The opinion of the court was delivered by: Judge Frost
Petitioner Chad E. West, a State prisoner, brings this action under 28 U.S.C. §2254 alleging that he is in custody in violation of the Constitution of the United States. This matter is before the Court on Magistrate Judge Abel's August 9, 2011 Report and Recommendation that the petition for writ of habeas corpus under 28 U.S.C. §2254 be denied because it is barred by the one year statute of limitations for federal habeas corpus actions (doc. 15). On October 21, 2011, petitioner West filed objections to the Report and Recommendation (doc. 19).
A Franklin County Common Pleas Court jury found West found guilty of raping and kidnaping 13 year old James Conley and burglary. Petitioner argues that the Magistrate Judge erred in finding that his fourteen grounds for relief are barred by the statute of limitations. Petitioner's grounds for relief are set out at pages 6-10 of the August 9, 2011 Report and Recommendation (doc. 15, PAGEID ## 875-79). The evidence at trial is summarized at pages 10-18 of the Report and Recommendation (Id., PAGEID ## 879-87.) The Magistrate Judge's decision West failed to file his petition within the one-year limitations period set forth in § 2244(d)(1)(D) is set out at pages 24- 30 of the Report and Recommendation (Id., PAGEID ## 893-931.). Specifically, the Magistrate Judge found:
The pertinent dates are as follows:
January 24, Petitioner is resentenced following his appeal. 2003 February The statute of limitations begins to run, which is 30 days 24, 2003 after West's resentencing excluding the day that begins the period. July 9, Petitioner files his first motion for new trial. 2003 May 10, The state Court of Appeals affirms trial court's denial of 2005 new trial motion; no appeal is made.
December Petitioner files second motion for a new trial. 15, 2008 January 27, The Ohio Supreme Court denies leave to appeal the denial 2010 of the second motion for a new trial.
West concedes that equitable tolling does not apply to his petition. The issue to be resolved is whether 28 U.S.C. § 2244(d)(1)(D) applies to plaintiff's second motion for new trial. If 28 U.S.C. § 2244(d)(1)(D) is not applicable, then the statute of limitations expired December 26, 2005.*fn1 Section 2244(d)(1)(D) states:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1)(D).
Despite petitioner's reliance on 28 U.S.C. § 2244(d)(1)(D), his petition was not timely filed with this Court. First, petitioner has offered no evidence about the discovery his counsel obtained from the prosecutor. The prosecutor did provide discovery to the defense. (Tr. 215-16, doc. 10, PAGEID # 770-71.) Without knowing what that discovery was, there is no way of determining whether the evidence offered by petitioner was not available to him at trial. Petitioner did not state with specificity when he obtained the documents listed above. Second, without knowing what information the defense had at trial, it is not possible to know what further evidence could have been obtained by the defense with due diligence. Consequently, as the Ohio Court of Appeals held, petitioner has failed to demonstrate the factual predicate for relying on § 2244(d)(1)(D).
Additionally, petitioner has failed to demonstrate that he acted promptly to bring his claims based on new evidence to the Ohio courts and this court. The documents petitioner relies on were apparently provided to petitioner by the Ohio Innocence Project in July 2008. See doc. 10-4 at 70. Petitioner did not file his second motion for new trial until December 15, 2008, 167 days after receiving the documents. The Ohio Supreme Court rejected petitioner's appeal on January 27, 2010, and petitioner waited an additional 336 days before filing his petition with this Court. Although his mother's letter was dated November 20, 2008, nothing prevented West from obtaining this information earlier.
Finally, none of the evidence petitioner relies on, even if unavailable to him at trial and even if he promptly pursued his claims based on that evidence when it was discovered by him, demonstrates that he was denied a fair trial. At the end of the day, the trial came down to who the jury believed, James Conley or Chad West. None of the allegedly withheld evidence undermined Conley's credibility or bolstered West's. The issue was not whether Conley was raped but whether West was the perpetrator. Whether the rapist used a condom, what bed the rape occurred on, whether the motel room was dusted for fingerprints, whether there was feces on the victim's body, whether his father met ...