IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KEITH L. JONES, 

 CASE NO. 2:12-CV-177

Petitioner, JUDGE EDMUND A. SARGUS, JR. 

 MAGISTRATE JUDGE ELIZABETH P. DEAVERS

v. 

NORM ROBINSON, WARDEN, 

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. This matter is before the Court on Respondent’s Motion to Dismiss and the

exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that

Respondent’s Motion to Dismiss (Doc. 5), be GRANTED. 

FACTS and PROCEDURAL HISTORY

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of

this case as follows:

Jones was indicted on April 25, 2005 for three counts of identity

fraud, two counts of forgery and two counts of theft. He was

arraigned before a magistrate two days later and counsel was

appointed to represent him. Discovery was pursued and a pretrial was

held on the case on June 1, 2005. The case was scheduled for trial on

June 14, 2005.

The trial date was reassigned to July 11, 2005, via an entry signed by

Jones. The entry included a waiver of speedy trial rights for the

period of the continuance.

The case was continued from July 11, to September 7, 2005. Again,

Jones signed the entry and waived his speedy trial rights.

Nine days later, private counsel entered an appearance.

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The trial date of September 7, 2005 was also continued to November

3, 2005. Jones was present and once again signed the continuance

entry, complete with its waiver of speedy trial rights.

On September 7, 2005, a reporting recognizance bond was set for

Jones at the request of the State of Ohio. The trial court judge

assigned to the case was reluctant to approve the new bond.

After being released on his own recognizance, Jones did not appear

for his November 3, 2005 trial date. His recognizance bond was

revoked and a warrant issued for his arrest.

Jones was arrested again on January 10, 2007, over one year later.

His case was ordered to be reactivated.

Jones wrote a motion which he filed in the trial court in which he

stated that about one month after he failed to appear for trial on the

Ohio charges, he was sent to federal prison for 23 months as a parole

violator. He asked for his recognizance bond to be reinstated and for

counsel to be appointed to represent him.

Jones's Ohio charges were set for trial for February 8, 2007, but the

date was initially reassigned because the judge was in trial. Then,

apparently, a plea agreement was reached. As a part of the agreement,

a pre-sentence investigation was ordered and Jones was released on

a recognizance bond once again, as recommended by the State of

Ohio. A sentencing date of July 18, 2007 was set and then moved to

July 25, 2007.

Jones did not appear for his sentencing.

On September 14, 2007, counsel for the State of Ohio sent a letter to

Hamilton County, Ohio, asking that a detainer be placed on Jones,

who had been arrested in Cincinnati. Jones was sent to prison again

as a result of his Cincinnati arrest and attempts were made to retrieve

him from the correctional reception center.

A letter in the file indicates that Jones testified for the State of Ohio

in a death penalty jury trial in October 2007. The prosecuting

attorney's office in Hamilton County requested leniency for Jones as

a result.

In July 2008, Jones filed his first motion requesting that his felony

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charges, to which he had already pled guilty 17 months earlier, be

dismissed “pursuant to R.C. 2941.401.”

On December 10, 2009, Jones was finally sentenced to five years of

community control on the Franklin County charges. After he was

sentenced, he was returned to custody in Cincinnati, Ohio. He

apparently never saw his probation officer for over one year after

getting out of jail. He also committed new crimes in Cincinnati. He

was declared an absconder from probation in March 2010.

At his probation revocation hearing, he stipulated to violating the

terms of his probation. He had never pursued a direct appeal of his

convictions and sentence imposed in December 2009.

State v. Jones, No. 11AP-498, 2012 WL 457680, at *2-3 (Ohio App. 10th Dist. Feb. 14, 2012). On

May 5, 2011, the trial court revoked Petitioner’s community control and sentenced him to an

aggregate term of ten years incarceration. Exhibit 14 to Motion to Dismiss. Petitioner filed a timely

appeal. He raised the following sole ground for relief: 

THE APPELLANT'S PRO SE MOTION TO DISMISS PURSUANT

TO SECTIONS 2941.401 AND 2963.30 SHOULD HAVE BEEN

GRANTED BY THE TRIAL COURT BECAUSE MORE THAN

180 DAYS HAD ELAPSED BETWEEN THE TIME THE

DEMAND WAS MADE FOR A SPEEDY TRIAL AND THE TIME

THE APPELLANT ENTERED HIS GUILTY PLEA.

State v. Jones, 2012 WL 457680, at *3. In a supplemental brief, Petitioner additionally asserted he

was denied effective assistance of counsel and that the trial judge was biased. Exhibit 21 to Motion

to Dismiss. On February 14, 2012, the appellate court affirmed the trial court’s judgment. Id. 

Petitioner filed a timely appeal to the Ohio Supreme Court. Exhibits 24, 25 to Motion to Dismiss. 

That action apparently remains pending. 

Petitioner additionally pursued post conviction relief. See Exhibit 27 to Motion to Dismiss. 

The trial court denied this motion, and Petitioner filed a timely appeal. Exhibits 29, 31, 32 to Motion

to Dismiss. That action apparently remains pending in the Ohio Court of Appeals. 

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On December 9, 2011, Petitioner filed an action under 42 U.S.C. § 1983, entitled “Motion

for Injunctive Relief,” asserting that his rights under the Interstate Agreement on Detainers (“IAD”),

had been violated. Exhibit 37 to Motion to Dismiss. The Court construed his motion under 28

U.S.C. § 2254, and on January 10, 2012, dismissed the action. Exhibit 28 to Motion to Dismiss;

Jones v. Robinson, Case No. 11-CV-01104 (S.D. Ohio, Eastern Division).

On February 27, 2012, Petitioner filed the instant pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. He appears to be challenging the May 5, 2011, revocation of his

community control and imposition of ten years imprisonment based on what he contends were his

prior improper convictions and sentence on identity fraud. Petitioner asserts his convictions violated

the IAD and his right to a speedy trial, that he was denied effective assistance of counsel, and that

the trial judge was prejudiced by a conflict of interest. 

Respondent contends that this action constitutes a successive petition and alternatively, it is

the position of the Respondent that this action must be dismissed as unexhausted. 

SUCCESSIVE PETITIONS

Respondent contends that this action must be transferred to the United States Court of

Appeals for the Sixth Circuit for authorization for filing as a successive petition, because Petitioner

previously has filed an action construed under 28 U.S.C. § 2254 challenging his convictions under

the IAD. 

28 U.S.C. § 2244(b)(3)(A) states that before a second or successive petition for a writ of

habeas corpus can be filed in the district court, the applicant shall move in the appropriate circuit

court of appeals for an order authorizing the district court to consider the application.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court does not

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have jurisdiction to entertain a successive post-conviction motion or petition for writ of habeas

corpus in the absence of an order from the court of appeals authorizing the filing of such successive

motion or petition. Nelson v. United States, 115 F.3d 136 (2nd Cir. 1997); Hill v. Hopper, 112 F.3d

1088 (11th Cir. 1997). Unless the court of appeals has given approval for the filing of a second or

successive petition, a district court in the Sixth Circuit must transfer the petition to the Sixth Circuit

Court of Appeals. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997)( per curia ). Under § 2244(b)(3)(A),

only a circuit court of appeals has the power to authorize the filing of a successive petition for writ

of habeas corpus. Nunez v. United States, 96 F.3d 990 (7th Cir. 1996).

 The Court notes, however, that Petitioner did not identify his prior federal habeas corpus

petition as an action under 28 U.S.C. § 2254. Moreover, it does not appear that the Court warned

the Petitioner that any future claims would be barred under the AEDPA’s restriction on the filing

of successive petitions. See Ward v. Wolfenbarger, 323 F.Supp.2d 818, 826-27 (E.D. Mich. June

30, 2004)(citing Castro v. United States, 540 U.S. 375 (2003)(where a federal district court

recharacterizes a criminal defendant’s motion as a first motion under 28 U.S.C. § 2254, it must

notify the defendant and warn him that any subsequent motion under 2254 will be subject to the

AEDPA’s restrictions on the filing of successive petitions, providing the defendant with the

opportunity to either withdraw the motion or amend it to contain all of the claims the movant wishes

to raise)). This Court, therefore, will not consider the instant Petition as a second or successive

petition for a writ of habeas corpus for purposes of § 2244(b)(3)(A). Id. at 827. 

Nonetheless, the record reflects Petitioner’s habeas corpus petition plainly is time-barred.1

1

 Respondent contends that this action is timely on the basis that Petitioner is challenging

his May 5, 2001, revocation of probation. Return of Writ, at 10. Upon review of the habeas

corpus petition, however, this Court does not agree. Petitioner explicitly challenges the validity

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STATUTE OF LIMITATIONS

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which became

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 postconviction 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.

Petitioner challenges his December 10, 2009, convictions and sentence made pursuant to the

terms of his negotiated guilty plea. Because he did not file a timely appeal, his convictions became

final on January 8, 2011, thirty days after his judgment of sentence, when the time period expired

of his December 2010 guilty plea, based on expiration of his speedy trial rights, violation of the

IAD, and ineffective assistance of counsel. See Petition. 

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to file a timely appeal. See Searcy v. Carter, 246 F.3d 515, 518-19 (6th Cir. 2001); Marcum v.

Lazarof, 301 F.3d 480, 481 (6th Cir. 2002); Ohio App.R. 4(A). The statute of limitations expired

one year later, on January 8, 2012. The time period during which Petitioner’s prior federal habeas

corpus petition remained pending did not toll the running of the statute of limitations. Morris v.

Warden, Southern Ohio Corr. Facility, No. 10-CV-00542, 2010 WL 5644659, at *2 (citing Duncan

v. Walker, 533 U.S. 167, 181-82 (2001)). Petitioner waited until February 22, 2012 to initiate this

case and file this habeas corpus petition. Further, he has failed to allege any extraordinary

circumstances that would justify equitable tolling of the statute of limitations. 

WHEREUPON, the Magistrate Judge RECOMMENDS that Respondent’s Motion to

Dismiss (Doc. 5) be GRANTED. 

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen (14)

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

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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).

The parties are further advised that, if they intend to file an appeal of any adverse decision, 

they may submit arguments in any objections filed, regarding whether a certificate of appealability 

should issue.

 s/ Elizabeth A. Preston Deavers 

Elizabeth A. Preston Deavers

United States Magistrate Judge

Date: September 17, 2012

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