time-barred (Doc. No. 20). For the reasons that follow, the Court ACCEPTS the Report and Recommendation and DISMISSES Fitts's petition for writ of habeas corpus.

I. FACTUAL AND PROCEDURAL HISTORY

In his objections, Fitts acknowledged that, with the exception of the Magistrate Judge's calculation of the tardiness of his habeas petition, he agrees with the statement of facts provided by the Magistrate Judge in the Report and Recommendation. Accordingly, the Court shall only provide the factual and procedural history necessary to provide context for this Memorandum Opinion and Order.

On February 2, 2005, the Stark County Grand Jury indicted Fitts on ten counts of robbery, in violation of O.R.C. § 2911.02(A)(2), arising out of a string of robberies occurring in Stark County from August to November 2004. (R. 75.) Section 2911.02(A) states as follows:

No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following:

(1) Have a deadly weapon on or about the offender's person or under the offender's control;

(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;

(3) Use or threaten the immediate use of force against another.

At trial, the jury heard testimony from the following individuals:

(1) Aaron Prude, an AT & T Wireless store employee, who testified, inter alia, that an African-American male who wore a baseball cap and sunglasses pointed a black handgun at Prude as he demanded Prude to "put all the money in the bag." (R. 75.) Prude positively identified Fitts from a photo array, as did another AT & T employee, James Contrucci. (R. 75-76.)

(2) Dawn Marshall, an employee of Maggiore's, who testified, inter alia, that a male wearing pantyhose over his face, a black baseball cap, and a blue "Fubu" shirt pointed a black handgun at her, demanded she open the register, and then took the money from the register. (R. 76.) The robbery was recorded on the store's video surveillance, and an outside camera taped the robber without his mask. (Id.)

(3) Harriet Weese, a Dollar General employee, who testified, inter alia, that an African-American male with his face covered by a black cloth pointed a black handgun at her and told her to place money in a plastic shopping bag. (R. 76.) When the robber left the store, Weese ran to lock the door and was able to see the man's face without a mask. (Id.) She positively identified Fitts from a photo lineup and during the trial. (Id.) Two other individuals, Chris Maley and Casey Frame, both saw the unmasked robber outside the Dollar General, and both made a positive identification of Fitts from a photo lineup and at trial. (Id.)

(4) Pam Campbell and Camille Sims, employees at the Southgate Bureau of Motor Vehicles, who testified, inter alia, that an African-American male with a stocking cap over his face pointed a black handgun at them and ordered them to give him money from the registers. (R. 76.) When he left the store, a customer followed him and got the license plate number from the vehicle he was driving. (Id.) The car was later identified as belonging to Barbara Harris. (R. 77.)

(5) Shamica Harris, who testified, inter alia, that she had known Fitts for approximately one year, that Fitts had driven her mother's car, and that Fitts confessed to her that he had committed the string of robberies, including at Priceless Kids, AT & T Wireless, Family Dollar, Dollar General, Maggiore's, Mr. Hero, Check into Cash, and Southgate BMV. (R. 77.) She identified Fitts as the man in the still photos taken at the robberies. (Id.) Additionally, when police spoke to Shamica Harris, she brought them a blue "Fubu" shirt belonging to Fitts that matched the one worn by the robber. (Id.)

The jury found Fitts guilty of four of the ten counts of robbery, and the trial court sentenced Fitts to four consecutive eight-year terms of imprisonment, for a total of 32 years. (R. 77.)

On February 13, 2006, 2006 WL 337368, the Ohio court of appeals affirmed the judgment of the trial court. (R. 74-94.) Fitts had until March 30, 2006, to file a direct appeal to the Ohio Supreme Court, but he failed to do so. On May 16, 2006, Fitts, through counsel, filed an application to reopen his appeal under Ohio Appellate Rule 26(B), alleging ineffective assistance of appellate counsel. (R. 95.) The Ohio court of appeals denied Fitts's 26(B) application on June 2, 2006, and the Ohio Supreme Court dismissed an appeal as not involving a substantial constitutional question on October 4, 2006, 111 Ohio St.3d 1417, 854 N.E.2d 1094 (2006). (R. 132-33, 158.)

On March 17, 2008, Fitts filed a petition for writ of habeas corpus in this Court. (Doc. No. 1.) In it, Fitts offers a number of constitutional challenges to his imprisonment pursuant to a state court judgment. (Doc. No. 1 at 8-11.) Apparently acknowledging that his petition was not timely filed, Fitts requests that his untimeliness be excused under equitable tolling and that this Court nonetheless consider his petition on the merits. (Doc. No. 1 at 2-7.) The Magistrate Judge recommended that Fitts's petition be dismissed as time-barred. (Doc. No. 20.) Fitts has filed objections to the Magistrate Judge's report. (Doc. No. 21.)

II. LAW AND ANALYSIS

Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Court provides: "The judge must determine de novo any proposed finding or recommendation to which objection is made. The judge may accept, reject, or modify any proposed finding or recommendation." Fitts has offered objections to certain portions of the Magistrate Judge's Report and Recommendation. (Doc. No. 21.) Accordingly this Court will review those portions de novo.

A. Untimeliness of petition

It is worth noting at the outset that Fitts concedes his petition for writ of habeas corpus is untimely under the one-year statute of limitations provided in 28 U.S.C. § 2244. The Magistrate Judge never made an explicit finding as to the number of days Fitts's petition was tardy, but simply noted that Fitts filed his petition approximately 17 months after the Ohio Supreme Court declined review of his appeal from the Ohio court of appeals's denial of his 26(B) application. (Report and Recommendation at 734-35.) In his Objections, Fitts contends that his "petition was only (63)[sic] days late (due January 4, 2008)." (Objections at 1.) As the degree of tardiness can affect a court's willingness to equitably toll the statute of limitations for filing a habeas petition, this Court will determine how late Fitts filed his petition in this Court.

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for writ of habeas corpus by a person in custody pursuant to the judgment of a state court must be filed within one year of the date on which judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.¹ 28 U.S.C. § 2244(d)(1)(A). This one-year period is tolled, however, during the pendency of a properly filed application for state post-conviction or other collateral review. 28 U.S.C. § 2244(d)(2).

In this case, the Ohio court of appeals affirmed Fitts's convictions on direct review on February 13, 2006. From that point, Fitts had 45 days—or until March 30, 2006—to file an appeal to the Ohio Supreme Court. Rules of Practice of the Supreme Court of Ohio, Rule II, § 2(A)(1)(a). Fitts did not file a direct appeal to the Ohio Supreme Court, and thus the one-year limitations period began running on March 31, 2006. 28 U.S.C. § 2244(d)(2).

Thereafter, 45 days passed until Fitts filed a Rule 26(B) application to reopen his appeal, which tolled the statute of limitations while the 26(B) application was pending. See 28 U.S.C. § 2244(d)(2). On October 4, 2006, the Ohio Supreme Court declined review of Fitts's 26(B) application, and thus the limitations period resumed on October 5, 2006. Since 45 days had already passed before Fitts filed his Rule 26(B) application, this left him until August 21, 2007, to file a petition for writ of habeas corpus. Fitts did not file his petition for writ of habeas corpus until March 7, 2008.² Thus, Fitts filed his petition 198 days past the deadline imposed by AEDPA. This renders Fitts's petition untimely by well over six months.

Fitts objects that "notwithstanding fact Petitioner [sic] did not seek certiorari[,] said 90-day period must be included in timeliness calculation." (Objections at 1.) Presumably Fitts is referring to the 90-day period in which he could seek direct review of his conviction in the United States Supreme Court.³ The Supreme Court has held, however, that "§ 2244(d)(2) does not toll the 1-year limitations period during the pendency of a petition for certiorari." Lawrence v. Florida, 549 U.S. 327, 332, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007). Accordingly, insofar as Fitts objects that his tardiness in filing his habeas petition is any less than 198 days, as calculated above, those objections are OVERRULED.

B. Equitable tolling

His tardiness notwithstanding, Fitts nonetheless asks this Court to consider his habeas petition on the merits under the principles of equitable tolling. The United States Supreme Court has never decided whether the one-year statute of limitations in § 2244...