Montgomery v. Jeffreys
| Decision Date | 05 July 2011 |
| Docket Number | CASE NO. 2:10-CV-626 |
| Parties | ROMAR MONTGOMERY, Petitioner, v. ROB JEFFREYS, WARDEN, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the instant petition, Respondent's motion to dismiss, Petitioner's traverse, Respondent's reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that Respondent's motion to dismiss be GRANTED and that this action be DISMISSED as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d).
Petitioner challenges his convictions after a jury trial in the Montgomery County Court of Common Pleas on three counts of trafficking in crack cocaine and complicity to commit trafficking in crack cocaine. See State v. Montgomery, No. 2007 CA 95, 2008 WL 4965196 (Ohio App. 5th Dist. Nov. 20, 2008). In an entry filed on July 12, 2007, the trial court sentenced Petitioner to an aggregate term of twenty-five years incarceration. Exhibit 5 to Motion to Dismiss. On November 20, 2008, the Ohio Fifth District Court of Appeals affirmed Petitioner's convictions. Petitioner did not file an appeal to the Ohio Supreme Court.
On February 26, 2009, Petitioner filed a request for extension of time to file an applicationto reopen the appeal pursuant to Ohio Appellate Rule 26(B). Exhibit 11 to Motion to Dismiss. On March 19, 2009, he filed the Rule 26(B) application. Exhibit 12 to Motion to Dismiss. On April 17, 2009, the appellate court denied Petitioner's motion for extension of time to file his Rule 26(B) application as untimely:
Appellant's motion for extension of time was filed after the ninety-day deadline. Appellant has requested an extension of the ninety day deadline, arguing, apparently, he had no money in his prison account to pay for copying costs associated with the filing of the application. We find this bare statement alone is insufficient to establish good cause. Appellant does not support his motion with any details regarding his inmate account balance or efforts he made to file a timely application.
Exhibit 15 to Motion to Dismiss. Petitioner thereafter filed a "Request to Accept Appellate Rule 26(B) Application," an application for reconsideration, and an "Amended Good Cause Showing" in the state appellate court. Exhibits 16, 17, 18 to Motion to Dismiss. On May 26, 2009, the appellate court denied Petitioner's motions because he had failed to demonstrate good cause for the late filing of his Rule 26(B) application. After the court of appeals denied his motion for extension of time:
Exhibit 19 to Motion to Dismiss. Petitioner did not file an appeal to the Ohio Supreme Court.
On November 17, 2009, Petitioner filed a petition for post conviction relief. Exhibit 29 to Motion to Dismiss. On December 17, 2009, the trial court dismissed Petitioner's post conviction petition as untimely, holding that Exhibit 22 to Motion to Dismiss. Petitioner did not file an appeal.
On July 27, 2010, Petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of the Constitution of the United States based upon the following grounds:
It is the position of the Respondent that this action must be dismissed as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), effective on April 24, 1996, imposes a one-year statute of limitations on the filing of habeas corpus petitions. 28 U.S.C. § 2244(d) provides:
Petitioner's conviction became final upon the expiration of the time for seeking direct review of his conviction and sentence under 28 U.S.C. §2244(d)(1)(A). As noted above, Petitioner failed to perfect a timely appeal to the Ohio Supreme Court from the appellate court's November 20, 2008 decision on direct review. Pursuant to Rule II, §2(A), of the Rules of Practice of the Supreme Court of Ohio, Petitioner was required to seek further appellate review within forty-five (45) days, but failed to do so. As such, his conviction became final upon the expiration of the time for seeking direct review, on January 4, 2009, forty-five days after the November 20, 2008, appellate court's decision. Absent any tolling, the time period under the AEDPA expired 1 year later, on January 4,2010. See Ohio Supreme Court Rule of Practice II, Section 2(A)(1);Marcum v. Lazaroff, 301 F.3d 480, 481 (6th Cir. 2002); Searcy v. Carter, 246 F.3d 515, 518-19 (6th Cir. 2001).
Petitioner indicates that he signed his habeas corpus petition on May 25, 2010 but "had to re-mail" his habeas corpus petition on June 7, 2010. See Petition, at 15. The record in this case reveals that the Court received the Petition on July 12, 2010. Even construing May 25, 2010 as the date Petitioner filed this action, his habeas corpus petition still is untimely because he filed it almost five months after the statute of limitations had already expired. Neither Petitioner's Rule 26(B) filings nor his petition for post conviction relief tolled the running of the statute of limitations because both these untimely filings were not "properly filed" within the meaning of 28 U.S.C. § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 (2005)(collateral actions denied as untimely are not properly filed within the meaning of § 2244(d)(2).)
Petitioner nonetheless contends that equitable tolling of the statute of limitations is appropriate. Alternatively, Petitioner asserts that his habeas corpus petition is timely under 28 U.S.C. § 2244(d)(1)(B) because he was prevented from filing a timely Rule 26(B) application due to the State's failure to provide him with glasses. Petitioner also maintains that he did not learn about the appellate court's May 26, 2009 decision denying his Rule 26(B) application until July 15, 2009 because the Clerk improperly sent notice to his former attorney. In support of these allegations, Petitioner has attached, inter alia, a document which appears to indicate Petitioner obtained contact lenses on April 9, 2009 (Exhibit A to Traverse); a July 16, 2009 letter from Petitioner to the Clerk of the Licking County Court of Common Pleas, indicating that he had not received notice of the appellate court's May 26, 2009 denial of his Rule 26(B) application (Exhibit B to Petition); a copy of the docket in his case (Exhibit B to Petition); documents indicating that onJuly 23, 2009, Petitioner filed a Petition for a Writ of Mandamus in the Ohio Supreme Court requesting that the Clerk be ordered to provide him with a copy of the appellate court's May 26, 2009 denial of his Rule 26(B) application, which petition the Ohio Supreme Court denied on September 30, 2009 (Exhibit C to Petition); a cashier's statement from the prison where Petitioner was housed indicating that, between December 1, 2008 and May 13, 2009, Petitioner had $130.00 credited to his account, and $219.74 in total expenditures (id.); an October 26, 2009, letter from Attorney Christopher Shook to Petitioner advising Petitioner his representation of Petitioner concluded in November 2008, when the state appellate court denied Petitioner's direct appeal (Exhibit D to Petition); a "Legal Mail Log" indicating that between May 1, 2009 and October 21, 2009, Petitioner received legal mail on July 15, 2009 and July 30, 2009 (Exhibit E to Petition);1 a document from prison officials indicating that ...
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