IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MAURICE LATHAN, 

Petitioner, 

v. Case No. 2:11-cv-302

 JUDGE ALGENON L. MARBLEY

WARDEN, SOUTHEASTERN Magistrate Judge Kemp

CORRECTIONAL INSTITUTION, 

Respondent. 

OPINION AND ORDER

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. §2254. On November 14, 2011, the Magistrate Judge

recommended that the case be dismissed as barred by the one-year statute of limitations

applicable to habeas corpus actions. See 28 U.S.C. §2244(d). Petitioner has filed an

objection to that recommendation. For the following reasons, the objection will be

OVERRULED and this case will be DISMISSED.

 I. 

Petitioner does not take issue with the key dates which affect the limitations

question, as set forth in the Report and Recommendation. As stated there, petitioner

was convicted and sentenced pursuant to a guilty plea on December 14, 2007. He did

not timely appeal his conviction. A later motion for leave to file a delayed direct appeal

was denied, as was a motion filed in the state trial court in which petitioner sought to

withdraw his guilty plea, and a post-conviction petition. It is undisputed that the

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earliest date on which he filed any motion or action in state court relating to his

conviction was August 28, 2009. 

Petitioner has filed two habeas corpus petitions in this Court. The first was

dismissed without prejudice for failure to exhaust state court remedies. This is the

second. The effective filing date of this petition is March 25, 2011.

II. 

 28 U.S.C. § 2244(d) reads as follows:

(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.

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Here, the Report and Recommendation concluded that the state court judgment giving

rise to petitioner’s claims in this Court was entered on December 14, 2007, and became

final on January 14, 2008, the last day on which he could have filed a timely appeal of

that judgment. It further concluded that the statute of limitations began to run on that

date, and expired one year later, on January 14, 2009. Because petitioner did not file

even his first habeas corpus action by that date - and, in fact, had not challenged his

conviction in state court prior to that date - the Report and Recommendation concluded

that the petition was not timely filed.

Petitioner does not contend that this calculation is mistaken, and the Court

agrees that it is accurate. Thus, unless equitable tolling applies, this case must be

dismissed as time-barred.

The Report and Recommendation analyzed the claim for equitable tolling using a

five-factor test developed by the Court of Appeals in Dunlap v. United States, 250 F.3d

1001, 1008 (6th Cir. 2001). That approach appears to have been incorrect. In a recent

published opinion on the subject of equitable tolling, Hall v. Warden, Lebanon

Correctional Inst., 662 F. 3d 745 (6th Cir. 2011), the Court of Appeals clarified the legal

standard applicable to claims of equitable tolling. There, the petitioner filed his habeas

corpus petition five days after the one-year statute of limitations had run. Petitioner

argued that the statute of limitations should be equitably tolled because he was

proceeding without the assistance of counsel, he had limited access to the law library,

and he did not get a copy of his trial transcript from his state court attorney.

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In determining whether petitioner’s request for equitable tolling should be

granted, the Court of Appeals explained that 

AEDPA's limitations period is subject to equitable tolling, see Holland v.

Florida, ––– U.S. ––––, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010), a

doctrine that “allows courts to toll a statute of limitations when a litigant's

failure to meet a legally-mandated deadline unavoidably arose from

circumstances beyond that litigant's control.” Robertson v. Simpson, 624

F.3d 781, 783 (6th Cir.2010) (internal quotation marks omitted). But courts

grant equitable tolling “sparingly.” Id. at 784. A habeas petitioner is

entitled to equitable tolling only if two requirements are met. First, the

petitioner must establish “that he has been pursuing his rights diligently.”

Holland, 130 S.Ct. at 2562 (internal quotation marks omitted). And second,

the petitioner must show “that some extraordinary circumstance stood in

his way and prevented timely filing.” Id. (internal quotation marks

omitted).

Hall, 662 F.3d at 749. The Court of Appeals further noted that this formulation of the

legal standard under which requests for equitable tolling is judged marks a departure

from the way in which the Court of Appeals (and, of course, district courts within this

judicial circuit) had stated the test. See Dunlap, supra, at 1008 (setting out five separate

factors to be analyzed in deciding if equitable tolling was appropriate). Although the

petitioner in Hall claimed the tests were, at bottom, essentially the same, the Hall court

disagreed; as it read Holland, “a habeas petitioner must demonstrate both that he has

been diligent in pursuing his rights and that an extraordinary circumstance caused his

untimely filing.” Id. at 750. Concluding that the petitioner’s limited ability to access a

law library, his pro se status, and his lack of a trial transcript did not constitute

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“extraordinary circumstances,” the Court of Appeals denied his request for equitable

tolling and affirmed the denial of his petition on statute of limitations grounds. This

Court will analyze petitioner’s claim for equitable tolling under Holland and Hall.

In his petition and traverse, petitioner’s equitable tolling argument appeared to

be limited to a claim that he should be able to take advantage of recent amendments to

the federal sentencing law for crack cocaine offenses. In his objection, he expands upon

this argument, arguing that such a change in the law allows him to file an untimely

petition under §2254(e)(2)(A) and (B). However, those statutory sections relate to when

an evidentiary hearing can be held in a habeas corpus case, and not to when the statute

of limitations might be tolled. He also argues that the state courts occupy a position

“lower” than the federal courts and are bound to apply changes in federal law.

This latter argument is clearly incorrect. The Supreme Court has consistently

held that the “States are ... properly sovereign” under our constitutional structure,

Cohens v. State of Virginia, 19 U.S. 264, 327 (1821), and “an act denounced as a crime by

both national and state sovereignties is an offense against the peace and dignity of both

and may be punished by each.” United States v. Lanza, 260 U.S. 377, 382 (1922). Thus,

any changes in the way that federal courts sentence drug offenders have no effect on the

way that states choose to punish those offenses. See, e.g. State v. Walley, 2010 WL

2979051, *4 (Del. Super. July 15, 2010)(“even if a new rule has been announced by the

federal government, it is not applicable to [a defendant] who has been convicted of

violations of Delaware state cocaine offenses”). State courts are bound to follow the

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United States Constitution, of course, with respect to those constitutional guarantees

that have been incorporated into the Due Process Clause of the Fourteenth Amendment, 

see, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968), but that principle does not reach as

far as federal criminal statutes or sentencing guidelines, and the States are free to

determine how to punish defendants convicted of crimes that are prohibited by both

federal and state law based on their own sovereign determination of what punishment

is appropriate.

Petitioner also argues that his lack of counsel should be taken into account in

determining whether he is entitled to equitable tolling, and that he may be eligible to

have his sentence reviewed under Ohio law. As Hall illustrates, the fact that a

petitioner is proceeding pro se is not, by itself, grounds for granting equitable relief from

the running of the statute of limitations. To the extent that petitioner may now, or may

soon, have some right to have his sentence reviewed under Ohio law, that is a matter

for the state courts to deal with in the first instance. Just as “a violation of a state law ...

is not cognizable in a federal habeas corpus proceeding,” Floyd v. Alexander, 148 F.3d

615, 619 (6th Cir. 1998), a change in state law provides no basis for federal habeas corpus

relief, which may issue only to those state prisoners “in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. §2254(a).

 III.

Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For

the foregoing reasons, petitioner's objections are OVERRULED. The Court ADOPTS

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the recommendation that this case be dismissed as barred by the one-year statute of

limitations found in 28 U.S.C. §2244(d), and this action is hereby DISMISSED.

IT IS SO ORDERED.

 s/Algenon L. Marbley 

ALGENON L. MARBLEY

United States District Judge

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