Denney v. Warden, Southern Ohio Correctional Facility

Filing 26

Order: I adopt Magistrate Judge Burke's report and recommendation and dismiss Denney's petition as barred by the statute of limitations. I also decline to issue a certificate of appealability, because Denney's claims are barred by the statute of limitations. re 20 . Judge Jeffrey J. Helmick on 11/17/2015. (S,AL)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Donald Denney,

Case No. 5:14-cv-00156
Petitioner

v.

MEMORANDUM OPINION
AND ORDER

Norman Robinson,
Respondent

On January 21, 2014, Donald Denney filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, and a motion for the appointment of counsel. (Doc. No. 2; Doc. No. 3).
Magistrate Judge Kathleen Burke recommends I dismiss Denney’s petition as barred by the statute
of limitations. (Doc. No. 20). Denney filed objections to the report and recommendation. (Doc.
No. 23). Respondent Norman Robinson replied to Denney’s objections, (Doc. No. 24), and
Denney responded to Robinson’s reply. (Doc. No. 25). I overrule Denney’s objections, adopt
Magistrate Judge Burke’s report and recommendation, and dismiss Denney’s petition as time-barred.
Under the relevant statute, “[w]ithin fourteen days after being served with a copy, any party
may serve and file written objections to such proposed findings and recommendations as provided
by rules of court.” 28 U.S.C. § 636(b)(1); United States v. Campbell, 261 F.3d 628 (6th Cir. 2001). The
failure to file written objections to the Magistrate Judge’s report and recommendation constitutes a
waiver of a determination by the district court of an issue covered in the report. Thomas v. Arn, 474
U.S. 140 (1985); see also United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The purpose of these

written objections is “to provide the district court ‘with the opportunity to consider the specific
contentions of the parties and to correct any errors immediately’” while “focus[ing] attention on
those issues – factual and legal – that are at the heart of the parties’ dispute.” Kelly v. Withrow, 25
F.3d 363, 365 (6th Cir. 1994) (quoting Walters, 638 F.2d at 950, and Arn, 474 U.S. at 147).
Denney does not object to Magistrate Judge Burke’s conclusions that (1) his habeas petition
was filed after the statute of limitations expired and is untimely under 28 U.S.C. § 2244(d)(1)(A) and
(2) Denney is not entitled to statutory tolling of the limitations period pursuant to 28 U.S.C. §
2244(d)(2). (See Doc. No. 20 at 12-14). Therefore he has waived review of this portion of the
Report and Recommendation. Thomas, 474 U.S. at 149-53.
Denney objects only to Magistrate Judge Burke’s conclusion that he is not entitled to
equitable tolling of the statute of limitations. A habeas 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.” Holland v. Florida, 560 U.S. 631, 649
(2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). A petitioner also may avoid the
consequences of the expiration of the limitations period through evidence of actual innocence.
McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013).
Denney contends the limitations period should be equitable tolled because (1) he was not
notified for his right to appeal after entering his guilty plea; (2) he was mentally incompetent at the
time of his plea, and still is; and (3) he is actually innocent of the offense to which he pled guilty.
(Doc. No. 23).
Denney raises the arguments stated in his first and third objections for the first time in his
objections to the report and recommendation. “[A]bsent compelling reasons,” a petitioner may not
present new arguments to the district court which the petitioner failed to present to the magistrate
judge. Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000). Therefore, I need not consider
these objections at all. Even if I accept Denney’s assertion that he was not informed of a right to
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appeal his guilty plea, Denney fails to show he did anything to protect his rights between his
sentencing hearing on July 29, 2005, and the filing of his first post-conviction motion on October
25, 2012. Denney did not act with “reasonable diligence” and is not entitled to equitable tolling.
Holland, 560 U.S. at 653 (quotation and citation omitted).
Nor does Denney’s assertion of actual innocence provide a basis for equitable tolling. “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)). Denney does not present any new evidence and therefore is not entitled to
equitable tolling under this theory.
Finally, Denney also fails to meet his burden of showing the limitations period should be
tolled on the basis of mental incompetence. In order to obtain equitable tolling on this basis,
Denney “must demonstrate that (1) he is mentally incompetent and (2) his mental incompetence
caused his failure to comply with AEDPA’s statute of limitations.” Ata v. Scutt, 662 F.3d 736, 742
(6th Cir. 2011). While Denney contends records from the Veterans Administration would show he
is mentally incompetent, he fails to identify even a single diagnosis of mental illness. Moreover, his
assertion that, at the time of his plea, he was being medicated due to his alleged mental illness is not
proof he actually is mentally incompetent. See Ata, 662 F.3d at 742 (“[A] blanket assertion of mental
incompetence is insufficient to toll the statute of limitations.”). Nor does that assertion establish the
necessary “causal link between the mental condition and untimely filing” of Denney’s state-court
appeals or his habeas petition. Id. (citing McSwain v. Davis, 287 F. App’x 450, 456 (6th Cir. 2008)).
For the reasons stated above, I deny Denney’s objections, adopt Magistrate Judge Burke’s
report and recommendation, and dismiss Denney’s petition as barred by the statute of limitations. I
also decline to issue a certificate of appealability, because Denney’s claims clearly are barred by the
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statute of limitations. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (A certificate of appealability is not
warranted when “a plain procedural bar is present” and disposes of the case.).
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge

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