Opinion
Case No. C2-02-909
October 31, 2002
Marshall L. Banks, Sr., Marion, OH, Pro se.
OPINION AND ORDER
This 28 U.S.C. § 2254 action is before the Court to consider objections filed by petitioner, Marshall L. Banks, Sr., to a Report and Recommendation issued by the Magistrate Judge on September 18, 2002. The Magistrate Judge has recommended that this action be dismissed because it was not timely filed under the applicable statute of limitations, 28 U.S.C. § 2244(d)(1). The Court has considered the objections de novo and, for the following reasons, will overrule the objections and adopt the Report and Recommendation.
As noted in the Magistrate Judge's Report and Recommendation, according to the petition, petitioner was convicted of murder in the Franklin County Court of Common Pleas on December 22, 1986 and sentenced to 15 years to life with an additional three-year term based on a firearm specification. His conviction was affirmed by the Tenth District Court of Appeals on November 19, 1987. The petition contains little additional procedural history apart from a reference to an earlier case filed in this Court, Case No. C-2-98-759, which was actually a 42 U.S.C. § 1983 case, and a post-conviction petition filed in the State Court in December, 2000. Based upon the procedural history presented, the Magistrate Judge concluded that the statute of limitations expired on April 24, 1997, and that this case was therefore not timely filed.
An independent search of the reported and unreported decisions of the Ohio Courts reveals the following procedural history. Banks was initially convicted of murder, but that conviction was set aside by the Tenth District Court of Appeals on April 22, 1986 based upon prosecutorial misconduct and failure to give an instruction on a lesser included offense. Banks was retried and found guilty. He appealed his conviction to the Tenth District Court of Appeals, which affirmed on November 17, 1987. It appears that he took a delayed appeal to the Ohio Supreme Court. On September 25, 1995, the Ohio Supreme Court dismissed his appeal because he failed to file a merits brief. See State v. Banks, 73 Ohio St.3d 1456 (1995). His motion to reconsider that decision was stricken on October 17, 1995. See State v. Banks, 74 Ohio St.3d 1423 (1995). He also filed a post conviction action, which was denied, and appealed the denial of that post conviction action to both the Tenth District Court of Appeals and the Ohio Supreme Court. The Tenth District Court of Appeals dismissed on the merits. State v. Banks, No. 94 APA02-260 (September 16, 1994), and the Ohio Supreme Court denied a motion for leave to file a delayed appeal from that decision. State v. Banks, 71 Ohio St.3d 1445 (1995). Consequently, both the procedural history contained in the petition and the Court's own independent review of the procedural history of Banks' case reveals that on April 24, 1996, the effective date of the AEDPA, Banks had no actions pending in the state court, and his conviction had become final more than one year before that date.
As the Report and Recommendation correctly points out, a state prisoner whose conviction became final prior to the effective date of the act was entitled to one year in which to file a timely § 2254 petition. There is no evidence that Banks filed such a petition within one year of April 24, 1996, nor any evidence that he filed any type of state court proceeding between April 24, 1996 and April 24, 1997 which would have tolled the running of the statute of limitations. There is also no evidence from which the Court could conclude that the statute should have been equitably tolled during that time period. As a result, the statute of limitations clearly ran in this case on April 24, 1997.
Banks' objections are focused primarily upon his claim that he raised an issue of actual innocence in his petition, and that the Magistrate Judge's Report and Recommendation does not address this issue. Without reaching the question of whether a claim of actual innocence, unsupported by independent constitutional violations, would justify the grant of a writ of habeas corpus, the Court may not consider the merits of any claim presented in the petition if it finds that the claim was not timely presented. Because the statute of limitations ran before Banks filed his petition, the Magistrate Judge was neither obligated to, nor permitted to, review the merits of Banks' claim.
Based upon the foregoing, Banks' objection to the Magistrate Judge's Report and Recommendation (file doc. #5) is OVERRULED. The Report and Recommendation is ADOPTED. The petition for a writ of habeas corpus is DENIED and this action is DISMISSED.