Evans v. Smith

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; 1) Evans' Objection to MJR&R is OVERRULED 2) MJR&R is ADOPTED as indicated herein 3) for reasons set forth the Court determines there would be no arguable merit for an appeal in this matter and, therefore, NO CERTIFICATE OF APPEALABILITY SHALL ISSUE; AND 4) a Judgment in favor of Respondent will be entered.. Signed by Judge David L. Bunning on 1/25/18.(SMT)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT ASHLAND
CIVIL ACTION NO. 17-67-DLB-REW
TRUMAN EVANS
vs.

PETITIONER

ORDER ADOPTING RECOMMENDED DISPOSITION

AARON SMITH, WARDEN

RESPONDENT
****************

I.

INTRODUCTION
This matter is before the Court on Truman Evans’ petition for a writ of Habeas

Corpus under 28 U.S.C. § 2254. (Doc. # 1). Consistent with local practice, this matter
was referred to United States Magistrate Judge Robert E. Wier for the purpose of
reviewing the petition and preparing a Report and Recommendation. On August 25,
2017, Judge Wier issued his Recommended Disposition (Doc. # 9) whereby he
recommends that Evan’s petition be denied.

Evans having filed objections to the

Recommended Disposition (Doc. # 10), both are ripe for review. For the reasons set forth
herein, Evans’ objections (Doc. # 10, are overruled and the Recommended Disposition
(Doc. # 9) is adopted as the Opinion of the Court.
II.

ANALYSIS
A.

Standard of Review

The Court reviews de novo those portions of the R&R to which specific objections
have been filed. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Where no objections
are made, or the objections are vague or conclusory, the Court is not required to review
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under a de novo, or any other, standard. Thomas v. Arn, 474 U.S. 140, 150 (1985);
United States v. Jenkins, No. 6:12-cr-13-GFVT, 2017 WL 3431834, at *1 (E.D. Ky. Aug.
8, 2017).
An objection that does “nothing more than state a disagreement with a magistrate’s
suggested resolution, or simply summarizes what has been presented before, is not an
‘objection’ as that term is used in this context.” United States v. Shephard, No. 5:09-cr81-DLB, 2106 WL 9115464, at *1 (E.D. Ky. Sept. 18, 2016) (quoting VanDiver v. Martin,
304 F. Supp. 2d 934, 938 (E.D. Mich. 2004); Holl v. Potter, No. C-1-09-618, 2011 WL
4337038, at *1 (S.D. Ohio Sept. 15, 2011)); see also Shabazz-el-Bey v. Daley, No. 2:115cv-173-DLB, 2016 WL 7217633, at *1 (E.D. Ky. Dec. 13, 2016). Thus, “objections that
merely restate arguments in the memoranda considered by the Magistrate Judge are not
proper, and the court may consider such repetitive arguments waived.” Holl, 2011 WL
4337038 at *1. Where an objection is simply a repetition of what the Magistrate Judge
has already considered, it fails “to put the Court on notice of any potential errors in the
Magistrate’s R&R.” Shephard, 2016 WL 9115464 at *1 (citing VanDiver, 304 F. Supp. 2d
at 938).
B.

Background

Evans’ § 2254 petition raises one argument:
[H]is constitutional right to a unanimous verdict was violated because at
trial, the victim testified to multiple indistinguishable instances of sexual
abuse and multiple indistinguishable instances of sodomy as having
occurred during the relevant time period, and so there is no assurance that
each of the jurors were focused upon the same occurrence when they cast

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their respective guilty votes.
Upon review of the date of Evans’ conviction and subsequent history, noting that almost
three (3) years had elapsed between when his court judgment became final and Evans
began attempting to collaterally attack the matter in Kentucky state court, Judge Wier
ordered Evans to show cause why his petition should not be dismissed. (Doc. # 3). Judge
Wier also noted that, based upon the record in front of him, equitable tolling would not
apply. Id. at 4. Evans filed a motion arguing that that he should be afforded equitable
tolling. (Doc. # 5). The United States responded, (Doc. # 8), and on August 25, 2017,
Judge Wier issued his Recommended Disposition. (Doc. # 9).
Evans timely raised four specific objections to Judge Wier’s recommendation on
equitable tolling, arguing that Judge Wier erred in: (1) disregarding the merits of Evans’
claim; (2) finding that Evans had not diligently pursued his claim; (3) finding that Evans’
“inactivity of a little more than three years automatically denies a finding of equitable
tolling”; and (4) recommending that no certificate of appealability should issue. (Doc. # 10
at 3-4).
C.

Equitable Tolling is not applicable to this Petition.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a

one year statute of limitations for filing § 2254 motions. 28 U.S.C. §§ 2254 and 2244(d).
In his Recommended Disposition, Judge Wier found that Evans’ Judgment was affirmed
by the Supreme Court of Kentucky on October 21, 2004, and became final on January
19, 2005. (Doc. # 9 at 2). He had one year from that date to file his § 2254 motion;
instead, he waited almost three years—until October 18, 2007—to file a state-court postconviction relief motion. Id. After the Supreme Court of Kentucky denied his request to

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review the Court of Appeals of Kentucky’s decision affirming denial of his motion for postconviction relief, id. at 3, Evans continued to file motions in the Kentucky state courts.
(Doc. # 5 at 4).
The Sixth Circuit is clear that AEDPA’s statute of limitations begins to run the day
after a conviction becomes final. Allen v. Yukins, 366 F.3d 396, 400 (6th Cir. 2004). And
although the filing of state-court post-conviction relief motions may toll the statute of
limitations, it does not restart the clock. Id. at 401 (citing McClendon v. Sherman, 329
F.3d 490 (6th Cir. 2003)). Thus, Evans failed to file his petition within the one-year statute
of limitations that began on January 19, 2005, and was neither tolled nor restarted by his
filing of a state-court post-conviction motion.
Under most circumstances, a petitioner who does not satisfy the one-year statuteof-limitations imposed by AEDPA is barred from any relief under the statute; however, the
doctrine of equitable tolling gives a court “authority to excuse late-filed habeas claims in
appropriate circumstances.” McCray v. Vasbinder, 499 F.3d 568, 571 (6th Cir. 2007). It
is Evans’ burden to prove that he is entitled to this doctrine, and in order to meet that
burden, he must show, “(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing.” Freeman
v. Trombley, 483 F. App'x 51, 55 (6th Cir. 2012) (quoting Holland v. Florida, 560 U.S. 631,
649 (2010)) (internal quotations and citation omitted).
Evans’ first objection is that Judge Wier disregarded the merits of his claim. (Doc.
# 10 at 3). But the equitable-tolling analysis does not consider the merits of the underlying
claim, instead focusing on whether “a litigant’s failure to meet a legally-mandated deadline
unavoidably arose from circumstances beyond that litigant’s control.”

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Robertson v.

Simpson, 624 F.3d 781, 783 (6th Cir. 2010) (quoting Graham–Humphreys v. Memphis
Brooks Museum of Art, Inc., 209 F.3d 552, 560–61 (6th Cir. 2000)). In this case, Evans
has provided no facts in support of why his failure to abide by the “legally-mandated
deadline” should be overlooked. This objection is overruled.
Evans’ second objection argues that Judge Wier erred in finding that he was not
diligent. (Doc. # 10 at 4). In support of his argument that he was diligent “in pursuing this
petition,” Evans discusses state-court post-conviction actions he filed in 2007, 2010,
2013, and later. Id. at 4-5. But just as the finality of a state-court post-conviction
proceeding does not restart AEDPA’s one-year statute of limitations, Robertson, 624 F.3d
at 783, actively engaging in such state-court proceedings that commence after the oneyear statute of limitations has already run will not show diligence under the equitabletolling analysis. This objection is overruled.
In his third objection, Evans argues that Judge Wier erred in finding that Evans’
“inactivity of a little more than three years automatically denies a finding of equitable
tolling.” (Doc. # 10 at 4). The Court is hard-pressed to find this “automatic denial” in
Judge Wier’s analysis. Rather, Judge Wier points out that Evans’ only argument about
his diligence is to state that he had been diligent, that Evans’ “own timeline shows vast
gaps—years

at

a

time—of

no

[]

action,”

and

that

such

“extended periods of Evans biding his time conclusively demonstrate case languor, not
diligence.” (Doc. # 9 at 4-5). As Judge Wier states, the “tolling burden is [Evans’].” Id.
at 5. This objection is overruled.
Finally, Evans objects to Judge Wier’s recommendation that no certificate of
appealability should issue. (Doc. # 10 at 4). Under 28 U.S.C. § 2253(c)(2), a “certificate

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of appealability may issue … only if the applicant has made a substantial showing of the
denial of a constitutional right.” In determining whether a certificate of appealability should
issue upon dismissing a petition on procedural grounds, the Court must consider both the
underlying constitutional claims and the procedural holding. Slack v. McDaniel, 529 U.S.
473, 484-85 (2000). The court is “allow[ed] and encourage[d] to … first resolve procedural
issues.” Id. at 485. Thus, the key question is whether “jurists of reason could conclude
that the [Court’s] dismissal on procedural grounds was debatable or incorrect.” Id. Evans
does not address this issue, instead reverting to his argument that the jury instructions in
his trial denied him his constitutional right. (Doc. # 10 at 4-6). This does not address the
recommendation that the petition be dismissed on procedural grounds.

Thus, this

objection is also overruled.
The Court finds Evans’ objections unpersuasive. Judge Wier did not err in finding
that Evans did not meet his burden of proving he was entitled to equitable tolling.
III.

CONCLUSION
Accordingly, IT IS ORDERED as follows:
(1)

Evans’ Objection to the Magistrate Judge’s Recommended Disposition

(Doc. # 10) is hereby OVERRULED;
(2)

The Magistrate Judge’s Recommended Disposition (Doc. # 9) is ADOPTED

as indicated herein;
(3)

For reasons set forth in the Magistrate Judge’s Recommended Disposition

(Doc. # 9), the Court determines there would be no arguable merit for an appeal in this
matter and, therefore, NO CERTIFICATE OF APPEALABILITY SHALL ISSUE; and

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(4)

A Judgment in favor of Respondent Aaron Smith will be entered

contemporaneously herewith.
This 25th day of January, 2018.

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