Godfrey v. Beightler
Godfrey v. Beightler
Opinion of the Court
ORDER
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)(l), 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
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 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 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
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 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.
Reference
- Full Case Name
- Larry R. GODFREY v. Robert E. BEIGHTLER, Warden
- Cited By
- 2 cases
- Status
- Published