Houston v. Coleman

Filing 14

Memorandum Opinion: Petitioner's objections are overruled and the Report and Recommendation is accepted. (Doc. No. 12 .) The petition for writ of habeas corpus is denied and this case is dismissed. Further, the Court certifies 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. Section 2253(c); Fed. R. App. P. 22(b). Judge Sara Lioi on 9/19/2017. (P,J)

STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JIMMY L. HOUSTON,

PETITIONER,
vs.
WARDEN JOHN COLEMAN,

RESPONDENT.

)
)
)
)
)
)
)
)
)
)
)

CASE NO. 3:16-cv-3043

JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court is the Report and Recommendation of Magistrate Judge James R. Knepp,
II (Doc. No. 12 [“R&R”]) recommending granting respondent’s motion to dismiss (Doc. No. 7
[“Mot.”])1 this petition for writ of habeas corpus filed under 28 U.S.C. § 2254. Petitioner filed
objections to the R&R. (Doc. No. 13 [“Obj.”].) Respondent filed no opposition. Pursuant to Fed.
R. Civ. P. 72(b)(3), the Court has conducted its de novo review of the matters raised in the
objections. For the reasons discussed below, the R&R is accepted and the petition is dismissed as
time-barred.
I. BACKGROUND
On July 30, 2009, petitioner was indicted by a Sandusky County, Ohio grand jury on two
counts each of attempted murder (§ 2903.02(A)2 and § 2923.02), felonious assault (§
2903.11(A)(1)), kidnapping (§ 2905.01(A)(2)), and aggravated robbery, with a firearm

Petitioner filed his opposition to the motion, styled as a “reply.” (Doc. No. 8 [“Opp’n”].) Respondent filed a reply.
(Doc. No. 9 [“Reply”].) These documents, as well as the original petition (Doc. No. 1 [“Pet.”]) have all been considered
by the Court in conducting its de novo review.
1

2

All statutory citations are to the Ohio Revised Code.

specification (§ 2911.01(A)(3)); one count each of aggravated burglary (§ 2911.11(A)(1)) and
tampering with evidence (2921.12(A)(1)); and thirty-three counts of grand theft (§
2913.02(A)(1)(B)(4)). (Mot. at 137-1513.)
On April 26, 2010, petitioner entered guilty pleas to two counts of attempted murder, one
count of kidnapping, one count of aggravated burglary with a firearm specification (all first degree
felonies), and one count of grand theft (a third degree felony). (Id. at 153-56.) On May 11, 2010,
he was sentenced to an aggregate of twenty-three (23) years in prison. (Id. at 157-58, as corrected
at 159.)
On June 10, 2010, trial counsel timely filed petitioner’s notice of appeal. Then, represented
by new counsel, petitioner filed his appellate brief, raising three assignments of error:
1.

Appelant’s [sic] sentence was contrary to law and constituted an abuse of
discretion.

2.

In contravention of recent U.S. Supreme Court precedent, Oregon v. Ice,
the 6th Amendment to the U.S. Constitution, and the re-enacted Ohio
sentencing code, the trial court erred by imposing consecutive sentences
without making the required statutory findings pursuant to R.C. §§
2929.14(E)(4), 2929.41(A).

3.

Trial counsel rendered ineffective assistance of counsel in violation of the
6th Amendment to the U.S. Constitution and Article I, Sections 10, 16 of
the Ohio Constitution.

(Id. at 168.)4 On September 16, 2011, the Ohio court of appeals affirmed the trial court’s judgment.
(Id. at 217-28.)

All page number references are to the page identification number generated by the Court’s electronic docketing
system.
3

4

Notably, the ineffective assistance of counsel claim made no mention of the issue now being raised relating to
counsel’s advice to plead guilty even though the intent element was allegedly not satisfied. Rather, at that point,
petitioner was claiming ineffective assistance only due to counsel’s failure to (1) file a motion to waive court costs;
and (2) enter any objections on the record regarding two alleged sentencing errors. Although not discussed in either
the motion to dismiss or in the R&R, this Court is of the view that petitioner procedurally defaulted any claim relating
to the validity of his pleas. There being no discussion on this record of cause for this default or prejudice resulting

2

Proceeding pro se, petitioner appealed to the Ohio Supreme Court (id. at 229-30), asserting
two propositions of law:
I.

The Eighth Amendment prohibits imposition of the maximum penality [sic]
on one who plains [sic] or aids a felony in the course of which an attempted
murder and felonious assault is committed by cofelons but who does not
himself solicit, request, command, cause, or aid the attempted to [sic]
murder and feloniously [sic] assault, or intend that an attempt to murder and
feloniously assault will be employed.

II.

The simultaneous repeal and revival of R.C. 2929.14(E)(4) and 2929.41(A)
invalidated by State v. Foster (2006), 109 Ohio St. 3d 1, Foster is
prospectively overruled by the holding in Oregon v. Ice (2009), 555 U.S.
160, and applies to those who either raised Ice at sentencing, on direct
appeal, or pending appeal.

(Id. at 232.) On February 1, 2012, the Ohio Supreme Court declined jurisdiction. (Id. at 256.)
While this direct appeal was pending, on December 15, 2011, represented by a public
defender, petitioner filed his application to reopen his direct appeal (id. at 257-62), asserting that
his original appellate counsel was ineffective for failing to raise the meritorious assignment of
error that aggravated burglary and grand theft should have been merged for sentencing purposes.5
On February 8, 2012, the court of appeals granted the application and reopened the appeal as to
the one issue raised. (Id. at 263-67.) On February 1, 2013, the court of appeals vacated a portion
of its previous affirmance, reversed the trial court’s judgment with respect to the sentence for
aggravated burglary and grand theft, and remanded for a new sentencing hearing on those two
counts. (Id. at 282-87.)

from it, that alone should probably preclude further consideration. Murray v. Carrier, 477 U.S. 478, 485, 106 S. Ct.
2639, 91 L. Ed. 2d 397 (1986). Nonetheless, the Court will address the objections to the R&R.
5

Notably, for purposes of the instant petition, again there was no mention of ineffective assistance of his original
appellate counsel for failure to raise any claim relating to the intent necessary to support the elements of petitioner’s
crimes.

3

On April 18, 2013, the trial court resentenced petitioner, resulting in an aggregate 21 years
in prison (reduced from 23 years). (Id. at 292-93.) Represented by counsel, petitioner appealed (id.
at 294-312), raising one assignment of error:
In fashioning the sentence, the trial court violated Mr. Houston’s constitutional
rights guaranteed by the 8th Amendment to the United States Constitution and his
statutory rights under R.C. § 2929.11.
(Id. at 314.) On March 7, 2014, the court of appeals affirmed the judgment. (Id. at 329-35.)
Petitioner had until April 21, 2014 to file an appeal with the Ohio Supreme Court, but did not do
so, rendering his conviction final as of that date.
Almost two years later, on January 21, 2016, represented by counsel, petitioner moved in
the trial court to withdraw his guilty pleas to attempted murder and kidnapping, asserting that he
had recently “learned that the factual basis offered for his plea to those charges did not meet the
elements of the offenses.” (Id. at 336, citing State v. Nolan, 25 N.E.2d 1016 (Ohio 2014).) On
March 17, 2016, the trial court denied the motion, finding no manifest injustice under Criminal
Rule 32.1 where “[a]ll matters required to be addressed under Criminal Rule 11 were covered.”
(Id. at 357.)
Represented by counsel, petitioner appealed. (Id. at 359.) On May 6, 2016, the court of
appeals sua sponte dismissed the appeal, holding that the trial court had lacked jurisdiction to
consider petitioner’s motion to withdraw guilty pleas after his conviction had already been
affirmed on appeal. (Id. at 365-67.) No appeal to the Ohio Supreme Court was filed.
On December 20, 2016, petitioner, represented by counsel, filed the instant habeas petition
raising two grounds for relief:
I.

Mr. Houston was deprived of due process of law when he did not make a
knowing and voluntary decision to plead guilty.
4

II.

Mr. Houston received ineffective assistance of counsel in the district court
[sic] because he [sic] counsel advised him to plead guilty to crimes he did
not commit.

(Pet. at 23, 27.)
Respondent filed a motion to dismiss under Rule 4 of the Rules Governing Section 2254
Cases, arguing that the petition is barred by the one-year statute of limitations in 28 U.S.C. §
2244(d). Following full briefing, the magistrate judge issued his R&R recommending that the
motion to dismiss be granted.
II. DISCUSSION
A.

The Standard of Review
Under 28 U.S.C. § 636(b)(1)(C), “[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
specific objections filed by any party.”). “An ‘objection’ that does nothing more than state a
disagreement with a magistrate’s suggested resolution, or simply summarizes what has been
presented before, is not an ‘objection’ as that term is used in this context.” Aldrich v. Bock, 327 F.
Supp. 2d 743, 747 (E.D. Mich. 2004); see also Fed. R. Civ. P. 72(b)(3) (“[t]he district judge must
determine de novo any part of the magistrate judge’s disposition that has been properly objected
to”); LR 72.3(b) (any objecting party shall file “written objections which shall specifically identify
the portions of the proposed findings, recommendations, or report to which objection is made and
the basis for such objections.”). After review, the district judge “may accept, reject, or modify the

5

recommended disposition; receive further evidence; or return the matter to the magistrate judge
with instructions.” Fed. R. Civ. P. 72(b)(3).
B.

The Statute of Limitations under AEDPA
Relevant to the instant case, the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) provides:
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 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.

28 U.S.C. § 2244(d)(1).
Cases become final on direct review for purposes of § 2244(d)(1)(A) when certiorari is
denied or the time to file a certiorari petition expires. Jimenez v. Quarterman, 555 U.S. 113, 11920, 129 S. Ct. 681, 172 L. Ed. 2d 475 (2009) (“direct review cannot conclude for purposes of §
2244(d)(1)(A) until the ‘availability of direct appeal to the state courts,’ and to this Court, has been
exhausted[]”) (internal citations omitted).
The statute of limitations is tolled during the pendency of a “properly filed application for
State post-conviction or other collateral review with respect to the pertinent judgment or claim[.]”
6

28 U.S.C. § 2244(d)(2). “[A]n application is ‘properly filed’ when its delivery and acceptance are
in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4,
8, 121 S. Ct. 361, 148 L. Ed. 2d 213 (2000) (emphasis in original). If a state court rejects a
proceeding as not properly filed under state procedural rules, that action cannot toll the one-year
period under AEDPA. Pace v. DiGuglielmo, 544 U.S. 408, 414, 125 S. Ct. 1807, 161 L. Ed. 2d
669 (2005) (“When a postconviction petition is untimely under state law, ‘that [is] the end of the
matter’ for purposes of § 2244(d)(2).”) (quoting Carey v. Saffold, 536 U.S. 214, 226, 122 S. Ct.
2134, 153 L. Ed. 2d 260 (2002)); see also Israfil v. Russell, 276 F.3d 768, 771 (6th Cir. 2001)
(requirements for proper filing include “the form of the document, the court and office in which it
must be lodged, payment of a filing fee, and applicable time limits upon its delivery[,] . . . [and]
federal courts must accept a state court’s interpretation of its statutes and its rules of practice.”)
(citation omitted).
“‘The tolling provision does not, however, “revive” the limitations period (i.e., restart the
clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitations
period is expired, collateral petitions can no longer serve to avoid a statute of limitations.’” Vroman
v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (quoting Rashid v. Khulmann, 991 F. Supp. 254,
259 (S.D.N.Y. 1998)).
C.

The Motion to Dismiss
Respondent’s motion to dismiss argues that petitioner’s conviction became final pursuant

to 28 U.S.C. § 2244(d)(1)(A), on or about April 21, 2014, that is, 45 days after the Ohio court of
appeals affirmed the trial court’s resentencing judgment. Absent any tolling, petitioner had one
year to file a habeas petition. He failed to do so and, in respondent’s view, the statute of limitations
expired on April 21, 2015. (Mot. at 124.) By the time petitioner filed his state court motion to
7

withdraw his guilty plea on January 21, 2016, the statute of limitations had already run; therefore,
according to respondent, the state court proceedings relating to that motion did not restart the
statute of limitations, not having been “properly filed,” and cannot prevent this case from being
time-barred. (Id. at 124-25, citing Eberle v. Warden, Mansfield Corr. Inst., 532 F. App’x 605, 60809 (6th Cir. 2013).6)
Respondent further argues that petitioner cannot rely upon § 2244(d)(1)(D) because he was
aware of the factual predicate of any claim by the time of his plea hearing, since he knew which
crimes he had pleaded guilty to and was present during the plea hearing. (Mot. at 125.) Further, to
the extent petitioner may attempt to claim some new factual predicate, it is his burden to prove that
he exercised the due diligence required to avail himself of a later start date under the abovereferenced statutory section. (Id. at 125-27.) Finally, respondent denies any right to equitable
tolling, a sparingly applied doctrine, because petitioner cannot establish that his failure to meet the
deadline “arose from circumstances beyond [his] control[,]” nor can he “demonstrate[] diligence
in the pursuit of his claims.” (Id. at 130, 131).
Petitioner opposed respondent’s motion, raising arguments that were addressed by the
R&R and are discussed below in the context of the current objections to the R&R.

In Eberle, the Sixth Circuit noted that, “if after AEDPA’s statute of limitations had fully expired it could be restarted
when a petitioner filed a motion to withdraw his guilty plea, . . . habeas petitioners could indefinitely extend the
limitations period by delaying the filing of a withdrawal motion. This reading flushes the meaning out of AEDPA’s
one-year statute of limitations and upends the statute’s goal of heading off unwarranted delay.” Eberle, 532 F. App’x
at 609.
6

8

D.

De Novo Review
1.

Objection I – The Ohio Supreme Court’s Decision in State v. Nolan is
Applicable to Houston’s Guilty Plea

Petitioner took the position in his opposition to the motion to dismiss that, once he had
discovered Nolan “in early 2015” (Opp’n at 388), he was required to first exhaust any attempt to
vacate his plea before he could bring a federal habeas petition and, therefore, had to wait for those
state proceedings to run their course, which they did on May 6, 2016.7 As aptly described by the
R&R:
Petitioner contends his claims are based on two “discoveries” subsequent to his
guilty plea: “(1) the discovery that the ‘foreseeability’ basis underlying his guilty
plea [was] insufficient under Ohio law; and (2) the discovery that the state courts
of Ohio could not provide relief to [Petitioner] despite that insufficiency” based on
State v. Nolan, 141 Ohio St. 3d 454[, 25 N.E.3d 1016] (2014).
(R&R at 419-20, quoting Opp’n at 387.8)
Petitioner, who pleaded guilty to attempted murder, kidnapping, and aggravated burglary,
claims he is entitled to release from custody because “the factual basis offered for his plea to these
charges did not meet the elements of these offenses.” (Pet. at 19.) Specifically, in his petition,
Houston argues that he was not present during the crime and that there was no evidence that he
planned or even had knowledge that any violence would occur. (Id. at 21.) The state told the trial
court during his plea hearing that it was “certainly foreseeable that the end result was to be an
attempted murder . . . .” (Id. at 57, quoting from change of plea transcript, Pet. Ex. 2.) Defense

Petitioner claims he was in a “catch-22” position of either filing a habeas petition that would be rejected for failure
to exhaust or filing a state-court motion and risk running out of time under AEDPA. The R&R correctly notes that the
Supreme Court has identified a procedure to avoid any such dilemma: the petitioner can file a “protective petition”
and ask the federal court to stay proceedings until state court remedies already in process are exhausted. (R&R at 422
n.3, citing Pace, 544 U.S. at 416-17.) Petitioner has not specifically objected to this portion of the R&R.
7

8

The R&R cites to the actual page numbers in relevant documents; for consistency, the Court has conformed those
numbers to the page ID numbers in CMECF.

9

counsel concurred that the violence was “reasonably foreseeable.” (Id. at 58.) Petitioner claims
that he “was never informed at the Change of Plea Hearing of the elements of the offenses to which
he was pleading guilty.” (Id. at 21.)
Based on these facts, petitioner asserts both a due process violation and ineffective
assistance of trial counsel. To establish the timeliness of these claims, Houston asserts that he “was
first alerted to the issue [i.e., the purported ‘factual predicate’ for his petition] when he read the
Ohio Supreme Court’s ruling in [Nolan,]” (id. at 19), whereupon he promptly obtained counsel
and sought to withdraw his guilty plea, but did not learn until May 6, 2016, that “the state courts
of Ohio could not provide relief” for his allegedly invalid guilty pleas (R&R at 420, citing Opp’n
at 387). He claims his petition was timely because it was filed on December 20, 2016, well within
one year of May 6, 2016.
The R&R rejected Nolan as a “factual predicate” for this petition, concluding that Nolan’s
new rule – that attempted felony murder is not a cognizable crime under Ohio law – was
inapplicable here, where petitioner’s crime was attempted murder, not attempted felony murder.
The R&R further noted that Nolan “‘merely established an abstract proposition of law’ and ‘had
no direct effect on [the petitioner’s] legal status.’” (Id. at 421, quoting Shannon v. Newland, 410
F.3d 1083, 1088-89 (9th Cir. 2005) (holding that “If a change in (or clarification of) state law, by
a state court, in a case in which [the defendant] was not a party, could qualify as a ‘factual
predicate,’ then the term ‘factual’ would be meaningless.”).)
In his first objection, petitioner argues that the R&R adopted a “technical distinction” and
completely overlooked that the operative word in Nolan was “attempt.” He claims that Nolan
stands for the general proposition that “the mental state of ‘specific intention’ was the required

10

mens rea to convict [him] of an attempt crime in 2009, yet he was not advised of that legal standard
by his attorney, the prosecutor, or the Court.” (Obj. at 437, emphasis in original.)
Petitioner’s position is incorrect because it reads Nolan too broadly. Even if its legal
conclusion could be construed as the factual predicate for a habeas petition,9 Nolan’s teaching is
unavailing for petitioner’s purposes. Nolan stands for the simple proposition that Ohio does not
recognize a crime of “attempted felony murder” since it is a logical impossibility. Petitioner’s
crime was attempted murder, and specific intent to kill has always been an element of the crime of
attempted murder. Therefore, Nolan offers no basis upon which to claim any new “factual
predicate” for habeas purposes.
Petitioner argues that “[t]o deny [him] any benefit from Nolan on the grounds that ‘any
claim about the mental state required to commit these crimes was available to [p]etitioner before
Nolan’ would effectively require non-legally trained criminal defendants, like Houston, to question
the law as explained by all of the legal professionals involved in a criminal case.” (Obj. at 437,
quoting R&R at 424.) He argues that “[t]he ultimate issue is whether [he] was properly advised of
the mental state required to convict him of the crimes to which he pled guilty.” (Id.)
While it is true that the R&R noted its agreement with respondent that Nolan “did not break
new ground” with respect to Ohio’s mental state statutes (see R&R at 424), the more fundamental
reason why the R&R rejected any application of Nolan was because it did not address the “attempt”
crime for which petitioner was convicted and, therefore, can offer no support for petitioner’s
position.10

The Court, however, explicitly states that it does not accept that proposition. See Shannon, 410 F.3d at 1089 (“a
state-court decision establishing an abstract proposition of law arguably helpful to the petitioner’s claim does not
constitute the ‘factual predicate’ for that claim”) (citation omitted).
9

By arguing that “[t]he ultimate issue is whether Houston was properly advised of the mental state required to convict
him of the crimes to which he pled guilty[,]” (Obj. at 437), petitioner strays into the underlying merits of his claim
10

11

Further, the Court notes, although it was not mentioned in the R&R, that petitioner has not
raised here any claim that it was ineffective assistance of appellate counsel to never raise this issue
at any point during his many levels of state court proceedings. Rather, petitioner simply argues the
merits of a claim that should have been raised in the first instance during his direct appeal or his
attempt to reopen his direct appeal in state court.
In light of the above, the Court overrules petitioner’s first objection.
2.

Objection II – The One-Year Statute of Limitations Began When the Ohio
Court of Appeals Dismissed Houston’s State Court Appeal on May 6, 2016

Petitioner’s second objection relates to when the one-year limitations period began to run.
He relies upon Johnson v. United States, 544 U.S. 295, 125 S. Ct. 1571, 161 L. Ed. 2d 542 (2005),
in conjunction with Nolan, to argue that it was not until May 6, 2016 that he learned the “factual
predicate” for his habeas claim. The R&R concluded that both Nolan and the state court’s decision
on May 6, 2016 “‘had no direct effect on [the petitioner’s] legal status[,]’” (R&R at 421, quoting
Shannon, 410 F.3d at 1088-89) and, therefore, neither could serve as the “factual predicate” for a
habeas claim.
Petitioner objects, stating: “Quite the contrary, the [May 6, 2016] dismissal changed
Houston’s legal status from a prisoner with potential state court relief to a prisoner who can only
pursue federal habeas relief.” (Obj. at 438 (emphasis in original).) He points to Johnson’s
statement that, because a petitioner “‘[has] to learn of the court’s response in the state
proceeding,’” that “‘can surely qualify as a kind of discovery falling within the statutory
language.’” (Obj. at 438, quoting Johnson, 544 U.S. at 308 (petitioner’s emphases removed).)

that he received ineffective assistance of counsel. But before that claim can be addressed, even if it is the “ultimate
issue,” petitioner first has the burden of showing that his petition is timely.

12

The Court rejects petitioner’s attempt to apply Johnson to his situation. In Johnson, a
federal prisoner had received an enhanced sentence for his federal drug conspiracy conviction
based on two prior state court convictions that qualified him as a career offender under the federal
sentencing guidelines. When one of those state court convictions was later vacated, Johnson moved
under 28 U.S.C. § 2255 to vacate, set aside or correct his federal sentence. The district court found
his § 2255 motion to be untimely and the court of appeals affirmed that decision. The Supreme
Court held that the vacatur of his state conviction was a “factual predicate” that could restart the
one-year clock. Johnson, 544 U.S. at 302. But, even so, it affirmed that his § 2255 motion had
been untimely because Johnson had not acted with due diligence to attack the state convictions
that had been used to enhance his federal sentence, precluding a re-triggering of the limitations
period. Id. at 310-11. It is apparent that the petitioner in Johnson had to wait for a court ruling to
find out that the state conviction used to enhance his federal sentence had been vacated and,
therefore, he had a new “factual predicate” upon which to proceed to attack his federal sentence,
namely, that he had no prior state conviction. Petitioner is not in that position.
Furthermore, “[a] motion to withdraw a guilty plea is not properly filed and will not toll
the statute of limitations if the trial court does not have jurisdiction to consider the motion.” Zudell
v. Bradshaw, No. 1:03 CV 1591, 2005 WL 1532595, at *3 (N.D. Ohio June 29, 2005) (citing
Godfrey v. Beightler, 54 F. App’x 431, 432-33 (6th Cir. 2002)). The Ohio court of appeals
considering petitioner’s appeal from the denial of his motion to withdraw his guilty plea held that
the trial court had no jurisdiction to consider his motion “‘subsequent to an appeal and an
affirmance by the appellate court.’” (Mot. at 366, quoting State ex rel. Special Prosecutors v.
Judges, Court of Common Pleas, 378 N.E.2d 162, 165 (1978).) Federal courts defer to state courts’
interpretation of state filing requirements. Israfil, 276 F.3d at 771.
13

Finally, it is clearly established that “the tolling provision of § 2244(d)(2) does not revive
an expired limitations period.” Howard v. Burt, No. 17-1285, 2017 WL 3425900, at *2 (6th Cir.
Aug. 9, 2017) (citation omitted). Therefore, because petitioner’s state-court post-conviction
motion to withdraw his guilty pleas was filed after the AEDPA limitations period had already
expired, even if those proceedings had been “properly filed” (which they were not) they could not
serve to toll the statute of limitations and, therefore, waiting for the outcome was an exercise in
futility.
In light of the above, the Court overrules petitioner’s second objection.
3.

Objection III – Houston is Entitled to an Equitable Tolling of the Limitations
Period on the Basis of an “Actual Innocence” Claim

Petitioner took the position in opposition to the motion to dismiss that, even if his petition
was otherwise time-barred, he is entitled to equitable tolling because of his actual innocence.
(Opp’n at 391-95.) He bases this claim primarily on his assertion that he entered his guilty pleas
without understanding that “foreseeability” was an insufficient level of intent.
There are occasions when a petitioner’s tardy filing may be excused by virtue of equitable
tolling. Holland v. Florida, 560 U.S. 631, 646, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010). A
petitioner may be entitled to equitable tolling “if he shows ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely
filing.” Id. at 649 (quoting Pace, 544 U.S. at 418). The burden is on a petitioner to show entitlement
to equitable tolling, Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010), and “equitable
tolling should be granted sparingly.” Solomon v. United States, 467 F.3d 928, 933 (6th Cir. 2006)
(citation omitted).

14

Here, although petitioner broadly uses the phrase “equitable tolling,” his entire argument
focuses on a claim of “actual innocence.” “[A] demonstration of actual innocence may serve as a
gateway for review of an otherwise barred claim.” Bell v. Howes, No. 14-1169, 2017 WL 2882453,
at *2 (6th Cir. June 29, 2017) (citing McQuiggin v. Perkins, -- U.S. --, 133 S. Ct. 1924, 185 L. Ed.
2d 1019 (2013)). But such a claim is not a request for equitable tolling; rather, it is a request for
an equitable exception to the statute of limitations. McQuiggin, 133 S. Ct. at 1931.11 Therefore,
where there is a claim of actual innocence, untimeliness is not “an absolute barrier to relief, but []
a factor in determining whether actual innocence has been reliably shown.” Id. at 1928. But, as
noted by the Court in McQuiggin, “tenable actual-innocence gateway pleas are rare[.]” Id.
The R&R concluded that petitioner’s actual innocence claim must fail because “this is not
a case where Petitioner pled guilty to something that was later determined not to be a crime, nor is
this a case where Petitioner was unaware of the elements of the crime to which he pled guilty.”
(R&R at 433.) Petitioner challenges this conclusion, claiming that he “pled guilty on the basis of
a legally erroneous understanding of the requisite mental state, which was provided by the actual
legal professionals involved in [his] case.” (Obj. at 439.) As he did in his opposition to the motion
to dismiss, he again cites Waucaush v. United States, 380 F.3d 251 (6th Cir. 2004), for the
proposition that “where a criminal defendant is provided with a ‘legally erroneous’ understanding
of a required element of a crime, such a misunderstanding ‘typifies an unintelligent guilty plea.’”
(Obj. at 439.)

11

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’”)).

15

But, Waucaush is of no help to petitioner. There, after the defendant entered his guilty
pleas, Supreme Court opinions further clarified the law, adding restrictions to the scope of the
Commerce Clause, with the result that the defendant had actually “plead[ed] guilty to conduct
which was not a crime[.]” Waucaush, 380 F.3d at 258.12 In this case, represented by experienced
counsel, petitioner entered pleas of guilty to five specific charges in the indictment, charges that
properly cited the relevant Ohio statutes, in return for dismissal of thirty-eight (38) other charges.
See, e.g., State ex rel. Tucker v. Matia, 66 N.E.3d 730, 731 (Ohio 2016) (“the language of Tucker’s
indictment, to which he pleaded guilty, tracks the language of R.C. 2923.02, which sets out the
elements of attempt, and R.C. 2903.02(A), which sets out the elements of the offense of murder”)
(also rejecting application of Nolan).
In order to prevail on his actual innocence claim at this juncture, petitioner must
demonstrate that “‘it is more likely than not that no reasonable juror would have convicted’” him.
McQuiggin, 133 S. Ct. at 1933 (quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S. Ct. 851, 130 L.
Ed. 2d 808 (1995)). This requires new evidence that demonstrates “factual innocence, not mere
legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 140 L. Ed. 2d
828 (1998) (citation omitted). Here, at both his change of plea hearing and at his sentencing,
petitioner entered guilty pleas based on the indictment, accepted the facts as subsequently recited,
and made no protestation of innocence. (See Pet. Exs. 2, 3.) His sole basis for relief is a claim that
he did not know that the intent element of his crimes had not been met; but, even if that were true,
it is an argument based only on legal innocence, which courts routinely hold is insufficient to

12

In particular, the defendant was told by the district court that a purely intrastate act of violence having only minimal,
indirect effects on interstate commerce was enough to satisfy the “affect[ed] interstate commerce” element of a RICO
charge.

16

establish “actual innocence.” See Harvey v. Jones, 179 F. App’x 294, 298-99 (6th Cir. 2006) (citing
cases); see also Sawyer v. Whitley, 505 U.S. 333, 339, 112 S. Ct. 2514, 120 L. Ed. 2d 269 (1992).
Petitioner has presented nothing that would warrant an exception to the one-year statute of
limitations for bringing this habeas petition.13 Therefore, his third objection is overruled.

III. CONCLUSION
For the reasons discussed above, petitioner’s objections are overruled and the R&R is
accepted. The petition for writ of habeas corpus is denied and this case is dismissed. Further, the
Court certifies 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.

Dated: September 19, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

Petitioner also objects to the R&R’s conclusion that he failed to act diligently because, after he claims to have
discovered Nolan, which he (wrongly) advances as the legal basis for his current claim, he waited six months before
filing his motion to withdraw his guilty pleas and then, after receiving the ruling from the Ohio court of appeals,
waited another eight months before filing the instant petition. The Court need not address the issue of diligence because
that concept is related to equitable tolling, not to an equitable exception due to actual innocence. See McQuiggin,
supra. That said, much as in Johnson, petitioner “fell far short of reasonable diligence in challenging the state [guilty
pleas].” Johnson, 544 U.S. at 311.
13

17