IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Bruce Wightman,

Petitioner

v.

Ronald Morgan, Warden

Respondent

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Case No. 2:12-cv-0316

Judge Watson

Magistrate Judge Abel

Report and Recommendation

Petitioner Bruce Wightman, a prisoner at the Southern Ohio Correctional Facility, brings this action for writ of habeas corpus under 28 U.S.C. §2254. This matter is

before the Magistrate Judge for preliminary consideration under Rule 4, Rules Governing Section 2254 Cases in United States District Courts.

The petition alleges that on November 8, 2005, petitioner Wightman was convicted for kidnapping with the purpose of engaging in sexual activity in the Court of

Common Pleas for Fayette County, Ohio. On November 13, 2005, he was sentenced to a

term of 11 years in prison.

The petition alleges that petitioner filed a notice of appeal. On January 14,

2008, the Ohio Court of Appeals for the Twelth Appellate District issued a decision

affirming the judgment of conviction. Petitioner did not file a motion for leave to

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The limitation period begins to run at a later date if there is an impediment to

the filing of the habeas corpus petition created by the state in violation of the constitution, the constitutional right is newly-recognized, or petitioner could not have discovered by the exercise of due diligence a factual predicate to the claim. 28 U.S.C.

§2244(d)(1)(B), (C) and (D). None of those situations apply here. 

Further, the limitation period is stayed during the time a properly filed Ohio

petition for post-conviction relief or other collateral review with respect to the judgment

or claim is pending. 28 U.S.C. §2244(d)(2). Petitioner did not file a petition for postconviction relief.

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appeal to the Supreme Court of Ohio. On the Supreme Court of Ohio issued a decision

denying the motion for leave to appeal.

On April 4, 2011, petitioner filed a motion for leave to reopen his direct appeal. 

On June 12, 2001, the Ohio Court of Appeals for the Twelfth Appellate District issued a

decision denying the motion as untimely. Petitioner file a motion for leave to appeal

from that decision. On October 5, 2011, the Supreme Court of Ohio denied the motion

for leave to appeal.

Petitioner alleges that he is in custody in violation of the United States Constitution because his trial attorney filed a plea of not guilty by reason of insanity without his

knowledge and against his wishes.

The petition for writ of habeas corpus herein was filed April 11, 2012. Under the

provisions of 28 U.S.C. §2244(d)(1), there is a one-year period of limitation for persons

filing a federal petition for writ of habeas corpus. The limitation period begins to run

from the date the judgment became final by the conclusion of direct review. 28 U.S.C.

§2244(d)(1)(A).1 Petitioner was convicted in November 2006. He a direct appeal; but he

did not file a motion for leave to appeal to the Supreme Court of Ohio from the Court of

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Rule II, § 2(A)(1), Rules of Practice of the Supreme Court of Ohio provides that a

notice of appeal to the Supreme Court of Ohio within “45 days from the entry of the

judgment being appealed.”

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Appeals's January 14, 2008 decision affirming his conviction. His conviction became

final forty-five days later when his time to file a motion for leave to appeal to the Supreme Court of Ohio expired.2

 He had one year from the date his conviction became

final by conclusion of direct review to file a federal petition for writ of habeas corpus. 

28 U.S.C. § 2244(d)(1)(A). He failed to do so. Further, the petition fails to allege any

extraordinary circumstances, beyond petitioner’s control, that made it impossible to file

a petition on time. See, Calderon v. United States District Court, 112 F.3d 386, 391-92 (9th

Cir. 1997).

Petitioner's motion for leave to reopen his direct appeal was filed long after the

statute of limitations for filing a federal habeas corpus petition had run. Further, since

the Court of Appeals denied the motion as untimely, the ineffective assistance of appellate counsel claim he attempted to raise in the motion is procedurally barred from review in federal habeas corpus. Van Hook v. Bobby, 661 F.3d 264, 269-71 (6th Cir. 2011).

Accordingly, the Magistrate Judge RECOMMENDS that this action be DISMISSED for failure to file the petition within the one-year period of limitation created by 28

U.S.C. §2244(d)(1). 

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

ten (10) days, file and serve on all parties a motion for reconsideration by the Court,

specifically designating this Report and Recommendation, and the part thereof in

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question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),

Fed. R. Civ. P.

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

Recommendation will result in a waiver of the right to de novo review by the District

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See

also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989). 

The Clerk of Court is DIRECTED to mail or email a copy of this Order to the

Attorney General of Ohio, Corrections Litigation Section, 150 East Gay Street 16th Floor,

43215. 

s/Mark R. Abel 

United States Magistrate Judge 

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