Sexton v. Wainwright

JASON S. SEXTON, Petitioner, v. LYNEAL WAINWRIGHT, WARDEN, MARION CORRECTIONAL INSTITUTION, Respondent.

Case No. 2:18-CV-424

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

March 22, 2019

Judge George C. Smith

Magistrate Judge Michael R. Merz

OPINION AND ORDER

Respondent has moved to dismiss the petition for federal habeas relief because the three grounds it asserts are time-barred. ("Motion to Dismiss"). (ECF No. 5). On September 17, 2018, the Magistrate Judge issued a Report and Recommendation ("First R&R") recommending that the petition be dismissed because it was untimely. (ECF No. 12). In light of Petitioner's subsequently received Response in Opposition to the Motion to Dismiss ("Response"), (ECF No. 15), the Magistrate Judge withdrew the First R&R (ECF No. 16). Petitioner also filed objections to the First R&R. (ECF No. 18). On October 4, 2018, the Magistrate Judge issued a second Report and Recommendation ("Second R&R") recommending that the Motion to Dismiss be granted in part and denied in part because even though grounds two and three are untimely, ground one is not. (ECF No. 19). Respondent filed objections to the Second R&R (ECF No. 20), and the Court recommitted the matter to the Magistrate Judge for further analysis. (ECF No. 21). Petitioner also filed objections to the Second R&R. (ECF No. 22).

On October 29, 2018, the Magistrate Judge issued a Substituted Report and Recommendation ("Substituted R&R"), (ECF No. 23), recommending that the Motion to Dismiss, (ECF No. 5), be granted in its entirety because all three grounds in the petition are untimely. Petitioner has objected to the Substituted R&R. (ECF No. 24). Pursuant to 28 U.S.C. § 636(b), the Court has conducted a de novo review. For the reasons that follow, Petitioner's objections are OVERRULED. The Substituted R&R is ADOPTED and AFFIRMED subject to one exception described below. This action is DISMISSED.

Pursuant to a plea agreement entered in the Franklin County Court of Common Pleas, Petitioner was convicted and sentenced to serve consecutive terms of 20 years to life for one count of aggravated murder, and ten to twenty-five years for one count of aggravated robbery. (ECF 4, at PAGE ID # 38-43). Petitioner alleges that his case was heard by a single judge. (ECF No. 1, at PAGE ID # 1). Sentence was imposed on October 15, 1997. (ECF No. 4, at PAGE ID # 42-43). Petitioner alleges that counsel failed to consult with him about his right to appeal or to tell him that he was entitled to have his case heard by a three-judge panel, and that both counsel and the trial court failed to inform Petitioner about his appellate rights, including his right to appointed counsel on direct appeal. (ECF No. 1, at PAGE ID # 18-19). Petitioner alleges that because of those failures, he did not directly appeal his conviction or sentence.

At some point after sentencing, Petitioner wrote to the State Public Defender, as evidenced by a December 3, 1998, letter from the Public Defender's Office addressed to Petitioner. The letter acknowledged Petitioner's correspondence, informed him that he could file a petition for post-conviction relief, and stated that filing forms were enclosed. (ECF No. 14-5). Subsequently, on December 22, 1998, Petitioner filed a pro se petition for post-conviction relief under Ohio Rev. Code § 2953.21 and moved for appointed counsel. (ECF No. 4, at PAGE ID #46-54; ECF No. 14-6, at page ID # 180-182). The state appellate court denied the petition for post-conviction relief on January 28, 1999, because it was untimely and lacked merit. (ECF No. 4, at PAGE ID # 55-61). Petitioner did not directly appeal that January 28, 1999, decision either.

Petitioner wrote to the state court's clerk on August 17, 2000, to request a copy of his docket sheet, and then wrote a second letter to the Public Defender's Office sometime prior to January 3, 2017. (ECF No. 4, at PAGE ID # 101, ECF No. 14-6, at PAGE ID # 179). Petitioner alleges that he remained, however, ignorant of his appellate rights until June of 2017, when he spoke to an inmate law clerk about his state court case. After that discussion, Petitioner sought leave in the state courts on July 23, 2017, to file a delayed appeal of his 1997 conviction pursuant to Rule 5(A) of the Ohio Rules of Appellate Procedure. (ECF No. 4, at PAGE ID # 62-65, 66-74). On September 21, 2017, the Ohio Court of Appeals denied Petitioner's request for leave to file a delayed appeal because he did not present a "viable reason for the delay in his attempt to appeal." (Id., at PAGE ID # 107-108). Petitioner sought an appeal of that determination, but the Ohio Supreme Court declined to exercise jurisdiction over the matter on January 31, 2018. (Id., at PAGE ID # 112-129, 130).

Petitioner placed his petition for federal habeas relief in the prison mail system on April 25, 2018. (ECF No. 1, at PAGE ID # 15). In ground one, Petitioner alleges that he was denied his due process and equal protection rights when the Ohio Court of Appeals denied his motion for a delayed appeal on September 21, 2017. (ECF No. 1, at PAGE ID # 17-18). In ground two, Petitioner alleges that he was denied his due process and equal protection rights in 1997, when the trial court and counsel failed to inform him about his appellate rights. (Id., at PAGE ID # 18). In ground three, Petitioner alleges that counsel rendered constitutionally ineffectiveassistance in 1997 by failing to consult with him about his appellate rights; by allowing him to plead guilty to aggravated murder before a single judge instead of a three-judge panel; and by failing to inform Petitioner that a three-judge panel was required to take his guilty plea. (Id., at PAGE ID # 19).

The Magistrate Judge correctly concluded that Petitioner's grounds are all time-barred. 28 U.S.C. § 2244(d)(1)(A)¹ provides that the one-year statute of limitations commences running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review . . ." Petitioner's judgment of conviction became final on November 14, 1997, i.e., thirty days after his October 15, 1997 conviction, and when the time to directly appeal that conviction expired pursuant to Ohio Appellate Rule 4(A). Under § 2244(d)(1)(A), the statute of limitations started running the next day, November 15, 1997, and expired one year later, on November 16, 1998.² Petitioner, however, filed his April 25, 2018petition almost twenty years after that. Accordingly, his claims are untimely unless some other provision of § 2244(d)(1) applies.³

The Magistrate Judge also correctly concluded that no other provision of § 2244(d)(1)⁴ applies to grounds two and three. Specifically, the Magistrate Judge correctly rejected Petitioner's contention that the applicable statute of limitations for grounds two and three is found in § 2244(d)(1)(B), which provides that the statute of limitations starts to run from "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 . . ." In support of that contention, Petitioner alleges that counsel's actions—failing to consult with him about his appellate rights, allowing him to plead guilty to aggravated murder before a single judge, failing to inform him about the three-judge panel requirement,⁵ and failing to inform him about his appellate rights—and the trial court's failure to advise Petitioner about his appellate rights, all constituted state-created impediments. Petitioner further contends that those state-created impediments were not removed until his June 2017 discussion with an inmate law clerk about his case, and therefore, the statute of limitations forgrounds two and three did not start running until then. As the Magistrate Judge explained, however, even if these alleged failures constituted state-created impediments to filing a direct appeal in state court, "a state-created impediment to a direct appeal in the state court does not invoke the limitations period of § 2244(d)(1)(B) because it is not an impediment to filing a timely federal habeas petition." Oberacker v. Noble, No. 18-3589, 2018 WL 4620666, *2 (6th Cir. Sept. 24, 2018) (citing cases); Winkfield v. Bagley, 66 F. App'x. 578, 582-83 (6th Cir. 2003) (holding that the ineffectiveness of counsel—which caused petitioner to miss the appeal deadline—was not an "impediment" to filing a timely habeas application because "[petitioner] has not alleged that [his attorney] erroneously informed him that he had no federal remedies"); Miller v. Cason, 49 F. App'x. 495, 497 (6th Cir. 2002) (the failure to give the petitioner notice of his appeal rights and to appoint appellate counsel did not constitute a state-created impediment under § 2244(d)(1)(B) because while such action may have interfered with the petitioner's direct appeal in the state courts, it did not preclude him from timely filing a federal habeas petition). Petitioner does not object to this finding in the Substituted R&R. (ECF No. 24).

The Magistrate Judge also correctly rejected Petitioner's contention that the statute of limitations for grounds two and three is governed by 28 U.S.C. § 2244(d)(1)(D). When that subsection applies, the statute of limitations starts running on "the date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence." § 2244(d)(1)(D). Petitioner alleges that he did not discover the factual predicate for his claims until he learned about his appellate rights during his June 2017 discussion with an inmate law clerk. As explained by the Magistrate Judge, however, the term "factual predicates" refers to factual evidence and events, not legal conclusions. "The operative question in such an inquiry is when the person was aware of the vital facts for his...