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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

THOSHA ALLISON, 

 CASE NO. 2:12-CV-634 

 Petitioner, JUDGE SMITH 

 MAGISTRATE JUDGE ABEL 

 v. 

WARDEN, MADISON 

CORRECTIONAL INSTITUTION, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner Tosha Allison, a state prisoner, brings this action for a writ of habeas corpus 

under 28 U.S.C. § 2254. This matter is before the magistrate judge on the 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 respondent’s Motion to Dismiss, Doc. No. 6, 

be GRANTED and that this action be DISMISSED as barred by the one-year statute of 

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

 This action involves petitioner’s challenge to actions of the Ohio Parole Board in regard 

to petitioner’s August 15, 1989, incarceration on six to fifteen years for an Allen County robbery 

conviction and his December 7, 1989, sentenced to an additional six to twenty-five years on a 

Seneca County aggravated robbery conviction; a six to fifteen year sentence on a Franklin 

County robbery conviction, and a six to twenty-five year sentence on aggravated robbery 

conviction plus a three year firearm specification. All of the foregoing sentences were to be 

served concurrently to each other. Petitioner’s maximum expiration of sentence was computed 

to be November 11, 2017. Exhibit 1 to Motion to Dismiss. Petitioner was released on parole in 

July 1998; however, he was re-admitted to prison in November 1999, on additional charges of 

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aggravated robbery, kidnapping, aggravated burglary, and having a weapon while under 

disability. His maximum expiration of sentence on these new charges was computed to be 

November 10, 2022. On August 18, 2000, petitioner appeared before the parole board for a 

mitigation hearing. His parole was revoked and, on May 11, 2011, his prior sentence on the new 

charges was reduced such that his new maximum expiration of sentence was calculated to be 

November 10, 2020. Exhibits 1F, 1 to Motion to Dismiss. On July 27, 2011, petitioner appeared 

before the parole board for a hearing. His parole was continued to July 1, 2014. Exhibit 7 to 

Motion to Dismiss. In 2012, petitioner wrote a letter to Cynthia Mauser, Chair of the Ohio 

Parole Board, arguing that his mitigation hearing was untimely and challenging the calculation of 

his maximum release date. Exhibit 8 to Motion to Dismiss. 

 On July 16, 2012, petitioner filed this action for a writ of habeas corpus under 28 U.S.C. 

§ 2254. Petitioner asserts that he was denied due process because the Ohio Adult Parole 

Authority failed to provide him with a timely mitigation hearing prior to revocation of his parole, 

and did not release him (claim one); and that the parole board usurped judicial authority by 

changing his release dates and extending his sentence beyond 2017 (claim two). It is the position 

of the respondent that this action must be dismissed as barred by the one-year statute of 

limitations. 

STATUTE OF LIMITATIONS 

 The Antiterrorism and Effective Death Penalty Act of 1996, which became effective on 

April 24, 1996, provides for a one-year statute of limitations on the filing of habeas corpus 

actions. 28 U.S.C. § 2244(d)(1) provides: 

(d) (1) A one-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 

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(A) the date on which the judgment became final by the conclusion 

of dir2ect 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. 

28 U.S.C. § 2244(d)(1),(2). 

 Petitioner challenges the authority of the Ohio Parole Board to extend the term of his 

maximum date of release from 2017 to 2020 based on his conviction on a firearm specification, 

and parole board’s authority to revoke his parole on August 18, 2000, without holding a timely 

mitigation hearing where petitioner could have presented evidence regarding mistaken identity. 

See Petitioner’s Response. The United States Court of Appeals for the Sixth Circuit has held 

that, “[u]nder Ohio Admin. Code § 5120:1-1-18(B), a parole revocation hearing becomes final 

when a hearing officer for the Ohio Adult Parole Authority determines that the defendant 

violated the conditions of his release and, therefore, the revocation sanction should be imposed.” 

Klopp v. Wolfe, 8 Fed.Appx. 444, 446 (6th Cir. 2001). Here, that date was August 18, 2000. 

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Further, petitioner has failed to set forth any reason to justify equitable tolling of the statute of 

limitations. Plainly, therefore, this action is time-barred. 

 Moreover, even assuming, arguendo, that were not the case, the record before this court 

demonstrates that petitioner has not exhausted his state court remedies. This action is subject to 

dismissal on this basis as well. See, e.g., Papenfus v. Tibbals, 289 F.Supp.2d 897, 900-901 (N.D. 

Ohio 2003)(claim of improper parole revocation unexhausted where petitioner failed to attempt 

to raise the claim in Ohio courts through a petition for a writ of mandamus or a petition for a writ 

of habeas corpus). 

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

Dismiss, Doc. No. 6, be GRANTED and that this action be DISMISSED. 

Procedure on Objections: 

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

(14) 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 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). 

 s/Mark R. Abel 

Magistrate Judge Mark R. Abel 

 

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