Reed v. Smith
Filing
7
MEMORANDUM OPINION by Senior Judge Thomas B. Russell on 6/20/17: The Court is satisfied in the instant case that no jurists of reason could find its procedural ruling to be debatable. Thus, a certificate of appealability must be denied. The Court will enter a separate Order consistent with this Memorandum Opinion.cc: Petitioner (pro se), Respondent, Atty General (DJT)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
KENNETH O’KEITH REED
PETITIONER
v.
CIVIL ACTION NO. 5:17-CV-P51-TBR
AARON SMITH
RESPONDENT
MEMORANDUM OPINION
Petitioner Kenneth O’Keith Reed filed this pro se action pursuant to 28 U.S.C. § 2254
seeking a writ of habeas corpus (DN 1). This matter is now before the Court on preliminary
consideration under Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts. On May 1, 2017, the Court directed Petitioner to show cause why his petition
should not be denied and his action dismissed as untimely (DN 5), and Petitioner has now
responded (DN 6). For the reasons set forth below, the Court will dismiss this action as timebarred.
I.
Because the petition now before the Court was filed after April 24, 1996, the effective
date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the provisions of
the AEDPA apply. Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir. 2000). The AEDPA
sets forth a statute of limitations for state prisoners seeking release from custody. The statute
provides as follows:
(d)(1) -- A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of --
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation under this
subsection.
28 U.S.C. § 2244(d)(1) and (2).
Petitioner indicates that he was convicted of rape on October 11, 1992, Case No. 92-CR00370, but he makes no attempt to explain why the petition now before the Court, filed more
than 24 years after he was convicted, is not barred by the one-year statute of limitations.
Moreover, Petitioner does not provide the date his appeal concluded or address this issue in his
response to the Court’s Show Cause Order. Because Petitioner’s conviction became final prior
to the passage of the AEDPA on April 24, 1996, “he had a one-year grace period, lasting until
April 24, 1997, in which to file his habeas petition.” Jurado v. Burt, 337 F.3d 638, 640 (6th Cir.
2003) (citing Cook v. Stegall, 295 F.3d 517, 519 (6th Cir. 2002)). Because Petitioner filed the
petition now before the Court more than 20 years after AEDPA became effective, the Court
concludes his petition is time-barred.
However, § 2254’s one-year statute of limitation is not jurisdictional and is subject to
equitable tolling. Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011)
(citing Holland v. Florida, 560 U.S.631 (2010)). Equitable tolling allows courts to review time2
barred habeas 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 F. App’x 439, 442 (6th Cir. 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th
Cir. 2010)). “[C]ourts grant equitable tolling ‘sparingly.’” Hall, 662 F.3d at 749 (citing
Robertson, 624 F.3d at 784). There are two forms of equitable tolling: (1) traditional equitable
tolling; and (2) actual innocence equitable tolling.
A habeas petitioner is entitled to traditional equitable tolling only if he establishes
“(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” Holland, 560 U.S. at 649 (internal quotations
omitted). Petitioner does not seem to make any argument that he is entitled to equitable tolling
on this ground.
However, “a petitioner may also be eligible for equitable tolling if he demonstrates
actual innocence, so that by refusing to consider his petition due to timeliness the court would
cause a fundamental miscarriage of justice.” Patterson v. Lafler, 455 F. App’x 606, 609 (6th Cir.
2012). “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.’” Id. (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995))
(emphasis supplied). “The evidence must demonstrate factual innocence, not mere legal
insufficiency.” Id. (citing Bousley v. United States, 523 U.S. 614, 623 (1998)). The Supreme
Court has underscored the fact that “the miscarriage of justice exception . . . applies to a severely
confined category: cases in which new evidence shows ‘it is more likely than not that no
reasonable juror would have convicted the petitioner.’” McQuiggin v. Perkins, 133 S.Ct. 1924,
1933 (2013) (quoting Schlup, 513 U.S. at 329) (emphasis supplied).
3
In his response to the Court’s Show Cause Order, Petitioner does not explicitly argue or
present evidence of actual innocence. However, because some of Petitioner’s arguments could
be construed as asserting actual innocence, the Court will analyze their merits under the standard
set forth above. In his response, Petitioner first argues that his petition should not be dismissed
because he is requesting DNA evidence testing under Kentucky state law. Petitioner then states
that he was convicted at trial even though “the prosecution admitted that the DNA evidence
found at the crime scene did not match Petitioner DNA.” Petitioner further writes: “The
discovered evidence that Petitioner offer as ‘Proof’ of his innocence of rape was denied. This is
ground for a new trial or dismiss case.” Petitioner continues: “Because of the fundamental
importance of the evidence to petitioner defense, we cannot conclude beyond a reasonable doubt
that the error was harmless, No matter how credible the DNA defence, our system of Justice
guarantees the right to present it and be judged by it.”1
To the extent that Petitioner intends these arguments to invoke the actual-innocence
exception to the statute of limitations, they fail. To begin, the Court is not certain that the DNA
evidence Petitioner seemingly believes is exculpatory is actually “new evidence.” Based upon
Petitioner’s arguments above, it is unclear exactly what DNA evidence was available and
presented at his trial. However, even assuming that Petitioner’s arguments rest on the basis that
the testing of certain DNA evidence will provide some type of exculpatory, “new” evidence, he
has not shown that if this evidence was presented to a jury, “it is more likely than not that no
reasonable juror would have convicted [Petitioner] in the light of the new evidence.” Schlup,
1
Petitioner also argues that his conviction should be set aside because evidence and witnesses were tampered with at
his trial, because his rights were violated under the “U.S. Constitution, 6th and 14 Amendments, and 2, 7, and 11 of
the Kentucky Constitution,” and because he was denied effective assistance of counsel. However, he does not
explain how these arguments relate to the issue of whether his petition is barred by the statute of limitations.
4
513 U.S. at 316. Indeed, Petitioner seems to admit that he was convicted in spite of the
prosecution’s admission that the DNA found at the crime scene did not match his DNA. See also
Pena v. Ryan, No. CV-13-02227-PHX-SPL (BSB), 2014 U.S. Dist. LEXIS 184450, at *24-26
(D. Ariz. Dec. 19. 2014) (rejecting the petitioner’s argument that he could meet the actualinnocence standard if the court ordered DNA testing of a handgun because, even if the testing
resulted in exculpatory evidence, the petitioner had not shown that this evidence would meet
Schlup’s “exacting standard” by showing that in “light of this newly discovered evidence, it
[was] more likely that not that no reasonable juror would have convicted [the] [p]etitioner”);
Jones v. Unknown, No. 1:13-cv-00918-JLT, 2013 U.S. Dist. LEXIS 176401, at *15-18 (E.D. Cal.
Dec. 12, 2013) (finding that petitioner’s claim that he was refused a DNA test and a lie detector
test and that such tests would have been favorable to him and resulted in his acquittal did not
satisfy Schlup). In sum, the Court finds that despite Petitioner’s arguments, he has made no
credible showing that he is actually (factually) innocent, and, thus, he is not entitled to equitable
tolling on this ground.
Therefore, because the petition was filed outside the one-year limitations period and
Petitioner has not demonstrated that he is entitled to equitable tolling, the Court will deny the
§ 2254 petition and dismiss the action.
II.
Before Petitioner may appeal this Court’s decision, a certificate of appealability must
issue. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). A certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483 (2000).
5
When a district court denies a habeas petition on procedural grounds without addressing
the merits of the petition, a certificate of appealability should issue if the petitioner shows “that
jurists of reason would find it debatable whether the petition states a valid claim of the denial of
a constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. at 484. If the petition was
denied on procedural grounds, both showings must be made before a certificate of appealability
should issue and the matter be heard on appeal. Id. “Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.” Id. In such a case, no appeal is warranted. Id.
The Court is satisfied in the instant case that no jurists of reason could find its procedural
ruling to be debatable. Thus, a certificate of appealability must be denied.
The Court will enter a separate Order consistent with this Memorandum Opinion.
Date:
June 20, 2017
cc:
Petitioner, pro se
Respondent
Attorney General, Commonwealth of Kentucky, Office of Criminal Appeals, 1024 Capital Center Drive,
Frankfort, KY 40601
4413.011
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?