Keenan v. Bagley, 1:01CV2139.

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Citation262 F.Supp.2d 818
Docket NumberNo. 1:01CV2139.,1:01CV2139.
PartiesThomas Michael KEENAN, Petitioner, v. Margaret BAGLEY, Warden, Respondent.
Decision Date29 July 2002
262 F.Supp.2d 818
Thomas Michael KEENAN, Petitioner,
Margaret BAGLEY, Warden, Respondent.
No. 1:01CV2139.
United States District Court, N.D. Ohio, Western Division.
July 29, 2002.

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Jeffrey M. Gamso, Law Office of Jeffrey M. Gamso, Jeffrey J. Helmick, Helmick, Prajsner & Hoolahan, Toledo, OH, Paul A. Mancino, Jr., for Petitioner.

Henry G. Appel, Tara L. Berrien, Office of the Attorney General State of Ohio, Columbus, OH, for Respondent.


KATZ, District Judge.

I. Introduction

Respondent, Margaret Bagley, has moved the Court to dismiss Petitioner Thomas Michael Keenan's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (doc. no. 20). After the Court granted Petitioner's counsel sever extensions of time, Petitioner filed opposition to the motion on May 24, 2002 (doc. no. 57). Thereafter, both Petitioner and Respondent filed supplemental briefs (doc. nos.60, 61, 63, 66).

Respondent alleges that Keenan is barred from federal habeas corpus review because he untimely filed his petition. Specifically, Respondent alleges that Keenan's state post-conviction petition was not "properly filed," pursuant to § 2244(d)(2), preventing that state-court proceeding from tolling the one-year statute of limitations. Thus, to decide the motion, the Court first must determine whether Keenan's state post-conviction petition was "properly filed" under the § 2244(d)(2). If the Court finds that it was not, the Court must then determine whether any exceptions to the limitations kperiod apply.

In their briefs, the parties addressed four issues related to whether Keenan's petition is time barred. These issues will be addressed below on an individual basis. Although the Petitioner presents several compelling arguments, ultimately, they are unpersuasive.

II. Standard of Review

Respondent alleges that Keenan's federal habeas petition was filed untimely because it exceed the one-year statute of limitations set out in 28 U.S.C. § 2244(d). That statute states in relevant part: (d)(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 judgement became final by the conclusion of direct review or the expiration of the time for seeking such review;


(2) The time during which a properly filed application for State post-convical

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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.

28 U.S.C. § 2244(d)(emphasis supplied).

Although the United States Supreme Court has not specifically defined what constitutes a "properly filed" state postconviction application, in Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000), the Court provided some guidance as to its meaning. In that case the Court held that an application for state postconviction relief containing claims that are procedurally barred under state law is "properly filed" within the meaning of the statute. Id. at 11, 121 S.Ct. 361. In so holding the Court distinguished between an application that is filed from an application that is properly filed. It opined that while an application is considered filed when it is delivered to and accepted by the court, it is not properly filed unless "its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Id. at 8, 121 S.Ct. 361. It elaborated that these laws and rules "usually prescribe, for example, the form of the document, the time limits of its delivery, the court and office in which it must be lodged, and the requisite filing fee." Id.

The Sixth Circuit has determined that it is the state's own interpretation of state law that must dictate whether the state post-conviction application has been "properly filed." In Israfil v. Russell, 276 F.3d 768 (6th Cir.2001), the court held that the state is the final arbiter for determining whether a post-conviction application comports with the § 2244(d)(2) "properly filed" requirement:

Principles of comity require federal courts to defer to a state's judgment on issues of state law and, more particularly, on issues of state procedural law. Engle v. Isaac, 456 U.S. 107, 128-29, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Murray v. Carrier, 477 U.S. 478, 491, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Because state courts are the final authority1 on state law, see Hutchison v. Marshall, 744 F.2d 44, 46 (6th Cir.1984), federal courts must accept a state court's own interpretation of its statutes and its rules of practice. Duffel v. Dutton, 785 F.2d 131,133 (6th Cir.1986).

Id. at 771. Moreover, the United States Supreme Court very recently issued an opinion that appears to support the Israfil holding. In Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 2141, 153 L.Ed.2d 260 (2002), the Court stated in dicta that if the California state court had determined that the petitioner's delay in seeking an appeal was unreasonable under California law, "that would be the end of the matter...."

Thus, it is this Court's initial obligation to find whether, pursuant to Ohio law, Keenan's petition was properly filed.

III. Procedural History

It is undisputed that Keenan's direct appeal concluded on October 5, 1998, when the United States Supreme Court denied certiorari. On March 26, 1999, Keenan filed a post-conviction petition. The trial court issued an opinion on the merits on December 10, 1999, denying Keenan's post-conviction petition and motion for a new trial. Although it would appear that the period of time between the filing of the post-conviction petition and the trial court's denial of it would toll the statute, on appeal from the trial court's decision the Eighth District Court of Appeals dismissed Kennan's petition as untimely. In its dismissal, the Court of Appeals, sua sponte, found that Keenan had exceeded the 180-day statutory filing limit of Ohio Revised Code § 2953.21. Although the

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post-conviction statutes provide for exceptions to the filing requirement, the Court of Appeals found that none existed in Keenan's case. State v. Keenan, No. 77480, 2001 WL 91129, at *2 (Ohio App. Feb. 1, 2001). Consequently, the Court of Appeals affirmed the trial court's dismissal of Keenan's petition.

Respondent now alleges that because the Court of Appeals held the post-conviction petition untimely, that petition did not meet the tolling requirements of § 2244(d)(2). Consequently, the deadline for Keenan to file a federal habeas petition remained October 5, 1999, one year after the conclusion of his direct appeal. Thus, Respondent argues, the filing of the petition in the instant proceeding on November 21, 2001, was twenty-five months late.

IV. Discussion and Analysis
A. Waiver/Jurisdiction Issue

The first issue the Court must address is whether Respondent is entitled to assert that Keenan's petition was untimely because the state did not raise this issue when Keenan initially filed his state postconviction petition. In fact, even the trial court did not address the untimeliness of Keenan's petition and, instead, dismissed the petition on the merits. The timeliness issue only arose, as stated above, after the Eighth District Court of Appeals, sua sponte, addressed it.

Keenan claims that the timeliness issue is an affirmative defense that the state must raise or waive in state court.

Thus, he argues, Respondent's motion must fail because the state did not raise the timeliness of his petition when Keenan first filed it. Contrary to Keenan's assertions, however, several Ohio Courts of Appeal have found that the timeliness of a post-conviction petition in Ohio is a jurisdictional issue, rather than an affirmative defense. For example, in State v. Halliwell, 134 Ohio App.3d 730, 732 N.E.2d 405, 408 (1999), the Eighth District Court of Appeals explicitly found that "unless [one of the statutory] exceptions apply, the trial court has no jurisdiction to consider an untimely filed petition for postconviction relief." See also State v. Sturbois, No. 99CA16, 1999 WL 786318 (Ohio Ct.App. Sept. 27, 1999)(holding that untimely petition for post-conviction petition divests trial court of jurisdiction); State v. Ayers, No. 16851, 1998 WL 833738 (Ohio App. Dec. 4, 1998)(same); State v. Thompson, No. 1-98-20, 1998 WL 667642 (Ohio App. Sept. 16, 1998)(same).2

Moreover, the plain meaning of the statutory language set forth in Ohio Revised Code § 2953.23, the provision that sets forth the exceptions to the time limitations found in § 2953.21, appears to undercut Keenan's waiver assertion. That statute reads in pertinent part:

(A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised Code, a court may not entertain a petition filed after the expiration of the period prescribed

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in division (A) of that section ... unless both of the following apply:

(1) Either of the following applies:

(a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief.

(b) Subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code ... the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right.

(2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.


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