CHRISTOPHER A. BOYKO, Senior District Judge.
This matter comes before the Court on Petitioner Robert Porter's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. (Doc. 1). For the following reasons, the Court
The following is a procedural synopsis of Petitioner's claims. The Magistrate Judge's Report and Recommendation, adopted and incorporated herein, provides a more thorough discussion.
A Cuyahoga County Grand Jury indicted Petitioner on eight counts related to the armed robbery and murder of Curtis Marks. (Doc. 8-1, 306).
Instead, Petitioner moved to withdraw his guilty plea. (Id. at 176). Petitioner claimed that he did not enter the plea knowingly and voluntarily. See generally, (Id. at 176-79). The State trial court held a hearing on February 19, 2015. (Id. at 194). At the hearing, Petitioner testified for almost 45 minutes. (Id. at 196). According to the trial court, "[t]he essence of the testimony was that [Petitioner] regretted the plea `as soon as he made it[.]'" (Id.). A review of the hearing transcript confirms the trial court's summation.
On June 25, 2015, Petitioner filed a delayed appeal with the Ohio Court of Appeals. (Id. at 201). Relevant here, Petitioner made the following assignment of error for the appellate court's review: "The trial court abused its discretion when it overruled [Petitioner's] motion to withdraw his plea." (Id. at 309). On September 15, 2016, the appellate court overruled Petitioner's assignment of error and affirmed the trial court's decision to deny Petitioner's motion to withdraw his guilty plea. (Id. at 312). Petitioner did not appeal this decision to the Ohio Supreme Court.
On March 31, 2017, Attorney Drucker (Petitioner's trial counsel) authored a letter at Petitioner's request (the "Drucker Letter"). (Id. at 353). The Drucker Letter states that: "Shortly after entering his guilty pleas[,] [Petitioner] contacted the undersigned and requested that a Motion to Vacate Guilty [P]lea be filed on his behalf. I [Attorney Drucker] recall this request was by phone call and was within days after entering his plea." (Id.).
Based on the Drucker Letter, Petitioner filed a Petition for Postconviction Relief with the trial court. (Id. at 322). The trial court summarily denied the Petition. (Id. at 364). Upon appeal, the appellate court affirmed the trial court because the postconviction petition was untimely under Ohio law. See generally, (Id. at 434-443). Petitioner appealed this decision to the Ohio Supreme Court but the Court declined jurisdiction. (Id. at 473).
On May 4, 2018, Petitioner filed an Application to Reopen his appeal with the appellate court under Ohio Rule of Appellate Procedure 26(B). (Id. at 474). Petitioner presented arguments as to why his Application was untimely. (Id. at 474-82). On July 6, 2018, the appellate court denied the Application as untimely. (Id. at 490-94). Again, Petitioner unsuccessfully sought review of this decision with the Ohio Supreme Court. (Id. at 514).
On January 4, 2019, Petitioner mailed the instant Petition for habeas relief. (Doc. 1). He asserted the following ground for relief:
(Id. at 5).
On January 30, 2019, the Court referred the Petition to Magistrate Judge Thomas M. Parker for a Report and Recommendation. (Doc. 4). On April 4, 2019, Respondent filed a Motion to Dismiss the Petition as time-barred. (Doc. 8). On June 21, 2019, Petitioner's Reply to the Motion to Dismiss was docketed. (Doc. 11). On September 23, 2019, the Magistrate Judge issued his Report and Recommendation, in which he recommended that the Court grant Respondent's Motion and dismiss the Petition. (Doc. 12). On October 21, 2019, Petitioner mailed his Objection to the Report and Recommendation. (Doc. 15).
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 326-27, 337 (1997). The relevant provisions of the AEDPA state:
28 U.S.C. § 2244(d)(1) - (2).
Rule 8(b)(4) of the Rules Governing § 2254 states:
In his Objections to the Report and Recommendation, Petitioner claims his Petition is timely under either § 2244(d)(2) or § 2244(d)(1)(D). In the event that his Petition is untimely, Petitioner argues he should be entitled to equitable tolling. Finally, Petitioner claims that the Court should issue him a Certificate of Appealability should the Court rule in favor of Respondent. For the following reasons, Petitioner's objections are meritless.
The Magistrate Judge determined the Petition was time-barred. He found that Petitioner did not properly file his State postconviction petition or other motions for collateral review. Thus, the statute of limitations period was not tolled. Petitioner disagrees and claims that he demonstrated good cause as to why his State filings were untimely. Petitioner cites case law to support his claim that a State court's finding on `good cause' is not dispositive in Federal habeas review and thus the Court can toll the statute of limitations.
The Court agrees with the Magistrate Judge. The Supreme Court in Pace v. DiGuglielmo determined that time limits, no matter their form, are `filing' conditions. 544 U.S. 408, 417 (2005). Thus, a State court's rejection of a petitioner's State filings as untimely are not properly filed and a petitioner is not entitled to tolling under § 2244(d)(2). Id.
Here, Petitioner's State postconviction petition and application to reopen his appeal— under R.C. § 2925.21 and Ohio Appellate Rule 26(B) respectively—have time limits to filing. See Board v. Bradshaw, 805 F.3d 769, 776 (6th Cir. 2015). The Ohio Court of Appeals determined Petitioner's filings under these provisions were untimely. As Pace determined: "[w]hen a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2)." Pace, 544 U.S. at 414 (citation omitted). Thus, the Court will not question the appeals court's decision on good cause.
Since the Ohio courts have previously found Petitioner's filings untimely, the filings are not `properly filed' and cannot toll the statute of limitations under § 2244(d)(2).
The Magistrate Judge also determined that Petitioner did not uncover a new factual predicate to justify a later start to the statute of limitations. Rather, the Drucker Letter was not "new evidence" because Petitioner already knew the information within the letter. Petitioner disagrees. While it is true that Petitioner previously testified to these facts at the motion hearing, Petitioner did not understand the legal significance of his testimony. It was not until the Drucker Letter that he uncovered the significance of his testimony.
The Court agrees with the Magistrate Judge. As discussed above, "[t]he statute of limitations begins to run from the latest of four events, one of which is `the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.'" Souter v. Jones, 395 F.3d 577, 586 (6th Cir. 2005) (quoting 28 U.S.C. § 2244(d)(1)(D)). The factual predicate must consist of new evidence rather than merely cumulative evidence. Id. at 587.
The Drucker Letter is not new evidence that created a new factual predicate. As the Magistrate Judge highlighted, Petitioner already testified to the same facts at his original motion hearing. Despite Petitioner's claims otherwise, the Drucker Letter is merely cumulative of Petitioner's testimony to the trial court.
More importantly, Petitioner's sole Ground for Relief is the same as he first asserted in his delayed direct appeal. There, Petitioner claimed "[t]he trial court abused its discretion when it overruled the appellant's motion to withdraw his plea." Now, Petitioner claims that his "[F]ederal constitutional rights were violated when the [S]tate refused to allow him to withdraw his guilty plea." Thus, Petitioner is basing his current Federal habeas Ground for Relief on the same factual predicate as his direct appeal assignment of error.
Accordingly, Petitioner did not uncover a new factual predicate based on the Drucker Letter. Petitioner previously testified to the same facts before. Moreover, Petitioner's current Ground for Relief is based on the trial court's denial of his motion to withdraw his plea, which was readily known to Petitioner since the time of the denial.
The Magistrate Judge determined that Petitioner is not entitled to equitable tolling because Petitioner did not demonstrate that he diligently pursued his rights in filing his Federal habeas petition. Petitioner claims he diligently asserted his claims to the Ohio courts. Moreover, Petitioner believed he had to first exhaust his State court remedies before filing in Federal court. Finally, Petitioner claims tolling is proper because of the ineffective assistance of counsel he received throughout the litigation of his case.
Petitioner's objections are meritless. Equitable tolling allows courts to review time-barred petitions "provided that `a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control.'" Robinson v. Easterling, 424 Fed. App'x 439, 442 (6th Cir. May 20, 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)). A habeas "petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010).
Petitioner has not demonstrated that he has pursued his rights diligently. Petitioner's statement that he was unaware that his State filings would not toll the statute of limitations or that he needed to exhaust his claims is one that has previously been rejected. In Pace, the petitioner justified his untimely Federal habeas petition because he was exhausting his claims in State court. Pace, 544 U.S. at 416. The Supreme Court rejected this claim, instead holding that a prisoner can avoid this predicament "by filing a `protective' petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until his state remedies are exhausted." Id. (citing Rhines v. Weber, 544 U.S. 269, 278 (2005)). Petitioner here never filed a protective petition. Moreover, Petitioner's ignorance of this procedure cannot excuse his failure to comply with statutory requirements. See Spencer v. White, 265 F.Supp.2d 813, 818 (E.D. Mich. 2003) (citations omitted).
Finally, the cases Petitioner cites to support his position that equitable tolling is applicable in cases with attorney incompetence are distinguishable. For example, the prisoner in Spitsyn asked and hired counsel to file a habeas petition on his behalf. Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir. 2003). His attorney neglected to do so. Id. The Ninth Circuit found that, although "ordinary attorney negligence will not justify equitable tolling," the attorney's misconduct here was "sufficiently egregious to justify equitably tolling of the one-year limitations period under AEDPA." Id. at 800-01. In reaching this conclusion, the Spitsyn court relied on Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003), a case that "posed a factual situation similar" to the case before the court. Id. at 801. While Petitioner here relies on both Spitsyn and Baldayaque, his case is factually distinguishable. For one, Petitioner did not hire or ask separate counsel to file his Petition. Further, Petitioner has been well-aware of the Ground for Relief he alleges here—he has advanced the argument since his direct appeal.
Accordingly, this is not an extreme case where counsel's perceived failures presented some extraordinary circumstance that stood in Petitioner's way from timely filing his Petition.
The Magistrate Judge determined that, while Petitioner asserted he is actually innocent, Petitioner has not produced new evidence—or any evidence at all—to substantiate such a claim. Petitioner objects and argues that he has not produced new evidence because there has not been a trial. If there were, Petitioner would "offer a credible...defense that would demonstrate that the State could not prove the elements of any form of complicity under R.C. § 2923.03." (Doc. 15, 720).
The Court agrees with the Magistrate Judge. The untimeliness of a petition may be excused by a colorable showing of actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). In order to be entitled to the exception, a petitioner must demonstrate that, "in light of new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). "A valid claim of actual innocence requires `new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.'" Patterson v. Lafler, 455 Fed. App'x 606, 609 (6th Cir. Jan. 9, 2012) (quoting Schlup, 513 U.S. at 324). "The evidence must demonstrate factual innocence, not mere legal insufficiency." Id. (citing Bousley v. United States, 523 U.S. 614, 623 (1998)). Actual innocence is a rare exception and should "only be applied in the extraordinary case." Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005) (citation omitted).
Petitioner's claim of actual innocence is not the extraordinary type to justify the actual innocence exception. Petitioner claims that if he were to proceed to trial, he would offer a credible defense to the elements of his conviction. In essence, Petitioner is challenging the legal sufficiency of his conviction. This Petitioner cannot do. He must demonstrate his factual innocence with new evidence.
Moreover, "[i]n cases where the [State] has forgone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges." Bousley, 523 U.S. at 624. Here, Petitioner faced eight counts. His claim of actual innocence does not extend to each of those counts. Since Petitioner has not provided new evidence that demonstrates his factual innocence as to each of the original eight counts, his claim of actual innocence fails.
Because Petitioner has not presented new evidence concerning his factual innocence, Petitioner cannot avoid the statute of limitations by a claim of actual innocence.
The Magistrate Judge determined Petitioner is not entitled to a certificate of appealability. Petitioner objects and claims that "a certificate of appealability must always issue where...the matter is fluid and the petitioner has made reasonable justifications for the exercise of a court's equity power." (Doc. 15, Page ID: 725).
Petitioner is not entitled to a certificate of appealability. Under 28 U.S.C. § 2253, "a certificate of appealability may" only be issued "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Supreme Court in Slack v. McDaniel held that:
529 U.S. 473, 484 (2000).
Petitioner makes no attempt to satisfy this standard. Indeed, this would be a difficult showing for Petitioner. Petitioner's sole claim stemming from the failure to withdraw his guilty plea has been evident since Petitioner initially tried to revoke his plea. Yet Petitioner waited nearly four years after the hearing to assert his claim in this Court. And since Petitioner has not demonstrated an exception or later start date for the commencement of the statute of limitations, no reasonable jurist would find the decision that the Petition is untimely debatable.
Petitioner's reliance on Holland is misguided. Holland did not discuss the issuance of a certificate of appealability. Rather, Holland determined that § 2244(d) is subject to equitable tolling in appropriate cases. The Holland-Court did not extend its equity discussion to § 2253(c)'s certificate of appealability analysis. Thus, Petitioner's reliance on Holland is inappropriate.
Accordingly, Petitioner is not entitled to a certificate of appealability.
For the foregoing reasons, the Court
The Court finds an appeal from this decision could not be taken in good faith. 28 U.S.C. § 1915(a)(3). As discussed above, the Court declines to issue a certificate of appealability. 28 U.S.C. § 2253(c)(2); FED. R. APP. R. 22(b); Rule 11 of Rules Governing § 2254 Cases.
