Vroman v. Brigano

Decision Date22 September 2003
Docket NumberNo. 02-3258.,02-3258.
Citation346 F.3d 598
PartiesMark VROMAN, Petitioner-Appellant, v. Anthony BRIGANO, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: William R. Gallagher (argued and briefed), ARENSTEIN & GALLAGHER, Cincinnati, Ohio, for Appellant.

Stephanie L. Watson (argued and briefed), OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellee.

ON BRIEF: William R. Gallagher, ARENSTEIN & GALLAGHER, Cincinnati, Ohio, for Appellant.

Stephanie L. Watson, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellee.

Before: KENNEDY, GILMAN, and GIBBONS, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Petitioner-appellant Mark Vroman was convicted on one count of murder with a firearm specification in Ohio state court. Vroman appeals the district court's dismissal of his petition for a writ of habeas corpus as time-barred under the applicable one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d). For the following reasons, we affirm the judgment of the district court.

I.

On July 28, 1995, an Ohio jury convicted Vroman of murder with a firearm specification. He was sentenced to a term of fifteen years to life in prison for the murder conviction and a term of three years for the use of the firearm to be served consecutively with and prior to the murder sentence. Vroman appealed his conviction to the Ohio Court of Appeals, and on June 24, 1996, the court affirmed the judgment of the trial court. On December 18, 1996, the Ohio Supreme Court denied Vroman's request for leave to appeal and dismissed the appeal as not involving any substantial constitutional question.

On August 11, 1997, Vroman filed a delayed application for reopening his appeal pursuant to Ohio Appellate Rule 26(B), and the application was denied as untimely. Vroman then filed a pro se appeal of the Ohio Court of Appeals's decision with the Ohio Supreme Court on October 31, 1997. The Ohio Supreme Court dismissed Vroman's appeal.

Prior to the above proceedings, on or about September 24, 1996, Vroman filed a delayed petition to vacate or set aside his sentence. The trial court denied this post-conviction action as untimely on November 15, 1996. Vroman appealed and on April 15, 1997, the Ohio Court of Appeals affirmed the trial court's judgment. On September 2, 1997, the Ohio Supreme Court dismissed Vroman's subsequent appeal. Finally, on November 12, 1997, Vroman filed a motion for relief from judgment requesting that the trial court vacate its November 15, 1996, decision dismissing his post-conviction action as untimely filed. On December 31, 1997, the trial court denied Vroman's motion. On December 10, 1998, the Ohio Court of Appeals affirmed the judgment of the trial court. The Ohio Supreme Court declined to hear the case and dismissed Vroman's appeal on April 21, 1999.

On November 23, 1999, Vroman, acting pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of Ohio. In his habeas petition, Vroman alleged sixteen grounds for relief. The Warden, Anthony Brigano, moved to dismiss the petition for failing to comply with the one-year statute of limitations imposed by 28 U.S.C. § 2244(d). On March 19, 2001, the district court denied the Warden's motion to dismiss, concluding that Vroman's untimely Ohio post-conviction petition tolled the running of the statute of limitations under § 2244(d)(2). The Warden moved for reconsideration and the district court denied the motion. Thereafter, the Warden filed a Return of Writ, and on December 17, 2001, the district court dismissed the petition as time-barred due to the Sixth Circuit's decision in Raglin v. Randle, 10 Fed.Appx. 314, 2001 WL 523530 (6th Cir. May 8, 2001). Vroman moved for reconsideration, and on January 30, 2002, the district court denied his motion.

On February 26, 2002, Vroman filed a notice of appeal and an application for a certificate of appealability. The district court granted a certificate of appealability on the issues of whether the statute of limitations expired prior to filing the instant petition and whether Vroman is entitled to an evidentiary hearing to present evidence that his post-conviction action was timely filed in state court.

II.

The dismissal of a habeas petition by the district court as barred by 28 U.S.C. § 2244's statute of limitations is reviewed de novo. Cook v. Stegall, 295 F.3d 517, 519 (6th Cir.), cert. denied, 537 U.S. 1091, 123 S.Ct. 699, 154 L.Ed.2d 638 (2002). Where the facts of the case are undisputed or the district court rules as a matter of law that equitable tolling is unavailable, this court reviews the decision de novo. Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir.2001).

Under AEDPA, a prisoner has one year from the completion of the direct review of his case to commence a collateral attack on his conviction. 28 U.S.C. § 2244(d)(1). This one year limitation period runs 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.

Id. Vroman's conviction became final on March 18, 1997, ninety days after the Ohio Supreme Court dismissed his direct appeal. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.2000). Therefore, in the absence of any tolling, Vroman had until March 18, 1998, to file his habeas petition.

The AEDPA limitations period may be tolled for that period of time "during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2) (emphasis added). "The tolling provision does not, however, `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." Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y.1998).

On August 11, 1997, during the relevant one-year period, Vroman filed a delayed Ohio Appellate Rule 26(B) action and a post-conviction petition. The petition was ultimately dismissed by the Ohio Supreme Court on January 21, 1998. Because Vroman filed the Rule 26(B) action 146 days after his conviction became final, Vroman had 219 days remaining of his AEDPA one-year statute of limitations as of January 21, 1998. Therefore, Vroman must also receive tolling during the time his post-conviction action remained pending in the state courts to prevent his habeas petition, filed on November 23, 1999, from being time barred.

Effective September 21, 1995, Ohio amended its post-conviction statute to include a time limitation period of 180 days from the date the criminal trial transcript is filed in the appellate court for direct review, subject to several exceptions.1 Ohio Revised Code § 2953.23(A). Cases in which a sentence was imposed prior to September 21, 1995, were given a one-year grace period, and, therefore, Vroman's deadline for filing any petition seeking post-conviction relief was September 21, 1996. Ohio Revised Code § 2953.21(A)(2). Because that particular date fell on a Saturday, the actual deadline was Monday, September 23, 1996. Ohio Criminal Rule 45(A).

According to the Ohio trial court, Vroman's post-conviction petition was filed on September 24, 1996, one day late. The Ohio trial court concluded that Vroman's petition was not timely filed according to Ohio law. Vroman appealed, arguing that his petition was timely filed because he delivered the petition to prison authorities for mailing on September 19, 1996, within the applicable time limit (the "mailbox rule"). The appellate court rejected Vroman's argument, holding that "[a] filing is timely only if it is filed with the court within the appropriate time limits; the jailer does not represent the court for filing purposes."

Vroman then moved for relief from judgment pursuant to Ohio Civil Rule 60(B), arguing that the clerk of court actually received his petition on September 23, 1996, and, therefore, his petition was timely. In support of his argument, Vroman submitted two letters he wrote to the postmaster of the post office that delivers mail to the Ross County Clerk of Courts. The postmaster made handwritten notes on the letters stating that mail is delivered to the courthouse at 12:30 p.m. on a daily basis, and that mail is never delivered prior to 9:00 a.m. Vroman's petition was stamped received on September 24, 1996, at 9:04 a.m. Therefore, Vroman claimed that his petition was received by the clerk on September 23, but was not stamped until September 24. The Ohio state courts rejected Vroman's argument.

In response to the Warden's argument that Vroman's habeas petition should be dismissed as time-barred, Vroman claimed the state courts had erroneously determined that his post-conviction petition was untimely. The district court deferred to the state courts' determination that the post-conviction petition...

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