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AEDPA Time Limitations Not Tolled by Motion to Reopen Appeal
The U.S. Sixth Circuit Court of Appeals, affirming the U.S. District Court
for the Southern District of Ohio, held that an Ohio prisoner's motions in
state court to reopen his direct appeal and to withdraw his plea or vacate
his sentence did not toll the limitations period under the Antiterrorism
and Effective Death Penalty Act (AEDPA) for filing a federal petition for
habeas corpus, 28 U.S.C. §2244.
Larry R. Godfrey, an Ohio state prisoner, pled guilty in 1997 to eight
counts of gross sexual imposition and two counts of attempted felonious
sexual penetration. Godfrey was labeled a "sexual predator" under Ohio's
version of "Megan's Law," Ohio Revised Code Chapter 2950, at sentencing. He
appealed the label but not the conviction itself. A state appeals court
denied the appeal on August 28, 1998. Godfrey moved to reopen his direct
appeal in November 1998, on grounds of ineffective assistance of counsel.
The appeals court denied the motion in September 1999. In July 1999,
Godfrey moved to withdraw his plea or vacate his sentence. The trial court
denied Godfrey's motion, and this denial was affirmed by an appeals court
and the Ohio Supreme Court, the latter denial issuing in July 2000.
In April 2001, Godfrey filed a petition for habeas relief in federal
district court raising numerous constitutional issues. On a magistrate's
recommendation, the district court, over Godfrey's objections, dismissed
the petition as time-barred under 28 U.S.C. § 2244(d). Godfrey appealed.
The appeals court held that Godfrey's motion to reopen his direct appeal
would have tolled the statute of limitations if Godfrey had raised the
issues presented in his federal habeas petition. None of Godfrey's habeas
issues, though, were raised in the motion to reopen. Thus, the limitations
period was not tolled.
The court further held that Godfrey's motion to withdraw his guilty plea or
to vacate his sentence was not properly filed. It was filed in the trial
court while the motion to reopen his direct appeal was pending. Further, it
was filed outside the limitations period for post-conviction relief and was
therefore untimely. Thus the limitations period for habeas corpus relief
was not tolled. (Readers should note that the Ohio Supreme Court has since
held that there is no limitations period for a motion to withdraw a guilty
plea.)
The district court dismissal was affirmed. This case is published in the
Federal Appendix and is subject to rules governing unpublished cases. See:
Godfrey v. Beightler, 54 Fed. Appx. 431 (6th Cir. 2002).
for the Southern District of Ohio, held that an Ohio prisoner's motions in
state court to reopen his direct appeal and to withdraw his plea or vacate
his sentence did not toll the limitations period under the Antiterrorism
and Effective Death Penalty Act (AEDPA) for filing a federal petition for
habeas corpus, 28 U.S.C. §2244.
Larry R. Godfrey, an Ohio state prisoner, pled guilty in 1997 to eight
counts of gross sexual imposition and two counts of attempted felonious
sexual penetration. Godfrey was labeled a "sexual predator" under Ohio's
version of "Megan's Law," Ohio Revised Code Chapter 2950, at sentencing. He
appealed the label but not the conviction itself. A state appeals court
denied the appeal on August 28, 1998. Godfrey moved to reopen his direct
appeal in November 1998, on grounds of ineffective assistance of counsel.
The appeals court denied the motion in September 1999. In July 1999,
Godfrey moved to withdraw his plea or vacate his sentence. The trial court
denied Godfrey's motion, and this denial was affirmed by an appeals court
and the Ohio Supreme Court, the latter denial issuing in July 2000.
In April 2001, Godfrey filed a petition for habeas relief in federal
district court raising numerous constitutional issues. On a magistrate's
recommendation, the district court, over Godfrey's objections, dismissed
the petition as time-barred under 28 U.S.C. § 2244(d). Godfrey appealed.
The appeals court held that Godfrey's motion to reopen his direct appeal
would have tolled the statute of limitations if Godfrey had raised the
issues presented in his federal habeas petition. None of Godfrey's habeas
issues, though, were raised in the motion to reopen. Thus, the limitations
period was not tolled.
The court further held that Godfrey's motion to withdraw his guilty plea or
to vacate his sentence was not properly filed. It was filed in the trial
court while the motion to reopen his direct appeal was pending. Further, it
was filed outside the limitations period for post-conviction relief and was
therefore untimely. Thus the limitations period for habeas corpus relief
was not tolled. (Readers should note that the Ohio Supreme Court has since
held that there is no limitations period for a motion to withdraw a guilty
plea.)
The district court dismissal was affirmed. This case is published in the
Federal Appendix and is subject to rules governing unpublished cases. See:
Godfrey v. Beightler, 54 Fed. Appx. 431 (6th Cir. 2002).
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Related legal case
Godfrey v. Beightler
| Year | 2002 |
|---|---|
| Cite | 54 Fed. Appx. 431 (6th Cir. 2002) |
| Level | Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
LARRY R. GODFREY, Petitioner-Appellant, v. ROBERT E. BEIGHTLER, Warden, Respondent-Appellee.
No. 02-3499
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
54 Fed. Appx. 431; 2002 U.S. App.
December 10, 2002, Filed
NOTICE: [**1] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.
SUBSEQUENT HISTORY: US Supreme Court certiorari denied by Godfrey v. Beightler, 2003 U.S. (U.S., Oct. 6, 2003)
PRIOR HISTORY: Southern District of Ohio. 01-00397. Sargus Jr. 03-28-02.
DISPOSITION: All pending motions denied and district court order dismissing this petition as barred by the statute of limitations affirmed.
COUNSEL: LARRY R. GODFREY, Petitioner-Appellant, Pro se, Caldwell, OH.
For ROBERT E. BEIGHTLER, Respondent-Appellee: Diane Mallory, Office of the Attorney General, Columbus, OH.
JUDGES: Before: GUY and BOGGS, Circuit Judges; EDMUNDS, District Judge. *
* The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of Michigan, sitting by designation.
OPINION: [*431]
ORDER
Before: GUY and BOGGS, Circuit Judges; EDMUNDS, District Judge. *
* The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of Michigan, sitting by designation.
[**2]
Larry R. Godfrey, an Ohio state prisoner, moves for the appointment of counsel and appeals a district court order dismissing his petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).
Godfrey entered a guilty plea in 1997 to eight counts of gross sexual imposition and two counts of attempted felonious sexual [*432] penetration. In his direct appeal, he did not challenge his conviction, but only his adjudication as a sexual predator. The Ohio Court of Appeals rejected his appeal on August 28, 1998. Godfrey did not appeal from that decision, which then became final forty-five days later. In November 1998, Godfrey moved to reopen the direct appeal to argue ineffective assistance of appellate counsel in the previous proceeding. In September 1999, the Ohio Court of Appeals rejected that argument, and Godfrey again did not appeal. However, he filed in July 1999 a motion to withdraw his plea, or in the alternative to vacate his sentence, raising for [**3] the first time some of the issues he presents in this habeas corpus action. The trial court dismissed the motion in August 1999, finding that it lacked jurisdiction to consider a motion to withdraw the plea because the reopened appeal was still pending, and that a motion to vacate sentence would be untimely. The Ohio Court of Appeals affirmed this decision, and the Ohio Supreme Court dismissed the appeal in July 2000.
In April 2001, Godfrey filed this action for federal habeas corpus relief, raising claims of involuntary plea, coerced confession, unconstitutional search, failure to disclose evidence, double jeopardy violations, speedy trial violations, prosecutorial misconduct, ineffective assistance of counsel, unconstitutional sentence, insufficient evidence, denial of the right to appeal, and ineffective assistance of counsel on appeal. A magistrate judge recommended that the petition be dismissed as barred by the one-year statute of limitations, 28 U.S.C. § 2244(d), concluding that even if the motion to reopen the direct appeal tolled the running of the statute, the motion to vacate sentence did not because it was untimely. The district court adopted this [**4] recommendation, over Godfrey's objections, and dismissed the petition. On appeal, Godfrey argues that his petition was not time-barred or alternatively that equitable tolling should apply. He also argues that he should have received an evidentiary hearing in the district court.
Because Godfrey's conviction became final in October 1998 and this petition was not filed until April 2001, the petition would be barred by the one-year statute of limitations unless both Godfrey's motion to reopen his direct appeal and his motion to vacate sentence tolled the statutory period, or equitable tolling were applied. A motion to reopen a direct appeal in Ohio tolls the running of the statute of limitations, Bronaugh v. Ohio, 235 F.3d 280, 285-86 (6th Cir. 2000), but only if the motion to reopen raised issues presented in the federal habeas corpus petition. See Austin v. Mitchell, 200 F.3d 391, 395 (6th Cir. 1999). The district court did not reach this issue, but it is clear from the record that Godfrey's motion to reopen his direct appeal only concerned ineffective assistance of appellate counsel in challenging his adjudication as a sexual predator. His brief in [**5] the state court stated that the issue was not the reversal of the conviction, but his adjudication as a sexual predator, which required registration and notification after release. This federal habeas corpus petition raises no issue regarding Godfrey's adjudication as a sexual predator. The claims of ineffective assistance of appellate counsel presented in this petition concern the failure to attack the conviction on direct appeal. Therefore, the motion to reopen the direct appeal did not toll the running of the statute of limitations for this petition.
The district court correctly concluded that Godfrey's motion to withdraw plea or to vacate sentence also did not toll the running of the statute of limitations, because the motion was not properly filed [*433] under Ohio law. The Ohio courts concluded that no motion to withdraw plea could be entertained while the reopened appeal was pending. Although Godfrey disputes this conclusion, he has cited no authority to the contrary. The federal courts defer to the state courts' interpretation of state filing requirements. Israfil v. Russell, 276 F.3d 768, 771, 18 Fed. Appx. 278 (6th Cir. 2001), cert. denied, 152 L. Ed. 2d 1041, 122 S. Ct. 1985 (2002). [**6] The state courts also concluded that the motion to vacate sentence was untimely under Ohio Rev. Code § 2953.21(A), which requires that a motion to vacate be filed within 180 days of the filing of the transcript in the appeals court. Godfrey argues that this section does not apply to offenses committed before its enactment. However, the statute contained a grace period for convictions before its enactment, indicating that subsequent convictions would be governed by the 180-day rule. Godfrey also argues that his motion to vacate was timely under this rule, because the complete transcript was not filed until the direct appeal was reopened. The state courts rejected this argument, finding that the pertinent date was the date on which the transcript was filed in connection with the direct appeal. Therefore, the motion to vacate was untimely, and did not toll the statutory period for filing this petition. Israfil, 276 F.3d at 771.
Finally, we conclude that equitable tolling should not be applied in this case. Although Godfrey claims that he was unaware of the statutory filing requirement, he was not diligent in pursuing his rights, as he raised none of these issues until [**7] almost two years after his conviction, and he has not shown that the respondent would not be prejudiced in responding to his dilatory claims. See Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir.), cert. denied, 534 U.S. 1057, 122 S. Ct. 649, 151 L. Ed. 2d 566 (2001). It is also clear that no evidentiary hearing was required in this case, as all of the pertinent dates and issues are contained in the record.
Accordingly, all pending motions are denied and the district court order dismissing this petition as barred by the statute of limitations is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit.
No. 02-3499
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
54 Fed. Appx. 431; 2002 U.S. App.
December 10, 2002, Filed
NOTICE: [**1] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.
SUBSEQUENT HISTORY: US Supreme Court certiorari denied by Godfrey v. Beightler, 2003 U.S. (U.S., Oct. 6, 2003)
PRIOR HISTORY: Southern District of Ohio. 01-00397. Sargus Jr. 03-28-02.
DISPOSITION: All pending motions denied and district court order dismissing this petition as barred by the statute of limitations affirmed.
COUNSEL: LARRY R. GODFREY, Petitioner-Appellant, Pro se, Caldwell, OH.
For ROBERT E. BEIGHTLER, Respondent-Appellee: Diane Mallory, Office of the Attorney General, Columbus, OH.
JUDGES: Before: GUY and BOGGS, Circuit Judges; EDMUNDS, District Judge. *
* The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of Michigan, sitting by designation.
OPINION: [*431]
ORDER
Before: GUY and BOGGS, Circuit Judges; EDMUNDS, District Judge. *
* The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of Michigan, sitting by designation.
[**2]
Larry R. Godfrey, an Ohio state prisoner, moves for the appointment of counsel and appeals a district court order dismissing his petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).
Godfrey entered a guilty plea in 1997 to eight counts of gross sexual imposition and two counts of attempted felonious sexual [*432] penetration. In his direct appeal, he did not challenge his conviction, but only his adjudication as a sexual predator. The Ohio Court of Appeals rejected his appeal on August 28, 1998. Godfrey did not appeal from that decision, which then became final forty-five days later. In November 1998, Godfrey moved to reopen the direct appeal to argue ineffective assistance of appellate counsel in the previous proceeding. In September 1999, the Ohio Court of Appeals rejected that argument, and Godfrey again did not appeal. However, he filed in July 1999 a motion to withdraw his plea, or in the alternative to vacate his sentence, raising for [**3] the first time some of the issues he presents in this habeas corpus action. The trial court dismissed the motion in August 1999, finding that it lacked jurisdiction to consider a motion to withdraw the plea because the reopened appeal was still pending, and that a motion to vacate sentence would be untimely. The Ohio Court of Appeals affirmed this decision, and the Ohio Supreme Court dismissed the appeal in July 2000.
In April 2001, Godfrey filed this action for federal habeas corpus relief, raising claims of involuntary plea, coerced confession, unconstitutional search, failure to disclose evidence, double jeopardy violations, speedy trial violations, prosecutorial misconduct, ineffective assistance of counsel, unconstitutional sentence, insufficient evidence, denial of the right to appeal, and ineffective assistance of counsel on appeal. A magistrate judge recommended that the petition be dismissed as barred by the one-year statute of limitations, 28 U.S.C. § 2244(d), concluding that even if the motion to reopen the direct appeal tolled the running of the statute, the motion to vacate sentence did not because it was untimely. The district court adopted this [**4] recommendation, over Godfrey's objections, and dismissed the petition. On appeal, Godfrey argues that his petition was not time-barred or alternatively that equitable tolling should apply. He also argues that he should have received an evidentiary hearing in the district court.
Because Godfrey's conviction became final in October 1998 and this petition was not filed until April 2001, the petition would be barred by the one-year statute of limitations unless both Godfrey's motion to reopen his direct appeal and his motion to vacate sentence tolled the statutory period, or equitable tolling were applied. A motion to reopen a direct appeal in Ohio tolls the running of the statute of limitations, Bronaugh v. Ohio, 235 F.3d 280, 285-86 (6th Cir. 2000), but only if the motion to reopen raised issues presented in the federal habeas corpus petition. See Austin v. Mitchell, 200 F.3d 391, 395 (6th Cir. 1999). The district court did not reach this issue, but it is clear from the record that Godfrey's motion to reopen his direct appeal only concerned ineffective assistance of appellate counsel in challenging his adjudication as a sexual predator. His brief in [**5] the state court stated that the issue was not the reversal of the conviction, but his adjudication as a sexual predator, which required registration and notification after release. This federal habeas corpus petition raises no issue regarding Godfrey's adjudication as a sexual predator. The claims of ineffective assistance of appellate counsel presented in this petition concern the failure to attack the conviction on direct appeal. Therefore, the motion to reopen the direct appeal did not toll the running of the statute of limitations for this petition.
The district court correctly concluded that Godfrey's motion to withdraw plea or to vacate sentence also did not toll the running of the statute of limitations, because the motion was not properly filed [*433] under Ohio law. The Ohio courts concluded that no motion to withdraw plea could be entertained while the reopened appeal was pending. Although Godfrey disputes this conclusion, he has cited no authority to the contrary. The federal courts defer to the state courts' interpretation of state filing requirements. Israfil v. Russell, 276 F.3d 768, 771, 18 Fed. Appx. 278 (6th Cir. 2001), cert. denied, 152 L. Ed. 2d 1041, 122 S. Ct. 1985 (2002). [**6] The state courts also concluded that the motion to vacate sentence was untimely under Ohio Rev. Code § 2953.21(A), which requires that a motion to vacate be filed within 180 days of the filing of the transcript in the appeals court. Godfrey argues that this section does not apply to offenses committed before its enactment. However, the statute contained a grace period for convictions before its enactment, indicating that subsequent convictions would be governed by the 180-day rule. Godfrey also argues that his motion to vacate was timely under this rule, because the complete transcript was not filed until the direct appeal was reopened. The state courts rejected this argument, finding that the pertinent date was the date on which the transcript was filed in connection with the direct appeal. Therefore, the motion to vacate was untimely, and did not toll the statutory period for filing this petition. Israfil, 276 F.3d at 771.
Finally, we conclude that equitable tolling should not be applied in this case. Although Godfrey claims that he was unaware of the statutory filing requirement, he was not diligent in pursuing his rights, as he raised none of these issues until [**7] almost two years after his conviction, and he has not shown that the respondent would not be prejudiced in responding to his dilatory claims. See Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir.), cert. denied, 534 U.S. 1057, 122 S. Ct. 649, 151 L. Ed. 2d 566 (2001). It is also clear that no evidentiary hearing was required in this case, as all of the pertinent dates and issues are contained in the record.
Accordingly, all pending motions are denied and the district court order dismissing this petition as barred by the statute of limitations is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit.