Waldron v. Jackson

• Decision Date: 15 October 2004
• Docket Number: No. 1:02-CV-1482.,1:02-CV-1482.
• Citation: 348 F.Supp.2d 877
• Parties: Douglas WALDRON Petitioner v. Wanza JACKSON, Warden Respondent
• Court: U.S. District Court — Northern District of Ohio

348 F.Supp.2d 877

Douglas WALDRON Petitioner v. Wanza JACKSON, Warden Respondent

No. 1:02-CV-1482.

United States District Court, N.D. Ohio, Eastern Division.

October 15, 2004.

COPYRIGHT MATERIAL OMITTED

Molly J. McAnespie, Office of the Public Defender, State of Ohio, Columbus, OH, for Plaintiff.

M. Scott Criss, Office of the Attorney General, State of Ohio, Corrections Litigation Section, Columbus, OH, for Defendant.

MEMORANDUM OF OPINION AND ORDER DECLINING TO ACCEPT THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DENYING RESPONDENT'S MOTION TO DISMISS, AND GRANTING WRIT OF HABEAS CORPUS

WELLS, District Judge.

Before this Court is Respondent's motion to dismiss petitioner Douglas Waldron's petition for a writ of habeas corpus as time-barred by 28 U.S.C. § 2244(d)'s one-year statute of limitations. (Docket # 12). The case was referred to United States Magistrate Judge James S. Gallas for a Report and Recommendation ("R & R"). (Docket # 7). Magistrate Judge Gallas considered the petition, respondent's motion to dismiss, petitioner's response to the motion to dismiss and traverse, and respondent's reply (Docket # 1, # 12, # 17, and # 20). On 7 August 2003, Magistrate Judge Gallas filed his R & R, recommending that the petition be dismissed as time-barred. (Docket # 21). Petitioner then filed objections to the R & R. (Docket # 22).

For the reasons set forth below, this Court declines to accept the Magistrate Judge's recommendation, denies respondent's motion to dismiss, and grants petitioner's habeas corpus petition.

I. BACKGROUND

On 11 December 1997, a Cuyahoga County grand jury indicted Mr. Waldron on two counts of rape, in violation of Ohio R.C. § 2907.02, and two counts of compelling prostitution, in violation of Ohio R.C. § 2907.21. (Docket # 14, Ex. A). Both rape counts contained sexually violent predator and repeat violent offender specifications. (Docket # 14, Ex. A). On 5 February 1998, Mr. Waldron was found to be incompetent and was sent to Twin Valley Psychiatric Center for treatment. (Docket # 14, Exs. B and Tr. at 4-7).¹ On 23 April 1998, the trial court determined that Mr. Waldron had been restored to competency for trial. (Docket # 14, Exs. C and Tr. at 8-10).

Following a jury trial, Mr. Waldron was convicted of all four counts alleged in the indictment. (Docket # 14, Ex. D). On 6 August 1998, the trial court sentenced Mr. Waldron to prison terms of 19 years to life on both rape counts, including his sentence on the repeat violent offenders specification, and 7 years on both counts of compelling prosecution. (Docket # 14, Ex. D and Tr. at 707). As the court ordered all sentences to be served consecutively, Mr. Waldron is currently serving an aggregate prison term of 52 years to life. (Docket # 14, Ex. D). During sentencing, the trial court advised Mr. Waldron of his appellate rights and asked him if he wished to appeal. (Tr. at 708). Both Mr. Waldron and his attorney responded that Mr. Waldron intended to pursue an appeal. (Tr. at 708). The trial court then determined that Mr. Waldron was indigent and appointed attorney James Ingalls to represent him on appeal. (Tr. at 708).

Because Mr. Waldron's judgment entry of conviction and sentence was filed in the trial court on 11 August 1998 (Docket # 14, Ex. D), Mr. Waldron had until 10 September 1998 to file a timely notice of appeal. See Ohio App. R. 4(A) (requiring defendants to file a notice of appeal within 30 days "of entry of the judgment or order appealed ..."). Mr. Ingalls, Mr. Waldron's court-appointed appellate counsel, missed that deadline by four days, filing a notice of appeal on 14 September 1998. (Docket # 14, Ex. F). On 11 January 1999, the court of appeals dismissed sua sponte Mr. Waldron's appeal as untimely. (Docket # 14, Ex. G). According to Mr. Waldron, his appellate counsel did not notify him that the court of appeals had dismissed his appeal. (Waldron Aff. at ¶¶ 5-6).² Eventually, Mr. Waldron asked a friend to contact the court of appeals about his appeal and consequently learned, for the first time, that it had been dismissed. (Waldron Aff. at ¶ 7). He then sought assistance from the Office of the Ohio Public Defender. (Waldron Aff. at ¶ 8).

On 10 September 2001, the Ohio Public Defender filed, on Mr. Waldron's behalf, a motion for leave to file a delayed appeal, pursuant to Ohio App. R. 5(A). (Docket # 14, Ex. H). On 15 October 2001, the court of appeals denied Mr. Waldron's motion for leave. (Docket # 14, Ex. I). Shortly thereafter, Mr. Waldron filed a motion for reconsideration which the court of appeals also denied on 20 November 2001. (Docket # 14, Exs. J and K). On 26 November 2001 and 3 January 2002, Mr. Waldron appealed both rulings to the Ohio Supreme Court. (Docket # 14, Exs. L and N). The Ohio Supreme Court, on 6 February 2002 and 20 March 2002, denied leave to appeal and dismissed both appeals as not involving any substantial constitutional question. (Docket # 14, Exs. M and P).

On 29 July 2002, Mr. Waldron filed a petition for a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he asserts two grounds for relief:

Ground 1: Petitioner was denied his Sixth and Fourteenth Amendment right to appeal his conviction.

Ground 2: Petitioner was denied his Sixth and Fourteenth Amendment right to the effective assistance of counsel on appeal.

II. RESPONDENT"S MOTION TO DISMISS, MAGISTRATE JUDGE'S R & R, AND PETITIONER'S OBJECTIONS

In her motion to dismiss, respondent contends that Mr. Waldron's habeas petition must be dismissed as barred by AEDPA's one-year statute of limitations. Respondent argues that the statute of limitations began to run on 10 September 1998 (upon expiration of the time for seeking direct review) and was only tolled from when Mr. Waldron filed his notice of appeal on 14 September 1998 until 11 January 1999 when the Ohio Court of Appeals dismissed his appeal as untimely. (Docket # 12, at 5-6). Restarting on 11 January 1999, respondent therefore asserts that Mr. Waldron's statute of limitations expired on 7 January 2000 — well before he filed his delayed appeal. (Docket # 12, at 6).

Mr. Waldron responds that his habeas petition was in fact timely filed for one of the following reasons:

1) The statute of limitations, pursuant to 28 U.S.C. § 2244(d)(1)(A), did not begin to run until 18 June 2002, the expiration of his time for filing a certiorari petition in the United States Supreme Court regarding the dismissal of his delayed appeal.

2) The statute of limitations has still not begun to run because his counsel's ineffectiveness manifested in failing to file a timely appeal is imputed to the State and constitutes, pursuant to 28 U.S.C. § 2244(d)(1)(B), an ongoing state-created impediment to the filing of his habeas petition.

3) The statute of limitations was equitably tolled during the period of time between the dismissal of Mr. Waldron's direct appeal and the filing of his delayed appeal.

(Docket # 17, at 6-16).

After considering each of Mr. Waldron's arguments, the Magistrate Judge recommended that respondent's motion to dismiss be granted because Mr. Waldron's habeas petition was untimely. (R & R at 12-13). In reaching that conclusion, the Magistrate Judge found that the statute of limitations is not restarted by the filing of a motion for delayed appeal, that Mr. Waldron's appellate counsel's ineffectiveness did not constitute a state-created impediment preventing the filing of his petition, and that Mr. Waldron is not entitled to equitable tolling because he has not demonstrated diligence or a reasonable excuse. (R & R at 3-12). Mr. Waldron filed objections to each of the Magistrate Judge's conclusions. (Docket # 22). Respondent filed no objections or response.

III. ANALYSIS

Under Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo the portion of the Magistrate Judge's report and recommendation to which specific objection was made. Upon review, this Court "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Though it agrees with portions of the Magistrate Judge's R & R, this Court declines to accept his recommendation that Mr. Waldron's petition was time-barred. After finding that Mr. Waldron's habeas petition was timely filed due to the operation of 28 U.S.C. § 2244(d)(1)(B), the Court continues to an analysis of the merits of his petition.

A. Statute of Limitations

Under federal law, habeas corpus petitions must be filed within a one-year limitations period established by 28 U.S.C. § 2244(d). That section provides, in pertinent part:

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 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). This one-year period does not include time during which a properly filed application for post-conviction or other collateral review is pending in the state courts. 28 U.S.C. § 2244(d)(2); see Carey v. Saffold, 536 U.S. 214, 216-17, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002).

Section 2244(d)(1) provides that AEDPA's statute of limitations does not begin to run until the latest of four possible dates. After a discussion...