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Thornton v. Buchanan

United States District Court, S.D. Ohio, Eastern Division, Columbus

June 4, 2019

ERIC THORNTON, Petitioner,
v.
TIM BUCHANAN, Warden, Noble Correctional Institution, Respondent.

          District Judge George C. Smith

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.

         This habeas corpus case was brought pro se by Petitioner Eric Thornton to obtain relief from his conviction in the Common Pleas Court of Muskingum County on charges of aggravated robbery and kidnapping with a firearm specification (Petition, ECF No. 3, PageID 28). On Magistrate Judge Deavers' Order (ECF No. 2), the Respondent has filed the State Court Record (ECF No. 5) and a Return of Writ (ECF No. 6). Petitioner has filed a Reply (ECF No. 9), making the case ripe for decision. The Magistrate Judge reference of the case was recently transferred to the undersigned to help balance the Magistrate Judge workload in the District.

         Litigation History

         A Muskingum County grand jury indicted Thornton on September 4, 2013, on aggravated robbery, kidnapping, and weapons under disability charges with firearm specifications. Thornton waived a jury and testified himself at the bench trial where the judge convicted him of aggravated robbery, two counts of kidnapping, and the firearm specifications, but acquitted him of having weapons while under disability. After merging some counts under Ohio Revised Code § 2941.25, the judge sentenced Thornton to an aggregate term of twenty-three years imprisonment.

         With new appointed counsel, Thornton appealed to the Ohio Fifth District Court of Appeals which affirmed. State v. Thornton, 2015-Ohio-289 (5th Dist. Jan. 26, 2105). Thornton's motion for delayed appeal to the Ohio Supreme Court was denied. State v. Thornton, 143 Ohio St.3d 1415 (2015).

         On April 29, 2016, Thornton filed a combined petition for post-conviction relief and motion for leave to file a motion for new trial (State Court Record, ECF No. 5, PageID 198, et seq.). The trial court denied relief and Thornton appealed to the Fifth District which affirmed. State v. Thornton, 2017-Ohio-637 (5th Dist. Feb. 17, 2017), appellate jurisdiction declined, 149 Ohio St.3d 1465 (2017).

         Thornton then filed his Petition for Writ of Habeas Corpus in this Court by mailing it August 7, 2017. He pleaded the following grounds for relief:

Ground One: Petitioner was unavoidable [sic] prevented from discovery of Mr. Ricket's recanted testimony until after the expiration of the 120 days and 180 days, and that Kayla Dickerson was a potential witness.
Supporting Facts: Mr. Ricket testified that Petitioner and co-defendant robbed him and Mr. Martin. Petitioner was convicted on May 22, 2014. On March 16, 2016, Mr. Ricket recanted his testimony (statements) and stated that no robbery occurred, thus testifying falsely at trial and denying Petitioner a fair trial. After seeing petitioner's co-defendant received [sic] 28 years in prison on Facebook, Kayla Dickerson[1] came forward with eye witness account of the incident for which Petitioner is serving 23 years.
Ground Two: Petitioner was denied the effective assistance of counsel when counsel failed to investigate.
Supporting Facts: Kayla Dickerson was an eye witness who lived right across the street from the alleged criminal acts. She thought that Mr. Barnes and Mr. Martin were fighting. She had no idea the police were called or that Mr. Barnes and Petitioner were charged with robbery and kidnapping until a family member posted on Facebook that Mr. Barnes received 28 years in prison for the incident that occurred across the street from her residence. Defense counsel failed to go to the location of the incident and investigate potential witnesses.
Ground Three: Prosecutorial misconduct.
Supporting Facts: Prosecutor suppressed Mr. Martin's criminal history (record) Prosecutor suppressed the knowledge it had about Mr. Ricket's false testimony.
Ground Four: Court of Appeals determination that the “deposition transcript” alone did not establish a sufficient basis to find the trial court abused its discretion contrary to clearly established federal law.
Supporting Facts: The Court of Appeals held that the deposition transcript alone, without any affidavit from the recanting witness or the inmate explaining the underlying circumstances of the recantation, did not establish a sufficient basis to find the trial court abused its discretion, when all petitioner has to do is allege facts that are true with supporting documentation or other evidence.

(Petition, ECF No. 3, PageID 32, 34, 35, 37.)

         Analysis

         Statute of Limitations

         Respondent asserts that the Petition was untimely filed and should be dismissed on that basis (Return of Writ, ECF No. 6, PageID 735-43). Petitioner makes several responses (Traverse, ECF No. 9, 779-86) which will be examined in turn.

         28 U.S.C. § 2244(d) as enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No. 104-132, 110 Stat. 1214)(the "AEDPA") provides:

(1) 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 -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...

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