REPORT AND RECOMMENDATION Petitioner, a state prisoner, filed this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 1), Respondent's Motion to Dismiss (ECF No. 8), Petitioner's Response in Opposition (ECF No. 11), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that Respondent's Motion to Dismiss (ECF No. 8) be GRANTED and that this action be DISMISSED as barred by the one-year statute of limitations established by 28 U.S.C. § 2244(d).
Facts and Procedural History The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:
On July 27, 2010, appellant pleaded guilty to a number of felonies in two separate cases. Specifically, in case No. 09CR-5537, appellant pleaded guilty to two counts of robbery, both being third-degree felonies, accompanied by a firearm specification. In case No. 09CR-5876, appellant pleaded guilty to one count of robbery, a felony of the third degree, accompanied by a firearm specification. On July 30, 2010, the trial court sentenced appellant to a prison term of three years for each of the robbery convictions, to be served concurrently, and a prison term of three years for each of the firearm specifications, to be served consecutively, for a total prison term of 12 years.1
Appellant did not file a timely appeal from the judgment of conviction and sentence journalized on July 30, 2010. On December 3, 2012, appellant filed a motion for leave to file a delayed appeal pursuant to App.R. 5(A). On January 17, 2013, this court denied appellant's motion for leave. State v. Lacking, 10th Dist. No. 12AP-1011 (Jan. 17, 2013) (memorandum decision).
On November 27, 2013, pursuant to Crim.R. 32.1, appellant filed a motion to withdraw his guilty plea. The trial court construed appellant's motion as a petition for postconviction relief, and on March 5, 2014, the trial court issued a decision denying the petition.
On September 4, 2014, appellant filed a motion for delayed appeal, pursuant to App.R. 5(A), seeking leave to appeal the trial court's March 5, 2014 judgment entry. In a November 20, 2014 memorandum decision, this court ruled that the notice of appeal filed by appellant in connection with his motion for delayed appeal was, in fact, a timely filed notice of appeal from the March 5, 2014 judgment. Accordingly, we ruled that the motion for delayed appeal was moot. State v. Lacking, 10th Dist. No. 14AP-691 (Nov. 20, 2014) (memorandum decision). Our memorandum decision reads, in relevant part, as follows:
Because an action for post-conviction relief constitutes a civil proceeding, Civ.R. 58 is applicable to any judgment rendered with regard to a motion for post-conviction relief. State ex rel. Ford v. McClelland, 8th Dist. No. 100014, 2013-Ohio-4379, ¶ 4. Civ.R. 58(B) provides that, within three days of entering the judgment upon the journal, the clerk "shall serve the parties in a manner prescribed by Civ.R. 5(B) and note the service in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the service is complete." Here, consistent with appellant's claim, the record reveals the trial court failed to place an entry on its appearance docket noting service of the judgment. The failure to comply with Civ.R. 58(B) tolls the time for filingthe appeal. See In re Anderson, 92 Ohio St.3d 63, 71 (2001).
Given our prior ruling, this case is before us pursuant to appellant's direct appeal from the trial court's March 5, 2014 judgment entry denying his motion for postconviction relief.
II. ASSIGNMENTS OF ERROR
Appellant assigns the following as error:
Assignment of Error No. 1: The defendant's plea is invalid when he was not informed that he would receive nine (9) years mandatory on his sentence.
Assignment of Error No. 2: Trial court provided ineffective assistance of counsel by coercing/threatening the defendant into a plea.
Assignment of Error No. 3: Trial counsel provided ineffective assistance by failing to inform the defendant that his sentence would contain a 9 year prison term.
Assignment of Error No. 4: The trial court by erred by coercing/threatening the defendant into accepting a plea.
State v. Lacking, Nos. 14AP-691, 14AP-692, 2015 WL 2058972, at *1-2 (Ohio App. 10th Dist. May 5, 2015). On May 5, 2015, the appellate court affirmed the trial court's dismissal of Petitioner's postconviction petition as untimely. Id. On August 26, 2015, the Ohio Supreme Court declined jurisdiction of the appeal. State v. Lacking, 143 Ohio St.3d 1447 (2015).
Meanwhile, on January 26, 2015, Petitioner filed in the trial court a Motion for Re-Sentencing Based on Void Judgment, complaining that the trial court had failed to notify him of the consequences of violating post release control. Exhibit 41, attached to Motion to Dismiss (ECF No. 8-1, PageID# 308.) On February 11, 2016, the trial court denied the motion. Exhibit 47, attached to Motion to Dismiss (ECF No. 8-1, PageID# 352.) Petitioner filed a petition for a writ of procedendo, requesting the state appellate court to order the trial court to rule on hismotion; however, on August 2, 2016, the appellate court dismissed the petition as moot. State ex rel. Lacking v. Woods, No. 16AP-49, 2016 WL 4092043 (Ohio App. 10th Dist. Aug. 2, 2016).
Petitioner executed the Petition on December 3, 2015. Petition (ECF No. 1, PageID# 15.) He alleges that his guilty plea is invalid because he was not informed that he would be subject to a nine year mandatory sentence (claim one); that he was denied the effective assistance of counsel because his attorney coerced and threatened him into entering a guilty plea (claim two); that he was denied the effective assistance of counsel because his attorney failed to inform him that he would receive a nine year mandatory sentence (claim three); and that the trial court erred by coercing and threatening Petitioner into accepting the guilty plea (claim four). Respondent moves to dismiss the action as barred by the one-year statute of limitations established by 28 U.S.C. § 2244(d).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year statute of limitations on the filing of habeas corpus petitions. 28 U.S.C. § 2244(d) provides as follows:
(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 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 newlyrecognized 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.
(2) The time during which a properly filed application for State post-conviction 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).
Pursuant to § 2244(d)(1)(A), Petitioner's judgment of conviction became final on August 30, 2010, i.e., when the time for filing a timely appeal of the trial court's July 30, 2010, judgment of conviction expired.2 See Board v. Bradshaw, 805 F.3d 769, 772 (6th Cir. 2015); Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 460 (6th Cir. 2012) (citing Gonzalez v. Thaler, -- U.S. --, 132 S.Ct. 641, 653-54 (2012); Ohio Appellate Rule 4(A). The statute of limitations began to run the following day and expired one year later, on August 31, 2011. Yet Petitioner waited more than four years and three months later, until December 3, 2015, to execute the Petition. Further, none of his subsequent state court filings, the earliest of which he filed in December 2012, would have tolled the running of the statute of limitations, because he filed all those actions after the statute of limitations had already expired. State collateral actions filed after the statute of limitations has expired do not toll the running of the statute of limitations under 28 U.S.C. § 2244(d) (2). Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) ("The tolling provision does not. . . 'revive' the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations.").
Petitioner maintains that equitable tolling of the statute of limitations is warranted because the trial court incorrectly advised him that he had waived his right to appeal by virtue of his guilty plea, that his attorney failed to advise him of his right to appeal, and that he did not know about his right to appeal. Response in Opposition (ECF No. 11, PageID# 458-59). Petitioner also contends that defense counsel performed in a constitutionally ineffective manner by failing to consult with him regarding the filing of an appeal and failing to file a notice of appeal in light of Petitioner's protestations of innocence of the charges against him and his attempt to obtain new counsel and expressions of dissatisfaction with his attorney made at the time of his guilty plea. Id. ...
