United States District Court, S.D. Ohio, Western Division
Michael R. Barrett District Judge.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.
habeas corpus case under 28 U.S.C. § 2254 is before the
Court on Petitioner's Objections (ECF No. 73) to the
Magistrate Judge's Report and Recommendations (the
“Report, ” ECF No. 68). District Judge Barrett
has recommitted the case for reconsideration in light of the
Objections (ECF No. 75).
makes six objections to the Report, which will be considered
counsel begins his Objections with a six-page statement of
purported facts (ECF No. 74, PageID 2349-2354). While these
purported facts are, for the most part, supported by
citations to the trial transcript, they are selective and
argumentative. Moreover, they ignore the function of
objections to a Report and Recommendations generally, and in
a habeas corpus case specifically: they do not point to some
place in the Report where the Magistrate Judge made an
arguably erroneous fact finding or to some place where a
state court did so. Instead, they constitute a factual
narrative in support of Thornton's claim that he is not
guilty. While such a general narrative would be appropriate
in a direct appeal brief or in a motion to reopen a direct
appeal under Ohio App.R. 26(B), it does not serve to focus
the District Judge on any errors the Report may contain.
factual findings of the Twelfth District Court of Appeals,
which appear at paragraphs two through six of its decision,
State v. Thornton, 12th Dist. Clermont
No. CA2008-10-092, 2009-Ohio-3685 (Jul. 27, 2009), are
presumptively correct; the petitioner may rebut the
presumption of correctness only with clear and convincing
evidence. Warren v. Smith, 161 F.3d 358, 360-61
(6thCir. 1998), citing 28 U.S.C. §
2254(e)(1). This narrative section of the Objections does not
purport to show that those findings have been rebutted. It
merely states a narrative featuring testimony favorable to
One: The Report Errs in Finding the Petition Barred by the
Statute of Limitations
Antiterrorism and Effective Death Penalty Act of 1996 (Pub.
L. No. 104-132, 110 Stat. 1214) (the “AEDPA”)
enacted a one-year statute of limitations for habeas corpus
petitions with the time running from the latest of four
dates. In his Objections (ECF No. 74, PageID 2354-55),
Thornton claims the benefit of 28 U.S.C. § 2244(d)(1),
which starts the running of the statute on “the date on
which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due
Traverse, Thornton claimed the relevant date was March 27,
2012, the date on which the DNA Diagnostics Center reported
that the male DNA on the ties used to restrain the victim
belonged to someone other than Thornton (ECF No. 56, PageID
2264). The Report concluded that Thornton had not shown due
diligence in discovering that evidence because he had waited
more than two years after his resentencing in 2009 to contact
the Ohio Innocence Project, which arranged for the testing.
Objections incorrectly state that the Report found
“Thornton failed to exercise due diligence to discover
the exonerative evidence at the time of trial.” (ECF
No. 74, PageID 2355, citing Report, ECF No. 68, PageID 2313).
The Report focuses on Thornton's lack of diligence
between his resentencing in 2009 and his contact with the
Ohio Innocence Project two years later in 2011 (ECF No. 68,
PageID 2314). Quoting from Gideon v. Wainwright, 372
U.S. 335 (1963), and Powell v. Alabama, 287 U.S. 45
(1932), Thornton blames his lack of diligence on his
attorney. He pleads that he received ineffective assistance
of trial counsel when his trial attorney did not obtain the
testing that the Innocence Project eventually obtained
(Objections, ECF No. 74, PageID 2355-56), but his trial
attorney's responsibility for the case ended when he was
sentenced in September 2008 and new counsel was appointed for
appeal. Once his direct appeal was over, Thornton was no
longer entitled to appointed counsel, and he cannot blame his
lack of diligence from 2009 to 2011 on someone who did not
have a duty to exercise diligence on his behalf.
Objections, Thornton does not offer any facts to show what he
himself did during this period. His present counsel notes
that the Ohio Innocence Project is limited by its mission to
accepting representation only after all appeals are
completed. But there is no exception in the AEDPA to toll the
time while an innocence project completes its screening.
Thornton concedes his “conviction became final in July
2010” (Objections, ECF No. 74, PageID 2356). The Ohio
Innocence Project admits it completed its screening in 2011.
Id., quoting State Court Record, ECF No. 5-48,
PageID 1224. However, the Petition was not filed here until
July 8, 2014. If the Innocence Project had accepted the case
in 2011, why did it wait three years to file?
has not shown he acted with due diligence in pursuing his
claims. His first objection is not well taken.
Two: Thornton Has Established His Actual Innocence
Petition, Thornton claimed he was actually innocent, both to
excuse his delay in filing and in support of a stand-alone
actual innocence claim for relief. In his Second Objection,
he asserts he has sufficiently shown his actual innocence to
satisfy the equitable gateway through the time bar recognized
in McQuiggin v. Perkins, 569 U.S. 383
(2013). (Objections, ECF No. 74, PageID 2356-57,
citing Schlup v. Delo, 513 U.S. 298, 327, 329, 330
Objections argue that the United States Court of Appeals for
the Sixth Circuit has “already opined favorably on Mr.
Thornton's actual innocence gateway claim” (ECF No.
74, PageID 2357, citing In re Thornton, No. 17-3282
(6th Cir. Nov. 17, 2017) (unreported; copy at ECF
No. 43). The majority of the panel concluded:
Thornton has made a prima facie showing that, if taken in
light of the evidence as a whole, this newly discovered
evidence would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have
found him guilty of the underlying offense.
“‘Prima facie' in this context means simply
sufficient allegations of fact together with some
documentation that would ‘warrant a fuller exploration
in the district court.'” Lott, 366 F.3d at
433 (quoting Bennett v. United States, 119 F.3d 468,
469 (7th Cir. 1997)). The fact that DNA results from the zip
ties would not have named Thornton as a source raises doubts
as to his guilt. And, as noted by the trial court,