Anderson v. Brunsman

Filing 14

Order and decision adopting the Report and Recommendation of the Magistrate Judge for the reasons stated within. Anderson's objections are overruled and the petition for a writ of habeas corpus is hereby dismissed. Related document 8 , 12 . Judge John R. Adams on 6/28/11. (R,Sh)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LAWRENCE ANDERSON,
Petitioner,
vs.
TIMOTHY BRUNSMAN, Warden,
Respondent.

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CASE NO. 3:10CV1233
JUDGE JOHN R. ADAMS

ORDER AND DECISION

On April 23, 2010, following his conviction and sentence, Petitioner Lawrence Anderson
filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 1. The matter was
referred to Magistrate Judge McHargh for a Report and Recommendation (“the Report”). On
October 1, 2010, Respondent Timothy Brunsman filed a motion to dismiss, arguing that Mr.
Anderson’s petition should be dismissed as untimely. Doc. 6. On November 1, 2010, Mr.
Anderson filed a response to Mr. Brunsman’s motion. Doc. 7. Magistrate Judge McHargh
issued his Report on February 11, 2011, recommending that the Court dismiss Mr. Anderson’s
petition.

Doc. 8.

Specifically, Magistrate Judge McHargh concluded that Mr. Anderson

untimely filed his petition and that he is not entitled to equitable tolling. Doc. 8 at 6, 9.
On April 27, 2011, Mr. Anderson filed his Objection to the Report. Doc. 12. Mr.
Anderson’s Objection to the Report is little more than an attempt to reargue his petition and
response, restating his arguments regarding his failure to file a timely petition and his arguments
regarding equitable tolling. See Doc 12. However, given the fact that Mr. Anderson is a pro se
litigant, the Court has liberally construed his objections.
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After reviewing Mr. Anderson’s

Under the mailbox rule, a habeas petition is deemed filed when the prisoner gives the petition to prison officials for
filing in the federal courts. See Houston v. Lack, 487 U.S. 266, 273 (1988).

objections, the Court hereby ADOPTS the Magistrate’s Report and Recommendation and
DISMISSES the petition for the reasons discussed below.
I.

FACTS
The Report adequately states the factual background and procedural history of this

matter. Mr. Anderson has demonstrated no error in the background and history, so the Court will
not reiterate those sections herein.
II.

STANDARD OF REVIEW
A.

Objections to a Magistrate Judge’s Report and Recommendation

If a party files written objections to a Magistrate Judge’s Report the Court must perform a
de novo review of “those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). “A judge of the court
may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate.” Id.
B.

Petition for a Writ of Habeas Corpus

Although the Court performs a de novo review of the portions of the Report to which Mr.
Anderson objects, the same standard of review that applies to habeas petition applies to
examining the merits of his objections. As noted in the Report, district courts apply a deferential
standard of review when deciding whether to grant a writ of habeas corpus. Doc. 8 at 3. After
the Antiterrorism and Effective Death Penalty Act of 1996, a writ of habeas corpus may only be
issued if the state court’s decision is contrary to clearly established federal law or was based on
an unreasonable determination of the facts in light of the law. 28 U.S.C. § 2254(d)(1). Law is
“clearly established” only by Supreme Court holdings, not including dicta, that existed at the
time of Mr. Anderson’s conviction. Carey v. Musladin, 549 U.S. 74, 74 (2006). The Report
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correctly explains in detail what it means for a decision to be contrary to clearly established
federal law or an unreasonable application of federal law. See Doc. 8 at 3.
III.

LAW AND ANALYSIS
A.

Petitioner’s First Objection: His Petition is not Untimely Because His Motion
for a Delayed Appeal to the Ohio Supreme Court Should be Considered Part
of His Direct Appeal.

Mr. Anderson’s first objection asserts that his habeas petition is not untimely because his
motion for a delayed appeal to the Ohio Supreme Court filed on June 15, 2009, should be
considered part of his direct appeal. Doc. 12 at 1. “Direct review” for the purposes of 28 U.S.C.
§ 2244(d)(1) includes review of a state conviction by the United States Supreme Court. Clay v.
United States, 537 U.S. 522, 528 n.3 (2003). As such, Mr. Anderson claims he is entitled to an
extra ninety days of tolling, the time allowed for filing for certiorari before the United States
Supreme Court. This extra time would move the statute of limitations as tolled from February 8,
2010 to July 22, 2010. See Doc. 8 at 5-6. Mr. Anderson’s petition would then be timely, as he
filed it on April 23, 2010.
The Court agrees with the Report that a motion for a delayed appeal is a post conviction
or collateral proceeding in the Sixth Circuit, and, therefore, it is not part of direct review. See
Sudberry v. Warden, S. Ohio Corr. Facility, 626 F. Supp. 2d 767, 784 (S.D. Ohio February 4,
2009) (citing DiCenzi v. Rose, 452 F.3d 465, 468 (6th Cir. 2006)). As such, a habeas petitioner
filing for such collateral relief is not entitled to the ninety-day certiorari period. Lawrence v.
Florida, 549 U.S. 327, 334 (2007). Therefore, as correctly calculated in the Report, the statute
of limitations expired on February 8, 2010, and Mr. Anderson’s petition is untimely. See Doc 8
at 4-6. Accordingly, Mr. Anderson’s objection on this ground is overruled.

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B.

Petitioner’s Second Objection: He is Entitled to Equitable Tolling Because of
Ineffective Assistance of Appellate Counsel and the Clerk of the State
Appellate Court’s Failure to Timely Notify Him of the Appellate Court’s
Decision.

Mr. Anderson argues as his second objection that his petition is untimely because his
appellate counsel and the state court of appeals clerk caused him to miss the deadline to file a
timely appeal to the Ohio Supreme Court. A timely appeal would have entitled him to the
ninety-day certiorari period discussed above. Mr. Anderson does not raise these issues in either
his petition or his response to Mr. Brunsman’s motion to dismiss. See Doc. 1; Doc. 7. In fact,
the reason Mr. Anderson gives in his petition for failing to timely appeal to the Ohio Supreme
Court is allegedly inadequate access to a law library. Doc. 1 at 5. Issues raised for the first time
in an Objection to a Magistrate Judge’s Report are deemed waived. Murr v. U.S., 200 F.3d 895,
902 n.1 (6th Cir. 2000) (citing, inter alia, U.S. v. Waters, 158 F.3d 933, 936 (6th Cir. 1998)). As
such, the Court need not consider the merits of Mr. Anderson’s second objection. Accordingly,
Mr. Anderson’s second objection is overruled.
C.

Petitioner’s Third Objection: He is Entitled to Equitable Tolling
Because an Allegedly Notarized Statement Made by the Victim Prior
to His Trial Supports a Credible Claim of Actual Innocence.

As his third objection, Mr. Anderson disagrees with the Report’s determination that he is
not entitled to equitable tolling because his claim of actual innocence is not credible. In order to
establish actual innocence, Mr. Anderson has the burden of proving that it is “more likely than
not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.” Schlup
v. Delo, 513 U.S. 298, 324 (1995). A credible claim of actual innocence requires Mr. Anderson
to provide “new reliable evidence . . . that was not presented at trial.” Id. at 327.
In an attempt to provide such evidence, Mr. Anderson asserts that the victim gave a
notarized statement to both counsel prior to his trial, in which she recanted her previous
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statements regarding the rape. The Court agrees with the Report that this alleged statement is not
reliable in light of contradictory statements made by the victim that were introduced into
evidence at trial. See State v. Anderson, 6th Dist. No. L-07-1351, 2008-Ohio-5791 at ¶¶ 8-12.
Moreover, the Court finds no error in the state appellate court’s determination that “the
testimony of the law enforcement officers, Nurse Rawson, and the physical evidence provide
overwhelming evidence of [Mr. Anderson’s] guilt.” Id. ¶ 19. Accordingly, the Court finds that
Mr. Anderson fails to make a credible claim of actual innocence, and his objection on this
ground is overruled.
IV.

CONCLUSION
For the reasons stated above, the Court finds no merit in the objections raised by Mr.

Anderson and his objections are OVERRULED.

Therefore, the Court hereby ADOPTS

Magistrate Judge McHargh’s Report and Recommendation.

Accordingly, Mr. Anderson’s

petition for a writ of habeas corpus is hereby DISMISSED.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision
could not be taken in good faith and that there is no basis upon which to issue a certificate of
appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
/s/ John R. Adams_________________
Judge John R. Adams
UNITED STATES DISTRICT COURT

June 28, 2011

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