1

 The appellate court stated, in relevant part: 

Appellant fails to provide a justifiable reason for filing his motion approximately

two years after his conviction. Further, appellant does not explain when he

learned that he could have appealed from his guilty plea. The substantial lag in

appellant filing his motion for delayed appeal, without justifiable explanation, is

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION

SANTI GRIPPER, 

CASE NO. 2:12-CV-364

Petitioner, JUDGE FROST

MAGISTRATE JUDGE ABEL

v. 

WARDEN, ROSS CORRECTIONAL

INSTITUTION, 

Respondent. 

REPORT AND RECOMMENDATION

Petitioner Santi Gripper, a prisoner at the Ross Correctional Institution, brings this action for

a 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 the United States

District Courts. 

The petition alleges that on May 21, 2008, Santi Gripper was convicted by his guilty plea

in the Court of Common Pleas for Franklin County, Ohio of murder with a gun specification. He

was sentenced to a term of 16 years to life in prison. 

Petitioner Gripper did not file an appeal of the sentence. Approximately two years later, on

April 28, 2010, he filed a motion for leave to file a delayed appeal. On July 20, 2010, the Ohio

Tenth District Court of Appeals denied his motion for delayed appeal for failure to provide good

cause for the untimely appeal.1

 Exhibit A-5 to Petition. Petitioner sought leave to appeal to the

Case: 2:12-cv-00364-GLF-MRA Doc #: 5 Filed: 07/02/12 Page: 1 of 5 PAGEID #: <pageID>
unreasonable and weighs against our granting the motion. 

Accordingly, we conclude that appellant had not provided sufficient reasons to

support his App.R. 5(A) motion for delayed appeal. Therefore, appellant’s

motion is denied. 

Exhibit A-5 to Petition.

2

Supreme Court of Ohio. On October 13, 2010, the Ohio Supreme Court denied leave to appeal and

dismissed the appeal as not involving any substantial constitutional question. Exhibit A-8 to

Petition. Meanwhile, on May 18, 2010, Petitioner filed a motion to withdraw his guilty plea.

The trial court denied Petitioner’s motion on December 3, 2010, and on July 26, 2011, the appellate

court affirmed the judgment of the trial court. Exhibit A-7 to Petition. Petitioner apparently did not

file an appeal. 

On April 26, 2012, Petitioner filed the instant petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. 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: 

1. Petitioner was denied Due Process under the U.S. Constitution

when theTrial Court and Counsel failed to inform the Petitioner of his

Appellate Rights and his right to Court Appointed Counsel.

2. Petitioner was denied His Sixth Amendment Right to the Effective

Assistance of Counsel when Counsel lied to the Appellant and the

Trial Court violated His Fourteenth Amendment Right when it

refused to allow the Petitioner to Withdraw his Guilty Plea based on

Counsel’s Insufficient Performance. 

STATUTE OF LIMITATIONS

28 U.S.C. § 2244(d) imposes a one-year statute of limitations on the filing of federal habeas

corpus petitions, providing as follows:

Case: 2:12-cv-00364-GLF-MRA Doc #: 5 Filed: 07/02/12 Page: 2 of 5 PAGEID #: <pageID>
3

(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’s judgment of conviction became final on June 20, 2008, thirty days after his

judgment of conviction, when the time period expired to file a timely appeal to the state appellate

court. See Ohio Appellate Rule 4(A); Keeling v. Warden, Lebanon Correctional Inst., 673 F.3d 452,

459-60 (6thCir. 2012)(citing Gonzalez v. Thaler, – U.S. –, 132 S.Ct. 641, 653054 (2012)(judgment

of conviction final at the expiration of time for pursuing direct review in the state court). The statute

of limitations expired one year later, on June 20, 2009. Petitioner waited two years and ten months

later, until April 20, 2012, to execute this habeas corpus petition. Moreover, he has failed to allege

any extraordinary circumstances beyond his control reflecting the statute of limitations should be

Case: 2:12-cv-00364-GLF-MRA Doc #: 5 Filed: 07/02/12 Page: 3 of 5 PAGEID #: <pageID>
4

equitably tolled. See Hall v. Warden, Lebanon Correctional Inst., 662 F.3d 745, 749 (6thCir.

2011)(citing Holland v. Florida, – U.S. –, 130 S.Ct. 2549, 2560 (2010)(a petitioner must establish

diligence in pursuing his rights and some that some extraordinary circumstance prevented him from

timely filing to obtain equitable tolling of the statute of limitations). Petitioner does allege that his

attorney and the trial court failed to advise him of his right to appeal and to the assistance of counsel

on appeal, but the petition does not allege when Petitioner first learned of his right to appeal his

sentence. Additionally, neither Petitioner’s April 28, 2010, motion for delayed appeal, nor his May

18, 2010, motion to withdraw guilty plea tolled or otherwise affected the running of the statute of

limitations, because Petitioner filed these motions long after the statute of limitations had already

expired. “The tolling provision does not ... ‘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.” Vroman v. Brigano, 346 F.3d

598, 601 (6th Cir.2003) (citing Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y.1998)); see

also Winkfield v. Bagley, 66 Fed.Appx. 578 (unpublished), 2003 WL 21259699 (6th Cir. May 28,

2003) (same). 

Accordingly, the Magistrate Judge RECOMMENDS that this action be DISMISSED for

failure to file the petition within the one-year period of limitations creabed by 28 U.S.C. §

2244(d)(1). 

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

Case: 2:12-cv-00364-GLF-MRA Doc #: 5 Filed: 07/02/12 Page: 4 of 5 PAGEID #: <pageID>
5

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/Mark R. Abel 

United States Magistrate Judge

Case: 2:12-cv-00364-GLF-MRA Doc #: 5 Filed: 07/02/12 Page: 5 of 5 PAGEID #: <pageID>