Tucker v. Warden Madison Correctional Institution, No. 2:2013cv00122 - Document 13 (S.D. Ohio 2014)

Court Description: ORDER ADOPTING REPORT AND RECOMMENDATIONS, DENYING Petitioner's Objection. This action is hereby DISMISSED as untimely. The Clerk is DIRECTED to enter FINAL JUDGMENT. The Court concludes that jurists of reason would not find it debatable that this Court was correct in its procedural ruling. Accordingly, the Court DECLINES to issue a certificate of appealability in this case. Signed by Judge Algenon L. Marbley on 5/2/2014. (cw)

Download PDF
Tucker v. Warden Madison Correctional Institution Doc. 13 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION JOHN R. TUCKER, Petitioner, Case No. 2:13-CV-122 Judge Marbley Magistrate Judge King v. WARDEN, MADISON CORRECTIONAL INSTITUTION, Respondent. ORDER Petitioner, a state prisoner, brings this action for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 1987 conviction on charges of specifications. aggravated murder and aggravated robbery, with On April 3, 2014, the United States Magistrate Judge recommended that this action be dismissed. Report and Recommendation, ECF 10. Specifically, the Magistrate Judge reasoned that petitioner’s second and third claims raised only issues of state law not cognizable in federal habeas corpus and that, in any event, the Petition, ECF 1, executed by petitioner on February 5, 2013, see PAGEID # 14, and filed on February 11, 2013, was untimely filed. This matter is now before the Court on petitioner’s objection to that recommendation. Objection, ECF 12. The Court will consider the matter de novo. 28 U.S.C. § 636(b); See Fed. R. Civ. P. 72(b). In his objections, petitioner does not address the reasoning of the Magistrate Judge. Instead, petitioner argues only that a claim of ineffective assistance of counsel (the fourth claim raised in the Petition), is properly raised in collateral proceedings. Although it is true that a claim of ineffective assistance of counsel is commonly 1 Dockets.Justia.com raised in a collateral attack of a criminal conviction, if that collateral attack is presented in a petition for a writ of habeas corpus under federal law, the petition must nevertheless be timely filed. See 28 U.S.C. § 2244(d). Because petitioner’s conviction became final prior to the effective date of the applicable statute of limitations, petitioner had until April 24, 1997 in which to file his petition in this Court. See Jurado v. Burt, 337 F.3d 638 (6th Cir. 2003). Petitioner waited more he than Petition. fifteen years after that date before executed the The Petition is therefore untimely and subject to dismissal on that basis. Petitioner’s Objection, ECF 12, is therefore DENIED. and Recommendation, ECF 10, is ADOPTED AND AFFIRMED. The Report This action is hereby DISMISSED as untimely. The Clerk is DIRECTED to enter FINAL JUDGMENT. Moreover, the Court concludes that jurists of reason would not find it ruling. debatable that this Court was correct in its procedural See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, the Court DECLINES to issue a certificate of appealability in this case. s/Algenon L. Marbley Algenon L. Marbley United States District Judge 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.