NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0457n.06
No. 11-3267
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT L. MACKEY, )
FILED
May 09, 2013
)
DEBORAH S. HUNT, Clerk
Petitioner-Appellant, )
)
v. )
) ON APPEAL FROM THE
WARDEN, LEBANON CORRECTIONAL ) UNITED STATES DISTRICT
INSTITUTION, ) COURT FOR THE SOUTHERN
) DISTRICT OF OHIO
Respondent-Appellee. )
Before: KEITH, MARTIN, and ROGERS Circuit Judges.
PER CURIAM. This case arises from the dismissal of a petition for a writ of habeas corpus
for untimeliness. A jury convicted Petitioner-Appellant Robert Mackey of various drug and weapon
charges in September 1998 in the Clark County Court of Common Pleas in Ohio (“CP”). Mackey
was seventeen years old when the CP sentenced him to a total of twenty-eight years of imprisonment.
[Pet. Br. 3]. The CP appointed trial counsel to continue to represent Mackey in his direct appeal.
Appointed counsel filed a timely notice of appeal in the Ohio Court of Appeals (“OCOA”). [R 4-2,
35–36; R 7-1, 8; Pet. Br. 3]. However, Mackey’s counsel’s performance subsequently fell below the
objective standard of reasonableness when she failed to pursue his direct appeal any further. The
OCOA dismissed Mackey’s direct appeal in February 1999 for failure to prosecute. [R 4-2, 35–36].
Neither appointed counsel nor the OCOA notified Mackey that his appeal had been dismissed.
During the time that Mackey’s appeal was pending and dismissed he was dealing with grave health
issues.
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This case implicates almost fifteen years of procedural history from Mackey’s cases in state
and federal trial and appellate courts, as well as an intervening change in applicable state law. The
procedural facts most important to this case are all a result of assistance of pro bono counsel to
Mackey.1 Those facts include Mackey’s September 2007 motion to reopen his direct appeal under
Ohio Rule of Appellate Procedure 26(B) filed in the OCOA; Mackey’s June 2009 federal habeas
petition filed in the District Court for the Southern District of Ohio (“federal district court”); and
Mackey’s February 2011 de novo resentencing in the CP. Mackey asserts several arguments that his
2009 federal habeas petition was timely based on either his original 1998 sentence or based on his
2011 de novo resentencing. [Pet. Br. 24, 30–31, 33–34, 40]. The state of Ohio’s failure to provide
Mackey with effective assistance of appellate counsel is deplorable. However, Mackey’s habeas
petition is barred by the statute of limitations. Accordingly, we DENY the petition for a writ of
habeas corpus.
BACKGROUND
The relevant facts are presented in chronological order. It involves switching contexts
between procedure in state trial, state appellate, federal trial, and federal appellate courts.
1998 Sentence in the CP and Direct Appeal in the OCOA
On September 3, 1998 a jury in the CP convicted Mackey of various drug and weapon
charges. [Rpdt. Br. 3]. That day, the CP sentenced Mackey to an aggregate sentence of twenty-eight
years to run consecutive to a ten-year sentence from a previous prosecution. [Pet. Br. 3]. At the
1
Mackey’s counsel commendably took up his cause pro bono after learning about the history
of his case while representing his brother in an unrelated matter.
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1998 sentencing hearing, the CP failed to notify Mackey that he would be subject to mandatory post-
release control terms. [Pet. Br. 13]. The CP appointed trial counsel to continue to represent Mackey
in his direct appeal. [Pet. Br. 3]. Appellate counsel filed a timely notice of direct appeal, but failed
to file any substantive briefs or pursue Mackey’s direct appeal in any meaningful way. [Pet. Br. 3].
The OCOA dismissed Mackey’s appeal for failure to prosecute on February 25, 1999. [Pet. Br. 4].
Neither appointed appellate counsel nor the OCOA notified Mackey that his appeal had been
dismissed. [Pet. Br. 4]. While his direct appeal was pending and dismissed, Mackey was wearing
a colostomy bag due to serious internal injuries sustained from gun shots. [R 7-1, 1–2]. He finally
had surgery in December 2000, while incarcerated, to remove the colostomy bag. [R 7-1, 1–2].
2007 Rule 26(B) Motion to Reopen Direct Appeal in the OCOA
On September 12, 2007, through new pro bono counsel, Mackey filed a motion under Ohio
Rule of Appellate Procedure 26(B) in the OCOA to reopen his case or reconsider the 1999 dismissal
of his direct appeal. [Pet. Br. 4]. In his Rule 26(B) motion, Mackey asserted a claim for ineffective
assistance of appellate counsel. [R 4-2, 37–44]. On June 11, 2008 the OCOA denied Mackey’s
motion as untimely with no good cause for the eight-year delay. [Pet. Br. 4–5]. On October 15,
2008, the Ohio Supreme Court (“OSC”) dismissed Mackey’s appeal of the denial of his Rule 26(B)
motion “as not involving any substantial constitutional question.” [R 4-2, 93].
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2009 Federal Habeas Petition
Subsequently, on July 7, 2009, Mackey’s pro bono counsel filed a habeas petition in federal
district court, which is before us now on appeal. [R 1]. The 2009 habeas petition2 was filed pursuant
to 28 U.S.C. § 2254, claiming that Mackey was imprisoned pursuant to a judgment of state court
contrary to federal law. Mackey’s 2009 habeas petition claimed fifteen grounds for relief under the
Constitution. [Pet. Br. 6–8]. In the ground that was eventually certified for appeal before us,
Mackey asserted that he was denied effective assistance of counsel in violation of the Sixth and
Fourteenth Amendments because his appointed appellate counsel failed to file any substantive briefs
or otherwise prosecute Mackey’s direct criminal appeal, resulting in its dismissal by the OCOA.
[Pet. Br. 6].
2010 Motion for Resentencing in the CP and Intervening Change in Ohio Law
On October 14, 2010, Mackey filed a motion in the CP, arguing that he was entitled to a de
novo resentencing hearing. Mackey argued that his original 1998 sentence was void under Ohio law
because it provided no notice of the mandatory post-release controls applicable to him. [Pet. Br. 9].
As of October 14, 2010, under State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-0338, 868 N.E.2d 961,
Mackey was entitled to a complete de novo resentencing hearing. Id. at ¶ 16. However, Ohio law
changed on December 23, 2010, when the OSC overruled Bezak with State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-0897, 942 N.E.2d 332. Fischer held that, in cases like Mackey’s, Ohio trial
courts have limited authority to hold resentencing hearings only to the extent necessary to impose
2
Mackey filed another habeas petition in 2012 in federal district court, which is also currently
pending before this Court. See Case No. 13-3072.
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the mandatory post-release controls. Id. at ¶ 29. Despite Fischer, the state prosecution explicitly
agreed that Mackey was entitled to a de novo resentencing hearing. The CP granted Mackey’s
motion and resentenced him de novo on February 4, 2011. [Pet. Br. 9–10]. At the de novo hearing
the CP reconsidered Mackey’s state court record, the principles and purposes of sentencing under
Ohio Rev. Code § 2929.11, and the recidivism factors under Ohio Rev. Code § 2929.12 to
resentence Mackey to twenty-eight years to run concurrent to his previous ten-year sentence,
effectively reducing Mackey’s incarceration by ten years. [R 27-1]. Although the CP resentenced
Mackey de novo on February 4, 2011, Ohio law at the time only allowed resentencing to correct a
technical error.
2011 Rule 59(e) Motion to Amend or Alter District Court’s Dismissal of Habeas Petition
One week after Mackey’s de novo resentencing in the CP, the federal district court granted
Respondent’s motion to dismiss on February 11, 2011, holding that Mackey’s 2009 habeas petition
was time-barred under 28 U.S.C. § 2244(d)(1)(A). Section 2244(d)(1) imposes a one-year statute
of limitations from the finality of a state court judgment to file a petition for habeas relief under §
2254. Although the federal district court did not know that Mackey had recently been resentenced
de novo, it explicitly relied on Fischer in its dismissal order to find the deficiencies of Mackey’s
1998 sentence irrelevant to its calculation of the federal habeas statute of limitations.3 [R 13, 6; R
17, 1; R 25, 19]. On March 11, 2011, Mackey filed a motion in the federal district court under
Federal Rule of Civil Procedure 59(e) to alter or amend the dismissal of his habeas petition. [R 27].
3
The federal district court only determined that the 2011 sentencing was immaterial for
purposes of calculating the federal habeas statute of limitations under § 2244(d)(1)(A).
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Mackey argued that because the CP had resentenced him de novo on February 4, 2011, his 2009
federal habeas case was within the one-year statute of limitations under § 2244(d)(1)(A). [Pet. Br.
47]. The federal district court denied Mackey’s Rule 59(e) motion on June 30, 2011. [R 33].
Ultimately, the federal district court granted a certificate of appealability regarding the federal
habeas statute of limitations under § 2244(d)(1)(A), Mackey’s Rule 59(e) motion, and whether
Petitioner was denied effective assistance of counsel when his appellate counsel abandoned his direct
appeal in the OCOA.
ANALYSIS
We turn first to the issues related to the habeas statute of limitations under § 2244(d)(1)(A),
including Mackey’s Rule 59(e) motion. Because Mackey’s federal habeas petition is barred by the
statute of limitations, we need not reach the merits of his claim that he was denied effective
assistance of appellate counsel.
The federal district court dismissed Mackey’s 2009 habeas petition holding that it was barred
by the statute of limitations under §2244(d)(1)(A). On appeal, Mackey asserts several alternative
arguments in support of his contention that his 2009 federal habeas petition was not time-barred.
All of Mackey’s arguments fall under two categories: either (1) that his 2009 habeas petition is not
time-barred based on his original 1998 sentence or (2) that his 2009 habeas petition is not time-
barred based on his 2011 de novo sentence. We review de novo a federal district court’s dismissal
of a petition for a writ of habeas corpus for failure to comply with the statute of limitations contained
in § 2244. Perkins v. McQuiggin, 670 F.3d 665, 669 (6th Cir. 2012).
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The Antiterrorism and Effective Death Penalty Act (AEDPA) governs this case. AEDPA
establishes a general rule that there is a one-year statute of limitations for filing a habeas petition in
federal court for persons in custody pursuant to the judgment of a state court. 28 U.S.C. §
2244(d)(1). Subsection 2244(d)(1)(A) indicates that the federal habeas statute of limitations runs
from the date on which the state court judgment becomes final by the conclusion of direct review
or the expiration of the time for seeking such review, whichever is later. For petitioners who do not
pursue direct appeals in a state’s highest court, judgments become final for purposes of §
2244(d)(1)(A) when the time for seeking discretionary review in the state’s highest court expires.
Gonzalez v. Thaler, __ U.S. __, 132 S. Ct. 641, 653–54 (2012). The time limit to seek discretionary
review in the OSC is forty-five days from the OCOA’s decision. Ohio S. Ct. Prac. R. 6.01(A)(1).
The statute of limitations in § 2244(d)(1)(A) bars Mackey’s federal habeas petition as
untimely. The OCOA dismissed Mackey’s direct appeal on February 25, 1999. Mackey never filed
an application for leave to appeal that decision to the OSC. Consequently, Mackey’s sentence
became final due to the expiration of time to seek discretionary review on Monday April 12, 1999.
Thus, for purposes of § 2244(d)(1)(A), Mackey’s one-year limitation ran from April 12, 1999 and
expired on April 12, 2000. Mackey filed this federal habeas petition on June 7, 2009, missing the
deadline by almost a decade.
Mackey’s Arguments Pertaining to His Original 1998 Sentencing Hearing
Mackey argues that his 1998 sentence was never a final appealable judgment under Ohio law,
meaning that the federal habeas statute of limitations under § 2244(d)(1)(A) never began to run on
the basis of his 1998 sentence because the time for review of that sentence never expired. [Pet. Br.
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33–34]. This argument fails because, even if Mackey’s sentence was not final under state law,
finality for purposes of the federal habeas statute of limitations is different than finality for purposes
of a direct criminal appeal under Ohio state law. The issue now before us is finality for purposes of
the federal habeas statute of limitations contained in § 2244(d)(1)(A). Although Mackey’s 1998
sentence was a nullity before Fischer for purposes of a direct appeal in Ohio courts, § 2244(d)(1)
only requires that a person be “in custody pursuant to the judgment of a State court.” Nothing in the
federal habeas statute requires that a judgment be valid under state law. In a similar case, Frazier
v. Moore, 252 F. App’x 1 (6th Cir. 2007), the federal habeas petitioner argued that the federal habeas
statute of limitations in § 2244(d) had not run because his state court sentencing hearing was
procedurally deficient under Ohio law. Id. at 4. This Court rejected that argument, reasoning that
a judgment can be cognizable under § 2254 and § 2244(d)(1) even when it is in violation of state
law. Id. at 4–5. Analogously, even if Mackey’s original 1998 sentence was void under Ohio law,
it was still cognizable under federal habeas law. To accept that Mackey’s 1998 sentence was never
cognizable under federal habeas review until it became a final appealable order under Ohio law
would undermine the habeas regime embodied in § 2254. Frazier, 252 F. App’x at 5. If we accept
that premise, then state courts could insulate themselves from federal habeas review by imprisoning
defendants pursuant to enforceable, but technically invalid sentences. It is not the case that a
deficiency under Ohio law of the 1998 sentence would have been fatal to a timely federal habeas
petition by Mackey. Mackey’s 1998 sentence was sufficient to constitute a judgment for purposes
of § 2244(d)(1).
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Mackey argues that Frazier is distinguishable from this case because Frazier’s state court
sentence was not void. [Pet. Br. 41]. However, in Frazier we assumed arguendo that Frazier had
a defective state court judgment and still concluded that his federal habeas statute of limitations had
run. Id. at 4–5. We reasoned that even if Frazier’s state court judgment was invalid under Ohio law,
that would not delay the federal habeas statute of limitations under § 2244(d)(1). Id.
Alternatively, Mackey argues that Fischer held that his 1998 sentence may be directly
appealed “at any time,” thus delaying the federal habeas statute of limitations indefinitely. [Pet. Br
42]. However, this argument is without merit because the federal habeas statute of limitations does
not depend upon the particularities of state law procedure. Further, Mackey’s argument
mischaracterizes what Fischer actually held. Fischer stood for the premise that Ohio criminal
defendants need not procure proper imposition of mandatory post-release controls before pursuing
direct appeals or collateral attacks. See State v. Gipson, No. CA2011-02-015, 2011 WL 5357625,
at *2 (Ohio Ct. App. November 7, 2011) (“Fischer stands for the premise that even when a portion
of the sentence is void, the order is still final and appealable.”).
Mackey’s Arguments Pertaining to His 2011 De Novo Resentencing Hearing
Mackey argues that his February 2011 de novo resentencing is the correct and only starting
point from which the federal habeas statute of limitations can run because the 2011 sentence is the
only sentence applicable to him. [Pet. Br. 39–40]. We disagree. Assuming that the state court
sentencing date is the relevant date for purposes of determining the federal habeas statute of
limitations under § 2244(d)(1)(A), Burton v. Stewart, 549 U.S. 147, 156 (2007), the CP was only
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able to resentence Mackey on February 4, 2011 to impose post-release controls. Therefore,
Mackey’s federal habeas statute of limitations still runs from his 1998 sentence.
Whether the CP was only able to impose post-release controls on Mackey on February 4,
2011 is an issue of Ohio law. Fischer, 128 Ohio St. 3d at ¶ 21; 942 N.E.2d at ¶ 21 (recognizing that
Ohio courts’ authority to sentence in criminal cases is limited by the people through the Ohio
Constitution and by the Ohio legislature). Federal courts must use state law as the rules of the
decision where issues of state law must be discerned. Rules of Decisions Act, 28 U.S.C. § 1652;
Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Watson v. McCabe, 527 F.2d 286, 288 (6th Cir.
1975). Therefore, we apply Ohio law when we confront the question of whether the CP was only
able to impose post-release controls on Mackey on February 4, 2011. Bradshaw v. Richey, 546 U.S.
74, 76 (2005) (“[A] state court’s interpretation of state law . . . binds a federal court sitting in habeas
corpus.”); Watson, 527 F.2d at 288 (“Application of Rules of Decision Act . . . does not depend on
jurisdictional basis of action.”).
Here, Ohio law dictates that Mackey’s federal habeas statute of limitations runs from his
1998 sentence. Under the OSC precedent in Fischer and its progeny, the CP was able to resentence
Mackey only to impose post-release controls on February 4, 2011. Fischer, 128 Ohio St. 3d at ¶ 29;
942 N.E.2d at ¶ 29; State v. Carr, No. 24438, 2012 WL 1484205, at *3 (Ohio Ct. App. April 27,
2012) (citing Fischer to state that the scope of a resentencing hearing to correct an original sentence
that omitted post-release controls is limited to imposition of those post-release controls). For the
purpose of determining the federal habeas statute of limitations under § 2244(d)(1)(A), the 2011
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sentence was de novo only as to the imposition of post-release controls.4 Therefore, the federal
district court properly dismissed Mackey’s 2009 habeas petition because none of his fifteen grounds
for relief claimed that the imposition of post-release controls in 2011 was contrary to federal law.
In the alternative, Mackey relies on Burton and Rashad v. Lafler, 675 F.3d 564 (6th Cir.
2012) to argue that even if the 1998 judgment were operative for § 2244 purposes, the CP reset the
federal habeas statute of limitations when it resentenced him in 2011. [Pet. Br. 48; Pet. Ltr.]. In both
Burton and Rashad, the petitioners’ one-year federal habeas statutes of limitations ran from their
state court resentencing dates, not their original sentencing dates. Burton, 549 U.S. at 156; Rashad,
675 F.3d at 568. Although the habeas petitioners in Burton and Rashad were also resentenced in
state court, those cases are materially distinguishable from this case. Both Burton and Rashad had
obtained appellate vacation of their sentences in direct criminal appeals on the merits while
proceeding as defendant-appellants in their respective state court systems and were subsequently
resentenced on remand. Burton, 549 U.S. at 150; Rashad, 675 F.3d at 566–67. Mackey, on the other
hand, obtained a de novo resentencing to remedy a technical error.
Because Mackey’s de novo resentencing did not affect the federal habeas statute of
limitations under § 2244(d)(1)(A), the federal district did not abuse its discretion when it denied
Mackey’s Rule 59(e) motion. Betts v. Costco Wholesale Corp., 558 F.3d 461, 467 (6th Cir. 2009)
(stating that we review a district court’s disposition regarding a motion to alter judgment pursuant
to Rule 59(e) for an abuse of discretion).
4
Our holding has no effect on the enforceability of the terms of the CP’s 2011 de novo
resentencing. Rather, our determination is restricted to the calculation of the federal habeas statute
of limitations under § 2244(d)(1)(A).
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Although AEDPA requires us to deny Mackey’s federal habeas petition on statute of
limitations grounds, we are deeply disturbed by the facts of this case. The state of Ohio allowed
Mackey to fall through the cracks in its system, essentially depriving him of a direct appeal of right.
When his cause was subsequently taken up pro bono after a delay, Ohio shifted the blame for the
delay to Petitioner by improperly imputing an affirmative duty on a lay child to ensure that the state
provided him with effective assistance of appellate counsel. Further, the purpose of AEDPA is to
advance “meaningful habeas review,” Hawthorne v. Schneiderman, 695 F.3d 192, 200 (2d Cir. 2012)
(Calabresi, J., concurring). Yet, the barriers that Mackey faced rendered federal habeas review
illusory for him. Without minimizing the challenges of volume that state courts abide,5 considering
the impediments that Mackey faced, we would find it difficult to deny his Rule 26(B) motion to
reopen his direct criminal appeal as the OCOA did. But that is not the task we are given under
AEDPA review. Although we sympathize with Mackey’s position, we are bound by AEDPA’s
statute of limitations to deny his petition.
Since we hold that § 2244(d)(1)(A) bars Mackey’s habeas petition as untimely, we decline
to discuss at length the legal implications of the fact that Mackey’s counsel’s performance fell below
the objective standard of reasonableness.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.
5
Relatedly, it is worth noting that the OCOA’s denial of Mackey’s Rule 26(B) motion has
so far yielded an appeal to the OSC (Case No. 2008-1476), two federal habeas petitions (Case Nos.
09-00255 and 12-00073), and two federal habeas appeals (Case Nos. 11-3267 and 13-3072) rather
than allowing the direct appeal Mackey was originally granted and for which Ohio saw fit to appoint
him counsel.