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Thornton v. Buchanan

United States District Court, S.D. Ohio, Western Division

July 5, 2019

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

          Michael R. Barrett District Judge.

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.

         This 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).

         Petitioner makes six objections to the Report, which will be considered seriatim.

         Thornton's 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.

         The 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 Thornton.

         Objection One: The Report Errs in Finding the Petition Barred by the Statute of Limitations

         The 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 diligence.”

         In his 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.

         The 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.

         In his 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?

         Thornton has not shown he acted with due diligence in pursuing his claims. His first objection is not well taken.

         Objection Two: Thornton Has Established His Actual Innocence

         In his 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).[1] (Objections, ECF No. 74, PageID 2356-57, citing Schlup v. Delo, 513 U.S. 298, 327, 329, 330 (1995)).

         The 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, “[t]he ...

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