Starner v. Warden, Chillicothe Correctional Institution
Filing
24
Opinion & Order signed by Judge James S. Gwin on 8/4/16. The Court, for the reasons set forth in this order, overrules petitioner's objections, adopts the Report and Recommendation of the Magistrate Judge, and dismisses petitioner's 28 U.S.C. Section 2254 petition. (Related Docs. 1 and 20 ) (D,MA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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DANNY STARNER,
Petitioner,
vs.
CHARLOTTE JENKINS, Warden,
Respondent.
CASE NO. 15-CV-1841
OPINION & ORDER
[Resolving Doc. 1]
-----------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Petitioner Danny Starner seeks habeas corpus relief under 28 U.S.C. § 2254 from his
October 27, 2008, Ohio gross sexual imposition and rape convictions. The convictions involved
Starner’s stepchildren.
Magistrate Judge Burke recommends dismissing Petitioner’s § 2254 habeas petition as
time-barred. Petitioner objects. For the reasons below, this Court OVERRULES Petitioner’s
objections, ADOPTS Magistrate Judge Burke’s Report and Recommendation, and DISMISSES
Petitioner’s § 2254 petition.
I. Background
On March 5, 2008, a Marion County Court Grand Jury indicted Starner on thirteen counts
of gross sexual imposition under Ohio Revised Code § 2907.05(A)(4), and nineteen counts of
rape of a child under the age of thirteen under § 2907.02(A)(1)(b).1 On April 30, 2008, Ohio reindicted Starner to supply an additional mens rea allegations.2 Starner pleaded not guilty to the
charges.3
1
Doc. 7-1 at 3–9. This Court relies on the state court record, Doc. 7-1, and the Report and Recommendation, Doc.
20, for this case’s procedural history.
2
Id. at 10–17.
3
Id. at 18.
Case No. 15-1841
Gwin, J.
On October 27, 2008, and after a trial, the jury returned a guilty verdict on twenty-two
counts in the indictment—eight counts of gross sexual imposition and fourteen counts of rape.4
With its December 10, 2008 journal entry, the trial court sentenced Starner to an
aggregate sentence of 30 years to life in prison.5
On January 6, 2009, Starner appealed.6 On November 2, 2009, the Ohio Court of
Appeals affirmed the judgment of the trial court.7
On December 17, 2009, Starner appealed to the Ohio Supreme Court.8 On March 10,
2010, the Ohio Supreme Court denied Starner leave to appeal and dismissed his appeal as not
involving any substantial constitutional question.9 Starner did not petition for a writ of certiorari
from the United States Supreme Court.
Ohio argues that Petitioner Starner was required to petition for any habeas relief within
one-year from when the Ohio Supreme Court denied jurisdiction and the Ohio Court of Appeals
decision became final.
On June 11, 2015, Starner filed a pro se motion for leave to file an Ohio Appellate Rule
26(B) application to reopen his case.10 On July 6, 2015, the Ohio Court of Appeals denied his
application as untimely.11 The Ohio Court of Appeals found that Starner failed to show good
cause for his lateness or set forth any genuine issue as to whether he was deprived of effective
appellate counsel.12
4
Id. at 19.
Id. at 20–21.
6
Id. at 30–31. Starner raised prosecutorial misconduct, improper computer evidence, deficient representation, and
lack of inculpatory evidence as assignments of error.
7
Doc. 7-1 at 132–88.
8
Id. at 189–209.
9
Id. at 221.
10
Id. at. 222–58.
11
Id. at 259–60.
12
Id.
5
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Case No. 15-1841
Gwin, J.
On August 27, 2015, Starner filed this pro se § 2254 habeas petition.13 On May 31, 2016,
Magistrate Judge Burke issued a Report and Recommendation.14 The Report and
Recommendation recommends that this Court dismiss Petitioner’s § 2254 habeas petition as
time-barred. The Report and Recommendation also finds that Petitioner is not entitled to
equitable tolling and that Petitioner’s actual innocence argument loses.
On July 19, 2016, Petitioner objected to the Report and Recommendation.15 Petitioner
says that he is actually innocent and that he is entitled to equitable tolling.
II. Legal Standard
The Federal Magistrates Act requires a district court to conduct a de novo review only of
those portions of the Report and Recommendation to which the parties have properly objected.16
A district court may adopt without review parts of the Report and Recommendation to which no
party has objected.17
The Antiterrorism and Effective Death Penalty Act of 199618 controls habeas review of
state court proceedings. A petitioner seeking relief under § 2254 must file his petition within one
year of the date on which his state court conviction became final, subject to tolling.19 The
conviction becomes final “by the conclusion of direct review or the expiration of the time for
seeking such review.”20
13
Doc. 1. Respondent filed a return of writ. Doc. 7. Petitioner filed a traverse. Doc. 14.
Doc. 20.
15
Doc. 23. Petitioner’s document is styled as a traverse. However, this Court reads Petitioner’s document as
objections to the Report and Recommendation.
16
28 U.S.C. § 636(b)(1).
17
Thomas v. Arn, 474 U.S. 140, 149 (1985).
18
28 U.S.C. § 2241 et seq.
19
Carey v. Saffold, 536 U.S. 214, 216 (2002) (citing 28 U.S.C. § 2244(d)(1)(A)).
20
28 U.S.C. § 2244(d)(1)(A).
14
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Case No. 15-1841
Gwin, J.
The limitations period is tolled while “properly filed” state post-conviction or collateral
proceedings are pending.21 An untimely or otherwise improper application for post-conviction or
collateral review is not considered “properly filed” and does not toll the statute of limitations.22
III. Discussion
Petitioner’s August 27, 2015 § 2254 habeas petition is untimely. Petitioner’s conviction
became final on May 10, 2010, 90 days after the Ohio Supreme Court declined jurisdiction and
after Petitioner did not petition for a writ of certiorari from the United States Supreme Court. The
AEDPA one-year statute of limitations expired on May 11, 2011. Starner filed his August 27,
2015 § 2254 petition more than four years after the limitations period expired.
Starner’s June 11, 2015 Rule 26(B) application does not extend or reset the one-year
AEDPA statute of limitations and does not make Starner’s § 2254 petition timely. The Rule
26(B) application was untimely when Starner filed it, so it was not “properly filed” for tolling
purposes.23 And the June 11, 2015 Rule 26(B) application did not reset the statute of limitations.
Starner also says that the 2014 Supreme Court case Riley v. California24 resets his oneyear AEDPA statute of limitations. This argument loses.
Riley held that police may not search the contents of a suspect’s cell phone without a
search warrant.25 The Report and Recommendation correctly points out that 1) the police
searched Starner’s computers, not his cell phone, 2) the police had a warrant, 3) Riley is not
retroactive and therefore does not trigger § 2244(d)(1)(C),26 and 4) Starner filed his § 2254
21
Souter v. Jones, 395 F.3d 577, 585 (6th Cir. 2005); Searcy v. Carter, 246 F.3d 515, 517–18 (6th Cir. 2001) cert.
denied, 534 U.S. 905 (2001); 28 U.S.C. § 2244(d)(2).
22
Allen v. Siebert, 552 U.S. 3, 7 (2007) (per curiam).
23
Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003).
24
__ U.S. __, 134 S.Ct. 2473 (2014).
25
Id. at 2493.
26
Cleveland v. Soto, No. 16-2118-DSF (GJS), 2016 WL 3710199, at *4 (C.D. Cal. May 11, 2016), report and
recommendation adopted, No. CV 16-2118-DSF (GJS), 2016 WL 3704490 (C.D. Cal. July 12, 2016) (collecting
cases).
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Case No. 15-1841
Gwin, J.
petition more than one year after the Supreme Court decided Riley. Riley does not reset
Petitioner’s AEDPA statute of limitations.
Petitioner says that he is entitled to equitable tolling. This argument loses.
A petitioner is entitled to equitable tolling when he has been pursuing his rights diligently
and some extraordinary circumstance prevented him from timely filing his habeas petition.27 The
petitioner bears the burden of establishing entitlement.28
In this case, Petitioner filed his § 2254 habeas petition over five years after the Ohio
Supreme Court’s March 10, 2010 decision declining jurisdiction over his case. As the Report and
Recommendation points out, even taking all of Starner’s points as true, the difficulties Starner
faced in incarceration do not justify a five-year delay in filing for habeas relief. Such a delay
suggests that Starner was not diligently pursuing his rights. Starner’s other pro se motions during
this time underscore that Starner knew how to file for relief with the Court. However, Starner
chose to pursue other avenues of investigation, such as looking into funds allegedly stolen by his
attorneys, rather than seeking habeas relief.
Finally, Petitioner’s actual innocence argument loses. As the Sixth Circuit explained:
[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. 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.” The evidence must demonstrate factual innocence, not
mere legal insufficiency.29
Most of Petitioner’s objections either attack the credibility of trial witnesses or allege
defense counsel and judicial misconduct. This Court does not re-assess the credibility of
27
Holland v. Florida, 560 U.S. 631, 649 (2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002).
29
Patterson v. Lafler, 455 F. App’x 606, 609 (6th Cir. 2012) (internal citations omitted).
28
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Case No. 15-1841
Gwin, J.
witnesses in state court jury trials or reweigh testimony. Allegations that Starner’s defense
counsel improperly accessed Starner’s bank accounts or stole money do not affect whether
Starner is factually innocent of rape. Similarly, allegations of judicial misconduct in other cases
do not affect Starner’s innocence.
Starner also points to physical evidence to argue factual innocence. As the Report and
Recommendation points out, these pieces of physical evidence were presented at trial and are
therefore not “new” for actual innocence purposes. The jury already considered 1) that one of the
victim’s clothing did not have Starner’s DNA, 2) that Starner had low testosterone levels, and 3)
that the electronic dates of the photos found on Starner’s computer were different from the dates
the photos were taken. The jury nevertheless convicted Starner. Petitioner brings no new
evidence to support his actual innocence claims.
IV. Conclusion
For the reasons above, this Court OVERRULES Petitioner’s objections, ADOPTS
Magistrate Judge Burke’s Report and Recommendation, and DISMISSES Petitioner’s § 2254
petition.
IT IS SO ORDERED.
Dated: August 4, 2016
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
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