Steward v. Moore, No. 1:05CV551.

Citation555 F.Supp.2d 858
Decision Date26 March 2008
Docket NumberNo. 1:05CV551.
PartiesBruce A. STEWARD, Petitioner, v. Ernie MOORE, Warden, Respondent.
CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio

Bruce A. Steward, Mansfield, OH, pro se.

Gregory T. Hartke, Office of the Attorney General, Cleveland, OH, for Respondent.

OPINION & ORDER

KATHLEEN McDONALD O'MALLEY, District Judge.

On February 10, 2005 Petitioner, Bruce A. Steward ("Steward" or "Petitioner"), filed a petition for a writ of habeas corpus (Doc. 1) pursuant to 28 U.S.C. § 2254. On March 25, 2005, the Court referred (Doc. 5) this case to Magistrate Judge Nancy A. Vecchiarelli, ultimately for preparation of a Report and Recommendation ("R & R") regarding Steward's petition. On December 18, 2006, Respondent filed an Answer/Return of Writ (Doc. 10). On August 4, 2005, Steward filed a Reply/Traverse (Doc. 11). On May 31, 2006, Magistrate Judge Vecchiarelli issued her R & R (Doc. 19) recommending that this Court deny Steward's petition and dismiss this case. On June 16, 2006, Steward filed objections to that R & R (Doc. 22).

The Court agrees with the R & R's conclusion that Steward's petition is time-barred by the AEDPA's statute of limitations. As outlined in greater detail below, the Court concludes that Steward's petition must be DENIED and his case DISMISSED.

I. BACKGROUND

The R & R accurately sets forth the undisputed factual and procedural background of this case. (Doc. 19 at pp. 873-75.) In the interest of efficiency, therefore, the Court adopts the R & R's articulation of the relevant factual and procedural background, and provides only the following summary and augmentation of the facts.

In 1994, Steward entered a plea of no contest to a charge of felonious assault in the Richland County Court of Common Pleas. (Doc. 10.) The trial court sentenced Steward to a prison term of 5-15 years. At the sentencing hearing on November 28, 1994, the trial court did not inform Steward of his appellate rights. (Doc. 10-46.) At that time, Steward did not file a direct appeal from his conviction or sentence. Approximately seven months later, Steward was released from prison and placed on probation for a term of four years.

On April 13, 1998, after issuing a warrant and conducting a hearing, the trial court found, based on a January 11, 1997 indictment for rape, that Steward had violated his probation. The court, thus, reinstated his original sentence of 5-15 years.

On May 19, 1998, Steward was convicted by a jury in Crawford County, Ohio, of the rape charged in the 1997 indictment, and was sentenced to ten years in prison. Steward appealed his rape conviction; the Third District Court of Appeals affirmed on September 30, 1999; and the Ohio Supreme Court denied his motion for delayed appeal almost a year later. See State v. Steward, 1999-Ohio-897, 1999 WL 1015070 (Ohio Ct.App.1999).

On December 7, 2000, Steward filed a petition for a writ of habeas corpus in this Court challenging his 1998 rape conviction. See Steward v. Bagley, No. 1:00CV3053, (N.D. Ohio July 27, 2001). Steward asserted three grounds for relief: First, he claimed that he received ineffective assistance of appellate counsel because his appellate counsel failed to raise claims regarding improper sentencing and ineffective assistance of trial counsel. Specifically, with respect to improper sentencing, Steward asserted that his appellate counsel should have argued that the trial court violated Ohio's sentencing guidelines when it imposed the maximum sentence for rape without articulating the statutory prerequisites to imposing the maximum sentence. In his second ground for relief, Steward claimed that his conviction was against the manifest weight of the evidence because there was insufficient evidence to establish the force element of rape. Third, he claimed that the trial court gave an improper jury instruction regarding the meaning of reasonable doubt.

On July 27, 2001, this Court denied Steward's petition, holding that the first ground failed because of procedural default, and the other grounds failed on the merits. On April 1, 2002, the Sixth Circuit denied Steward's request for a Certificate of Appealability, thus affirming this Court's denial of his habeas petition challenging his 1998 rape conviction.

At the sentencing stage of his rape case, the trial court mentioned that Steward was serving a 5-15 year sentence after violating his probation in connection with the 1994 conviction for felonious assault. (Doc. 11-2 at p. 3.) Based on this reference, Steward asserts in this current habeas petition that his 1998 sentence was "enhanced" by virtue of his earlier 1994 conviction, though Steward does not seek any remedy for that alleged enhancement — i.e., he does not seek an order setting aside or reducing his 1998 sentence; he seeks only an order allowing him to either withdraw his 1994 plea or to appeal therefrom with the benefit of counsel.1

Steward did not seek post-conviction relief of any kind with respect to his 1994 conviction until March 30, 2001, when he filed a motion to vacate his 1994 sentence in the Richland County Court of Common Pleas. Steward alleges he discovered that he could challenge his 1994 conviction in February of 2001, in the midst of briefing on his federal habeas petition in connection with his 1998 conviction. (Doc. 1-2 at 4.) He says that the Respondent's Retuijn of Writ, filed February 15, 2001, alerted him to the possibility of challenging the earlier conviction. He then sought assistance from the clerk of the prison law library, and filed his state motion to vacate the 1994 sentence shortly thereafter. Steward filed several motions for post-conviction relief challenging his 1994 conviction, beginning with his March 30, 2001 motion the last of which was ultimately dismissed on October 13, 2004. (See Doc. 19.)

Importantly, Steward did not seek to amend his then-pending habeas petition to lodge a collateral attack on his 1994 conviction on grounds that the earlier conviction had been used to enhance the sentence Steward received in 1998. Instead, as noted above, Steward prosecuted the habeas petition attacking his 1998 conviction all the way through appeal, and did so without reference to the validity of his 1994 conviction. Steward also did not thereafter seek leave to file a second or successive petition with respect to his 1998 sentence.

Instead, on February 10, 2005 — more than ten years after he was originally convicted — Steward filed this petition for writ of habeas corpus. In sum, Steward's petition presents three grounds for habeas relief from his 1994 conviction. (Doc. 1 at p. 4.)2 Steward asserts: (1) that he was denied his right to appeal when the trial court, and his defense counsel, failed to notify him of his appellate rights; (2) that he was denied effective assistance of counsel because his trial counsel failed to interview witnesses before advising him to enter a plea of no contest and failed to present mitigating evidence at his sentencing hearing; and (3) that the trial court's acceptance of his plea of no contest violated the 14th Amendment to the United States Constitution and the Ohio Constitution because the court did not make a specific finding of guilty or not guilty on the record, did not allow Steward to present mitigating facts, and did not inquire into the circumstances underlying the charges.

Based on these asserted violations,3 Steward asks for the following:

Petitioner respectfully requests that this court grant a conditional writ of habeas corpus which requires the State of Ohio to allow him to either withdraw his plea of no-contest in the 1994 conviction and proceed to trial on the original charge of felonious [sic], or, in the alternative, petitioner requests that this court condition the granting of the writ on the State of Ohio allowing the petitioner to file a direct appeal, retroactive to 1994 for the purpose of federal statute of limitations, with the assistance of competent counsel. Petitioner further request any other relief this court deems appropriate to resolve the constitutional violations that have occurred.

(Doc. 1-2 at 32-33.)

II. LAW AND STANDARD OF REVIEW

Because Steward filed his habeas petition on February 10, 2005, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this Court's review of that petition. Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997), cert. denied, 522 U.S. 1112, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998); see also Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003).4 As a procedural matter, the AEDPA requires that habeas petitions be filed within one year of the latest of four triggering dates. In pertinent part, the AEDPA provides:

(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 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.

28 U.S.C. § 2244(d)(1).

III. THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

The Magistrate Judge's R & R concludes that Steward's petition is time-barred by the AEDPA's one-year statute of limitations, and recommends denying the petition and...

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