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. 

REPORT AND RECOMMENDATION

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

pursuant to 28 U.S.C. 2254. This matter is before the Court on that petition,

respondent’s return of writ, the exhibits of the parties, and petitioner’s reply. For the

reasons that follow, the Magistrate Judge RECOMMENDS that petitioner’s claims be

DISMISSED as time-barred.

 I. RELEVANT PROCEDURAL HISTORY

Because the Court will recommend disposition of this case because the petition

was clearly filed outside of the one-year limitations period provided for in 28 U.S.C.

§2244(d), the Court’s recitation of the procedural history of the case will be limited to

those filings which have an impact on the statute of limitations question. Before

reaching that issue, however, the Court responds to respondent’s suggestion that some

portion of the petition is a second or successive petition over which the Court lacks

jurisdiction absent a determination by the Court of Appeals that petitioner may proceed

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with a successive petition.

As background for this argument, respondent correctly notes that petitioner

previously filed a habeas corpus petition in this Court. See Lathan v. Warden Southeastern

Correctional Institution, Case No. 2:09-cv-1002. This Court dismissed the petition as

unexhausted, see Lathan v. Duffey, 2010 WL 419437 (S.D. Ohio January 27, 2010), and the

Court of Appeals affirmed this Court’s decision not to issue a certificate of appealability

as to that ruling. Lathan v. Duffey, No. 10-3253 (6th Cir. Nov. 3, 2010). 

In the current case, according to respondent, the petition contains not only those

claims previously dismissed on exhaustion grounds, but new claims which were not

raised in the prior action. Citing to 28 U.S.C. §2244(b)(3)(A), respondent contends that

grounds one, three and four in the instant petition are all new, and that the case should

either be dismissed outright or transferred to the Court of Appeals as a second petition,

which are the only two options available to the district court under 28 U.S.C. §1631, the

statutory section under which successive petitions are to be transferred to the Court of

Appeals. See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).

The problem with this argument is that in Carlson v. Pitcher, 137 F.3d 416, 420 (6th

Cir. 1998). the Court of Appeals specifically rejected this argument, stating:

We join with every other court to consider the question, and hold that a

habeas petition filed after a previous petition has been dismissed on

exhaustion grounds is not a “second or successive” petition implicating

the pre-filing requirement of obtaining an order of authority from the

court of appeals. Further, the very sound rationales supporting this result are

not altered by the additional consideration that the second-in-time petition may

contain new habeas claims not presented in the first petition. (Emphasis

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supplied).

Given this unequivocal holding, this Court cannot find that the instant petition is a

second or successive petition. Were it otherwise, the Court would have no jurisdiction

either to enter a judgment on the merits or to determine that the petition is time-barred. 

However, because there is no jurisdictional obstacle to the Court’s reaching these issues,

it now turns to the question of whether petitioner has filed his petition in a timely

fashion under the one-year statute of limitations found in §2244(d)(1).

The key facts relating to whether a habeas corpus petition is timely filed are the

dates on which certain actions were taken in or by the state courts. See 28 U.S.C.

§2244(d)(1)(A), which provides that the statute of limitations begins to run from “the

date on which the [state court] judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review ....” Here, petitioner was

convicted and sentenced pursuant to a guilty plea on December 14, 2007. Return of Writ,

Exhibit 6; see also State v. Lathan, 2010 WL 3722630 (Guernsey Co. App. September 23,

2010). The Court notes that the return, at 4, recites that the judgment was entered on

December 1, 2007, but this is incorrect, as the judgment entry itself recites that the

sentencing hearing took place on December 14, 2007. Under Ohio law, see Ohio App. R.

4(A), petitioner had thirty days, or until Monday, January 14, 2008, within which to file

a timely appeal. He did not. Rather, on September 2, 2009, he filed a motion for leave

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to file a delayed appeal. Return of Writ, Exhibit 7. Finding that petitioner had not

established cause for the delay, the court of appeals denied his motion. Return of Writ,

Exhibit 10. Petitioner unsuccessfully sought review from the Ohio Supreme Court.

On August 28, 2009, shortly before filing his motion for leave to file a delayed

appeal, petitioner filed a motion for leave to withdraw his guilty plea. He followed

that motion up with a post-conviction petition, which was filed on September 8, 2009. 

Both of these requests for relief were denied by the trial court on October 26, 2009, and

petitioner’s appeal of that decision was denied on grounds that the trial court did not

abuse its discretion in denying the motion for leave to withdraw the guilty plea and that

the post-conviction petition was untimely. State v. Lathan, supra. Petitioner again

sought review from the Ohio Supreme Court, but review was denied. State v. Lathan,

127 Ohio St.3d 1534 (February 2, 2011). Petitioner filed other motions in the state court

as well, but all of them were filed after August 28, 2009, so that is the earliest date on

which petitioner made any effort to appeal or otherwise contest the validity of his

conviction and sentence.

As noted above, petitioner also filed a habeas corpus petition in this court on

November 5, 2009, with an effective filing date of October 19, 2009. That petition was

dismissed on January 27, 2010, and the Court of Appeals denied a certificate of

appealability by way of an order dated November 3, 2010. The current petition was

filed on March 30, 2011, with an effective filing date of March 25, 2011. 

II. STATUTE OF LIMITATIONS

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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), effective

on April 24, 1996, imposes a one-year statute of limitations on the filing of habeas

corpus petitions. 28 U.S.C. § 2244(d) provides:

(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.

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. The statute of limitations therefore

began to run on that date, and expired one year later, on January 14, 2009. Petitioner

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filed neither this, or the prior, habeas corpus action by that date, nor any motion,

petition, or appeal in his state court case. Therefore, the statute of limitations expired

well before petitioner sought federal habeas corpus relief.

It is true that petitioner filed both numerous proceedings in state court after the

statute of limitations expired, and filed a prior habeas corpus action in this Court. As to

the state court proceedings, regardless of whether any of them were timely filed under

Ohio law (and some, like his post-conviction petition, clearly were not), the filing of

such matters after the statute of limitations has run “‘does not, however, ‘revive’ the

limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that

has not yet fully run. Once the limitations period is expired, collateral petitions can no

longer serve to avoid a statute of limitations.’” Vroman v. Brigano, 346 F.3d 598, 602 (6th

Cir. 2003), quoting Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998). The same

holds true for the untimely filing of a federal habeas corpus petition; not only does it

not revive a lapsed statute of limitations, but the statute is not even tolled while the

petition is pending. Rhines v. Weber, 544 U.S. 269, 274 (2005).

It is true, as the United States Supreme Court has held, that the one-year statute

of limitations is not a jurisdictional bar and is subject to equitable tolling. Holland v.

Florida, ––– U.S. ––––, 130 S.Ct. 2549, 2562 (2010). The Holland Court held that a habeas

petitioner is entitled to equitable tolling “only if he [or she] shows ‘(1) that he [or she]

has been pursuing his [or her] rights diligently, and (2) that some extraordinary

circumstance stood in his [or her] way’ and prevented timely filing.” Id. at 2562 (quoting

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Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Robertson v. Simpson, 624 F.3d 781,

783 (6th Cir.2010) (courts may review time-barred petitions for habeas corpus under the

doctrine of equitable tolling provided that “a litigant's failure to meet a legallymandated deadline unavoidably arose from circumstances beyond that litigant's

control”). “The petitioner has the burden of demonstrating that he [or she] is entitled to

equitable tolling.” Allen v. Yukins, 366 F.3d 396, 401 (6th Cir.2004).

When deciding whether equitable tolling should apply, courts consider the

following 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. United States, 250 F.3d 1001, 1008–09 (6th Cir.2001).

Here, there are no factors in the record suggesting that equitable tolling would

apply. In his traverse, petitioner focuses on his jurisdictional claims and presents little,

if any, argument on the subject of the statute of limitations. To the extent that he

contends that recent amendments to the federal sentencing law for crack cocaine

offenses somehow makes his claims timely, those amendments apply only to

defendants who were sentenced in federal court originally, and they have no

application here. He has presented no other argument on the issue of equitable tolling

nor argued that any of the Dunlap factors apply here. The Court therefore concludes

that petitioner has not shown that equitable tolling is appropriate. That being so, his

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petition must be dismissed as untimely.

 III. RECOMMENDED DISPOSITION

For all the foregoing reasons, the Magistrate Judge RECOMMENDS that

petitioner’s claims be DISMISSED as barred by the one-year statute of limitations

found in 28 U.S.C. §2244(d)(1). 

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within

fourteen days of the date of this Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge of this Court shall

make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made. Upon proper objections, a

judge of this Court may accept, reject, or modify, in whole or in part, the findings or

recommendations made herein, may receive further evidence or may recommit this

matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review

the Report and Recommendation de novo, and also operates as a waiver of the right to

appeal the decision of the District Court adopting the Report and Recommendation. See

Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

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 /s/ Terence P. Kemp 

United States Magistrate Judge

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