Pavisch v. Cook

Filing 20

Memorandum of Opinion and Order: This Court, having reviewed the Report and Recommendation, adopts it as its own. In accordance with that recommendation, the Court hereby denies the Petition for Writ of Habeas Corpus for the reasons stated by the Magistrate Judge in the Report and Recommendation, which is incorporated herein by reference. Furthermore, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), 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). Judge Patricia A. Gaughan on 9/28/17. (LC,S) re 13

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

James Pavisch,
Petitioner,
Vs.
Brian Cook, Warden,

Respondent.

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CASE NO. 5:16 CV 1934
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

INTRODUCTION
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge James R. Knepp, II (Doc. 13), which recommends dismissal of the Petition for Writ of
Habeas Corpus pending before the Court. Petitioner has filed Objections to the Report and
Recommendation. For the reasons that follow, the Report and Recommendation is ACCEPTED.
STANDARD OF REVIEW
Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts
provides that the district court reviews de novo those portions of a report of a magistrate judge to
which a specific objection is made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). The judge may
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accept, reject, or modify any proposed finding or recommendation.
DECISION
Magistrate Judge Knepp concluded that Petitioner filed his petition well outside the oneyear statute of limitations for filing habeas petitions set forth in 28 U.S.C. § 2244(d). He further
concluded that Petitioner was not entitled to statutory or equitable tolling and that he did not
meet the demanding standard for establishing a claim of actual innocence.
In his Objections, Petitioner does not dispute that he did not file his petition within the
one-year statute of limitations. He argues, however, that the Magistrate Judge erroneously
concluded that he is not entitled to equitable tolling. A petitioner seeking equitable tolling must
show: “(1) that he has diligently pursued his rights; and (2) that some extraordinary circumstance
stood in his way and prevented untimely filing.” Keeling v. Warden, Lebanon Correctional
“Inst., 673 F.3d 452 (6th Cir. 2012). Petitioner first asserts that he is entitled to equitable tolling
because his counsel was ineffective for “fail[ing] to provide any defense whatsoever [and]
fail[ing] to research the medical history.” (Doc. 19, at 1). The factual basis for this assertion has
been available to Petitioner since 2011. Therefore, this assertion does nothing to meet
Petitioner’s burden of showing that he is entitled to equitable tolling.
Petitioner next argues that the Magistrate Judge erroneously concluded that Petitioner
failed to show that his cognitive impairments from his 2006 stroke prevented him from timely
filing the petition. Mental incapacity can warrant equitable tolling if a petitioner shows: (1) that
he is mentally incompetent and (2) that his mental incompetence caused his failure to comply
with the statute of limitations. Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011). The Magistrate
Judge concluded that Petitioner could not establish the first prong of this test because his own

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pro se filings show that he is not mentally incompetent and he has not provided any evidence
other than his own assertions as to his mental state. The Magistrate Judge concluded that
Petitioner also failed the second prong test because he presented no evidence that his mental
incapacity was the cause of his delayed filings. In his Objections, Petitioner simply repeats his
assertion that he is cognitively impaired but does not identify any specific facts or evidence
demonstrating either prong of the Ata test. For the reasons discussed in the Report and
Recommendation, Petitioner is not entitled to equitable tolling on the basis of mental incapacity.
Finally, Petitioner claims that he is actually and factually innocent, but he provides no
facts or evidence in his Objections in support of this assertion. The Magistrate Judge correctly
concluded that Petitioner has not met the demanding standard for actual innocence.
This Court, having reviewed the Report and Recommendation, adopts it as its own. In
accordance with that recommendation, the Court hereby denies the Petition for Writ of Habeas
Corpus for the reasons stated by the Magistrate Judge in the Report and Recommendation, which
is incorporated herein by reference. Furthermore, the Court certifies, pursuant to 28 U.S.C. §
1915(a)(3), 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.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Court
Chief Judge
Dated: 9/28/17

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