Sudberry v. Warden, Southern Ohio Corr. Facility, Case No. 1:03-CV-537.

Decision Date04 February 2009
Docket NumberCase No. 1:03-CV-537.
PartiesJames D. SUDBERRY, Petitioner, v. WARDEN, SOUTHERN OHIO CORRECTIONAL FACILITY, Respondent.
CourtU.S. District Court — Southern District of Ohio

James D. Sudberry, Lucasville, OH, pro se.

Hilda Rosenberg, Office of the Ohio Attorney General, Cincinnati, OH, Diane Duemmel Mallory, Columbus, OH, for Respondent.

ORDER

SANDRA S. BECKWITH, Senior District Judge.

This matter is before the Court on Magistrate Judge Hogan's Report and Recommendation of December 11, 2008 (Doc. No. 86) and Petitioner James D. Sudberry's objections to the Report and Recommendation (Doc. No. 89). For the reasons that follow, Petitioner's objections to the Report and Recommendation are not welltaken and are OVERRULED; the Court ADOPTS the Report and Recommendation. Ground D of Petitioner's petition for writ of habeas corpus is barred by the one year statute of limitations set forth in 28 U.S.C. § 2244(d). Accordingly, Respondent's motion to dismiss Ground D (Doc. No. 63) is well-taken and is GRANTED. Ground D of Petitioner's petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE. THIS CASE IS CLOSED.

Magistrate Judge Hogan has once again thoroughly covered the intricate procedural history of this case. In summary, therefore, it is sufficient to state that Petitioner is currently a prisoner at Southern Ohio Correctional Facility serving a term of 15 years to life imprisonment resulting from his murder conviction in the Butler County Court of Common Pleas. Petitioner is deemed to have commenced these habeas proceedings on March 27, 2003, when he submitted his papers to the prison authorities for mailing. Doc. No. 86, at 7 n. 5. Petitioner's petition asserted nine assignments of error, set forth in Grounds A through I.

In a Report and Recommendation issued on December 19, 2007 (Doc. No. 52), Magistrate Judge Hogan concluded that Grounds A-C and E-I were either procedurally defaulted or without merit. Judge Hogan concluded, however, that Petitioner should have an evidentiary hearing on Ground D, which alleged that trial counsel was ineffective for failing to follow through on plea negotiations which would have allowed Petitioner to plead guilty to a lesser offense of either voluntary or involuntary manslaughter. The Court overruled Petitioner's objections, adopted the Report and Recommendation, and remanded the matter to Judge Hogan to appoint counsel for Petitioner and hold an evidentiary hearing on Ground D. Doc. No. 62.

Respondent first raised the issue of the statute of limitations in a motion to dismiss filed on September 29, 2003 (Doc. No. 5). As Judge Hogan explains in the current Report and Recommendation, at the time Petitioner filed his petition, the law in the Sixth Circuit was that the § 2244 statute of limitations is not tolled during the 90-day period in which a prisoner can seek a writ of certiorari from the state supreme court's denial of a motion for a delayed appeal. After Respondent filed his motion to dismiss, on October 22, 2003, the Sixth Circuit issued its opinion in Abela v. Martin, 348 F.3d 164 (6th Cir.2003). In Abela, the Court reversed prior circuit precedent and held that the statute of limitations is tolled during the time in which a prisoner can apply for a writ of certiorari. Id. Under that circumstance, Petitioner's petition was timely-filed because the statute of limitations expired on May 7, 2003. See Doc. No. 8, at 5. As Magistrate Judge Hogan further explains, however, on February 20, 2007, the U.S. Supreme Court issued its decision in Lawrence v. Florida, 549 U.S. 327, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007). In Lawrence, the Court held that the time period for filing a petition for a writ of certiorari does not toll the § 2244 statute of limitations. Therefore, under Lawrence, the statute of limitations as to Petitioner's claims expired on February 7, 2003, about six weeks before the effective filing date of his petition.

In light of Lawrence, Respondent again raised the issue of the statute of limitations as applied to Ground D by way of a motion to dismiss filed on May 2, 2008. Doc. No. 63. In the current Report and Recommendation, Judge Hogan found that Respondent appropriately reasserted the statute of limitations. Judge Hogan concluded that there was no issue of claim preclusion because Ground D was still unadjudicated. Furthermore, Judge Hogan found, the law-of-the-case doctrine does not apply to foreclose reassertion of the statute of limitations both because the doctrine is not rigidly applied when a court reviews its own decisions and because there was an intervening change in controlling law. Judge Hogan also concluded that Respondent had not waived the statute of limitations defense as to Ground D. In particular, Judge Hogan found that the 15 month delay between the issuance of Lawrence and the filing of the renewed motion to dismiss was reasonable because other grounds for dismissing all but one of the claims in the petition were already under consideration by the Court. Judge Hogan noted that Respondent renewed his motion to dismiss only one week after the Court adopted his December 19, 2007 Report and Recommendation. Finally, Judge Hogan noted that the district court may sua sponte raise the timeliness of a § 2244 petition as long as parties are given fair notice and an opportunity to present their positions. Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006); cf. Humphreys v. United States, 238 Fed.Appx. 134, 141 (6th Cir. 2007) ("Indeed, the district court may, sua sponte, dismiss a habeas petition as untimely[.]"). Judge Hogan concluded that Respondent's delay was inadvertent and, if anything, Petitioner benefitted from the delay because the Court reviewed on the merits or on other procedural grounds claims that were clearly barred by the statute of limitations.

Judge Hogan concluded his analysis of the statute of limitations problem by determining that Petitioner is not entitled to equitable tolling of the statute of limitations. Judge Hogan noted that at the time Petitioner submitted his petition, it was settled law in this Circuit that the statute of limitations is not tolled during the writ of certiorari period. Judge Hogan further found that Petitioner's lack of education and legal training are not grounds for equitable tolling. Finally, Judge Hogan concluded that equitable tolling on the grounds of "fairness and justice" is not required because Petitioner failed to show a fundamental miscarriage of justice, i.e., a showing of actual innocence, if Ground D is not considered on the merits. In that regard, Judge Hogan reasoned that counsel's alleged failure to accept the plea bargain most likely would have only affected his sentence, but not the jury's assessment of his guilt or innocence on the murder charge.

Consequently, Judge Hogan recommended that the Court dismiss Ground D with prejudice as being barred by the statute of limitations. Judge Hogan further recommended that a certificate of appealability not issue and that Petitioner be denied leave to proceed in forma pauperis on appeal.

Although Judge Hogan appointed counsel to represent him on Ground D, Petitioner has elected to proceed pro se on his objections to the Report and Recommendation. See Doc. No. 90-3. While Petitioner has filed handwritten objections to the Report and Recommendation in a timely fashion, they largely are both unintelligible and illegible. He may, however, be contending that Lawrence should not be applied retroactively to find that Ground D is barred by the statute of limitations.

The Court reviews Magistrate Judge Hogan's Report and Recommendation de novo. Fed.R.Civ.P. 72(b).

Magistrate Judge Hogan correctly calculated the statute of limitations, including the period when Petitioner's claims were tolled while his motion for a delayed appeal was pending before the Supreme Court of Ohio. Magistrate Judge Hogan also correctly determined that the U.S. Supreme Court's decision in Lawrence applies in this case, even though it was issued after the Court ruled that the petition was timely under previous, but now overruled, Sixth Circuit precedent. See Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) ("When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule"). It therefore follows that Judge Hogan was correct in concluding that the statute of limitations was not tolled during the 90-day period for filing a petition for a writ of certiorari and that, as a result, the statute of limitations on the instant petition expired about six weeks before the date it was deemed filed.

Likewise, the Court agrees with Judge Hogan that Respondent did not waive the statute of limitations defense. Respondent preserved the defense by first raising it in his motion to dismiss. See Scott v. Collins, 286 F.3d 923, 927 (6th Cir.2002) ("Because the § 2244(d) statute of limitations is an affirmative defense, Rule 8(c) of the Federal Rules of Civil Procedure requires that a party raise it in the first responsive pleading to avoid waiving it."), abrogated on other grounds by Day, 547 U.S. at 209-10, 126 S.Ct. 1675. Although it would have been better practice for Respondent to bring Lawrence to the Court's attention as soon as possible after it was issued, the Court agrees with Judge Hogan that Petitioner was not prejudiced by the delay. As Judge Hogan aptly observed, Petitioner actually benefitted from the delay because clearly time-barred claims were reviewed on the merits.

Finally, the Court agrees with Judge Hogan that there are no grounds in this case for equitable tolling. As...

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  • Scribner v. Donahue
    • United States
    • U.S. District Court — Middle District of Tennessee
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    ...petitioner nor does it establish an intelligent or deliberate waiver of that defense.") (citing Sudberry v. Warden, Southern Ohio Correctional Facility, 626 F. Supp.2d 767, 782 (S.D. Ohio 2009)). Accordingly, the court concludes that the petitioner's insufficiency of the evidence and ineffe......
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    ...to petitioner nor does it establish an intelligent or deliberate waiver of that defense. See Sudberry v. Warden, Southern Ohio Correctional Facility, 626 F. Supp. 2d 767, 782 (S.D. Ohio 2009). It is permissible for a state to belatedly raise a statute of limitations defense in an amended an......
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    ...correction of sentence in the trial court, filed more than a year after the limitations period had expired. See Sudberry v. Warden, 626 F. Supp. 2d 767, 777 (S.D. Ohio 2009) ("Once the limitations period is expired, state collateral review proceedings can no longer serve to avoid the statut......

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