JAMES G. CARR, SR., District Judge.
This is a state prisoner's habeas case under 28 U.S.C. § 2254.
In July, 2012, the petitioner, Gevonte Hunter, went on trial with his codefendant, one Alan Lollis, in the Common Pleas Court of Summit County, Ohio, on charges of aggravated murder and aggravated robbery stemming from the death of Salim Suleiman. State v. Hunter, 2014-Ohio-910, ¶¶2-3 (Ohio App. 2014).
The prosecution's theory was that Lollis planned to rob Suleiman, a marijuana dealer, and relied on Hunter to execute the robbery. During the robbery Hunter shot Suleiman in the chest, whether as part of Lollis's plan or on his own initiative after the robbery went bad.
A series of text messages between Suleiman and a person identified in Suleiman's cell phone contacts list as "Young Homie" established that Young Homie feigned to meet Suleiman at Kelley's Carryout in Akron shortly after 5:00 p.m. on July 11, 2011. Id. at ¶19. Each of the text messages that Young Homie's phone sent to Suleiman's "ended with the signature "$tackOr$tarve." Id.
Meanwhile, Young Homie's cell phone was exchanging text messages with a Nokia cell phone that was registered to Hunter's mother. Id. at ¶¶20-21. In the contacts section of this phone, the number associated with Young Homie in Suleiman's phone was associated with a contact named "Beez."
In these messages, Beez asked, "Wat up he on his way to kelly tare em up just hit me up wen u done," he described the make and model of Suleiman's car, and later wrote "Bro get to da east cut me n cal me asap." Id. (sic throughout). Like the messages from Young Homie to Suleiman, the messages from Beez to the Nokia phone ended with the "$tackOr$tarve" signature.
Circumstantial evidence beyond the phone's registration to Hunter's mother linked Hunter to the crime. Perhaps most damning, police recovered the Nokia phone from the passenger-side seat of Suleiman's car. Id. at ¶¶15, 20.
Hunter's aunt, Lashawna Boswell, testified that she was at her cousin's house on Fernwood Drive, near Kelley's Carryout, on the day of the shooting. Id. at ¶12. About a minute before the shooting, she testified, she saw Hunter walk by her cousin's house on a path "on which people can walk to get to Kelley's." Id. (Boswell added, however, that she had been so drunk at that time that "she did not think her identification of Mr. Hunter was reliable." Id. at ¶13.).
Tasha Thomas testified that her friend Sandy and Sandy's boyfriend, whom she knew as "Bezel" — and who was, in fact, Lollis — lived at her house in summer, 2011. Id. at ¶22. According to Thomas, Lollis had spoken to her about a "robbery gone bad." Id. Lollis had said that "he had set up a robbery at Kelley's targeting `some Arab,'" and that he was "`texting some dude telling him what the dude in the car had on, what kind of car he was driving.'" Id. Thomas also testified that the number in her cell phone for Lollis "matched the number of `Young Homie'" in Suleiman's phone "and `Beez'" in Hunter's mother's Nokia phone. Id.
Hunter presented an alibi defense. Through the testimony of his mother and grandmother, Hunter established that he regularly lost his personal possessions, including his cell phones — one of which (the Nokia) he had supposedly lost only recently. Id. at ¶24.
The jury convicted Hunter (and Lollis), and the trial court sentenced Hunter to between thirty-three years and life imprisonment. The Ohio Court of Appeals affirmed the convictions and sentence on direct appeal, and the state courts rejected Hunter's various efforts to obtain post-conviction relief and reopen, on grounds of ineffective assistance of counsel, the direct appeal.
Hunter then retained new counsel and filed his habeas petition. He alleges, inter alia, that the admission of Tasha Thomas's testimony violated his Confrontation Clause rights as understood by the Supreme Court in Bruton v. U.S., 391 U.S. 123 (1968).
Pending is Magistrate Judge Knepp's Report and Recommendation, which recommends that I dismiss the petition as untimely. (Doc. 23). Hunter has filed an objection, and the Warden has responded.
On de novo review of the R&R, see 28 U.S.C. § 636(b)(1), I overrule the objection, adopt the R&R as the order of the court, and dismiss the petition with prejudice.
Hunter appropriately concedes that his petition is untimely.
As the Magistrate Judge explained, his judgment of conviction became final on April 28, 2014, when his time to seek review in the Ohio Supreme Court expired. (Doc. 23 at 11). Hunter then had one year in which to file his habeas petition, but Hunter did not file until September 22, 2015, which was nearly five months too late. (Id. at 11-12).
Hunter contends that he is entitled to equitable tolling because "he has been diligent in pursuing his rights." (Doc. 24 at 8).
He emphasizes that he did not obtain counsel until August, 2015, and that counsel immediately began investigating the case, "discover[ed] the [Bruton] error outlined herein," and filed the petition less than a month and a half later. (Id.). From there, Hunter continues, counsel "then sought to stay these proceedings" so that he could return to the Ohio courts and litigate the Bruton claim. (Id.). Finally, Hunter contends that none of his prior attorneys told him about the one-year limitations period for filing a habeas petition. Id.
I agree with Magistrate Judge Knepp that these circumstances do not warrant equitable tolling.
First, the statute of limitations expired in April, 2015. Hunter's alleged diligence in August, 2015 — four months after the filing window closed — is therefore not relevant to proving that he deserves equitable tolling. Cf. Carneal v. Crews, 2011 WL 2710222, *13 (W.D. Ky. 2011) ("Equitable tolling does not restart the period of limitations[.]").
Second, Hunter's lack of counsel and ignorance of the law do not qualify as extraordinary circumstances, as the Magistrate Judge correctly explained. (Doc. 23 at 12).
Third, while Hunter argues that his case involves a miscarriage of justice, he does not allege that he is actually innocent under the rule of McQuiggen v. Perkins, 569 U.S. 383 (2013).
Finally, to the extent that Hunter's miscarriage-of-justice argument depends on the merits of his Bruton claim, I note only that it is not clear that Bruton, in fact, made Lollis's statement inadmissible. This is because Lollis's statement, which he made to Thomas on his own initiative, outside the context of a police interrogation or other formal setting, and with apparently no suggestion that it was intended to be evidence in a criminal prosecution, was probably not testimonial, and the Confrontation Clause would not have blocked Thomas from relaying that statement. See U.S. v. Collins, 799 F.3d 554, 576 (6th Cir. 2015) (statement is testimonial only if "the declarant . . . intended to bear testimony against the accused"); U.S. v. Johnson, 581 F.3d 320, 325-26 (6th Cir. 2009) (admission of codefendant's non-testimonial inculpatory statement does not violate Bruton).
It is, therefore
ORDERED THAT:
So ordered.
Petitioner Gevonte D. Hunter ("Petitioner"), a prisoner in state custody, through counsel, filed a Petition seeking a writ of habeas corpus under 28 U.S.C. § 2254 ("Petition"). (Doc. 1). Respondent Alan J. Lazaroff, Warden of the Mansfield Correctional Institution ("Respondent"), filed an Answer (Doc. 13), Petitioner filed a Reply (Doc. 16), and Respondent filed a Sur-Reply (Doc. 17). Petitioner also filed two letters addressed to the Court (Docs. 18, 20), which Respondent moves to strike (Docs. 19, 21). The district court has jurisdiction over the Petition under § 2254(a). This matter has been referred to the undersigned for a Report and Recommendation pursuant to Local Rule 72.2(b)(2). (Non-document entry dated August 23, 2016). For the reasons discussed below, the undersigned grants Respondent's motions to strike, and recommends the Court deny the Petition.
For the purposes of habeas corpus review of state court decisions, findings of fact made by a state court are presumed correct and can only be contravened if the habeas petitioner shows, by clear and convincing evidence, erroneous factual findings by the state court. § 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by a state court of appeals based on the state trial court record. Mitzel, 267 F.3d at 530. In this case, on direct appeal, Ohio's Ninth District Court of Appeals set forth the following findings of fact:
(Ex. 14, Doc. 13-1); State v. Hunter, 2014 WL 1345411 (Ohio Ct. App.).
Respondent accurately summarized the procedural history; therefore, it is incorporated herein with minor changes. See Doc. 13, at 2-8.
On November 30, 2011, a Summit County, Ohio grand jury indicted Petitioner on one special felony, O.R.C. § 2903.01(B) aggravated murder charge with a firearm specification; one first-degree felony, O.R.C. § 2911.01(A)(1) aggravated robbery charge with a firearm specification; and one first-degree felony, O.R.C. § 2911.01(A)(3) aggravated robbery charge with a firearm specification. (Ex. 1, Doc. 13-1). On February 9, 2012, the State filed a supplemental indictment charging Petitioner with a special felony, O.R.C. 2903.02(B) murder charge with a firearm specification. (Ex. 2, Doc. 13-1). The offenses were prosecuted in Summit County Common Pleas Court. See Ex. 3, Doc. 13-1. Petitioner had legal representation throughout the trial court proceedings. Id.
Prior to trial, Petitioner filed an alibi notice. (Ex. 4, Doc. 13-1). He also filed a motion to dismiss (Ex. 5, Doc. 13-1) and made motions in limine to exclude certain witness testimony and evidence (Ex. 6, Doc. 13-1); (Doc. 13-3, at 36-38), which the trial court resolved before trial. (Doc. 13-3, at 36-44). The State then filed a motion for a complicity jury instruction. (Ex. 7, Doc. 13-1).
The case proceeded to jury trial. Petitioner's trial attorney made a motion for acquittal at the conclusion of the State's case pursuant to Ohio Criminal Rule 29 (Doc. 13-12, at 38-47), which the trial court denied. Id. Petitioner's trial attorney renewed the motion when the defense rested (Doc. 13-12, at 108), which the trial court again denied. Id. During the trial, Petitioner and his codefendant moved for a mistrial, which the trial court denied. (Doc. 13-12, at 18-35). Before the jury deliberated, both parties objected to the jury instructions (Doc. 13-13, at 144-51), and the trial court then filed final jury instructions. (Ex. 8, Doc. 13-1).
After the trial, the jury found Petitioner guilty of the aggravated murder charge with a firearm specification, both aggravated robbery charges with firearm specifications, and the murder charge with a firearm specification. (Ex. 9, Doc. 13-1). For sentencing purposes, the trial court merged all of the convictions and firearm specifications and sentenced Petitioner to a mandatory prior and consecutive three years in prison for the firearm specification and 30 years to life in prison for the aggravated murder conviction. (Ex. 10, Doc. 13-1). The trial court journalized Petitioner's judgment entries of conviction on July 31, 2012. Id.
On August 30, 2012, through new counsel, Petitioner filed an appeal notice in Ohio's Ninth District Court of Appeals. (Ex. 11, Doc. 13-1). He raised the following assignments of error:
(Ex. 12, Doc. 13-1). On August 11, 2014, Petitioner, pro se, filed an untimely appeal notice (Ex. 15, Doc. 13-1) and motion for a delayed appeal in the Ohio Supreme Court (Ex. 16, Doc. 13-1). The State did not file a response and on September 24, 2014, the Ohio Supreme Court denied Petitioner's motion for a delayed appeal and dismissed the case. (Ex. 17, Doc. 13-1); State v. Hunter, 140 Ohio St.3d 1437 (2014) (Table). Petitioner did not file a petition for certiorari in the United States Supreme Court.
On June 2, 2014, Petitioner, pro se, filed an Ohio App.R. 26(B) application to reopen his direct appeal based on a claim of ineffective assistance of appellate counsel. (Ex. 18, Doc. 13-1). Petitioner alleged his appellate counsel was unconstitutionally ineffective for not raising these claims on direct appeal:
Id. (capitalization changed).
The State did not file a response, and on August 11, 2014, the state appellate court denied Petitioner's application to reopen his direct appeal after determining he "failed to show that the performance of his appellate counsel fell below an objective standard of reasonableness. Therefore, he has failed to meet the first prong of the Strickland [v. Washington, 466 U.S. 668 (1984)] test." (Ex. 19, Doc. 13-1, at 179).
Petitioner did not appeal that decision to the Ohio Supreme Court and his deadline to do so expired September 25, 2014. See Ohio S. Ct. Prac. R. 7.01(A)(1)(a)(i) (allowing an appellant 45 days from the entry of judgment to file an appeal).
On March 11, 2016, Petitioner, through counsel, filed a second Ohio App. R. 26(B) application to reopen his direct appeal. (Ex. 20, Doc. 13-1). He alleged his appellate counsel was ineffective for not raising these claims on direct appeal:
Id.
The State filed a memorandum in opposition (Ex. 21, Doc. 13-1), and on April 1, 2016, the state appellate court denied Petitioner's second application to reopen his direct appeal because it was untimely and a successive petition which "is not specifically authorized by App.R. 26(B)." (Ex. 22, Doc. 13-1).
On May 16, 2016, through counsel, Petitioner filed a timely appeal notice in the Ohio Supreme Court. (Ex. 23, Doc. 13-1). He raised these propositions of law in his jurisdictional memorandum:
(Ex. 24, Doc. 13-1).
The State filed a waiver of memorandum in response. (Ex. 25, Doc. 13-1). On July 27, 2016, the Ohio Supreme Court declined to accept jurisdiction of [Petitioner]'s appeal pursuant to Ohio S. Ct. Prac. R. 7.08(B)(4). (Ex. 26, Doc. 13-1); State v. Hunter, 146 Ohio St.3d 1473 (2016)(Table). Petitioner did not file a petition for certiorari in the United States Supreme Court.
On August 15, 2013, Petitioner, pro se, filed in the trial court a timely petition to vacate or set aside judgment of conviction or sentence. (Ex. 27, Doc. 13-1). He raised a single claim:
Id.
In response, the State filed a motion to dismiss. (Ex. 28, Doc. 13-1). On September 12, 2013, the trial court determined Petitioner's "claims are barred by res judicata and the failure to attach evidentiary documents" and denied Petitioner's petition to vacate. (Ex. 29, Doc. 13-1).
Petitioner did not file a timely appeal notice in the state appellate court and his appellate filing deadline expired October 15, 2013. See Ohio App. R. 4(A)(1) (allowing 30 days from a final order to file a notice of appeal); Ohio App. R. 14(A) (the time period to file shall be computed by excluding the first and including the last day in the relevant time period).
On September 22, 2015, Petitioner, through counsel, filed the instant habeas Petitioner raising the following four grounds for relief:
(Doc. 1, at 1-16). On November 16, 2015, Petitioner, through counsel, filed a motion to stay the habeas proceedings pending exhaustion of his state court remedies. (Doc. 3). This Court granted the motion and held proceedings in this matter in abeyance. (Doc. 4).
Respondent filed an Answer/Return of Writ on November 3, 2016, alleging the Petition is untimely and Petitioner has not shown cause for equitable tolling. (Doc. 13). Petitioner filed two unopposed motions for extension of time to file a Reply/Traverse (Docs. 14, 15), which the Court granted (Non-document entries dated November 30, 2016, and January 19, 2017). In his Reply, Petitioner: (1) admits the Petition is untimely, but argues the statute of limitations should be equitably tolled; (2) argues that a failure to consider the merits of the Petition would result in a miscarriage of justice; and (3) offers arguments on the merits relating to his confrontation clause claim. (Doc. 16). Respondent filed a Sur-Reply, arguing: (1) Petitioner has not shown cause for equitable tolling; (2) his claims are not exhausted in the state courts; (3) Petitioner has not shown cause and prejudice, a miscarriage of justice, or actual innocence to excuse procedural default; and (4) Petitioner is not entitled to substantive review of his confrontation clause claim. (Doc. 17).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "dictates a highly deferential standard for evaluating state-court rulings which demands that state court decisions be given the benefit of the doubt." Bell v. Cone, 543 U.S. 447, 455 (2005). An application for habeas corpus cannot be granted for a person in custody pursuant to a state conviction unless the adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d). Thus, a court may grant habeas relief if the state court arrives at a conclusion that is contrary to a decision of the Supreme Court on a question of law, or if the state court decides a case differently than did the Supreme Court on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. 362, 405 (2000).
The appropriate measure of whether a state court decision unreasonably applied clearly established federal law is whether that state adjudication was "objectively unreasonable" and not merely erroneous or incorrect. Williams, 529 U.S. at 409-11; see also Machacek v. Hofbauer, 213 F.3d 947, 953 (6th Cir. 2000). "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington v. Richter, 562 U.S. 86, 102 (2011). To obtain "habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.
Petitioner concedes the Petition is untimely, but argues for equitable tolling. (Doc. 16, at 8). As such, the undersigned addresses only whether he has met his burden to show equitable tolling should apply here, thus excusing the statute of limitations.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") created a one-year limitations period for habeas petitions brought by individuals challenging their state court convictions. 28 U.S.C. § 2244(d). Under 28 U.S.C. § 2244(d)(1), the limitations period begins to run from the latest of four events:
Cases become final for purposes of § 2244(d)(1)(A) when the time to file an appeal has expired. Lawrence v. Florida, 549 U.S. 327, 333 (2007). Although the statute of limitations is "not jurisdictional," it "effectively bars relief absent a showing that the petition's untimeliness should be excused based on equitable tolling and actual innocence." Akrawi v. Booker, 572 F.3d 252, 260 (6th Cir. 2009).
Here, the state appellate court affirmed Petitioner's convictions and sentences on March 12, 2014. (Ex. 14, Doc. 13-1, at 161). He then had 45 days, or until April 28, 2014,
Petitioner has the burden of establishing his entitlement to equitable tolling. Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003). To meet this burden, Petitioner must show that: 1) extraordinary circumstances prevented the filing of his petition, and 2) he was diligent in pursuing his case. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling should only be granted "sparingly". Solomon v. United States, 467 F.3d 928, 933 (6th Cir. 2006). In the extreme circumstance, a petitioner can also overcome the statute of limitations with a showing of actual innocence under the "miscarriage of justice" standard. McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013); Schlup v. Delo, 513 U.S. 298 (1995).
First, Petitioner alleges he has been "diligent in pursing his rights" because prior counsel failed to advise him of his right to file a habeas petition in this Court and, after obtaining new counsel in August 2015 and learning of this right, he filed the Petition one month later, on September 22, 2015. (Doc. 16, at 8-9). Second, he alleges he meets the "extraordinary circumstances" factor because his counsel, after filing the Petition:
(Doc. 16, at 9).
First, Petitioner's argument is not well taken because his lack of counsel prior to August 2015, does not excuse his untimely filing. "Ignorance of the law alone is not sufficient to warrant equitable tolling." Griffin v. Rogers, 399 F.3d 626, 637 (6th Cir. 2005) (quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991)); Jagoda v. Lafler, 148 F. App'x 345, 347 (6th Cir. 2005) holding (the same is true for pro se habeas petitioners); see also Starnes v. United States, 18 F. App'x 288, 293 (6th Cir. 2001) (noting that "courts are reluctant to find that a lack of actual notice of the AEDPA, or ignorance of the law in general, may excuse a late filing."). Petitioner has not shown that his untimely filing arose from circumstances beyond his control. See Robinson v. Easterling, 424 F. App'x 439, 442 (6th Cir. 2011) (equitable tolling allows courts to review time-barred habeas petitions "provided that `a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control.'") (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)).
Second, Petitioner has not shown he diligently pursued his rights because he not only failed to timely file this Petition, the record reveals a failure to diligently pursue his rights by repeatedly filing untimely motions in his underlying state case. See, e.g., (Ex. 15, Doc. 13-1) (untimely appeal to the Ohio Supreme Court); (Ex. 22, Doc. 13-1) (denying Petitioner's second motion to reopen his direct appeal because it was untimely).
Third, while Petitioner uses the term "miscarriage of justice" in passing (Doc. 16, at 9), he does not actually allege innocence of the underlying conviction or point to new evidence showing such as a basis for equitable tolling; thus, the Court need not address it. See Schlup, 513 U.S. at 324 (in order to advance a credible actual innocence claim a petitioner must support his allegations with "new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.").
Because the Petition is untimely, and Petitioner has not shown cause justifying equitable tolling, a substantive review of the Petition is not warranted. Griffin, 399 F.3d at 635. The undersigned, therefore, finds it unnecessary to analyze the additional issues of procedural default and exhaustion, or the merits of Petitioner's claims.
Additionally, the undersigned grants Respondent's motions to strike (Docs. 19, 21) Petitioner's two letters to the Court (Docs. 18, 20). Petitioner is represented by counsel in this matter and, thus, not entitled to hybrid representation. United States v. Martinez, 588 F.3d 301, 328 (6th Cir. 2009) (A court is not obligated to consider pro se filings or arguments when the party was represented by counsel); see also Chasteen v. Jackson, 2012 WL 1564493, *3 (S.D. Ohio 2012) ("Plaintiff's pro se supplemental pleading is not properly before the Court because he is represented by counsel.") (collecting cases).
Following review, and for the reasons stated above, the undersigned recommends the Court DENY the Petition, grants Respondent's motions to strike (Docs. 19, 21), and orders the clerk to strike Petitioner's letters (Docs. 18, 20) from the docket.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within fourteen days of service of this notice. Failure to file objections within the specified time WAIVES the right to appeal the Magistrate Judge's recommendation. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).
