Craig v. Coleman

Filing 14

Memorandum Opinion and Order: After conducting a de novo review of petitioner's specific objections to the Report and Recommendation, and for all the foregoing reasons, petitioner's objections to the Report and Recommendation are overruled. The Court accepts the magistrate judge's recommendation. Respondent's motion to dismiss is granted. This case is closed. (Related Doc. No. 11 ). Judge Sara Lioi on 9/18/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MICHAEL CRAIG,
PETITIONER,
vs.

WARDEN JOHN COLEMAN,
RESPONDENT.

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CASE NO. 1:16-cv-1003
JUDGE SARA LIOI
MEMORANDUM OPINION AND
ORDER

This matter is before the Court on the objection of petitioner Michael Craig (“petitioner”
or “Craig”) to the Report and Recommendation (Doc. No. 11 [“R&R”]) of Magistrate Judge
Thomas M. Parker.1 (Doc. No. 13 [“Obj.”].) The magistrate judge recommends that the Court
grant respondent John Coleman’s (“respondent” or “Coleman”) motion to dismiss Craig’s
petition for habeas corpus as time-barred (Doc. No. 7 [“Mot.”]). For the reasons that follow,
petitioner’s objection is overruled and respondent’s motion is granted.
I. BACKGROUND2
A. State Court Proceedings
Petitioner was convicted of multiple counts of aggravated robbery, aggravated burglary,
felonious assault, kidnapping, and possessing weapons under disability in 2008. (R&R at 469. 3)
The underlying facts of Craig’s indictment and conviction, as recited by the Ohio court of

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This matter was automatically referred to the magistrate judge pursuant to Local Rule 72.2. (See Automatic
Reference dated April 27, 2016.)
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Petitioner does not object to the magistrate judge’s recitation of the factual and procedural background of this case.

References to page numbers are to the page identification numbers generated by the Court’s electronic filing
system.
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appeals, are quoted in the R&R. (Id. at 470-71.) After he was indicted, Craig pleaded not guilty
and filed a notice of alibi (that he was in New York with his grandmother at the time of the
crime). (Id. at 471.) Craig was convicted by a jury and sentenced to an aggregate term of 33
years of imprisonment. (Id.)
Petitioner filed a timely notice of appeal, asserting 15 assignments of error. All were
overruled with the exception of two, which were sustained in part and remanded to the trial court
to merge certain counts of Craig’s conviction because those counts were allied offenses of
similar import. (Id. at 471-72.) Upon remand, the trial court merged the convictions as instructed
by the appellate court, conducted a new sentencing hearing, and again sentenced Craig to 33
years. (Id. at 472.)
Craig appealed, but the appellate court overruled all three assignments of error. The Ohio
court of appeals denied Craig’s application for reconsideration, and the Ohio Supreme Court
declined to exercise jurisdiction on October 10, 2012. Craig did not file a petition for a writ of
certiorari in the United States Supreme Court, so his conviction became final on January 8,
2013—90 days after the Ohio Supreme Court declined to hear the case. (Id. at 472-73.)
B. Post-Conviction Proceedings
Five months after he was resentenced, Craig filed a motion for leave to file a motion for a
new trial and/or a petition for post-conviction relief on the grounds that he was “actually
innocent” based on “new evidence” consisting of five affidavits from different family members
attesting that Craig was in New York for a certain period of time (the “alibi affidavits”). The trial
court denied the motion as untimely and because alibi evidence that Craig was not present at the
time of the crime was offered at trial. Craig appealed, but the appellate court denied his appeal,
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finding that the “newly discovered” evidence was either known to him at the time of the trial or
could have been found, and was cumulative of evidence presented at trial. (Id. at 473.)
C. Federal Habeas Petition
On April 26, 2016, Craig filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254
raising three claims for relief: (1) ineffective assistance of counsel in violation of the Sixth and
Fourteenth Amendments to the Constitution of the United States (in part, for failing to call more
than one alibi witness); (2) conviction for felonious assault and firearms specifications were not
supported by sufficient evidence; and (3) violation of petitioner’s substantive and due process
rights under the Fourteenth Amendment related to his resentencing. (Id. at 474.)
Respondent seeks dismissal of Craig’s petition on the grounds that the petition is time
barred because it was filed over two years after the expiration of AEDPA’s one year statute of
limitations,4 which in this case, was one year after Craig’s conviction became final on January 8,
2013. After an extensive analysis of the parties’ arguments, the magistrate judge recommended
that respondent’s motion to dismiss be granted.
II. DISCUSSION
A. Standard of Review
Under 28 U.S.C. § 636(b)(1), “[a] judge of the court shall make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which
objection is made.” Powell v. United States, 37 F.3d 1499 (Table), 1994 WL 532926, at *1 (6th
Cir. Sept. 30, 1994) (“Any report and recommendation by a magistrate judge that is dispositive
of a claim or defense of a party shall be subject to de novo review by the district court in light of

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See 28 U.S.C. § 2244(d)(1).
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specific objections filed by any party.”) (citations omitted); Orr v. Kelly, No. 1:14-cv-2302, 2015
WL 5316216, at *2 (N.D. Ohio Sept. 11, 2015) (citing Powell, 1994 WL 532926, at *1); Fed. R.
Civ. P. 72(b)(3). After review, the district judge “may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P. 72(b)(3).
B. Analysis
1. AEDPA’s one year statute of limitations
AEDPA imposes a one year statute of limitation for filing a federal habeas petition.
Cleveland v. Bradshaw, 693 F.3d 626, 631 (6th Cir. 2012) (citing 28 U.S.C. § 2244(d)(1)). Craig
acknowledges that his petition was filed after the statute of limitations expired, but argues that
his claim of actual innocence based on the alibi affidavits equitably tolls the statute and permits
the Court to consider the merits of his constitutional claims.5 (R&R at 474.) Craig bases his
equitable tolling6 argument on the United States Supreme Court’s decision in Schlup v. Delo, 513
U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995), and the Sixth Circuit’s decisions in Souter v.
Jones, 395 F.3d 577 (6th Cir. 2005) and Cleveland.

Craig does not argue that AEDPA’s statutory tolling provisions apply to this case, and the magistrate judge found,
without objection by petitioner, that AEDPA’s statutory tolling provisions are not applicable here. (R&R at 476 n.
4.)
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Although some courts have considered actual innocence claims in the context of equitable tolling, it is more
accurate to describe the issue as an equitable exception. See Phillips v. United States, 734 F.3d 573, 581 n.7 (6th Cir.
2013) (quoting McQuiggin and citing Rivas v. Fischer, 687 F.3d 514, 547 n.42 (2d Cir. 2012) (“which noted that
some courts have framed the actual innocence question as whether the AEDPA allows for ‘equitable tolling’ but
finding it more accurate to describe the issue as whether an ‘equitable exception’ exists because the due diligence
requirement for equitable tolling is ‘incompatible with a workable actual innocence exception’”)). Moreover, Craig
does not, and cannot, argue that the factual predicate of his actual innocence claim could not have been discovered
by him until after the statutory period for filing his habeas claim expired under AEDPA.
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A petitioner who presents a credible claim of actual innocence is not automatically
entitled to habeas relief, but is entitled to have a federal court consider the merits of his
constitutional claims notwithstanding a procedural bar that would ordinarily preclude
consideration of his habeas petition. Cleveland, 693 F.3d at 631-32 (citing Schlup, 513 U.S. at
314-15; Souter, 395 F.3d at 601) (further citation omitted). A properly supported actual
innocence claim may provide an equitable gateway exception to overcome either a procedural
bar, as in Schlup, or an expiration of AEDPA’s statute of limitations. McQuiggin v. Perkins,
___U.S.___, 133 S. Ct. 1924, 1928, 185 L. Ed. 2d 1019 (2013) (citing Schlup). In such cases, a
credible claim of actual innocence operates as a “gateway” that entitles a petitioner to have a
federal court consider the merits of his otherwise barred habeas petition. Id.; Cleveland, 693 F.3d
at 632 (citing Schlup, 513 U.S. at 315).
In order to proceed through the Schlup “gateway,” petitioner must present a “credible”
claim of actual innocence. “This ‘requires petitioner to support his allegations of constitutional
error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence that was not presented at trial.’” Cleveland,
693 F.3d at 633 (emphasis added) (quoting Schlup, 513 U.S. at 327); Bell v. Howes, No. 141169, 2017 WL 2882453, at *3 (6th Cir. June 29, 2017) (same). Moreover, a “credible” claim of
actual innocence does not merely require a showing that a reasonable doubt exists in the light of
the new evidence, but rather that no reasonable juror would have found the defendant guilty.
McQuiggin, 133 S. Ct. at 1927 (quoting Schlup, 513 U.S. at 329); Cleveland, 693 F.3d at 633
(quoting Schlup, 513 U.S. at 329). Cases where a constitutional error has caused the conviction
of an innocent person are extremely rare, however, and the actual innocence gateway exception
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to consideration of a habeas petition filed beyond AEDPA’s statute of limitations is only
sparingly granted in extraordinary cases. See McQuiggin, 133 S. Ct. at 1928; Cleveland, 693
F.3d at 632 (citing Schlup, 513 U.S. at 322); Souter, 395 F.3d at 590 (same); Bell, 2017 WL
2882453, at *3 (same) (citing Schlup and Souter).
2. Objection to the R&R
Applying the Supreme Court’s and Sixth Circuit’s “gateway” analysis based upon a claim
of actual innocence, the magistrate judge concluded that petitioner failed to establish that he was
entitled to consideration of his untimely habeas petition through the Schlup gateway. Much of
petitioner’s objection addresses the merits of his petition for habeas relief, and Craig generally
argues that the magistrate judge misapplied Cleveland in finding that petitioner’s claim of actual
innocence is not new, reliable, or exculpatory.7 (See Obj. at 489, 493.)
The only specific objection asserted by petitioner with respect to the R&R’s Schlup
gateway analysis goes to the issue of the reliability and credibility of the alibi affidavits.8 The
Court will address each element of the Schlup analysis, however, because all of the elements
must be satisfied in order for petitioner to be entitled to pass through the Schlup gateway.

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Petitioner does argue in his objection that the magistrate judge incorrectly identified the law to be applied to the
analysis of Craig’s actual innocence claim. Rather, Craig argues that the magistrate judge “misapplied” that law to
petitioner’s case.
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Petitioner also argues that the magistrate judge erred in applying Cleveland because, in that case, the Sixth Circuit
found equitable tolling based upon a claim of actual innocence even though the habeas petition was presented “many
years” after AEDPA’s one year limitation period had expired. Craig reasons that here, unlike Cleveland, there was a
“relatively short lapse of time” between the expiration of the statute of limitations and the filing of the habeas
petition and petitioner has produced “many affidavits” to support his actual innocence claim. (Obj. at 498.)
Petitioner cites no authority to support his contention that the length of time between the expiration of statutory
filing period and actual filing of the habeas petition, or the mere quantity of alibi affidavits submitted, is relevant to
the Court’s equitable tolling analysis. This “objection” lacks merit and is overruled.
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New evidence
Craig’s proffered evidence of actual innocence consists of the same five alibi affidavits
that he presented to the trial court in support of his motion for a new trial and post-conviction
relief, which was denied by the trial court and affirmed on appeal. (R&R at 477.) For the purpose
of analysis, the magistrate judge assumed without deciding that the alibi affidavits are new in
that they are “newly presented,” though not “newly discovered,” since the trial. (R&R at 480, n.
10.) That said, the magistrate judge found that the alibi affidavits were cumulative of the
testimony presented at trial and, thus, not new evidence.

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(Id. at 479-80.) Petitioner does not

object to this finding by the magistrate judge.
Reliable evidence
The magistrate judge then addressed the issue of reliability, and concluded that the alibi
affidavits supporting Craig’s actual innocence claim are not reliable because, generally, alibi
affidavits submitted by family members after trial are suspect and unlikely to convince a
reasonable jury that a petitioner is actually innocent.10 (Id. at 480-81, collecting cases.) In his
objection, Craig asserts that “there is simply nothing in the record” to indicate that the alibi
affidavits are unreliable. (Obj. at 499.) But it is petitioner’s burden to establish that his actual
innocence claim entitles him to pass through the Schlup gateway. See Souter, 395 F.38 at 596.

At trial, Craig’s grandmother testified that he was in New York from July 14, 2008 until the end of November
2008. (R&R at 479-80.) The alibi affidavits similarly aver that Craig was staying with his grandmother during
approximately the same time period. Evidence that is “merely cumulative” of testimony presented at trial is not new
evidence. (Id. at 480, citing Souter, 395 F.3d at 595.)
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The Ohio court of appeals also concluded that the alibi affidavits were not entirely reliable because they were all
from family members interested in the success of Craig’s motion for a new trial, and did little to support the
argument that petitioner was not responsible for the crimes occurring on August 6, 2008. (See R&R at 477-78.)
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Craig offers no legal authority contrary to the case law cited by the magistrate judge that posttrial alibi affidavits from family members are generally considered suspect, nor has he offered
some indicia of reliability with respect to the affidavits from his family members.
Petitioner also contends that the magistrate judge erred in determining that the alibi
affidavits are not credible because they lack specificity regarding when and where Craig was in
New York. In making that determination, petitioner argues that the magistrate judge improperly
weighed evidence in contravention of Cleveland, which “clearly held that [a] hearing must be
conducted in order to determine the credibility of evidence.” (Obj. at 498-99.) This argument is
unavailing.
The credibility of the alibi affidavits is an entirely different issue from that of whether the
averments specifically establish Craig’s alibi. See Bell v. Howes, 703 F.3d 848, 855 (6th Cir.
2012) (“The King documents can be read to establish that at least one individual named Chill
Will existed in the vicinity. However, this fact does not tie that individual to the underlying
crimes[.]”) (footnote omitted). Moreover, the R&R does not hinge on the credibility (or
reliability) of the alibi affidavits. Indeed, the magistrate judge assumed that the alibi affidavits
were reliable and credible, but found that the averments therein did not establish that Craig was
in New York on August 6, 2008. (R&R at 478-79 (“Even if believed, the five affidavits do not
establish an alibi for Craig on August 6, 2008 [because] none speak[] specifically to Craig’s
whereabouts on the date of the crime.”).)
Petitioner’s objection that the magistrate judge improperly determined the credibility of
the alibi affidavits without an evidentiary hearing is overruled.

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More likely than not that no reasonable juror would have found petitioner
guilty
Finally, the magistrate judge did not find that it was more likely than not that no
reasonable juror would have convicted petitioner in light of the alibi affidavits because: (1) a
reasonable juror would consider the alibi affidavits unreliable because they are all from family
members who have a personal interest in Craig’s exoneration; (2) the affidavits do not address
Craig’s whereabouts on the date of the crime; and (3) the affidavits are merely cumulative of the
alibi trial testimony of Craig’s grandmother, which was implicitly rejected by the jury in finding
petitioner guilty of the crimes alleged. (Id. at 478-82, case citations omitted.)
Plaintiff did not specifically object to this finding, but did object to certain aspects of the
finding, which have already been addressed by the Court, supra. Affidavits from family
members created after trial are not sufficiently reliable to support a claim of actual innocence.
See Fortson v. Eppinger, No. 1:15 CV 2078, 2017 WL 603086, at *5 (N.D. Ohio Feb. 15, 2017)
(citing Milton v. Sec’y, Dep’t of Corr., 347 F. App’x. 528, 531-32 (11th Cir. 2009)); Wiles v.
Warden, Marion Corr. Inst., No. 1:14CV685, 2015 WL 4467766, at *7 (S.D. Ohio July 21,
2015) (same) (collecting cases). Moreover, affidavits that are cumulative of trial testimony
considered by the jury alongside other evidence at trial “lack the necessary ‘probative force’ to
establish that they represent new, trustworthy [evidence] that may buttress [petitioner’s actual
innocence] claim.” Allen v. Harry, 497 F. App’x 473, 400-81 (6th Cir. 2012).

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III. CONCLUSION
After conducting a de novo review of petitioner’s specific objections to the R&R, and for
all the foregoing reasons, petitioner’s objections to the R&R are overruled. The Court accepts the
magistrate judge’s recommendation. Respondent’s motion to dismiss is granted. This case is
closed.
IT IS SO ORDERED.

Dated: September 18, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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