Krusley v. Mazza

Filing 18

MEMORANDUM OPINION & ORDER re 16 REPORT AND RECOMMENDATIONS: 1. the report and recommendation (DE 16) is ADOPTED as the Court's opinion; 2. the plaintiff's petition under 28 U.S.C. § 2254 (DE 1) is DENIED; 3. a certificate of ap pealability will not be issued, the Court having found that no jurists of reason would find it debatable whether the district court was correct in its procedural ruling; and 4. a judgment consistent with this order and the report and recommendation will be ENTERED.. Signed by Judge Karen K. Caldwell on 1/7/2025.(MM)cc: CORand Douglas Krusley by US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LONDON DIVISION

DOUGLAS KRUSLEY,

CIVIL ACTION NO. 6:24-CV-88-KKC-EBA

Petitioner,
V.

OPINION & ORDER

KEVIN R. MAZZA,
Warden at Northpoint Training Center
Respondent.

*** *** ***
This matter is before the Court on the petitioner Douglas Krusley’s petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254 (DE 1) and Magistrate Judge Edward B.
Atkins’ recommendation. (DE 16.)
Krusley filed objections to the magistrate judge’s report and recommendation (“R&R”).
(DE 17.) When objections are submitted to the magistrate judge's report, the district court
reviews the record de novo. 28 U.S.C. § 636(b)(1)(c). To the extent that Krusley does not
specifically object to the R&R, the Court concurs in the result recommended by the magistrate
judge. Thomas v. Arn, 474 U.S. 140, 150–52 (1985); Howard v. Sec'y of Health & Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991). The Court, having reviewed the record de novo in
light of Krusley’s objections and being otherwise advised, will accept the magistrate judge’s
recommended disposition.
I.
Douglas Krusley is a state prisoner who was convicted in Pulaski Circuit Court of
first-degree rape in violation of KRS § 510.040. He was sentenced to fifteen years in prison.

1

Krusley alleges that his imprisonment is unconstitutional. Proceeding pro se, he
brings this 28 U.S.C. § 2254 action and requests that his conviction be vacated and “[h]is
record be [expunged].” (DE 1 at 74.) Before the magistrate judge, the Warden filed a limited
answer asserting untimeliness as a defense to Krusley’s petition. Thus, before considering
the merits of Krusley’s petition, the magistrate judge determined whether Krusley’s petition
was timely. The magistrate judge determined that it was not and that no rules of tolling were
applicable to save the tardiness of Krusley’s petition. (DE 16.)
II.
As an initial matter, Krusley requests an evidentiary hearing. Circuit precedent is
clear, however, that a habeas petition “may be summarily dismissed [without a hearing] if
the record clearly indicates that the petitioner's claims are either barred from review or
without merit.” Stanford v. Parker, 266 F.3d 442, 459 (6th Cir. 2001) (citation omitted). For
the following reasons, the Court finds that Krusley’s claims are barred from review and
therefore denies his request for an evidentiary hearing.
The R&R concludes that Krusley’s petition is barred pursuant to timeliness
requirements for filing a habeas petition under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d). (DE 16 at 3.) Section 2244(d)(1) of the
AEDPA provides that prisoners have one year from the date their convictions become final
to file a petition for writ of habeas corpus with a federal court. While Krusley objects to the
degree by which the magistrate judge found his habeas petition to be untimely,1 he ultimately
does not object to the determination that his petition was, in fact, untimely. (DE 17 at Page
ID# 494) (stating in his objections that he was “at most 40 days delayed in filing his Federal
Habeas Corpus petition in the District Court.”). Thus, because Krusley does not specifically

1 The magistrate judge concluded that Krusley’s petition was filed two-hundred-sixty-three (263) days

after the one-year limitations period had expired.

2

object to the magistrate judge’s conclusion that his petition was untimely, the Court concurs
in the result recommended in the R&R. Howard, 932 F.2d at 509.
Instead of challenging the timeliness issue, Krusley’s objections to the R&R focus on
whether principles of tolling should save his untimely petition. First, Krusley objects to the
magistrate judge’s conclusion that equitable tolling does not apply to his petition. Habeas
petitions may benefit from equitable tolling in limited circumstances. Dunlap v. United
States, 250 F.3d 1001, 1007 (6th Cir. 2001). An otherwise time-barred habeas petition may
be reviewed on the merits if “a litigant’s failure to meet a legally mandated deadline
unavoidably arose from circumstances beyond that litigant’s control.” Robertson v. Simpson,
624 F.3d 781, 783 (6th Cir. 2010). To be entitled to equitable tolling, a petitioner must show:
“(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The petitioner
“bears the burden of demonstrating that he is entitled to equitable tolling.” McClendon v.
Sherman, 329 F.3d 490, 494 (6th Cir. 2003) (citation omitted). Here, Krusley objects to the
magistrate judge’s equitable tolling conclusion on the following bases: (1) he claims he
suffered from mental health issues which prevented him from timely filing his petition; and
(2) he claims the COVID-19 pandemic prevented him from timely filing his petition.
Krusley alleges he has mental health issues that serve as “extraordinary
circumstances” which stood in his way of filing his habeas petition. The Court notes as an
initial matter that Krusley’s argument may be procedurally barred. Krusley did not argue
mental health issues as grounds for equitable tolling initially. The only instance of Krusley
raising any medical concern as an issue before the magistrate judge occurred when he cited
general “health conditions” as an extraordinary circumstance he claims stood in the way of
filing the instant petition. (DE 15 at Page ID# 474.) Even then, Krusley only raised these
health concerns within the context of his argument that the COVID-19 pandemic delayed his
3

filing. The magistrate judge thus never had the opportunity to consider Krusley’s alleged
mental health issues, and “Courts have held that while the Magistrate Judge Act, 28 U.S.C.
§ 631 et seq., permits de novo review by the district court if timely objections are filed, absent
compelling reasons, it does not allow parties to raise at the district court stage new
arguments[.]” Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000) (citations omitted).
Even if his argument is not procedurally barred, Krusley’s alleged mental health
issues cannot serve as “extraordinary circumstances” which justify the application of
equitable tolling. The Court agrees that mental health issues may serve as a basis for
equitable tolling. See Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011). But Krusley’s argument
fails for lack of support. See Lawrence v. Florida, 549 U.S. 327, 336 (2007) (claims that mental
health issues serve as “extraordinary circumstances” must be factually supported). While
Krusley alleges his mental health issues are well documented in the exhibits attached to his
objections, the documents submitted do not support the allegation.
Moreover, “a habeas petitioner must allege more than the ‘mere existence of physical
or mental ailments’ to invoke the equitable tolling of the AEDPA's statute of limitations.”
Brown v, McKee, 232 F. Supp. 2d 761, 767 (E.D. Mich. 2002) (citation omitted). A petitioner
must also show a “causal connection between [their] mental illness and [their] ability to file
a timely federal habeas petition.” McSwain v. Davis, 287 F. App'x 450, 457 (6th Cir. 2008).
Here, not only has Krusley failed to provide evidence which supports the presence of mental
health issues, but Krusley has also failed to present evidence supporting a causal connection
between any mental health issues and his ability to file a timely petition. Accordingly,
Krusley’s alleged mental health issues are not a sufficient extraordinary circumstance
justifying the application of equitable tolling.
Krusley next objects to the magistrate judge’s conclusion that the COVID-19
pandemic was not an “extraordinary circumstance” sufficient to trigger equitable tolling.
4

Equitable tolling arguments related to the COVID-19 pandemic are only tenable when a
petitioner can demonstrate how specific circumstances related to the pandemic hindered
their ability to timely file. United States v. Amos, No. 20-4-DLB-HAI, 2022 WL 2828796, at
*3 (E.D. Ky. July 20, 2022). In his objections, Krusley argues the COVID-19 pandemic
constitutes an extraordinary circumstance because it prevented him from obtaining “his
necessary court records and other material[s],” needed to file his habeas petition. (DE 17 at
Page ID# 495.) Again, Krusley’s argument may be procedurally barred. Before the magistrate
judge, Krusley argued the COVID-19 pandemic was an extraordinary circumstance because
it led to him being “denied access to the library to use the Lexis Nexis Computer and
typewriters in order to help aid him in his habeas corpus” petition. (DE 15 at Page ID# 474.)
Thus, Krusley is plainly making a new argument before this Court which was not properly
presented to the magistrate judge first. See Murr, 200 F.3d at 902 n.1.
Krusley’s COVID-19 argument nonetheless fails even if it is not procedurally barred.
Courts have consistently held that lack of access to legal materials, whether caused by the
COVID-19 pandemic or some other circumstance, does not provide grounds for equitable
tolling. Andrews v. United States, No. 17-1693, 2017 WL 6376401, at *2 (6th Cir. Dec. 12,
2017) (“Courts have consistently held that general allegations of placement in segregation
and lack of access to legal materials are not exceptional circumstances warranting equitable
tolling[.]”). Accordingly, Krusley’s contention that the COVID-19 pandemic effected his
ability to timely file his habeas petition is unavailing and does not warrant the application
of equitable tolling.
Finally, Krusley objects to the magistrate judge’s determination that “actual
innocence” does not excuse his late filing. “[A]ctual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impediment is a procedural bar . . . or, as
in this case, the expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383,
5

386 (2013). The standard for proving actual innocence requires a petitioner to “persuade[]
the district court that, in light of [] new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 329 (1995).
Importantly, the petitioner must, in fact, present “new” evidence that has not been previously
considered or that was not available to them at the time the petitioner took their direct
appeal. Moore v. Woods, No. 18-1356, 2018 WL 3089822, at *3 (6th Cir. June 20, 2018). Such
new evidence must also be credible. Schlup, 513 U.S. at 324.
The magistrate judge correctly concluded that Krusley fails to present either new or
credible evidence to prove his actual innocence. Krusley specifically objects to the R&R’s
finding with respect to evidence he states is related to the element of “forcible compulsion.”2
(DE 17 at Page ID# 498.) The evidence consists of supposed testimony from Krusley himself
that there were alternative explanations for bruising the complaining witness experienced—
that bruising having been used by the Commonwealth to prove forcible compulsion. It is clear
to the Court, however, that the “evidence” which Krusley suggests proves his innocence was
already considered on direct appeal in Krusley v. Commonwealth, No. 2014-CA-001223-MR,
2015 WL 8528398, at *3–4 (Ky. Ct. App. Dec. 11, 2015) (holding that the “circuit court's
failure to allow evidence of a possible alternate source of the bruises,” did not violate
Krusley’s rights because the “‘evidence’ at issue was not actually evidence, but rather a mere
allegation by defense counsel, based upon hearsay from,” Krusley). And because evidence
“available to him at the time of his direct appeal,” is not “new” evidence under the Schlup
standard, Krusley’s actual innocence claim fails. Moore, 2018 WL 3089822, at *3.

2

Pursuant to KRS 2 510.040(1), a person is guilty of rape in the first degree when:
(a) He engages in sexual intercourse with another person by forcible compulsion; or
(b) He engages in sexual intercourse with another person who is incapable of consent because they:
(1) are physically helpless; or
(2) are less than twelve (12) years old.

6

In conclusion, Krusley’s objections to the R&R are unavailing and do not save the
untimely nature of his habeas petition. Accordingly, the Court must deny Krusley’s petition.
III.
For the reasons stated above, it is hereby ORDERED that
1. the report and recommendation (DE 16) is ADOPTED as the Court’s opinion;
2. the plaintiff’s petition under 28 U.S.C. § 2254 (DE 1) is DENIED;
3. a certificate of appealability will not be issued, the Court having found that no
jurists of reason would find it debatable whether the district court was correct in
its procedural ruling; and
4. a judgment consistent with this order and the report and recommendation will
be ENTERED.
This 7th day of January, 2025.

7