Colbert v. Tambi, C-1-06-93.
| Citation | 513 F.Supp.2d 927 |
| Decision Date | 30 August 2007 |
| Docket Number | No. C-1-06-93.,C-1-06-93. |
| Parties | Herschel COLBERT, Petitioner v. Samuel TAMBI, Warden, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
Herschel Colbert, Nelsonville, OH, Pro se.
Thelma Thomas Price, Columbus, OH, for Respondent.
This matter was referred pursuant to 28 U.S.C. § 636 to the United States Magistrate Judge for consideration and report on the Petition for Writ of Habeas Corpus filed by the petitioner pursuant to 28 U.S.C. § 2254. The matter is before the Court upon the following Report and Recommendation of the Magistrate Judge (doc. no. 9) recommending that respondent's Motion to Dismiss (doc. no. 6) be granted and upon petitioner's objections to the Report and Recommendation (doc. no. 13).
Petitioner, an inmate in state custody at the Hocking Correctional Facility in Nelsonville, Ohio, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on respondent's motion to dismiss (Doc. 6), which is opposed by petitioner (Doc. 7).
On October 24, 2003, the Hamilton County, Ohio, grand jury indicted petitioner on two counts of trafficking in cocaine in violation of Ohio Rev.Code § 2925.03(A)(1) and two counts of possession of cocaine in violation of Ohio Rev.Code § 2925.11(A). (Doc. 6, Ex. 1).
Petitioner initially entered a plea of not guilty and, through counsel, filed a motion to suppress evidence pertaining to the possession counts. (Id., Exs. 2-3). After a hearing held December 12, 2003, the trial court denied petitioner's suppression motion. (See id., Exs. 4, 11).
Thereafter, on October 25, 2004, petitioner withdrew his not-guilty plea and entered a plea of no contest. (Id., Ex. 5). In the plea entry executed by petitioner' and counsel, petitioner stated: "I understand my right to appeal a maximum sentence, my other limited appellate rights, and that any appeal must be filed within 30 days of my sentence." (Id.). Moreover, at the plea and sentencing hearing, the trial court informed petitioner twice that he had "30 days from the date I impose sentence to appeal the decision of this Court," and that if he could not "afford the costs of a lawyer or costs of an appeal, both will be free of charge." (Id., Ex. 12, Tr. 7, 13). On that same date, petitioner was sentenced to concurrent terms of imprisonment totaling four (4) years with "credit for 132 days time served." (Id., Ex. 6).
On November 29, 2004, petitioner filed a notice of appeal to the Ohio Court of Appeals, First Appellate District. (Id., Ex. 7). On December 22, 2004, the Court of Appeals sua sponte dismissed the appeal "for failure to comply, with the Ohio Rules of Appellate Procedure to wit: App.R. 4(A)." (Id., Ex. 8).
Nearly three months later, on March 15, 2005, petitioner filed a motion for leave to file a delayed appeal to the Ohio Court of Appeals, First Appellate District. (Id., Ex. 9). Petitioner did not present in this motion any assignments of error that he hoped to raise on appeal. However, he did argue as "cause" for his failure to perfect an appeal as of right that the trial court did not inform him of "his right to appeal the imposition of his sentence in accordance with Crim.R. 32(B)," that he lacked legal counsel to assist him in expediting matters on appeal, and that he did not know an appeal "could be possible under certain circumstances." (Id.).
On March 30, 2005, the Ohio Court of Appeals overruled petitioner's motion for leave to file a delayed appeal on the ground that petitioner had "failed to provide sufficient reasons for failure to perfect an appeal as of right." (Id., Ex. 10). Apparently, petitioner did not pursue an appeal from this decision to the Supreme Court of Ohio. (Id., Brief, P. 3).
Petitioner next initiated the instant federal habeas corpus action. The petition, which contains an "Affidavit of Indigency" executed by petitioner on February 15, 2006, was "filed" on February 23, 2006. (Doc. 1). Petitioner asserts the following grounds for relief:
Ground One: Denial of effective assistance of counsel when counsel stood silent as the state unconstitutionally deprived him of liberty [with respect to his motion to suppress certain evidence].
Ground Two: Denial of right of appeal when counsel failed to file a timely notice of appeal when requested by defendant to do so.
Supporting Facts:.... The defendant was abandoned, by his counsel, and was then left to attempt his own appeal ... from prison, and was prevented from filing his appeal in a timely manner by an impediment created by the prison's procedure[]s for forwarding inmate legal mail. Thus, the defendant's pro se appeal notice was returned stamped received by the court on 11/30/04, although mailed from prison on 11/18/04.
Ground Three: Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure based on prejudicial testimony.
Ground Four: Denial of counsel on first appeal as of right when right to effective assistance of counsel was violated by appointed counsel.
Supporting Facts: Counsel was not acting in role of active advocate for defendant's rights ... by merely assisting the defendant in a detached or indifferent evaluation of defendant's claims and, was unavailable to assist in preparing and submitting brief to appellate court, which is the cause for defendant's pro se motion for delayed appeal denial as untimely.
(Id., pp. 5-6).
Respondent has filed a motion to dismiss, wherein he contends that the petition is barred from review by the applicable one-year statute of limitations set forth in 28 U.S.C. § 2244(d). (See Doc. 6, Brief, pp. 4-8). Respondent alternatively argues that petitioner has not exhausted an arguably available state court remedy. (See id., pp. 8-12).
OPINIONUnder 28 U.S.C. § 2244(d)(1), § 101 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, a person in custody pursuant to the judgment of a state court; must file an application for writ of habeas corpus within one year 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. Under 28 U.S.C. § 2244(d)(2), the running of the limitations period is tolled during the pendency of a properly filed application for state postconviction relief or other collateral review.
In this case, the Court must initially determine which statute of limitations provision set forth in 28 U.S.C. § 2244(d)(1) applies to each of the four grounds for relief alleged in the petition.
First, it appears that the claim alleged in Ground Two of the petition, as well as the portion of Ground Four challenging the effectiveness of petitioner's counsel in perfecting an appeal as of right in the state courts, did not arise until petitioner received notice of the Ohio Court of Appeals' December 22, 2004 Entry dismissing his initial pro se appeal as untimely-filed. Therefore, those claims are governed by 28 U.S.C. § 2244(d)(1)(D), which provides that the statute of limitations does not begin to run until the factual predicate of the claims presented could have been discovered in the exercise of due diligence.1 Because under § 2244(d)(1)(D), the statute of limitations did not begin to run with respect to such claims until after' the Ohio Court of Appeals entered its December 22, 2004 order sua sponte dismissing petitioner's initial pro se appeal, the undersigned concludes that the claim alleged in Ground Two of the petition, and the portion of Ground Four alleging error by defense counsel in assisting petitioner on appeal, are not time-barred.2
In contrast, petitioner's remaining claims alleged in Grounds One, Three and Four are based on purported errors that occurred prior to or during the state pleataking and sentencing proceedings. Normally, such claims are governed by 28 U.S.C. § 2244(d)(1)(A), which provides the statute of limitations begins to run from the date on which the challenged judgment became "final" by the conclusion of direct review or the expiration of time for seeking such review. However, petitioner has argued that he was denied effective assistance of counsel and his constitutional right of appeal because he was not adequately informed of his appeal rights when he entered his plea of no-contest and because his trial counsel failed to assist him in perfecting a timely appeal. The question then arises as to whether these particular claims are also governed by 28 U.S.C. § 2244(d)(1)(D).3
Here, it is clear from the record that contrary to his contention, petitioner was informed when he entered his no-contest plea and was sentenced on October 25, 2004 that he had a right of appeal, which had to be exercised within thirty days of entry of the sentence. (See Doc. 6, Ex. 5 & Ex. 12, Tr. 7, 13). Moreover, because it appears from the record that petitioner prepared and submitted a pro se notice of appeal to prison authorities for mailing to the state courts on November 18, 2004, petitioner also knew within the requisite 30-day period that his trial counsel would not be assisting him in perfecting such an appeal....
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Smith v. Jackson, 4:16-CV-13475-TGB
...this Court was correct in its procedural ruling that Petitioner had failed to exhaust two of his claims. See Colbert v. Tambi, 513 F. Supp. 2d 927, 939 (S.D. Ohio 2007). However, although jurists of reason would not debate this Court's resolution of Petitioner's claims, the issues are not f......