Case No. 4:01 CV 1465
May 2, 2002
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE (Regarding Docket No. 15)
Daniel A. Swingle filed his pro se petition under 28 U.S.C. § 2254 seeking habeas corpus relief to overturn his 1995 convictions for felonious sexual penetration and gross sexual imposition. He entered guilty pleas in December 1995 and was sentenced in January 1996 to 6 to 25 years incarceration. His convictions followed plea negotiations in which the number of counts from the original five counts of gross sexual imposition were reduced to one but retained the first degree felony of felonious sexual penetration of his stepdaughter when she was 12 years old. Swingle initiated no timely direct appeal, but did later utilize other forms of redress in his efforts to seek state judicial review.
On June 13, 2001 Swingle filed his federal habeas corpus petition raising the following four grounds:
Conviction obtained by plea of guilty which was unlawfully induced and not voluntary with understanding of the nature of the charge and the consequences of the plea.
Denial of effective assistance of counsel and indictments lack subject matter jurisdiction, and convictions obtained by action of a grand jury or petit jury which was unconstitutionally elected and impaneled.
Denial of right of appeal.
The trial court refused to appoint counsel through motions for appointment filed and attorney Robert Baker and deceased counsel Brubaker, appellant filed for delayed appeal for good cause shown and withdrawal of guilty plea Cr. R. 32.1 and no jury waiver in record.
Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to defendant.
In response, respondent has moved to dismiss this petition as time-barred. Respondent contends that federal review is barred under the "1-year period of limitation" contained in 28 U.S.C. § 2244(d)(1)(A). Swingle entered his guilty plea on December 18, 1995 (Exhibit 76) and was sentenced on January 22, 1996 (Exhibit 77). For purposes of § 2244(d)(1)(A), his conviction became "final" in February 1996 after the 30-day period allowed for timely direct appeals under Ohio App. R. 4(A) had expired. Because his conviction became "final" before enactment of the statute, time did not commence to run until April 24, 1996. Searcy v. Carter, 246 F.3d 515, 517 (6th Cir. 2001), cert. denied, 122 S.Ct. 237 (2001). There is no dispute that Swingle was entitled to the 1-year grace period from April 24, 1996 [the enactment date of § 2244(d)] to April 24, 1997. See Isham v. Randle, 226 F.3d 691, 693 (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001); Brown v. O'Dea, 187 F.3d 572, 577 (6th Cir. 1999), rvd. on other grounds, 530 U.S. 1257 (2000).
28 U.S.C. § 2244(d) reads as follows:
(d)(1) A 1-year period of limitation shall apply to an application for 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. (d)(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.
Swingle initiated no direct review within the "1-year period," nor did any of his post-conviction motions toll the running of the statute to render the June 2001 petition timely. During the "1-year period" Swingle moved for post-conviction relief and this motion was denied by the state trial court in an order filed on February 12, 1997 ( See State's Exhibit 5). No appeal was taken. Respondent admits, however, that she does not know when the motion was filed since it did not appear in the file or on the state trial court docket. In recapping the procedural highlights of his case in his Exhibit "Q", Swingle refers to a motion for post-conviction relief filed on January 26, 1996. The Sixth Circuit has held that tolling occurs during the actual pendency of state post-conviction proceedings for purpose of § 2244(d)(2). Bronaugh v. Ohio, 235 F.3d 280, 283 n. 3 (6th Cir. 2000); Isham v. Randle, 226 F.3d 691, 695 (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001); Payton v. Brigano, 256 F.3d 405, 409 (6th Cir. 2001), pet. for cert. filed October 25, 2001. Since Swingle's statement that he filed his motion for post-conviction relief on June 26, 1996 is unrefuted, Swingle has established that the period of limitation was tolled an additional 292 days from April 24, 1996 (the starting date for pre-AEDPA convictions) through February 12, 1997. Also during this time on December 3, 1997 a second motion for post-conviction relief was filed (Exhibit 6), and denied as res judicata on April 23, 1998. ( See State's Exhibit 7). This provided Swingle with an additional 146 days. As a result, Swingle had 803 days from April 24, 1996 to timely file (365 + 292 + 146), which gave him until July 6, 1998. However, it was not until nearly a year later on August 20, 1999 that Swingle filed a pro se notice of appeal and motion for delayed appeal to the Ohio Appellate Court for the Ninth District, which was dismissed on September 13, 1999 (State's Exhibits 9, 10 and 11). Granted, after this Swingle attempted to obtain reversal of his convictions using procedural mechanisms of delayed appeal, mandamus, a Civil Rule 60(B) motion and other forms of motions to dismiss. Some of these did reach the Ohio Supreme Court on a number of occasions. See State v. Swingle, 88 Ohio St.3d 1414, 723 N.E.2d 120 (Table 2000); 91 Ohio St.3d 1445, 742 N.E.2d 144 (Table 2001); 93 Ohio St.3d 1413, 754 N.E.2d 260 (Table 2001); and 93 Ohio St.3d 1412, 754 N.E.2d 259 (Table 2001); and see State ex rel. Swingle v. Zaleski, 91 Ohio St.3d 82, 742 N.E.2d 130 (2001), reconsideration denied, 91 Ohio St.3d 1493, 745 N.E.2d 440 (Table 2001).
Nevertheless, without question Swingle's petition was still untimely. Swingle had through July 8, 1998 to timely file his federal habeas corpus petition in accordance with § 2244(d), and at that time there was no matter pending in the state courts which could toll the running of the statute under either § 2244(d)(1) or (d)(2). The "1-year period" expired in July 1998 and was not retriggered by Swingle's subsequent proceedings in state court. Once the "1-year period" has expired, subsequent court proceedings cannot extend the limitation period. See Searcy, 246 F.3d at 519 (motion for delayed appeal did not cause § 2244(d) to begin running anew); and see Thompson v. Mitchell, 2001 WL 493419 (Table) (6th Cir. April 30, 2001); Bennett v. Artuz, 199 F.3d 116, 122 (2d Cir. 1999), aff'd. 531 U.S. 4 (2000); Villegas v. Johnson, 184 F.3d 467, 472 (5th Cir. 1999).
In his pro se "traverse" to the motion to dismiss, Swingle argues for equitable tolling to avoid the bar the statute of limitations would impose contending that he was unable to obtain vital information bearing on his defense. Swingle has included his Exhibit "N" which is the emergency room examination report 24 hours after alleged sexual intercourse had occurred with his step-daughter. The report was negative and noted "No physical findings. History/and or behavior indicators consistent with. sexual abuse." Swingle's argument does not fall into a plea for equitable tolling. Swingle's argument falls under the exception contained in § 2244(d)(1)(D) for belated discovery despite the exercise of due diligence.
Equitable tolling is determined by five factors: "(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim." Dunlap v. U.S., 250 F.3d 1001, 1008 (6th Cir. 2001), cert. denied, 2001 WL 1045554 (Dec. 3. 2001) (factors utilized in consideration of one-year period of limitation under 28 U.S.C. § 2255); Franklin v. Bagley, 2001 WL 1590593 (Table) (6th Cir. Dec. 10, 2001)( applying same factors to state prisoner habeas under 28 U.S.C. § 2244(d)).
Swingle, though, must not only show that he exercised due diligence, but to ultimately succeed on his claim, he must show that the evidence withheld "would have been controlling in the decision whether to plead." U.S. v. Ross, 245 F.3d 577, 584 n. 1 (6th Cir. 2001); Campbell v. Marshall, 769 F.2d 314, 324 (6th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). The State's failure to disclose potentially exculpatory evidence in its possession does not render involuntary a petitioner's otherwise voluntary, counseled plea of guilty, when belated discovery of the information did not in any way detract from the credible factual basis for petitioner's plea. Campbell, 769 F.2d at 321. Swingle has not met these stringent requirements. Without question, whether or not Swingle saw this particular report which he has identified as Exhibit "N," he knew of exculpatory evidence along the same line of defense as far back as his first motion for post-conviction relief. The state trial court denied the motion explaining in the order filed February 12, 1997:
The crux of Defendant's argument is that he could not be convicted of Felonious Sexual Penetration since there was no evidence of semen. This requirement is not an element of either Felonious Sexual Penetration or Gross Sexual Imposition. Defendant's own statements to police, after he was arrested as referenced in the pre-sentence investigation, are indicative of Defendant's guilt. Defendant gave two statements to police. The first denied that he had molested his stepdaughter but that "she has" (sic) humped on me before,' and he admitted to touching her buttocks. In his second statement to police, which was tape recorded, Defendant changed his statement and said that the allegations `might have happened.'
Defendant has failed to establish a substantial infringement of his constitutional rights to render his conviction void or voidable under the Ohio Constitution or the United States Constitution. Since the trial court adhered to Crim. R. 11 requirements and the Defendant has failed to bring forth sufficient evidence in support of his petition for post-conviction relief . . .
(State's Exhibit 5 at 2).
This argument was raised somewhat differently in the counseled second motion for pasconviction relief, to which the state trial court responded that there had been open file discovery of medical records, Swingle made incriminating statements, physical evidence was not necessary to prove the elements of felonious sexual penetration or gross sexual imposition, and that the court strictly comported with Rule 11 requirements in accepting Swingle's two guilty pleas. See State's Exhibit 7, Order filed April 28, 1998. Consequently, assuming as Swingle maintains that this exhibit was not uncovered until a later time, he has not shown either due diligence or prejudice as a result. The "factual predicate" of his claim was known to him in January 1996 according to his own Exhibit "Q," and it is inconsequential with respect to when the "1-year period" began to run. As explained at the beginning of this report, the period commenced for pre-AEDPA convictions on April 24, 1996.
Respondent next argues that the grounds of this habeas corpus petition were not properly raised or preserved in state court and therefore have been waived and federal habeas review is barred due to procedural default. However, carefully scrutinizing the exhibits presented by respondent it appears that she may not be totally correct. In order for there to be a procedural default, the state court decision must "clearly and expressly" rely on waiver as a ground for rejecting the claims. Harris v. Reed, 489 U.S. 255, 262-66, 109 S.Ct. 1038, 1042-45, 103 L.Ed.2d 308 (1989); Coleman v. Thompson, 501 U.S. 722, 733-35, 111 S.Ct. 2546, 2556-57, 115 L.Ed.2d 640 (1991). For example, in a motion for delayed appeal, Swingle argued that he was denied his right to court appointed counsel for an appeal (States's Exhibit 18). This motion was adjudicated on its merits by the state appellate court (State's Exhibit 19), and an appeal was taken to the Ohio Supreme Court asserting denial of Fourteenth Amendment due process "where both trial court and the Appeals Court failed to appoint counsel." ( See State's Exhibit 20 and 21). Swingle's third ground, denial of right to appeal because "the trial court refused to appoint counsel. . . .," restates the same argument, and Swingle exhausted his State remedies with respect to that ground. The third ground was not waived by procedural default and respondent's generalization is not supported by the record. This is not to say that it is possible that some of Swingle's grounds may be procedurally defaulted, but it appears that at least one has not been. Accordingly, the argument that federal review of all grounds raised in the petition is barred due to procedural default cannot serve as a basis for denial of this petition.
CONCLUSION AND RECOMMENDATION
It is recommended that respondent's motion to dismiss the petition (Docket No. 15) be granted. Further, it is recommended that the court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).