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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ANGELO PARKS, 

 

 Petitioner, CASE NO. 2:12-CV-1135 

 JUDGE GRAHAM 

 v. MAGISTRATE JUDGE KING 

MICHELE MILLER, WARDEN, 

BELMONT CORRECTIONAL 

INSTITUTION, 

 Respondent. 

REPORT AND RECOMMENDATION

 This is an action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is 

before the Court on the Petition, Doc. No. 3, Respondent’s Motion to Dismiss, Doc. No. 8, and 

the exhibits of the parties. Petitioner has not responded to the Motion to Dismiss. For the 

reasons that follow, the Magistrate Judge RECOMMENDS that Respondent’s Motion to 

Dismiss, Doc. No. 8, be GRANTED and that this action be DISMISSED as barred by the oneyear statute of limitations under 28 U.S.C. § 2244(d). 

PROCEDURAL HISTORY 

The Ohio Fifth District Court of Appeals summarized the procedural history of this case 

as follows: 

On September 17, 2010, the Stark County Grand Jury indicted 

appellant, Angelo Parks, on one count of felonious assault in 

violation of R.C. 2903.11(A)(1) and/or (2). Said charge arose after 

appellant and Maurice Jackson, appellant's girlfriend's son, had an 

argument and appellant, while holding a knife, swung at Maurice 

and cut his eye. 

A jury trial commenced on November 29, 2010. The jury found 

appellant guilty as charged. By judgment entry filed December 3, 

2010, the trial court sentenced appellant to seven years in prison. 

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Appellant filed an appeal and this matter is now before this court 

for consideration. Assignments of error are as follows: 

I “THE TRIAL COURT'S FINDING OF GUILT IS AGAINST 

THE MANIFEST WEIGHT AND SUFFICIENCY OF THE 

EVIDENCE.” 

II “IT WAS PLAIN ERROR FOR THE TRIAL COURT TO 

FAIL TO INSTRUCT THE JURY ON THE LESSER OFFENSES 

OF FELONIOUS ASSAULT.” 

III “THE TRIAL COURT VIOLATED THE APPELLANT'S 

RIGHT TO CONFRONTATION BY ADMITTING 

TESTIMONIAL EVIDENCE OF OUT–OF–COURT 

DECLARATION THROUGH POLICE OFFICER 

TESTIMONY.” 

State v. Parks, No. 2010CA00349, 2011 WL 2464198, at *1 (Ohio Appellate 5th Dist. June 20, 

2011). On June 20, 2011, the appellate court affirmed the judgment of the trial court. Id. 

Petitioner did not timely appeal from that decision. On August 24, 2012, i.e., more than one year 

later, Petitioner filed a motion for delayed appeal. Exhibits 19, 20 to Motion to Dismiss. The 

Ohio Supreme Court denied that motion on October 10, 2012. State v. Parks, 133 Ohio St.3d 

1410 (2012). On August 10, 2011, Petitioner filed a Motion to Vacate or Modify Order 

Requiring Payment of Court Costs, Fines and/or Restitution. Exhibit 10 to Motion to Dismiss. 

On August 15, 2011, the trial court denied that motion. Exhibit 11 to Motion to Dismiss. 

On October 18, 2011, Petitioner filed a motion to vacate or set aside judgment in the trial 

court, arguing that the trial court lacked jurisdiction, that he had been denied due process 

because police failed to take him before a magistrate immediately after his arrest, that fraud had 

been committed before the grand jury, and that he had been denied the effective assistance of 

counsel. Exhibit 12 to Motion to Dismiss. On November 23, 2011, the trial court dismissed that 

post-conviction action. Exhibit 14 to Motion to Dismiss. Petitioner did not file an appeal from 

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that decision, but he filed a Motion for Judicial Release on December 21, 2011. Exhibit 15 to 

Motion to Dismiss. The trial court denied that motion on December 27, 2011. Exhibit 16 to 

Motion to Dismiss. On May 24, 2012, Petitioner filed an application to reopen the appeal 

pursuant to Ohio Appellate Rule 26(B), asserting that he was denied the effective assistance of 

appellate counsel because his attorney failed to raise a claim of denial of effective assistance of 

trial counsel and failed to file a responsive brief. Exhibit 17 to Motion to Dismiss. On June 13, 

2012, the appellate court denied Petitioner’s Rule 26(B) application for failure to establish good 

cause for the untimeliness of the filing. Exhibit 18 to Motion to Dismiss. Petitioner did not, 

apparently, file an appeal to the Ohio Supreme Court from that decision. 

Petitioner filed the pro se Petition on December 10, 2012. Petitioner asserts that he was 

denied effective assistance of trial counsel (claim one), that his convictions were against the 

manifest weight of the evidence and there was insufficient evidence to support his convictions 

(claim two), that he was denied a fair trial because the trial court failed to instruct the jury on 

felonious assault (claim three), that he was denied his right to confront witnesses against him 

(claim four), and that he was denied the effective assistance of appellate counsel (claim five). 

 Respondent contends in the Motion to Dismiss that this action is barred by the one-year 

statute of limitations. As noted supra, Petitioner has not responded to the Motion to Dismiss

despite being afforded the opportunity to do so and after having been advised of the 

consequences of his failure to respond to the Motion to Dismiss. Order, Doc. No. 9. 

STATUTE OF LIMITATIONS 

The Antiterrorism and Effective Death Penalty Act (“AEDPA”), which became effective 

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

petitions: 

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(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 

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). In the case presently before the Court, Petitioner’s judgment of conviction 

became final on August 4, 2011, i.e., forty-five days after the appellate court’s June 20, 2011, 

dismissal of his direct appeal, when the time for filing an appeal to the Ohio Supreme Court 

expired. See Keeling v. Warden, Lebanon Correctional Inst., 673 F.3d 452, 460 (6th Cir. 

2012)(citing Gonzalez v. Thaler, -- U.S. --, 132 S.Ct. 641 (2012)). The statute of limitations 

therefore began to run on August 5, 2011, and expired no later than August 5, 2012.1

 The 

Petition was filed on December 10, 2012; Petitioner signed his application for leave to proceed 

                                                            

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 2012 was a leap year. 

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in forma pauperis on November 20, 2012. In Forma Pauperis Declaration, Doc. No. 1. By 

either of those dates, however, the one-year statute of limitations had already expired. 

 Petitioner’s application to reopen the appeal pursuant to Ohio Appellate Rule 26(B) and 

his petition for post-conviction relief did not toll the running of the statute of limitations under 28 

U.S.C. § 2244(d), because the state courts denied both post-conviction filings as untimely. See 

Exhibits 14, 18 to Motion to Dismiss.2 Pace v. DeGuglielmo, 544 U.S. 408, 417 

(2005)(“Because the state court rejected petitioner’s [post-conviction relief] petition as untimely, 

it was not ‘properly filed,’ and hence he is not entitled to statutory tolling under § 2244(d)(2)”). 

Neither Petitioner’s Motion for Judicial Release nor his Motion to Vacate or Modify Order 

Requiring Payment of Court Costs, Fines and/or Restitution tolled the running of the statute of 

limitations because neither motion challenged or otherwise sought review of Petitioner’s 

conviction or sentence. See Thombs v. Voorhies, No. 2:08-cv-728, 2010 WL 1727259, at *2 

(S.D. Ohio April 27, 2010)(“‘[B]because petitioner's motions for judicial release did not seek 

collateral review of the underlying judgment or sentence that resulted in petitioner's 

incarceration, the statute of limitations was not tolled under § 2244(d)(2) during the time they 

were pending in the state courts.’”)(quoting Fleming v. Lazaroff, No. C-1-05-513, 2006 WL 

1804546, *3 (S.D. Ohio June 28, 2006)). 

Furthermore, Petitioner does not 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)(equitable tolling is appropriate where a petitioner has diligently pursued his 

rights and “some extraordinary circumstance” prevented him from timely filing). 

                                                            

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 The State filed a Motion to Dismiss and for Summary Judgment in response to Petitioner’s post- conviction 

petition, arguing that “the petition was not timely filed and does not state grounds which facially state a claim upon 

which relief can be granted.” Exhibit 13 to Motion to Dismiss, PageID #223. The trial court dismissed Petitioner’s 

post-conviction petition, stating, “For the reasons stated in the response to the petition filed by the State of Ohio, the 

Court finds said petition not well taken and dismisses the same.” Exhibit 14 to Motion to Dismiss. 

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 In short, the statute of limitations expired no later than August 5, 2012. Petitioner 

submitted his Petition for filing no earlier than November 20, 2012. This action is therefore 

untimely and cannot proceed. 

It is therefore RECOMMENDED that Respondent’s Motion to Dismiss, Doc. No. 8, be 

GRANTED and that this action be DISMISSED. 

PROCEDURE ON OBJECTIONS 

 If any party seeks review by the District Judge of this Report and Recommendation, that 

party may, within fourteen (14) days, file and serve on all parties objections to the Report and 

Recommendation, 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); Fed.R.Civ.P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy 

thereof. Fed.R.Civ.P. 72(b). 

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 

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); Smith v. Detroit Fed'n of Teachers, 

Local 231 etc., 829 F.2d 1370 (6th Cir.1987); United States v. Walters, 638 F.2d 947 (6th 

Cir.1981). 

        s/ Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

July 24, 2013

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