Miller v. Ohio, State of
Memorandum Opinion and Order: Magistrate Judge White's Report and Recommendation is adopted. Petition is dismissed. I deny petitioner a certificate of appealability pursuant to 28 U.S.C. § 2253; Fed. R. App. P. 22(b). re 23 . Judge Jeffrey J. Helmick on 9/24/2014. (S,AL)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
William R. Miller,
Case No. 4:13 CV 1365
MEMORANDUM OPINION AND
On June 20, 2013, pro se Petitioner William R. Miller filed a petition for a writ of habeas
corpus with this Court pursuant to 28 U.S.C. § 2254, which was subsequently amended on
December 11, 2013. (“Petition”) (Doc. No. 11). The Court referred the matter to Magistrate Judge
Greg White for a Report and Recommendation (R&R). The Magistrate Judge’s R&R (Doc. No. 23)
and Miller’s objections to the same (Doc. No. 24) are now before me. For the reasons stated below,
I adopt the Magistrate Judge’s recommendations as set forth in the R&R and overrule Miller’s
Magistrate Judge White accurately and comprehensively set forth the procedural background
of this case, and I adopt those sections of the R&R in full. (Doc. No. 23 at 3-8). Further, as
Magistrate Judge White notes, “[i]n a habeas corpus proceeding instituted by a person in custody
pursuant to the judgment of a state court, factual determinations made by the state courts are
presumed correct.” (Doc. No. 23 at 2) (citing 28 U.S.C. § 2254(e)(1); House v. Bell, 283 F.3d 37 (6th
Cir. 2002)). I also adopt that section of the R&R in full. (Doc. No. 23 at 2-3)
Briefly, a jury convicted Miller in 2009 of kidnapping and rape in violation of Ohio Rev.
Code § 2907.01, § 2907.02, respectively. He was subsequently sentenced to an aggregate term of
thirty years in prison.
Miller, through counsel, sought direct appeal followed by a timely notice of appeal to the
Supreme Court of Ohio. (Doc. No. 7-1, Ex. 24, 28). On April 6, 2011, the appeal was dismissed as
not involving any substantial constitutional question. (Doc. No. 7-1, Ex. 31). Acting pro se, Miller
proceeded to seek various forms of post-conviction relief in the state courts of Ohio. (Doc. No. 71, Ex. 35, 37, 42, 45, 50, 54). However, these post-conviction relief applications and appeals
therefrom were denied as untimely.1 (Doc. No. 7-1, Ex. 36, 40, 44, 48, 52, 76).2
Miller then filed his Petition for a writ of habeas corpus under § 2254 raising four grounds
for relief. (Doc. No. 11). The case was referred to Magistrate Judge White who recommended
dismissing the Petitioner as time-barred. (Doc. No. 23). Miller filed timely objections to the R&R
(Doc. No. 24); Respondent failed to respond.
Miller argues his ineffective assistance claim can be heard on federal habeas review pursuant
to Premo v. Moore, 131 S. Ct. 733 (2011). Next, Miller argues the Magistrate Judge misconstrued his
actual innocence claim, and he is innocent because there was “no physical or biological evidence” to
support his conviction. (Doc. 24 at 3). Finally, Miller merely reframes his claims of speedy trial
violation and lack of jurisdiction as objections.
Miller’s ineffective assistance claim in his second application to reopen was also denied because the
three assignments of error were unrelated to a claim of ineffective assistance. (Doc. No. 7-1, Ex.
As Magistrate Judge White thoroughly explained, statutory tolling does not apply to timely appeals
of untimely post-conviction applications for purposes of federal habeas review. Parsons v. Turner,
No. 12-cv-2300, 2014 WL 197781, at * 4-5 (N.D. Ohio January 14, 2014).
A district court must conduct a de novo review of “any part of the magistrate judge’s
disposition that has been properly objected to. 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).
The Antiterrorism and Effective Death Penalty Act, Pub. 1. No. 104–132, 110 Stat. 1214
(Apr. 24, 1996) (“AEDPA”) established the one-year statute of limitations at issue. The applicable
statute of limitations under the AEDPA, for one whose conviction became final before the effective
date of the statute, is one year from the effective date. 28 U.S.C. § 2254(d)(1); Brown v. O'Dea, 187
F.3d 572, 575–77 (6th Cir. 1999).
The R&R fully and properly addresses all of Miller’s claims and explains why the Petition is
time-barred. After review, I find Miller’s objections regarding speedy trial and lack of jurisdiction
(Ohio element argument) merely rehashed arguments fully considered and rejected by the R&R.
Accordingly, these objections are overruled. Sweeny v. Gansheimer, No. 09 CV 2377, 2010 WL
4955704 (N.D. Ohio Nov. 30, 2010).
I further find Miller’s objections with respect to ineffective assistance and actual innocence
fail to address the Magistrate Judge’s findings concerning the untimeliness of the Petition pursuant
to AEDPA’s one-year statute of limitation. Liberally construing Miller’s objections, I reviewed de
novo those portions of the R&R to which objections have been made. See Fed. Civ. R. P. 72(b).
Ineffective Assistance of Trial Counsel
Miller cites Premo v. Moore, 131 S. Ct. 733, 739-40 (2011) to argue “[a]n ineffective assistance
claim can function as a way to escape rules of waiver and forfeiture, and to raise issues not presented
at trial.” (Doc. 24 at 1). However, among the many discrepancies between Premo and the case at
bar, Miller’s ineffective assistance claim was not dismissed pursuant to the rules of waiver or
forfeiture; rather, Miller’s ineffective assistance claim was dismissed as time-barred pursuant to
AEDPA’s one-year statute of limitations. The procedural bars of waiver and forfeiture are
completely distinct mechanisms which preclude habeas review; and Premo simply cannot be
construed as a means to circumvent the AEDPA time-bar for ineffective assistance claims.
In McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013), the United States Supreme Court held
that actual innocence, if proved, may overcome the expiration of AEDPA’s one-year statute of
limitations. The touchstone of the actual innocence inquiry is whether a petitioner’s “new evidence
shows ‘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 (1995)). The Supreme Court further
explained that “tenable actual-innocence gateway pleas are rare.” McQuiggin, 133 S. Ct. at 1928. In
such cases, a petitioner must “support his allegations with new reliable evidence – whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that
was not presented at trial.” Schlup, 513 U.S. at 298.
As the Magistrate Judge pointed out, Miller argued actual innocence based on a number of
newspaper articles and a victim statement to police. (Doc. 23 at 16 referring to Doc. 16 at 5). The
Magistrate Judge concluded this evidence “does not come close to satisfying the standard that the
new evidence must be reliable, such as exculpatory scientific evidence, trustworthy eyewitness
accounts, or other critical physical evidence that was not presented at trial.” (Doc. 23 at 16).
Miller argues the Magistrate Judge misconstrued his actual innocence argument and claims
“he is innocent based on the fact there is no physical or biological evidence to support the
accusations that he was convicted of.” (Doc. No. 24 at 3). After review, I find the Magistrate
Judge’s recitation of Miller’s actual innocence argument on point. (See Doc. 16 at 5). Regardless,
Miller fails to acknowledge that “no physical or biological evidence” is neither new nor reliable
evidence as contemplated by Schlup v. Delo and its progeny. By virtue of its nonexistence, it can be
presumed this evidence, or lack thereof, was contemplated by the trial court.
For the reasons stated above, I adopt Magistrate Judge White’s R&R. Miller’s objections are
overruled, and his Petition is dismissed.
CERTIFICATE OF APPEALABILITY
A habeas corpus petitioner is not entitled to a certificate of appealability as a matter of right,
but must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). The petitioner need not demonstrate he should prevail on the merits. Rather, a
petitioner must demonstrate “that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003); see also
Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). Where a claim is procedurally barred, a certificate of
appealability should only issue after a showing that “jurists of reason would find it debatable”
whether 1) “the petition states a valid claim of the denial of a constitutional right” and 2) “the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Miller’s Petition was denied on procedural grounds, as I found Miller’s claims to be timebarred. See Chapman v. Moore, 406 F. Supp.2d 835, 838 (N.D. Ohio 2005). “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.” Slack, 529 U.S. at 484; see also Carter v.
Maclaren, No. 12-cv-160, 2012 WL 1611255, at *1 (W.D. Mich. May 8, 2012). For this reason, I deny
Miller a certificate of appealability. 28 U.S.C. § 2253; Fed. R. App. P. 22(b).
s/ Jeffrey J. Helmick
United States District Judge
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