Jones v. Warden, Lebanon Corr. Inst.

LAVELLE JONES, Petitioner, v. WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:13-CV-155

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: March 7, 2014

JUDGE GREGORY L. FROST

MAGISTRATE JUDGE KEMP

REPORT AND RECOMMENDATION

I. INTRODUCTION

As the Court's order of July 18, 2013 reflects, this habeas corpus action filed under 28 U.S.C. §2254 involves Petitioner Lavelle Jones's June 2, 2009, convictions in the Franklin County Court of Common Pleas, pursuant to his guilty plea, on two counts of robbery, kidnaping, and a repeat violent offender specification. The trial court sentenced Petitioner to an aggregate term of nineteen years in prison. Petitioner timely appealed his conviction and sentence to the Tenth District Court of Appeals but not to the Ohio Supreme Court. The Tenth District Court of Appeals affirmed his conviction on March 11, 2010. State v. Jones, 2010 WL 866126 (Franklin Co. App. March 11, 2010). He attempted to obtain review of that ruling from the Ohio Supreme Court by way of a motion to file a delayed direct appeal, but on April 8, 2012, the Ohio Supreme Courtdenied that motion. State v. Jones, 131 Ohio St.3d 1508 (2012). This federal case was filed on February 20, 2013.

In response to the petition, Respondent moved to dismiss, arguing that the petition is barred by the one-year statute of limitations found in 28 U.S.C. §2244(d). Petitioner acknowledged that he filed his habeas corpus petition after the one-year statute of limitations (measured from the date on which he could have taken a timely appeal to the Ohio Supreme Court) expired - that date was in April, 2010 - but contended that the statute of limitations was equitably tolled until February 21, 2012, and because he filed this action within a year of that date, it is timely.

Because Petitioner alleged facts which, if true, might warrant equitable tolling of the statute of limitations, the Court appointed counsel for Petitioner and scheduled an evidentiary hearing on his request for equitable tolling. The hearing was conducted on November 13, 2013. Petitioner testified, as did his state court appellate counsel, Michael A. Prisley. The transcript of the hearing has now been filed, and both parties have submitted post-hearing briefs. Respondent has also filed a motion for leave to supplement the post-hearing brief, and the Court grants that motion (Doc. 32). For the following reasons, the Court recommends that Respondent's motion to dismiss on statute of limitations grounds be denied.

II. LEGAL STANDARD

Because the facts of this case, drawn from the testimony given and exhibits admitted at the evidentiary hearing, must be evaluated in light of the law relating to theequitable tolling of §2244(d)'s one-year limitations period, the Court will set out that law first.

A state prisoner seeking federal habeas corpus relief normally has one year from the date his state conviction becomes final to file an action in federal court. 28 U.S.C. §2244(d). That statute of limitations is subject to equitable tolling, however. This Court has had many occasions to review the relevant Supreme Court and Court of Appeals decisions about equitable tolling, and it makes sense simply to quote at length from prior decisions of the Court about the matter rather to state it anew. For example, in Willis v. Brunsman, 2012 WL 2564539, *5-6 (S.D. Ohio July 2, 2012), adopted and affirmed 2012 WL 3962899 (S.D. Ohio Sept. 11, 2012), the Court said this:

"[P]etitioner bears the ... burden of persuading the court that he ... 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). The statute of limitations may be equitably tolled "'when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond the litigant's control.'" Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir.2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)).

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 Afairs, 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. BaldwinCounty 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 (6th Cir.2003). A habeas corpus petitioner is entitled to equitable tolling if he can establish 1) that "he has been pursuing his rights diligently;" and 2) "some extraordinary circumstance stood in his way and prevented timely filing." Hall, 662 F.3d at 749. See also Patterson v. Lafler, --- F.Appx. ----, No. 10-1379, 2012 WL 48186, at *2 n. 1 (6th Cir. Jan.9, 2012)).

Obviously, given the somewhat imprecise standard used to evaluate claims of equitable tolling (involving determinations of whether a petitioner was "diligent," and whether the factors which led to the untimely filing were "extraordinary"), it is difficult to state any hard and fast rules which can be applied in rote manner to this situation. As the Fifth Circuit Court of Appeals noted in Fisher v. Johnson, 174 F.3d 710, 713 (5^th Cir. 1999), "[a]s a discretionary doctrine that turns on the facts and circumstances of a particular case, equitable tolling does not lend itself to bright-line rules ...." Many courts have concluded, however, that if the obstacle to timely filing of a federal habeas petition is just a "garden-variety" attorney error, equitable tolling does not apply. See, e.g., Holland v. Florida, 560 U.S. 631, __, 130 S.Ct. 2549, 2564 (2010); Rues v. Denney, 643 F.3d 618, 622 (8^th Cir. 2011)("counsel's miscalculation of his filing deadline is a 'garden variety claim' of neglect and does not warrant equitable tolling"). On the other hand, if a petitioner's state court attorney engages in egregious conduct which misleads the petitioner into believing that proceedings are being timely filed, that can constitute the type of extraordinary circumstance which will justify equitably tolling the statute oflimitations. See, e.g., Fonseca v. Hall, 568 F.Supp.2d 1110 (C.D. Cal. 2008). Here, the availability of equitable tolling very much depends on what the Court finds the facts to be, so the Court now turns to a discussion of the evidence.

III. THE EVIDENCE FROM THE HEARING

A. MICHAEL PRISLEY

The first witness at the evidentiary hearing was Michael Prisley, the attorney who represented Mr. Jones for purposes of his state court appeal. That representation occurred during a brief period of time when Mr. Prisley worked as an associate with the Columbus firm of Yavitch and Palmer. Both before and after that time, Mr. Prisley worked for various governmental agencies including the Columbus City Attorney's office and the Athens County Prosecutor's office. Mr. Prisley testified that he handled a total of six criminal appeals while at Yavitch and Palmer, all of them as court-appointed counsel.

Mr. Prisley recalled that he was appointed to handle Mr. Jones's appeal in 2009. After being appointed, he did not meet with Mr. Jones (in fact, he testified that they never met in person) and that he did not recall if they ever spoke by telephone. He also could not recall how many letters he might have written to Mr. Jones, and said that Mr. Jones's file at Yavitch and Palmer had been destroyed when that office was flooded in early 2010. Additionally, he testified that he did not advise Mr. Jones of the date of the oral argument in his case and was surprised when a man and a woman appeared at the argument and asked him questions about the case.

Mr. Prisley also described his usual practice with respect to briefs, decisions, and other matters relating to a case in which he served as counsel. He ordinarily mailed items of significance to the client. However, he did not have secretarial help, and he might or might not prepare a cover letter when mailing such items.

The record reflects that the Tenth District Court of Appeals' decision was filed in this case on March 11, 2010. See . State v. Jones, 2010 WL 866126 (Franklin Co. App. March 11, 2010 ). Four days later, Mr. Prisley prepared his application for payment. His application shows he spent an hour on the case that day, which would have included preparation of the application for payment and, presumably, mailing a copy of the decision to Mr. Jones. Because he had exceeded the limit for compensation in the case, Mr. Prisley doubted that he prepared a cover letter, but he assumed that he mailed a copy of the decision to Mr. Jones by placing it in an envelope. He considered the matter closed as of that date, and did not advise Mr. Jones about his right to seek further review by the Ohio Supreme Court.

Mr. Prisley remained with Yavitch and Palmer until August 26, 2011. He said he received no letters from Mr. Jones during that time. He also took no steps that he could recall to communicate with Mr. Jones after the court of appeals decision. He was shown a number of letters which Mr. Jones claimed to have sent him, but denied seeing any of them, and also testified that the only letters he got from Mr. Jones were handwritten (the letters he claimed not to have received were all typewritten) and that their "tone" was different. Finally, he said that any failure on his part to forward the court of appeals decision to Mr. Jones would have been inadvertent rather than intentional.

B. LAVELLE JONES

Mr. Jones was the second and...