UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

STEVEN LEE KLINE,

Petitioner, Case No. 3:23-cv-5

vs.

WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, District Judge Michael J. Newman Magistrate Judge Karen L. Litkovitz Respondent.

ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (DOC. NO. 8); (2) GRANTING RESPONDENT’S MOTION TO DISMISS (DOC. NO. 6); (3) DISMISSING PETITIONER’S PETITION FOR A WRIT OF HABEAS CORPUS (DOC. NO. 1) WITH PREJUDICE; (4) DENYING A CERTIFICATE OF APPEALABILITY; (4) CERTIFYING THAT ANY APPEAL WOULD BE OBJECTIVELY FRIVOLOUS AND FINDING THAT IN FORMA PAUPERIS STATUS SHOULD BE DENIED ON APPEAL; AND (5) TERMINATING THIS CASE ON THE DOCKET

This case is before the Court on Respondent’s motion to dismiss (Doc. No. 6) and the Report and Recommendation of United States Magistrate Judge Karen L. Litkovitz (Doc. No. 8), to whom this case was referred pursuant to

(b). On December 4, 2023, Magistrate Judge Litkovitz recommended the Court grant Respondent’s motion to dismiss and deny Petitioner’s application for a writ of habeas corpus. See Doc. No.8. Petitioner timely filed an objection to the Report and Recommendation on December 15, 2023. See Doc. No. 9. As required by

(b) and Fed. R. Civ. P. 72(b), the Court has reviewed the comprehensive findings of the Magistrate Judge and considered de novo all findings in this matter, including Petitioner’s objections. Upon careful de novo consideration of the foregoing, the Court determines that the Report and Recommendation (Doc. No. 8) should be adopted. The Court agrees with Magistrate Judge Litkovitz’s conclusion that Petitioner’s application for a writ of habeas corpus is time-barred pursuant to

(d)(1), as amended by § 101 of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”),

Stat. 1214. Doc. No. 8 at PageID 281. Further, the Court agrees with Magistrate Judge Litkovitz’s conclusion that: (1) all the tolling provisions set forth in

(d)(1)(B) through (D) are inapplicable to Petitioner’s ground for relief; and (2) Petitioner is not entitled to equitable tolling under AEDPA. See

at PageID 282-86. Under

(d)(1)(A), the statute of limitations applicable to Petitioner’s case expired on May 16, 2012, more than ten years before the instant habeas corpus petition was filed.

at PageID 286. Petitioner’s objection reasserts his position that the statute of limitations is inapplicable because the state trial court lacked subject matter jurisdiction, which can be raised at any point in a case. Doc. No. 10. This objection, however, does not change the Court’s analysis or conclusion.

See Doc. No. 9 at PageID 282, n.2 (finding that “this Court and other federal courts ‘considering whether subject matter jurisdiction claims provide an exemption from the AEDPA’s statute of limitations have uniformly rejected such claims[]” (citing Meadows v. Warden, No. 1:10-cv-640,

, at *4-5 (S.D. Ohio May 4, 2011) (collecting cases) (Report and Recommendation), adopted,

(S.D. Ohio Sept. 22, 2011))). See also

(citing Voyles v. Crow, No. CIV-22-71-F,

, at *1 (W.D. Okla. Mar. 29, 2022) (“there is no exception to 2244(d)(1)’s one-year statute of limitations for a habeas claim based on a trial court’s alleged lack of subject matter jurisdiction)). Accordingly, the Court hereby ORDERS that: (1) the Report and Recommendation is ADOPTED in full (Doc. No. 19); (2) Petitioner’s petition (Doc. No. 1) is DISMISSED WITH PREJUDICE; (3) Petitioner is DENIED a certificate of appealability; (4) any appeal is CERTIFIED as objectively frivolous and Petitioner should be denied in forma pauperis status on

appeal; and (5) this case is TERMINATED on the Court’s docket. IT IS SO ORDERED. Date: January 18, 2024 s/ Michael J. Newman Hon. Michael J. Newman United States District Judge