Haddix v. LaRose

Filing 19

Order: I adopt the Report and Recommendation in its entirety as the Order of the Court. Haddix's petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 is dismissed. I also conclude Haddix fails to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253 and decline to issue a certificate of appealability. re 16 . Judge Jeffrey J. Helmick on 6/4/2015. (S,AL)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Douglas E. Haddix,

Case No. 5:13-cv-2573
Petitioner

v.

ORDER

Christopher LaRose,
Respondent
Before me is the Report and Recommendation of Magistrate Judge George J. Limbert
recommending dismissal of Petitioner Douglas Haddix’s action seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (Doc. No. 16; Doc. No. 1). Magistrate Judge Limbert recommended
I dismiss Haddix’s petition as untimely. Haddix filed objections to Magistrate Judge Limbert’s
Report and Recommendation. (Doc. No. 18).1 I overrule Haddix’s objections, adopt the Report
and Recommendation, and dismiss Haddix’s petition.
Magistrate Judge Limbert recommended I dismiss Haddix’s petition because Haddix did not
file it within the limitations period set forth in 28 U.S.C. § 2244(d) and Haddix failed to show the
equitable-tolling or actual-innocence exceptions applied to toll the limitations period. (Doc. No. 16
at 14-17). Haddix claims (1) he is entitled to equitable tolling of the § 2244(d) limitations period
based on an Ohio Fifth District Court of Appeals decision issued on May 13, 2013; (2) he has
presented evidence of actual innocence; and (3) he is entitled to equitable tolling due to the
ineffective assistance of appellate counsel. (Doc. No. 18-1).

1 Haddix’s objections initially were filed in non-sequential order. The Clerk of Court refiled Haddix’s submission on
May 27, 2015, to follow the appropriate pagination. (Doc. No. 18-1).

Haddix claims the Fifth District’s May 13, 2013 opinion “validates [his] right to statutory
tolling of 28 U.S.C. [§] 2244(d)(1)(D) [sic].” (Doc. No. 18-1 at 2). A habeas petitioner “is entitled to
equitable tolling only 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.” Holland v. Florida,
560 U.S. 631, 649 (2010) (internal quotation marks omitted). Haddix cannot satisfy either portion of
this test, as he offers no explanation for the extensive delay in filing his habeas petition. Further,
Haddix misconstrues footnote six in the Report and Recommendation, as well as the Fifth District’s
opinion. The Magistrate Judge correctly summarized the Fifth District’s holding that:
the sole purpose of the nunc pro tunc entry was to correctly state that Haddix's
original conviction was based on a jury verdict and the jury found him not guilty of
one of the counts, a fact that was obvious to the court and all the parties. It is
apparent, then, that the nunc pro tunc entry merely corrected a clerical omission in
the resentencing order and made the entry reflect what had already happened, which
was Haddix's conviction by jury verdict and sentence upon the counts that he jury
had found him guilty. The trial court's addition indicating the removal of a sentence
upon the count that the jury found Haddix not guilty affected only the form of the
entry and made no substantive changes.
State of Ohio v. Haddix, 2013-Ohio-1974, at *3 (Ohio Ct. App. May 13, 2013). Haddix’s first
objection is overruled.
“The ‘fundamental miscarriage of justice’ gateway is open to a petitioner who submits new
evidence showing that ‘a constitutional violation has probably resulted in the conviction of one who
is actually innocent.’” Williams v. Bagley, 380 F.3d 932, 973 (6th Cir. 2004) (quoting Schlup v. Delo, 513
U.S. 298, 327 (1995)). Evidence of actual innocence provides a “gateway” through which a
petitioner may avoid the consequences of the expiration of the statute of limitations. McQuiggin v.
Perkins, 133 S. Ct. 1924, 1928 (2013). Haddix, however, does not offer any new evidence. In
support of his objection, Haddix points only to a newspaper article from February 11, 1995, in
which the mother of the victim purported to recant her earlier claim that Haddix assaulted the
victim, and the Stark County Common Pleas Court order granting the State of Ohio’s motion to
introduce out-of-court statements made by a child declarant. (See Doc. No. 18-1 at 2-3; Doc. No.
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14-3; Doc. No. 14-10). Haddix plainly had reason to know both of these things prior to his trial,
and fails to explain how these documents meet the actual-innocence standard. Haddix’s second
objection is overruled.
Finally, Haddix argues he is entitled to equitable tolling of the limitations period because his
appellate counsel was ineffective. (Doc. No. 18-1 at 4-5). Haddix’s arguments are predicated on the
timeliness of state court filings from the late 1990s and fail to identify any basis for excusing his
failure to file his habeas petition before November 20, 2013. Haddix’s third objection is overruled.
Following review of the Magistrate Judge’s Report and Recommendation, I adopt the Report
and Recommendation in its entirety as the Order of the Court. Haddix’s petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254 is dismissed. I also conclude Haddix fails to make a substantial
showing of the denial of a constitutional right as required by 28 U.S.C. § 2253 and decline to issue a
certificate of appealability.

So Ordered.

s/ Jeffrey J. Helmick
United States District Judge

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