United States District Court, S.D. Ohio, Eastern Division
Magistrate Judge, King
OPINION AND ORDER
C. SMITH, JUDGE UNITED STATES DISTRICT COURT
18, 2017, the Magistrate Judge recommended that
Respondent's Motion to Dismiss (Doc. 5) be
granted, and that this action be dismissed as barred by the
one-year statute of limitations established by 28 U.S.C.
§ 2244(d). Report and Recommendation (Doc. 7).
Petitioner objects to that recommendation. Objection
(Doc. 8). Pursuant to 28 U.S.C. § 636(b), this Court has
conducted a de novo review. For the reasons that
follow, Petitioner's Objection (Doc. 8) is
OVERRULED. The Report and Recommendation (Doc. 7) is
ADOPTED and AFFIRMED. Respondent's Motion to
Dismiss (Doc. 5) is GRANTED. This action is hereby
DISMISSED. Moreover, Petitioner's request for a
certificate of appealability is DENIED and the Court
CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an
appeal from the judgment entered in this action would be
objectively frivolous and not made in good faith.
challenges his December 2013 convictions, following a jury
trial in the Franklin County Court of Common Pleas, on four
counts of aggravated arson, murder, and kidnapping, with
firearm specifications. On January 27, 2015, the appellate
court remanded the case to the trial court for re-sentencing
on Petitioner's firearm specifications, but otherwise
affirmed the judgment of the trial court. On October 5, 2016,
the Ohio Supreme Court denied Petitioner's motion for a
delayed appeal. In the meantime, on May 1, 2015, the trial
court issued a re-sentencing entry pursuant to the order of
remand. On November 17, 2016, Petitioner filed this habeas
corpus petition pursuant to 28 U.S.C. § 2254, alleging
that he had been denied the effective assistance of counsel
(claim one); that the trial court committed plain error by
failing to resolve allied offenses or to advise Petitioner
regarding the terms of post release control (claim two); that
the trial court erred in admitting prejudicial photographs of
the victim (claim three); and that the evidence is
constitutionally insufficient to sustain his convictions and
that his convictions are against the manifest weight of the
evidence (claim four). As noted supra, the
Magistrate Judge recommended the dismissal of this action as
Objection, Petitioner asks that his pleadings be
liberally construed and he argues that the statute of
limitations has yet to expire, because his state court
judgment is void in light of his allegedly improper sentence
on allied offenses of similar import and because he was
denied the effective assistance of counsel. Petitioner also
claims that he is actually innocent of the charges against
him and that he is the victim of a fundamental miscarriage of
justice so as to warrant a merits review of his claims. In
this regard, Petitioner represents that the coroner found
that the death of Charles Calloway, the alleged murder
victim, was accidental and yet the State pursued the charges
against Petitioner by relying on the testimony of one Janae
Davis. Petitioner also seeks a certificate of appealability.
Objection (Doc. 8, PageID# 186).
objections of a petitioner appearing pro se will be
construed liberally and held to less stringent standards than
documents drafted by lawyers.” Ybarra v.
Oswalt, No. 2:16-cv-00366, 2016 WL 3355457, at *1 (S.D.
Ohio June 17, 2016)(citing Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam). However, and
despite Petitioner's argument to the contrary, the record
does not confirm his assertion that a final appealable order
was never entered, nor does it appear that the state court
judgment entered against him is “void” such that
the statute of limitations has yet to commence.
discussed by the Magistrate Judge, the statute of limitations
began to run on March 14, 2015, i.e., after the
expiration of the time for the filing of a timely appeal with
the Ohio Supreme Court. See 28 U.S.C. §
2244(d)(1)(A). The statute of limitations expired one year
later, on March 14, 2016. Yet Petitioner waited more than
eight months, until November 17, 2016, to file his
Petition in this Court. Petitioner's underlying
allegations regarding his sentence and his claim that he was
denied the effective assistance of trial counsel do not
affect this determination.
one-year statute of limitations may be equitably tolled upon
a “credible showing of actual innocence.” See
Cook v. Ohio, No. 2:15-cv-02669, 2016 WL 374461, at *10
(S.D. Ohio Feb. 1, 2016)(citing Souter v. James, 395
F.3d 577, 602 (6th Cir. 2005)). Accordingly, “a
petitioner whose claim is otherwise time-barred may have the
claim heard on the merits if he can demonstrate through new,
reliable evidence not available at trial, that it is more
likely than not that no reasonable juror would have found him
guilty beyond a reasonable doubt.” Yates v.
Kelly, No. 1:11-cv-1271, 2012 WL 487991. at *1 (N.D.
Ohio Feb. 14, 2012) (citing Souter, 395 F.3d at
590). Actual innocence means factual innocence, not mere
legal sufficiency. Bousley v. United States, 523
U.S. 614, 623 (1998)(citing Sawyer v. Whitley, 505
U.S. 333, 339 (1992)). See also Schlup v. Delo, 513
U.S. 298 (1995). However, a petitioner must overcome a high
hurdle in order to establish his actual innocence.
The United States Supreme Court has held that if a habeas
petitioner “presents evidence of innocence so strong
that a court cannot have confidence in the outcome of the
trial unless the court is also satisfied that the trial was
free of nonharmless constitutional error, the petitioner
should be allowed to pass through the gateway and argue the
merits of his underlying claims.” Schlup, 513
U.S. at 316, 115 S.Ct. 851, 130 L.Ed.2d 808. Thus, the
threshold inquiry is whether “new facts raise
sufficient doubt about [the petitioner's] guilt to
undermine confidence in the result of the trial.”
Id. at 317, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d
808. . . . “To be credible, such a claim requires
petitioner to support his allegations of constitutional error
with new reliable evidence - whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence - that was not presented at
trial.” Schlup, 513 U.S. at 324, 115 S.Ct.
851, 130 L.Ed.2d 808. The Court counseled however, that the
actual innocence exception should “remain rare”
and “only be applied in the ‘extraordinary
case.' ” Id. at 321, 513 U.S. 298, 115
S.Ct. 851, 130 L.Ed.2d 808.
Souter, 395 F.3d at 589-90 (footnote omitted). A
petitioner who asserts a convincing claim of actual innocence
need not establish that he was diligent in pursuing this
claim. McQuiggin v. Perkins, ___ U.S. ___, ___, 133
S.Ct. 1924, 1932-33 (2013). Still, unexplained delay will
undermine the petitioner's credibility. The Supreme Court
has emphasized that “[t]o invoke the miscarriage of
justice exception to AEDPA's statute of limitations, we
repeat, a petitioner ‘must show that it is more likely
than not that no reasonable juror would have convicted him in
the light of the new evidence.'” Id. at
1935 (quoting Schlup, 513 U.S. at 332, 327).
has provided no new, reliable evidence supporting his claim
of actual innocence. Thus, Petitioner has failed to establish
that he is entitled to equitable tolling of the statute of
limitations on this basis.
all these circumstances, the Court concludes that
Petitioner's Objection (Doc. 8) to the
Report and Recommendation is without merit. The
Report and Recommendation (Doc. 7) is ADOPTED AND
AFFIRMED. Respondent's Motion to Dismiss (Doc.
5) is GRANTED. This action is DISMISSED as untimely.
requests a certificate of appealability. “In contrast
to an ordinary civil litigant, a state prisoner who seeks a
writ of habeas corpus in federal court holds no automatic
right to appeal from an adverse decision by a district
court.” Jordan v. Fisher, - U.S. -. -, 135
S.Ct. 2647, 2650 (2015); 28 U.S.C. §
2253(c)(1)(requiring a habeas petitioner to obtain a
certificate of appealability in order to appeal.) Where, as
here, a claim has been denied on procedural grounds, a
certificate of appealability may issue if the petitioner
establishes that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right, and that jurists of reason would find
it debatable whether the district court was correct in its
procedural ruling. Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quoting Barefoot v. Estelle, 463 U.S.
880, 893, n. 4 (1983)).
review of the record, this Court is not persuaded that
jurists of reason would find it debatable whether this Court
was correct in its procedural ruling. Therefore, the ...