STEPHANIE K. BOWMAN, Magistrate Judge.
Petitioner, an inmate in state custody at the Warren Correctional Institution in Lebanon, Ohio, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before the Court on respondent's motion to dismiss; petitioner's memorandum in opposition to the motion to dismiss; respondent's reply brief; and petitioner's brief in response to respondent's reply brief. (Docs. 9, 13, 14, 15).
In July 2002, the Hamilton County, Ohio, grand jury returned an indictment charging petitioner and co-defendant Rodrick Reeves with one count of aggravated murder in violation of Ohio Rev. Code § 2903.01(B), one count of murder in violation of Ohio Rev. Code § 2903.02(A), and one count of aggravated robbery in violation of Ohio Rev. Code § 2911.01(A)(1). (Doc. 9, Ex. 1). Firearm specifications were attached to each count. (Id.).
The incident giving rise to the charges occurred on June 28, 2002, when Thomas Maddox was shot and killed in the course of a robbery. The Ohio Court of Appeals, First Appellate District, has provided the following summary of the facts that led to the indictment based on 4evidence presented by the State at petitioner's trial:
(Id., Ex. 12, pp. 2-6).
Petitioner was tried separately from Reeves, who was convicted on all charges and sentenced in March 2003 prior to petitioner's trial in June 2003. (See id., Ex. 14, Attachment B). Following a jury trial, petitioner was found guilty as charged under the theory presented by the State that he "had aided and abetted Reeves in the robbery and murder of Maddox." (See id., Ex. 7 & Ex. 12, p. 7). On June 25, 2003, the trial court sentenced petitioner to an aggregate prison term of thirty (30) years to life, which consisted of consecutive terms of imprisonment of twenty (20) years to life for the aggravated murder offense, three (3) years on the merged firearm specifications attached to the aggravated murder count, and seven (7) years for the aggravated robbery offense. (Id., Ex. 8).
With the assistance of new counsel for appeal purposes, petitioner timely appealed to the Ohio Court of Appeals, First Appellate District. (Doc. 9, Ex. 9). In his appellate brief, petitioner asserted the following assignments of error:
(Id., Ex. 10).
On May 20, 2005, the Ohio Court of Appeals overruled petitioner's assignments of error and affirmed the trial court's judgment. (Id., Ex. 12). Petitioner did not pursue an appeal from that decision to the Ohio Supreme Court. (Id., Brief, p. 8 & Ex. 24).
On January 28, 2011, over six and one-half years after petitioner's conviction was affirmed on direct appeal, a motion for leave to file a delayed motion for new trial was filed on petitioner's behalf by an attorney at the Hamilton County Public Defender's Office. (Doc. 9, Ex. 13). In the motion filed pursuant to Ohio R. Crim. P. 33(B), petitioner contended that "[n]ew evidence has come to light in this case," which could not have been discovered "within 120 days of the verdict." (Id.). The "new evidence" relied on as support for the motion consisted of: (1) Donta Campbell's testimony that he knew "with certainty" that petitioner was not involved in the robbery or murder of Maddox because "at the exact moment that [he] heard gunfire," Campbell "personally saw" petitioner on a nearby basketball court; and (2) Rodrick Reeves's testimony that petitioner was "nowhere near the scene" of the murder and had "been wrongly convicted for a crime that [Reeves] committed with Michael McCoy." (See id., p. 2 & attached affidavits of Donta Campbell and Rodrick Reeves). In his affidavit, which was executed and notarized on December 10, 2009, Campbell also averred that he "gave this same information to the detectives who interviewed [him] about what [he] witnessed in June 2002"; that he was incarcerated at the Hamilton County Justice Center at the time of petitioner's trial; and that when he later saw petitioner in prison, he asked petitioner "why he didn't call me to testify" and was told that petitioner's trial attorney had said that "I could not be located when I was in fact right there at the jail." (Id., "Affidavit of Donta Campbell"). Petitioner's affidavit was attached to the motion as additional evidentiary support. (See id., "Affidavit of Demecus Hughes"). In that affidavit, which was also executed and notarized on December 10, 2009, petitioner stated in pertinent part:
(Id.).
The State opposed petitioner's motion for leave to file a delayed motion for new trial on the grounds that (1) petitioner had not shown by clear and convincing evidence that he was unavoidably prevented from discovering the allegedly "new" evidence submitted in support of his motion, and (2) such evidence was insufficient to entitle petitioner to a new trial under standards established by the Ohio Supreme Court in State v. Petro, 76 N.E.2d 370 (Ohio 1947). (Id., Ex. 14). The State attached exhibits developed during the investigation and prosecution of the case to its brief, including summaries of Donta Campbell's statements to the police in August 2002. (See id.).
On July 27, 2011, the same judge who had presided over both petitioner's and Rodrick Reeves's jury trials in 2003 issued an Opinion overruling petitioner's motion for leave to file a delayed motion for new trial. (Id., Ex. 15). The court reasoned in relevant part:
(Id., pp. 3-6).
Petitioner timely appealed to the Ohio Court of Appeals, First Appellate District. (Id., Ex. 16). Assisted by new counsel, he filed an appellate brief in which he asserted as the sole assignment of error that the trial court erred to his prejudice "by abusing its discretion in denying his motion for leave to file delayed motion for new trial" when he had "supplied supporting affidavits that he was unavoidably prevented from discovering newly discovered evidence within the 120 day period prescribed in Crim.R. 33." (Id., Ex. 17).
On May 23, 2012, the Ohio Court of Appeals overruled the assignment of error and affirmed the trial court's judgment. (Id., Ex. 19). The court concluded that the trial court had "properly denied Hughes leave to move for a new trial" because "[t]he court had before it competent and credible evidence to support its determination that Hughes failed to demonstrate by clear and convincing evidence that he had been unavoidably prevented from timely discovering, and from presenting in a new-trial motion, the evidence upon which his new-trial motion depended." (Id.).
Petitioner's counsel pursued a timely appeal to the Ohio Supreme Court on petitioner's behalf, raising as the sole proposition of law the same claim that he had presented to the Ohio Court of Appeals. (See id., Exs. 20-21). On September 26, 2012, the Ohio Supreme Court declined jurisdiction to hear the case. (Id., Ex. 23).
Petitioner initiated the instant federal habeas action in July 2013. (See Doc. 1). In the petition, which is presumed to have been filed on July 30, 2013,
(Doc. 1, p. 6).
In the motion to dismiss filed in response to the petition, respondent argues that the petition should be dismissed with prejudice because it is barred from review by the applicable one-year statute of limitations governing federal habeas petitions, which is set forth in 28 U.S.C. § dismissal because it is either procedurally defaulted or not cognizable in this federal habeas proceeding. (Id., pp. 18-23). Petitioner opposes the motion to dismiss. (Doc. 13). Respondent has filed a brief in response to petitioner's opposition memorandum, and petitioner has filed an additional brief in reply to respondent's response. (Docs. 14-15).
Upon review of the pleadings that have been filed in this case, it appears that petitioner is not challenging the sufficiency of the evidence that was introduced by the State at the June 2003 trial to establish petitioner's guilt on the charges stemming from the robbery and shooting of Thomas Maddox. Instead, petitioner is essentially claiming that Donta Campbell's and Rodrick Reeves's affidavits, which were submitted in support of his January 2011 motion for leave to file a delayed motion for new trial based on newly discovered evidence, establish his innocence and, at least, should have entitled him to a new trial on the criminal charges. (See Doc. 1, p. 6; see also Docs. 13, 15).
As an initial matter, as respondent has argued in the motion to dismiss, it appears that the petition may be barred from review on procedural grounds. Petitioner procedurally defaulted and thus may have waived any constitutional claim subject to review by this Court because he only argued the issues in the state courts under state-law standards governing new trial motions filed pursuant to Ohio R. Crim. P. 33(B). See, e.g., Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987) (quoting Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984)) (to satisfy the "fair presentation" requirement for federal habeas review of state convictions, the "petitioner must present his claim to the state courts as a federal constitutional issue—not merely as an issue arising under state law"); see also McMeans v. Brigano, 228 F.3d 674, 681-82 (6th Cir. 2000). Cf. Austin v. Mack, No. 1:03cv323, 2005 WL 1652533, at *3-5 (S.D. Ohio July 11, 2005) (Hogan, M.J.) (Report & Recommendation) (holding that the habeas petitioner waived any claim of constitutional error stemming from the state trial court's denial of his motion for new trial based on newly discovered evidence, because he presented his claims to the state courts "solely `as state law claims'").
In addition, it appears that petitioner's claim is time-barred under the one-year statute of limitations set forth in 28 U.S.C. § 2244(d), because the facts underlying the ground for relief were discoverable in the exercise of due diligence before petitioner's conviction became final by the conclusion of direct review in 2005 or, in any event, more than a year before Campbell's and Reeves's affidavits were obtained, respectively, in December 2009 and February 2010. The Sixth Circuit has held that the petitioner bears the burden of persuading the court of his due diligence in searching for the factual predicate of his claim. See, e.g., Stokes v. Leonard, 36 F. App'x 801, 804 (6th Cir. 2002) (citing Lott v. Coyle, 261 F.3d 594, 605-06 (6th Cir. 2001)); see also McSwain v. Davis, 287 F. App'x 450, 454-55 (6th Cir. 2008). Here, other than generally averring that he suffered from "adjustment anxiety disorder" when he was transferred to prison immediately after his sentencing in June 2003, petitioner has provided no explanation as to why he did not discover the allegedly exculpatory evidence before the conclusion of direct review in 2005, or what prompted him in 2009 and 2010, seven and one-half years after the final judgment entry of conviction and sentence issued, to finally obtain the affidavits that he claims now demonstrate his innocence. In light of the silent record, a strong argument can be made that petitioner has not met his burden of demonstrating that Campbell's and Reeves's testimony constitutes newlydiscovered evidence for statute of limitations purposes. Cf. McSwain, 287 F. App'x at 454-55; Allen v. Warden, Warren Corr. Inst., No. 1:12cv652, 2014 WL 29533, at *1, *6 (S.D. Ohio Jan. 3, 2014) (Litkovitz, M.J.; Beckwith, J.) (and cases cited therein).
In any event, even assuming the claim is not procedurally barred from review on statuteof-limitations or waiver grounds, respondent's motion to dismiss should be granted because petitioner is not entitled to relief based on the merits of his claim.
In this federal habeas case, the Court's review is limited to consideration of claims alleging a violation of "the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Claims based on a "perceived error of state law" fall outside the scope of the Court's review and, therefore, do not constitute cognizable grounds for federal habeas relief. See id.; see also Wilson v. Corcoran, ___ U.S. ___, 131 S.Ct. 13, 16 (2010) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)) ("it is not the province of a federal court to reexamine state-court determinations on state-law questions"); Pulley v. Harris, 465 U.S. 37, 41 (1984). Therefore, petitioner is unable to obtain relief based on any claim that the state courts erred or misapplied Ohio law in refusing to grant him leave to file a delayed motion for new trial. Cf. Pudelski v. Wilson, 576 F.3d 595, 610-11 (6th Cir. 2009) (holding that the petitioner's claim that the "trial court abused its discretion and misapplied Ohio law when denying his motion for new trial based on newly discovered evidence" was "clearly premised on issues of state law," which are "not subject to habeas review"); Rigdon v. Ohio Adult Parole Authority, No. 1:08cv716, 2010 WL 3910236, at *11 (S.D. Ohio July 7, 2010) (Wehrman, M.J.) (Report & Recommendation) (rejecting petitioner's claim that "the trial court erred in its application of Ohio R. Crim. P. 33 or otherwise abused its discretion in denying his motion for new trial" because it involved "issues of state-law only which are not cognizable in this federal habeas proceeding"), adopted, 2010 WL 3910230 (S.D. Ohio Oct. 4, 2010) (Dlott, J.).
Furthermore, petitioner has not stated a cognizable ground for relief to the extent he claims that Campbell's and Reeves's affidavits demonstrate his actual innocence. In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court pointed out that "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceedings." Herrera, 506 U.S. at 400 (quoting Townsend v. Sain, 372 U.S. 293, 317 (1963)). The Court explained:
Id. While recognizing that "[o]ur federal habeas cases have treated claims of `actual innocence,' not as an independent constitutional claim, but as a basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits," the Herrera Court nevertheless assumed, "for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim." Id. at 416-17. The Court emphasized, however, that "because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high." Id. at 417. In a subsequent decision, the Supreme Court declined to answer the question left open in Herrera—i.e., whether a freestanding claim of actual innocence constitutes a cognizable ground for federal habeas relief in a capital case, but indicated that Herrera "requires more convincing proof of innocence" than that required to obtain review of an independent claim of constitutional error occurring at trial under standards enunciated by the Supreme Court in Schlup v. Delo, 513 U.S. 298 (1995). See House v. Bell, 547 U.S. 518, 554-55 (2006).
Because the Supreme Court has yet to recognize a freestanding actual innocence claim, the Sixth Circuit has repeatedly ruled that, particularly in the context of a noncapital case such as this, such claims are not cognizable on federal habeas review. See, e.g., Cress v. Palmer, 484 F.3d 844, 854 (6th Cir. 2007) (and Sixth Circuit cases cited therein); Thomas v. Perry, ___ F. App'x ___, No. 13-1681, 2014 WL 128153, at *2 (6th Cir. Jan. 15, 2014); Sitto v. Lafler, 279 F. App'x 381, 382 (6th Cir. 2008); Wright v. Stegall, 247 F. App'x 709, 711 (6th Cir. 2007); see also Speer v. United States, No. 2:12cv277, 2014 WL 1367076, at *2 (S.D. Ohio Apr. 7, 2014) (Marbley, J.) (and Sixth Circuit cases cited therein) (holding that the petitioner was unable to obtain habeas relief based on a freestanding claim of actual innocence because the Supreme Court has never recognized such a claim).
Even assuming solely for the sake of argument that petitioner could bring a freestanding claim of actual innocence based upon newly discovered evidence in this non-capital case, the allegedly "new" evidence proffered by petitioner to establish his innocence falls far short of the "extraordinarily high" threshold showing required by Herrera and House. As the trial court pointed out in denying petitioner's motion for leave to file a delayed motion for new trial (see Doc. 9, Ex. 15), both Campbell's and Reeves's new averments, made years after the police investigation and petitioner's trial, have limited and questionable exculpatory value. Although Campbell now avers that he was present at the scene and saw petitioner on a nearby basketball court when Maddox was killed, in his initial statements to the police in August 2002, he stated that he was not a witness to the crime, but that Rodrick Reeves had told him about shooting and robbing Maddox and, specifically, that "Meecus" had run "up during the robbery" and fled with Reeves "toward Knob CT in English Woods" after money was removed from the victim. (See Doc. 9, Ex. 14, Attachment B, PAGEID#: 179-81). Campbell's statements to the police about what was told to him by Reeves also conflict with Reeves's new testimony that he was assisted by Michael McCoy, not petitioner, in the robbery and murder of Maddox. In contrast, strong proof of guilt was introduced at trial through the testimony of four eyewitnesses who identified petitioner as the person who aided and abetted Reeves in the robbery and murder of Maddox. In the face of such testimony, even if a freestanding claim of actual innocence could be considered by this Court, petitioner's belated affidavits are simply insufficient to trigger any constitutional concerns.
Accordingly, in sum, respondent's motion to dismiss (Doc. 9) should be
1. Respondent's motion to dismiss (Doc. 9) be
2. A certificate of appealability should not issue in this case because "jurists of reason" would not find it debatable whether petitioner's sole ground for relief "should have been resolved in a different manner" or that the issues presented therein are "adequate to deserve encouragement to proceed further." See Slack, 529 U.S. at 483-84 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
3. With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and therefore
