Board v. Bradshaw

805 F.3d 769, 2015 FED App. 0275P, 2015 U.S. App. LEXIS 19537, 2015 WL 6874780
Court of Appeals for the Sixth Circuit·Decided November 10, 2015·No. No. 14-3199·Published·Cited by 25 cases

Opinion

OPINION

HELENE N. WHITE, Circuit Judge.

Petitioner-Appellant Steven Board appeals the district-court order dismissing his petition for a writ of habeas corpus, 28 U.S.C. § 2254, as untimely under the one-year statute of limitations of the Antiter-rorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d). This court granted a certificate of appealability on the issue whether Board’s unsuccessful motion for leave to file a delayed appeal under Ohio Appellate Rule 5(A) tolled the statute of limitations under § 2244(d)(2). We hold that it did, and therefore REVERSE and REMAND for further proceedings.

I.

On September 24, 2010, Board pleaded guilty to one count of drug trafficking with forfeiture specifications, a felony in the first degree, pursuant to a plea agreement. (See generally Plea Tr., PID 167 — 77); see also Ohio Rev.Code § 2925.03(A)(2) (2008); id. § (C)(4)(f). The charge carried a mandatory prison term of between three and ten years, see Ohio Rev.Code § 2929.14(A)(1) (2009), and the plea agreement recommended a seven-year sentence. (See Plea Tr., PID 168-70.) On November 4, 2010, the trial court sentenced Board to seven years in prison. (Ohio Trial Ct. Journal Entry, PID 82; see also Sentencing Tr., PID 178-85.) Board did not timely appeal his sentence. However, on June 29, 2011, Board filed a pro se notice of appeal and motion for leave to file a delayed appeal under Ohio Appellate Rule 5(A). (Notice of Appeal & 5(A) Mot., PID 83-107.) Board asserted that he failed to timely appeal his sentence because both the trial court and trial counsel failed to inform him of his appellate rights. (Board Mem. in Supp. of 5(A) Mot., PID 102-06.) On July 27, 2011, the Ohio Court of Appeals summarily denied Board’s motion. (Ohio App.Ct. Journal Entry, PID 132.) Board appealed the denial to the Ohio Supreme Court on September 12, 2011, (Notice of Appeal, PID 135-36; see also Board Mem. in Supp. of 5(A) Appeal, PID 137-52), and the court declined to hear the case on December 21, 2011, dismissing “the appeal as not involving any substantial constitutional question,” (Ohio S.Ct. Entry, PID 155).

On March 15, 2012, Board filed the instant § 2254 petition, (Pet., PID 3-7), rais[771] ing two grounds for relief: 1) he was denied due process and equal protection when the trial court failed to inform him of his appellate rights and his subsequent motion for leave to file a delayed appeal was denied, and 2) his trial counsel was ineffective for failing to inform him of his appellate rights. (Board Br. in Supp. of Pet., PID 11-17.) Respondent-Appellee Margaret Bradshaw, Warden of Richland Correctional Institution (Respondent) filed a motion to dismiss the petition as time-barred under AEDPA’s one-year statute of limitations. (Mot. to Dismiss, PID 48-58.)

A magistrate judge issued a Report and Recommendation finding the petition time-barred. (Report & Rec., PID 199-212.) The magistrate judge determined that 1) Board’s lack of knowledge of his appellate rights did not delay the start of the limitations period, and 2) Board was not entitled to equitable tolling.1 (Id.) Board timely objected to the Report and Recommendation. (Objections to Report & Rec., PID 213-18.) The district court dismissed Board’s objections and adopted the Report and Recommendation in its entirety. (District Ct. Op., PID 220-26.)

II.

We review de novo a district court’s dismissal of a habeas petition as time-barred under 28 U.S.C. § 2244. Vroman v. Brigano, 346 F.3d 598, 601 (6th Cir.2003). Board filed his petition after AED-PA became effective; therefore, the Act’s one-year statute of limitations applies. See Searcy v. Carter, 246 F.3d 515, 517 (6th Cir.2001). AEDPA § 2244(d)(1) provides:

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.

28 U.S.C. § 2244(d)(1).

Under § 2244(d)(2), the statute of limitations is tolled for “[t]he 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.” Id. § 2244(d)(2).

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Board v. Bradshaw, 805 F.3d 769, 2015 FED App. 0275P, 2015 U.S. App. LEXIS 19537, 2015 WL 6874780 (6th Cir. 2015).

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