IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION

HECTOR JOHNSON, 

Petitioner, Case No. 2:11-CV-726

 Judge Marbley

v. Magistrate Judge King

MICHELE MILLER, WARDEN,

Respondent. 

ORDER

Petitioner in this habeas corpus action was convicted on one count

of rape in 2008, although that conviction was reversed by the Ohio Eighth

District Court of Appeals in 2009. In 2010, following remand, Petitioner

was convicted on his plea of guilty to one count of rape. He filed no

appeal from the 2010 conviction. On April 6, 2012, the Magistrate Judge

recommended that Respondent’s Motion to Dismiss, Doc. No. 6, be granted

and that the claims asserted in this habeas corpus action be dismissed

as time-barred or unexhausted. Report and Recommendation, Doc. No. 9. 

Petitioner has filed objections to that Report and Recommendation.

Objection, Doc. No. 13. 

Petitioner does not address the untimeliness of his habeas corpus

petition; he argues only that the Court should excuse his failure to

exhaust his state court remedies. In particular, Petitioner argues that

his incarcerated, pro se status, the complexity of the state court

procedures and the futility of raising his claims in the state courts all

militate in favor of overlooking the exhaustion issue. 

Pursuant to 28 U.S.C. § 636(b), Fed. R. Civ. P. 72(b), this Court

has conducted a de novo review of the record. For the reasons detailed

in the Magistrate Judge’s Report and Recommendation, this Court agrees

that, to the extent that Petitioner intends to challenge his 2008 (i.e.,

reversed) conviction, the action is time-barred. Additionally, a

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petitioner’s incarcerated, pro se status does not provide a basis for the

equitable tolling of the statute of limitations. See Rose v. Dole, 945

F.2d 1331, 1335 (6th Cir. 1991)(ignorance of the law and lack of legal

advice does not constitute grounds for equitable tolling). To the extent

that Petitioner intends to challenge his 2010 conviction, his claims are

unexhausted because he has never filed an appeal from that conviction. 

Moreover, the record does not establish that pursuit of a delayed direct

appeal would be futile so as to excuse Petitioner’s failure to exhaust

his state court remedies. In short, this Court agrees that Respondent’s

Motion to Dismiss is meritorious. 

Although Petitioner requests an evidentiary hearing, the Court also

concludes that an evidentiary hearing is not required for the resolution

of this matter. No evidentiary hearing is required “where it would be

futile or where, as here, the record is complete and no fact that could

be developed would result in the granting of the writ.” Morris v.

Warden, Toledo Correctional Facility, No. 2:10-CV-00542, 2011 WL 245618,

at *2 (S.D. Ohio Jan. 26, 2011).

Petitioner’s Objection, Doc. 13, is OVERRULED. The Report and

Recommendation, Doc. No. 9, is ADOPTED and AFFIRMED. Respondent’s Motion

to Dismiss, Doc. No. 6, is GRANTED. 

This case is hereby DISMISSED. The Clerk is DIRECTED to enter FINAL

JUDGMENT.

 s/Algenon L. Marbley 

ALGENON L. MARBLEY

United States District Judge

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