IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JESUS M. SILVA, 

Petitioner, CASE NO. 2:11-CV-671

JUDGE GEORGE C. SMITH

v. MAGISTRATE JUDGE E.A. PRESTON DEAVERS

ROBIN KNAB, 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 the instant Petition, Respondent’s Motion to

Dismiss, Petitioner’s Response, and the exhibits of the parties. For the reasons that follow, the

Magistrate Judge RECOMMENDS that this action be DISMISSED as barred by the one-year

statute of limitations under 28 U.S.C. § 2244(d). 

PROCEDURAL HISTORY

 Petitioner challenges his November 2, 2007 convictions made pursuant to his guilty plea in

the Franklin County Court of Common Pleas on two counts of trafficking in cocaine and one count

of engaging in a pattern of corrupt activity. The Ohio Tenth District Court of Appeals summarized

the facts and procedural history of this case as follows:

Silva was born in Sonora, Mexico in 1958. According to a

sentencing memorandum filed on his behalf, he became a resident of

the United States in 1979. He had been a resident of this country for

approximately 28 years when he entered his guilty pleas. He was

offered the opportunity to talk to a representative of the Mexican

government at the time his guilty pleas were entered.

When asked during the plea proceedings if he was able to read, write

and understand the English language, he responded: “I understand.

I can read, but not 100 percent.” (Tr. at 9.) The judge who accepted

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the pleas offered to review anything Silva did not understand or any

words which were unfamiliar.

Prior to this part of the colloquy between Silva and the judge, the

assistant prosecuting attorney handling the case stated in open court

that each count carried a maximum of ten years in prison and the two

trafficking charges each carried a mandatory period of incarceration

of three-to-ten years.

The plea form signed by Silva and by his retained counsel included

provisions which indicated that each of the trafficking charges

included a mandatory prison terms of three-to-ten years.

The trial judge who conducted the plea proceedings did not

independently repeat the statements. However, given the statement

in open court that two of the sentences were mandatory and the

content of the written guilty plea form, we have no basis for finding

that Silva was unaware that the sentences involved mandatory

incarceration of three-to-ten years for each of the trafficking offenses.

The trial judge who conducted the pleas carefully complied with the

remaining requirements of Crim.R. 11.

The Supreme Court of Ohio requires only substantial compliance

with Crim.R. 11(C)(2). See State v. Nero (1990), 56 Ohio St.3d 106,

564 N.E.2d 474. The trial judge immediately after addressing the

maximum penalties asked Silva if he had any questions for the judge.

Silva replied, “No, your Honor.” (Tr. at 13.)

Next the trial judge offered Silva the opportunity to talk to his

lawyer, after which the judge asked: “Do you have any questions at

all?” Silva replied again, “No, your Honor.” (Tr. at 14.)

Before the colloquy between Silva and the trial judge, an

investigating narcotics agent had given an extended narrative about

the criminal investigation of the cocaine trafficking in which Silva

was involved. The investigation revealed the seizure of $1,000,000

in cash and 25 kilograms of cocaine. Under the circumstances, Silva

could not conceivably have believed that he would receive

community control or incarceration at a community based

correctional facility. The pleas entered capped that sentence at 30

years. The prosecuting attorney's office argued for a sentence of 25

years. The trial judge eventually handed down a sentence of 20 years

of incarceration.

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State v. Silva, No. 07AP-986, 2009 WL 388235, at *1-2 (Ohio App. 10th Dist. Feb. 17, 2009). 

Petitioner filed a timely appeal. 

Silva filed his own appellate brief in which he sets forth the following

assignment of error:

A guilty plea must be reversed if under the totality of

the circumstances the defendant did not subjectively

understand the implications of his plea and the

waiving of his rights.

Subsequently, legal counsel filed a supplemental brief on behalf of

Silva and submitted the following assignment of error in addition:

The trial court failed to substantially comply with the

requirements of Criminal Rule 11 by not informing

appellant that his sentences would be mandatory.

Id. at *1. On February 17, 2009, the appellate court affirmed the trial court’s judgment. Id. 

According to Petitioner, on March 17, 2009, the appellate court denied Petitioner’s motion for

reconsideration. On June 17, 2009, the Ohio Supreme Court dismissed Petitioner’s subsequent

appeal. State v. Silva, 122 Ohio St.3d 1412 (2009). Petitioner filed a motion for leave to again

appeal in the state appellate court, which motion was denied on March 16, 2010. Exhibits 36, 37

to Motion to Dismiss. On March 29, 2010, Petitioner moved for reconsideration of the March 16,

2010, decision. Exhibit 38 to Motion to Dismiss. On April 22, 2010, the appellate court denied

Petitioner’s motion. Exhibit 40 to Motion to Dismiss. On August 25, 2010, the Ohio Supreme Court

dismissed Petitioner’s subsequent appeal. Exhibit 44 to Motion to Dismiss. 

On July 26, 2011, Petitioner filed the instant pro se Petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. He signed the Petition on July 16, 2011. He alleges that he is in the

custody of the Respondent in violation of the Constitution of the United States based upon the

following grounds: 

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1. A court’s failure to address the core concerns underlying

Crim. R. 11, understanding of the sentencing, violates the

Due Process requirements of voluntariness guaranteed by the

Fourteenth Amendment to the United States Constitution.

2. A court’s failure to address its statutory mandated duty to

review a sentence that is contrary to law and is void, violates

the Due Process requirement guaranteed by the Fourteenth

Amendment to the United States Constitution. 

Respondent contends that Petitioner's claims are time-barred.

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.

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(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's judgment became final on September 15, 2009, i.e., ninety days after the Ohio Supreme

Court's June 17, 2009 dismissal of Petitioner's direct appeal, when the time to file a petition for a

writ of certiorari to the United States Supreme Court expired. The issue of whether Petitioner’s

habeas corpus petition is timely, therefore, turns on whether any of his subsequent filings, all of

which relate to his February 17, 2010 motion for a delayed or a second appeal, tolled the running

of the statute of limitations. If they do not, the statute of limitations expired on September 15, 2010. 

Petitioner waited until July 16, 2011 to execute his habeas corpus petition.

 Under 28 U.S.C. 2244(d)(2), a state collateral action is properly filed within the meaning

“when its delivery and acceptance are in compliance with the applicable laws and rules governing

filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). An untimely state post conviction or collateral

action does not toll the running of the statute of limitations. Pace v. DiGuglielmo, 531 U.S. 408, 417

(“time limits, no matter their form, are ‘filing conditions’”). That said, the state courts may reject

a state collateral or post conviction action on a “substantive basis,” such as procedural default, and

the action nonetheless will be considered “properly filed” within the meaning of § 2244(d)(2) so as

to toll the running of the statute of limitations. Williams v. Birkett, 670 F.3d 729, 733 (6th Cir.

2012)(citing Artuz v. Bennett, 531 U.S. at 10-11). 

Here, the state appellate court rejected Petitioner’s February 17, 2010 motion for leave to

appeal, stating that his earlier appeal and the sentencing issues he was attempting to raise in the

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requested second appeal were barred from further appellate review under the technical phrase of res

judicata, and could not be raised in a new appeal. See Exhibit 37 to Return of Writ. The state

appellate court denied Petitioner’s subsequent motion for reconsideration of that decision as

untimely. Exhibit 40 to Return of Writ. The Ohio Supreme Court thereafter summarily dismissed

Petitioner’s appeal as not involving any substantial constitutional question. Exhibit 44 to Return of

Writ. 

Petitioner’s untimely motion for reconsideration did not toll the running of the statute of

limitations. Assuming that Petitioner’s motion for a second appeal constitutes a collateral or post

conviction petition, nonetheless, this Court cannot conclude that it tolled the running of the statute

of limitations under § 2244(d)(2). Ohio permits only one appeal as of right. Petitioner’s motion was

barred under Ohio law. The Supreme Court similarly reasoned in Pace v. DiGuglielmo that “a

petition that cannot even be initiated or considered . . . is not ‘properly filed’ ” under § 2244(d)(2). 

544 U.S. at 417; see also Williams v. Birkett, 670 F.3d at 733 (citing Pace)(successive motion for

relief from judgment not properly filed under § 2244(d)(2)). Further, Petitioner has failed to allege

any extraordinary circumstances that would justify equitable tolling of the statute of limitations. See

Holland v. Florida, – U.S. –, 130 S.Ct. 2549, 2562 (2010)(the statute of limitations may be equitably

tolled under extraordinary circumstances).

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

Dismiss, Doc. No 7, be GRANTED and this action be DISMISSED as time-barred.

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

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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).

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: April 24, 2012

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