Opinion
CASE NO. 2:06-cv-625.
October 24, 2007
ORDER and REPORT AND RECOMMENDATION
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 return of writ, and the exhibits of the parties.
I. PROCEDURAL HISTORY
Petitioner was indicted by the September 6, 2002, term of the Franklin County grand jury on one count of rape, in violation of O.R.C. § 2907.02, and three counts of gross sexual imposition, in violation of O.R.C. § 2907.05. Exhibit 1 to Return of Writ. On April 22, 2003, while represented by counsel, petitioner pleaded guilty to one count of rape, and one count of gross sexual imposition. On that same date, the trial court sentenced petitioner, pursuant a joint recommendation, to consecutive sentences of nine years on the rape conviction and three years on the gross sexual imposition conviction. See Exhibits 3 and 7 to Return of Writ. Petitioner never filed a timely appeal; however, on February 15, 2005, he filed a motion for delayed appeal pursuant to Ohio Appellate Rule 5(A). In his motion for delayed appeal, petitioner represented that he had not been advised by either the trial court or by defense counsel of his right to appeal. Exhibit 4 to Return of Writ. On April 21, 2005, the state appellate court denied petitioner's motion for delayed appeal. Exhibit 7 to Return of Writ. Petitioner filed a timely appeal to the Ohio Supreme Court. He raised the following propositions of law:
1. An appellate court should grant a motion for leave to file a delayed appeal where the appellant avers ineffective assistance of counsel.
2. The imposition of longer than minimum sentences and consecutive sentences, authorized by the trial court's findings of fact determined by the preponderance of the evidence violates the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.
Exhibit 8 to Return of Writ. On September 7, 2005, the Ohio Supreme Court denied leave to appeal and dismissed the appeal as not involving any substantial constitutional question. Exhibit 10 to Return of Writ.
On July 3, 2006, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He executed the petition on June 4, 2006. This case was initially filed in the United States District Court for the Northern District of Ohio, which transferred the action to this Court. Petitioner asserts that he is in the custody of the respondent in violation of the Constitution based upon the following grounds:
1. An appellate court should grant a motion for leave to file a delayed appeal when delay was caused by counsel.
When counsel causes a delay in filing a notice of appeal to the state court, the court should grant the delay to protect the rights of the petitioner that are associated with the appeals process.
2. The imposition of non minimum sentences and consecutive sentences are unconstitutional.
When a trial court imposes longer than minimum and consecutive sentences without subjecting evidence used to impose non-minimum and consecutive sentences on a first time offender, the offender's right to due process is violated.
It is the position of the respondent that this action is time-barred under 28 U.S.C. § 2244(d)(2); alternatively, respondent contends that petitioner's claims are without merit.
II. STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became 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:
(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.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
A. CLAIM ONE
In claim one, petitioner asserts that the state appellate court improperly denied his motion for delayed appeal. In DiCenzi v. Rose, 452 F.3d 465 (6th Cir. 2006), the United States Court of Appeals for the Sixth Circuit addressed whether an otherwise untimely federal habeas corpus petition may be timely where a defendant is not advised of his right to appeal. The Court held that, under such circumstances, the statute of limitations does not begin to run on a claim that the state appellate court improperly denied a motion for delayed appeal until the state appellate court denies the motion for delayed appeal. Id., at 469. Here, that date was April 21, 2005. Exhibit 7 to Return of Writ. Further, petitioner filed a timely appeal of the appellate court's decision to the Ohio Supreme Court, which dismissed his appeal on September 7, 2005. Exhibits 8 and 10 to Return of Writ. Petitioner filed the instant habeas corpus petition approximately ten months later, on July 3, 2006. He signed the petition on June 4, 2006. Therefore, in view of DiCenzi v. Rose, supra, the Magistrate Judge concludes that claim one, in which petitioner asserts that the state appellate court improperly denied his motion for delayed appeal, is timely.Respondent characterizes petitioner's allegation in claim one as a claim of ineffective assistance of trial counsel due to his attorney's failure to consult with him regarding his right to appeal. Return of Writ, at 7. While pleadings of pro se litigants must be liberally construed, see Haines v. Kerner, 404 U.S. 519, 595-96 (1972), even a liberal construction of petitioner's allegations in claim one fails to indicate any assertion of a claim of ineffective assistance of trial counsel due to the attorney's failure to consult with petitioner regarding his right to appeal.
Liberal construction does not require a court to conjure allegations on a litigant's behalf[.] [ S]ee Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)[.]Erwin v. Edwards, 22 Fed. Appx. 579, unpublished, 2001 WL 1556573 (6th Cir. Dec. 4, 2001). Petitioner asserts in claim one that the state appellate court should have granted his motion for delayed appeal, because the delay was caused by his attorney. See Petition. For the reasons discussed, supra, and in view of the United States Court of Appeals for the Sixth Circuit's decision in DiCenzi v. Rose, supra, the Magistrate Judge concludes that this claim is timely.
MERITS
Petitioner's assertion that the state appellate court improperly denied his motion for delayed appeal under Ohio Appellate Rule 5(A) fails to raise an issue appropriate for federal habeas corpus review. Such allegation addresses a collateral matter that is unrelated to petitioner's detention. "[T]he essence of habeas is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Further, this claim challenges neither the fact nor duration of petitioner's confinement. See Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir. 1986).
To the extent that petitioner raises an issue regarding the violation of state law, such claim is not appropriate for federal habeas corpus review. A federal court may review a state prisoner's habeas petition only on the ground that the challenged confinement is in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal court may not issue a writ of habeas corpus "on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41 (1984): Smith v. Sowders, 848 F.2d 735, 738 (6th Cir. 1988). A federal habeas court does not function as an additional state appellate court reviewing state courts' decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988). "`[F]ederal courts must defer to a state court's interpretation of its own rules of evidence and procedure'" in considering a habeas petition. Id. (quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)). Only where the error resulted in the denial of fundamental fairness will habeas relief be granted. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). Such are not the circumstances here.
However, petitioner also appears to assert in claim one that he was denied the right to appeal because neither the trial court nor his attorney advised him of his right to appeal, and the state appellate court thereafter denied his motion for delayed appeal. Respondent did not address such claim in the Return of Writ; however, the allegation is arguably meritorious.
In Wolfe v. Randle, 267 F.Supp.2d 743, 746-48 (S.D. Ohio 2003), the United States District Court for the Southern District of Ohio, Western Division, granted a petition for a writ of habeas corpus on similar grounds, concluding that "due process is offended when a defendant who pled guilty is kept completely ignorant of his appellate rights." Id., at 746.
[O]nce the state grants the right to appeal it must follow procedures comporting with the Fourteenth Amendment. Evitts v. Lucey, 469 U.S. 387, 403, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). After deciding that a right to appeal is essential, the state cannot then deny defendant due process. Due Process claims are implicated when a defendant is denied an adequate opportunity to present his claim and receive an adjudication on the merits, or when defendants are treated differently in such a way that affects their ability to pursue a meaningful appeal. Id. at 402, 405, 105 S.Ct. 830. Ohio has granted all defendants the right to appeal following a criminal conviction, and as a result must conform its procedures to the standards of due process. Ohio R.Crim.P 32.
. . . [D]ue process is offended when a defendant who pled guilty is kept completely ignorant of his appellate rights. Cf. Peguero v. U.S., 526 U.S. 23, 119 S.Ct. 961, 143 L.Ed.2d 18; White v. Johnson, 180 F.3d 648, 652 (5th Cir. 1999). The Supreme Court has addressed the procedural requirements for indigent defendants in the appellate process on several occasions. In Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Court held that an indigent defendant is entitled to a transcript in order to pursue an appeal. The Court later held that indigent defendants had a right to counsel on their first appeal, Douglas v. California, 372 U.S. 353, 365-57, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and that all defendants have the right to effective assistance of appellate counsel, Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). The right of notice is more fundamental than the rights previously guaranteed by the Supreme Court. Precedent therefore dictates that failure to inform an indigent defendant of their appellate rights violates due process. . . . [A] defendant is not necessarily denied a constitutional right when a state court denies a request for a delayed appeal. However, due process rights are implicated when a delayed appeal is the result of a lower court's failure to ensure that an indigent defendant's appellate rights are protected.
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. . . . The Constitution is violated if a convicted defendant is not given the right to appeal "by reason of his lack of knowledge of his right and the failure of his counsel or the court to advise him of his right to appeal with the aid of counsel." Jacobs v. Mohr, 265 F.3d 407, 419 (6th Cir. 2001) (citing Goodwin v. Cardwell, 432 F.2d 521, 522-23 (6th Cir. 1970)). The defendant has ultimate authority in making certain fundamental determinations pertaining to his case, including the right to appeal. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). The authority to pursue an appeal, even one following a guilty plea, is the defendant's alone. Marrow v. United States, 772 F.2d 525, 530 (9th Cir. 1985). The decision to appeal is not the determination of defendant's lawyer. Id. In order to make such a decision, the defendant must have knowledge about the appeals options available to him. United States ex rel. Smith v. McMann, 417 F.2d 648, 654 (2d Cir. 1969), cert. denied, 397 U.S. 925, 90 S.Ct. 929, 25 L.Ed.2d 105 (1970) (construing Douglas v. California as imposing on a state "a duty to warn every person convicted of a crime of his right to appeal . . . the right to appeal at the expense of the state is a mere illusion if the convicted indigent defendant does not know such a right exists."); State v. Sims, 27 Ohio St.2d 79, 272 N.E.2d 87, 91 (1971) (finding that "in the absence of evidence in the record upon which it could be determined that an indigent convicted defendant knowingly and intelligently waived his right of direct appeal . . . it was error for the Court of Appeals to dismiss the motion for leave to appeal without making such a factual determination.")
In order to be properly informed, a defendant must be told of his right to appeal, the procedures and time limits involved in proceeding with that appeal, and the right to have the assistance of appointed counsel for that appeal. White, 180 F.3d at 652 (5th Cir. 1999), Norris v. Wainwright, 588 F.2d 130, 135 (5th Cir.), cert. denied, 444 U.S. 846, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979) The petitioner bears the burden of showing by a preponderance of the evidence that he was not advised of his rights. Faught v. Cowan, 507 F.2d 273, 275 (6th Cir. 1974), cert. denied, 421 U.S. 919, 95 S.Ct. 1583, 43 L.Ed.2d 786 (1975). Further, a defendant cannot base a claim on the court's failure to inform him of his appellate rights if he has personal knowledge of these rights. Peguero, 526 U.S. at 29-30, 119 S.Ct. 961 (citing Soto v. U.S., 185 F.3d 48, 54 (2d Cir. 1999)).
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. . . Petitioner offers ample evidence supporting his claim. Namely, Petitioner offers (1) his sworn declaration that neither his counsel or the trial court advised him of his appellate right and he did not learn that he could file a delayed appeal until informed by inmate clerks in 1999 (doc. 1); (2) Respondent's statements that Petitioner's defense counsel could not remember if he had advised Petitioner of his right to appeal (doc. 17); and (3) the transcript of the plea and sentencing which are devoid of notice of appeal ( Id.). Respondent has been unable to offer any evidence showing that Petitioner knew of his appellate rights or was informed about them by either his counsel or the trial judge. Petitioner has successfully shown by a preponderance of the evidence that the trial court judge and his own counsel failed to advise him of his right to appeal, and he was not otherwise aware of this right.
When evaluating a claim for habeas corpus relief, only holdings of the United States Supreme Court may be relied on with authority. Harris, 212 F.3d at 944-945. As discussed previously, the Supreme Court has specifically put in place procedural protections to protect indigent defendants, including the right to a transcript, Griffin, 351 U.S. 12, 76 S.Ct. 585; the right to appellate counsel, Douglas, 372 U.S. 353, 83 S.Ct. 814; and the right to have that counsel provide effective assistance with their appeal, Evitts, 469 U.S. 387, 105 S.Ct. 830. The protections set forth by the Supreme Court all assume that the defendant knows of his right to appeal. Because notice is more basic than the rights granted in Supreme Court precedent and is a foundation of Supreme Court case law, precedent mandates that due process is violated when a defendant is not informed of his right to appeal by the trial court or by his counsel. The Ohio Court of Appeals decision denying Petitioner's claim was therefore an unreasonable application of clearly established Supreme Court precedent.
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When a defendant pleads guilty he limits his options to appeal, but certain appellate avenues remain open. The Supreme Court has previously stressed that an indigent defendant must be afforded certain procedural protections so that they may properly pursue their appellate rights. See Griffin, 351 U.S. 12, 76 S.Ct. 585, right for an indigent defendant a transcript for pursuing their appeal; Douglas, 372 U.S. 353, 83 S.Ct. 814, indigent defendants have a right to counsel for their first appeal; Evitts, 469 U.S. 387, 105 S.Ct. 830, all defendants have the right to effective assistance of appellate counsel. These rights all presuppose that the defendant is informed of the appellate rights. Due process is offended if a defendant who pleads guilty is not made aware of his right to appeal. This proposition is unaffected by the lack of an explicit constitutional requirement.Id., at 746-48. See also Schriro v. Landrigan, ___ S.Ct. ___, 2007 WL 1387923 (May 14, 2007), citing Mays v. Gibson, 210 F.3d 1284, 1287 (10th Cir. 2000).
Because this Court has construed claim one differently than did respondent, the Court DIRECTS respondent to supplement the return of writ to address this claim as construed by this Court. Respondent shall file the supplemental return of writ within thirty (30) days of this order. Petitioner may have fifteen (15) days thereafter to file a traverse.
B. CLAIM TWO
In claim two, petitioner asserts that he was improperly sentenced. Because this claim relates to an event that occurred at the time petitioner pleaded guilty and was sentenced, the statute of limitations on claim two began to run on May 22, 2003, i.e., thirty days after petitioner was sentenced on April 22, 2003, and when the time period expired to file a timely appeal to the state appellate court. See DiCenzi v. Rose, supra, 452 F.3d at 469; Searcy v. Carter, 246 F.3d 515, 518-19 (6 Cir. 2001); Marcum v. Lazaroff, 301 F.3d 480, 481 (6 Cir. 2002); Ohio App.R. 4(A). The statute of limitations expired one year later, on May 22, 2004. The instant petition was not signed until June 4, 2006, nor filed until July 3, 2006. Petitioner's April 21, 2005, motion for delayed appeal did not toll or otherwise affect the running of the statute of limitations on claim two, since the statute of limitations had expired prior to the date that petitioner filed his motion for delayed appeal. "The tolling provision does not . . . `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." Vroman v. Brigano, 346 F.3d 598, 601 (6 Cir. 2003), citing Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998); Winkfield v. Bagley, 66 Fed. Appx. 578, unpublished, 2003 WL 21259699 (6th Cir. May 28, 2003) (same). Therefore, claim two is untimely.
Arguably, clam two may nonetheless be timely under 28 U.S.C. § 2244(d)(1)(D), which provides that the statute of limitations does not begin to run until "the date on which the factual predicate of the claim . . . presented could have been discovered through the exercise of due diligence." Here, petitioner alleges that he did not know about and was not advised of his right to appeal by either the trial court or his attorney. See Exhibit 4 to Return of Writ. Additionally, the transcript of petitioner's guilty plea and sentencing indicates that he was not advised of his right to appeal during those proceedings. See Exhibits to Return of Writ.
Petitioner was sentenced pursuant to the joint recommendation of the prosecutor and defense counsel. It appears, therefore, that he waived his right to appeal under O.R.C. § 2953.08(D) by agreeing to the joint recommendation of twelve years incarceration.
Appellate review of a negotiated felony sentence is governed by R.C. 2953.08(D), enacted as part of Senate Bill 2, which provides in part:
A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge. . . .
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An appellate court may not review such a jointly recommended felony sentence unless it finds that the sentence is not authorized by law.State v. Stacy, 1999 WL 29075 (Ohio App. 12 Dist. 1999); see also State v. Lentz, 2003 WL 576646 (Ohio App. 2 Dist. February 28, 2003):
[T]he terms of R.C. 2953.08(D) confer no authority on the trial court. That section simply bars a right of appeal otherwise conferred by R.C. 2953.08(A); that is, one based on the grounds in subparagraphs (1)-(6) of that section "when the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge." Id.
It is undisputed that Lentz's sentence satisfied each of the requirements specified in 2953.08(D). "A sentence is authorized by law as long as the prison term imposed does not exceed the maximum term authorized for the offense." State v. Engleman (Aug. 18, 2000), Hamilton App. No. C-990845, discretionary appeal not allowed (2000), 90 Ohio St.3d 1481, 738 N.E.2d 1254. Lentz's sentence does not exceed the statutory range, therefore, it is authorized by law. Additionally, the trial court made sure that Lentz understood the plea agreement and that his decision to plea was voluntary. Finally, the trial court imposed the exact sentence contemplated by both parties in the plea agreement. Both parties stipulated that Lentz was to receive a sentence of two ten-year sentences to be served consecutively. By sentencing Lentz in accord with the terms of the plea agreement, the trial court imposed a sentence that had been recommended jointly by the defendant and the prosecution.
The foregoing facts would trigger the provisions of R.C 2953.08(D) to bar any appeal taken pursuant to R.C. 2953.08(A). It is unclear whether Lentz's contentions concerning the lack of finding and reasons fall within any of those grounds. However, if they do, R.C. 2953.08(D) bars the right of appeal conferred.
If Lentz's contentions are instead viewed as an appeal taken pursuant to the general provisions of R.C. 2953.02, then R.C. 2953.08(D) has no effect. However, in that event Lentz's agreement to the jointly recommended sentence the court imposed waives his right to argue on appeal that the court erred when it imposed the recommended sentence absent the findings and reasons that R.C. 2929.19(B)(2)(c) and R.C. 2929.14(C) might require. It is well-settled that a party may not argue that the party was prejudiced by error which the party induced the trial court to commit.Id.; State v. White, 2003 WL 22451372 (Ohio App. 9 Dist. October 6, 2003) (same). However, this Court is unable to locate in the record any indication that petitioner was advised that he was waiving his right to appeal, or that he agreed to waive his right to appeal pursuant to the terms of his guilty plea.
The United States Court of Appeals for the Sixth Circuit addressed this same issue in DiCenzi v. Rose, supra. There, the defendant was not advised of his right to appeal his sentence and did not learn that he could appeal his sentence until almost two years after his guilty plea. Id., at 466-467. The Sixth Circuit reversed the District Court's dismissal of the habeas corpus petition as untimely, and remanded the case for a determination of when a reasonably diligent person in the defendant's circumstances would have learned about his right to appeal:
DiCenzi argues that . . . the statute should not have started running until . . . he was informed by the Public Defender that he had the right to an appeal.
Of course, during all this time, had DiCenzi merely inquired of a court or a public defender regarding whether he had the right to an appeal, he could have found out that he did. He argues, however, that it is not reasonable to expect a defendant who pleaded guilty to be aware of mandatory statutory appeal rights from the sentence imposed, especially when neither the court nor his attorney at sentencing informed him of any such rights. In support of this argument, DiCenzi cites Granger v. Hurt, 90 Fed. Appx. 97, 99-101 (6th Cir. Jan. 23, 2004) (unpublished opinion), wherein an Ohio prisoner (Granger) had been told by his attorney that the attorney would appeal Granger's conviction. The attorney then failed to do so, and Granger did not discover this failure until he called the attorney to check on the status of his appeal two months after the deadline for filing the appeal had passed. The district court held that the proper date for starting the statute of limitations was the deadline for filing a notice of appeal of his sentence, since Granger could have discovered his attorney's failure on that date. We reversed, holding that the district court's decision "ignores the reality of the prison system and imposes an unreasonable burden on prisoners seeking to appeal," and noting that § 2244(d)(1)(D) "does not require the maximum feasible diligence, only `due,' or reasonable, diligence." Granger, 90 Fed. Appx. at 100 (citing Wims v. United States, 225 F.3d 186, 190 n. 4 (2d Cir. 2000)); see also, e.g., Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004) (evaluating a prisoner's due diligence in investigating trial errors, and noting the difficulties inherent in the prison environment); Aron v. United States, 291 F.3d 708, 712 (11th Cir. 2002) (same). Finding that "the two months that Granger waited before inquiring about his appeal was, under the circumstances, not unreasonable," we held that Granger had exercised due diligence and thus that the AEDPA statute of limitations began running on the date he learned from his attorney that the appeal had not been filed. Granger, 90 Fed. Appx. at 100.
Accordingly, as noted by the Second Circuit,
The proper task in a case such as this one is to determine when a duly diligent person in petitioner's circumstances would have discovered [his right to an appeal]. After that date, petitioner was entitled to further delay (whether in actually making the discovery, or in acting on a previously made discovery, or for any other reason whatsoever), so long as he filed his petition within one year of the date in which the discovery would have been made in the exercise of due diligence. Wims, 225 F.3d at 190.
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. . . [T]he date on which the limitations clock began to tick is a fact-specific issue the resolution of which depends, among other things, on the details of [a defendant's] post-sentence conversation with his lawyer and on the conditions of his confinement in the period after [sentencing]. Wims, 225 F.3d at 190-91 (citing Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir. 2000) (taking into account "the realities of the prison system" in determining due diligence)).Id., at 470-471. "[P]etitioner bears the burden of proving that he exercised due diligence, in order for the statute of limitations to begin running from the date he discovered the factual predicate of his claim, pursuant to 28 U.S.C. § 2244(d)(1)(D)." Id., at 471, citing Lott v. Coyle, 261 F.3d 594, 605-06 (6th Cir. 2001).
Here, however, petitioner indicates that he learned about his right to appeal after he was transferred to the North Central Correctional Institution, in November 2003, and conducted legal research. See Exhibit 4 to Return of Writ. Still, petitioner waited more than one year later, until February 15, 2005, to file his motion for delayed appeal with the state appellate court. Further, he did not execute the instant habeas corpus petition until June 4, 2006. Under these circumstances, even under 28 U.S.C. § 2244(d)(1)(D), claim two is untimely. See DiCenzi v. Rose, supra.
Assuming, arguendo, that claim two were properly before this Court, the claim is nonetheless without merit. Petitioner appears to assert in claim two that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004); however, petitioner's sentence became final prior to the United States Supreme Court's June 24, 2004, decision in Blakely. Blakely is not applied retroactively to cases on collateral review. Humphress v. United States, 398 F.3d 855, 863 (6th Cir. 2005).
For the foregoing reasons, the Magistrate Judge ORDERS respondent to supplement the return of writ to address claim one as construed by this Court. Respondent shall file the supplemental return of writ within thirty (30) days of the date of this order. Petitioner may have fifteen (15) days thereafter to file a traverse.
The Magistrate Judge RECOMMENDS that claim two be DISMISSED.
If any party objects to this Report and Recommendation, that party may, within ten (10) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).