Wilberger v. Carter

35 F. App'x 111
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 18, 2002
DocketNo. 99-3577
StatusPublished
Cited by10 cases

This text of 35 F. App'x 111 (Wilberger v. Carter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilberger v. Carter, 35 F. App'x 111 (6th Cir. 2002).

Opinion

BATCHELDER, Circuit Judge.

Petitioner appeals the judgment of the district court dismissing his petition for federal habeas relief in which he raised claims that his guilty plea was not voluntarily entered because the trial court misled him into believing he was pleading to an offense for which he would be eligible for probation, and his trial counsel was ineffective because he failed to file a motion for shock probation as he had agreed to do as part of the plea agreement. The district court summarily dismissed the petition because the petitioner had procedurally defaulted the claims. Affirming the dismissal, we will not reach the procedural-default issue. Instead, we agree with the State of Ohio: the petition was filed beyond the one-year limitations period set by 28 U.S.C. § 2244(d)(1).

PROCEDURAL HISTORY

Douglas Wilberger pled guilty in common pleas court in Ohio to felonious assault. During the change-of-plea colloquy, the trial judge asked Wilberger if anyone had promised him anything in exchange for his guilty plea. Wilberger’s public defender responded that he had promised Wilberger that he would file a motion for shock probation. Wilberger then pled guilty to one count of felonious assault. Wilberger was sentenced to three to fifteen years in prison on April 24, 1995. Wilberger did not appeal either his conviction or his sentence.

Wilberger’s public defender never moved for shock probation, and on October 30,1995, Wilberger filed the motion pro se. The common pleas court denied the motion on December 11, 1995. Again, Wilberger [113]*113made no attempt to appeal. On April 22, 1996, almost one-year after his conviction, Wilberger filed a petition for post-conviction relief asking the common pleas court to vacate or set aside the April 1995 sentence. By order entered on May 22, 1996, the court denied the motion because Wilberger had never filed a direct appeal. Wilberger filed a notice of appeal in October of 1996, but notice of appeal did not address the May 22, 1996, order. Wilberger has never appealed the May 22nd order. See Ohio v. Wilberger, 1997 WL 473090, at *2 & *4 (Ohio Ct.App. Aug. 14, 1997) (“The delayed notice of appeal sub judice was filed on October 4, 1996. The order appealed from is the order of April 24,1995, wherein the Court accept the plea of guilty[.] * * * In this assignment, appellant seeks review of the May 22, 1996 order denying his petition for post-conviction relief. This is not the order appealed from in his notice of appeal. Hence, this court is without jurisdiction to review this assignment of error.”).

On October 10, 1996, Wilberger moved for permission to take a delayed direct appeal of his April 1995 conviction. Ohio’s 8th District Court of Appeals (the “8th District”) granted Wilberger’s motion and later, in an opinion that says nothing about shock probation or Wilberger’s guilty plea, affirmed Wilberger’s conviction. Ohio v. Wilberger, 1997 WL 473090 (Ohio Ct.App. Aug. 14, 1997). Nothing in the record indicates that Wilberger ever sought review of this decision in the Ohio Supreme Court.

Nothing else happened in the case for 150 days, until January 12, 1998, when Wilberger moved the common pleas court for permission to withdraw the guilty plea that he had entered nearly three years before in April of 1995. Wilberger urged two assignments of error in this motion. First, he argued that the trial judge did not strictly comply with Ohio Rule of Criminal Procedure 11 when she took his change of plea and sentenced him. Second, Wilberger argued that his due process rights were violated when the prosecutor allegedly misled him into believing that he was eligible for shock probation and then, when Wilberger’s counsel advised the court during the plea hearing that he intended to file a motion for shock probation, the prosecutor withheld evidence from the trial judge that Wilberger was a prior offender—evidence that would disqualify Wilberger from shock probation.

By order entered on March 26,1998, the common pleas court denied Wilberger’s motion to withdraw the guilty plea. Wilberger did not appeal that order until July 9, 1998, when he filed a motion to bring a delayed appeal. The 8th District denied the motion on July 22, 1998. On October 27, 1998, Wilberger asked the Ohio Supreme Court for permission to file a delayed appeal. The motion was denied on December 9,1998.

Sixty-eight days after the Ohio Supreme Court denied Wilberger’s motion to file a delayed appeal, Wilberger filed his federal habeas petition. The federal district judge summarily dismissed Wilberger’s petition sua sponte because, she concluded, “it is evident on the face of the petition that plaintiff was procedurally barred from pursuing the grounds sought to be raised herein in the Ohio courts.” Wilberger v. Jones, Case No. 1:99 CV 355, slip op. at 2 (N.D.Ohio Mar. 26, 1999). The district judge also noted that Wilberger’s petition did not show cause and actual prejudice. The district judge concluded that a certificate of appealability should not issue. See id. at 3.

•This court, however, issued a certificate of appealability on three issues: (1) whether Wilberger procedurally defaulted his claims in state court; (2) whether Wilber[114]*114ger’s public defender rendered ineffective assistance of counsel by wrongly advising Wilberger about eligibility for shock probation; and (3) whether the trial court erroneously indicated to Wilberger that Wilberger was eligible for shock probation. Wilberger v. Jones, No. 99-3577, Order (6th Cir. Nov. 2, 1999). The State’s motion to reconsider the order granting the certificate was denied.

ANALYSIS

The State argues on appeal that Wilberger’s habeas petition must be dismissed because it is time-barred. A one-year limitations period applies to habeas petitions filed under § 2254. 28 U.S.C. § 2244(d)(1). Under § 2244(d)(1)(A), if a state prisoner is to file for federal habeas relief, he must do so within one-year from the time the state-court judgment becomes final. See 28 U.S.C. § 2244(d)(1)(A). For purposes of federal habeas review, a state-court judgment becomes final when direct review by the state court ends or when the time to seek direct review expires, whichever comes later. See Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir.1999).

The one-year limitations period expressed in § 2244(d)(1) does not operate as a jurisdictional bar to habeas corpus petitions. See Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir.2001). Rather, the limitations period is tolled while a “properly filed” application for post-conviction relief or collateral review is pending in state court. See 28 U.S.C. § 2244(d)(2). An application is “properly filed” when its delivery and acceptance by the state court comply with the state laws and rules governing filings. Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 364, 148 L.Ed.2d 213 (2000).

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35 F. App'x 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilberger-v-carter-ca6-2002.