Wilson v. Coleman

Filing 24

Memorandum Opinion and Order: The Court OVERRULES the objections to the magistrate judge's report and recommendation, ADOPTS the report and recommendation in its entirety, and DISMISSES the petition for a writ of habeas corpus. Further, t he Court CERTIFIES 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. § 1915(a)(3), 2253(c); Fed. R. App. P. 22(b). Judge Sara Lioi on 8/6/2019. (Related document 21 ) (O,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KEITH WILSON,

PETITIONER,
vs.

JOHN COLEMAN, Warden,

RESPONDENT.

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CASE NO. 5:16-cv-2690

JUDGE SARA LIOI

MEMORANDUM OPINION AND
ORDER

Before the Court is the Report and Recommendation of Magistrate Judge David A Ruiz
(Doc. No. 21 [“R&R”]) recommending dismissal of this petition for writ of habeas corpus filed
under 28 U.S.C. § 2254. Pro se petitioner Keith Wilson (“Wilson”) filed objections to the R&R.
(Doc. No. 22 [“Obj.”].)
In accordance with 28 U.S.C. § 636(b)(1) and United States v. Curtis, 237 F.3d 598, 602–
03 (6th Cir. 2001), this Court has made a de novo determination of the magistrate judge’s R&R.
For the reasons stated below, the Court overrules Wilson’s objections, adopts the R&R in its
entirety, and dismisses Wilson’s petition for a writ of habeas corpus.
I. BACKGROUND
Wilson filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on
November 3, 2016. (Doc. No. 1 [“Pet.”].) Wilson seeks relief from the sentence issued by the
state trial court following a jury trial in which the jury returned guilty verdicts against Wilson for
the state court offenses of aggravated robbery, aggravated burglary, and grand theft. (R&R at

813–141.) The magistrate judge summarized the factual predicate for these offenses, as
determined by the state appellate court, as well as Wilson’s efforts to appeal his convictions in
the state courts. Wilson does not challenge the accuracy of the magistrate judge’s summary of
the procedural history, though he challenges the legal sufficiency of his post-trial appellate
advocacy. Because the summary accurately reflects the procedural posture of the case, the Court
will accept the magistrate’s summary, as if rewritten herein. (See id.)
Wilson raised eight grounds for relief in his habeas petition. In the R&R, the magistrate
judge recommended that the Court reject all grounds on the basis that they were procedurally
defaulted and that there was no excuse for the default. (R&R at 824–29.) The magistrate judge
also observed that several of the claims were not cognizable on federal habeas review. (Id. at
829, n.5.) Wilson filed timely objections to the R&R.
II. STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1), “[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.” See 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.”) (citations omitted). “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.

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All page numbers refer to the page numbers generated by the Court’s electronic docketing system.
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72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.”); L.R. 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 recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P.
72(b)(3).
When undertaking its de novo review of any objections to the R&R, this Court must be
additionally mindful of the standard of review applicable in the context of habeas corpus. “Under
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, a federal
court may grant habeas relief only when a state court’s decision on the merits was ‘contrary to,
or involved an unreasonable application of, clearly established Federal law, as determined by’
decisions from [the Supreme] Court, or was ‘based on an unreasonable determination of the
facts.’ 28 U.S.C. § 2254(d).” Woods v. Donald, -- U.S.--, 135 S. Ct. 1372, 1376, 191 L. Ed. 2d
464 (2015) (per curiam). This standard is “intentionally difficult to meet.” Id. (internal quotation
marks and citations omitted). “To satisfy this high bar, a habeas petitioner is required to ‘show
that the state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.’” Id. (quoting Harrington v. Richter, 562 U.S. 86,
103, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2001)).
III. PETITIONER’S OBJECTIONS
Wilson’s objections are rambling and difficult to follow. He appears to raise several
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objections to the R&R’s review of the facts of this case as determined by the Fifth District Court
of Appeals of Ohio. (Obj. at 832–34.) With each objection, Wilson merely disputes the facts
found by the state appellate court, offering, instead, his view of the evidence offered at trial. (Id.)
Contrary to Wilson’s suggestion that no weight should attach to these state court fact-findings,
on federal habeas review, a state court’s factual determinations are “presumed to be correct.” 28
U.S.C. § 2254(e)(1). Wilson has failed to come forward with clear and convincing evidence
necessary to rebut this presumption. See id. (providing that the habeas “applicant shall have the
burden of rebutting the presumption of correctness by clear and convincing evidence”); Railey v.
Webb, 540 F.3d 393, 397 (6th Cir. 2009); Warren v. Smith, 161 F.3d 360–61 (6th Cir. 1998).
Accordingly, these objections are OVERRULED.
The balance of his objections are focused on refuting the magistrate judge’s
recommended determination that all of his grounds for relief are procedurally defaulted. It is well
settled that a state prisoner cannot receive federal habeas review of a claim that has been
procedurally defaulted. See Seymour v. Walker, 224 F.3d 542, 550 (6th Cir. 2000) (citing, among
authority, Wainwright v. Sykes, 433 U.S. 72, 80, 84–87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977)).
Copying verbatim from his reply to the return of writ, Wilson repeats his argument that he fairly
presented his grounds for relief to Ohio’s highest court by filing an untimely notice of appeal and
a motion for a delayed appeal in the Ohio Supreme Court. (Obj. at 834–35; see Doc. No. 16
[“Reply”] at 785–86.) The magistrate judge properly rejected the argument, and Wilson’s
reproduction of the argument herein does not constitute an appropriate objection. See Howard v.
Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991) (noting that a reexamination
of the exact same argument that was presented to the magistrate judge without specific
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objections “wastes judicial resources rather than saving them, and runs contrary to the purposes
of the Magistrates Act”).
Even if the Court were willing to revisit the argument, it would reach the same
conclusion as the magistrate judge. The Ohio Supreme Court’s denial of a motion for delayed
appeal procedurally bars a claim from federal habeas review. Bonilla v. Hurley, 370 F.3d 494,
497 (6th Cir. 2004) (per curiam); see, e.g., Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct.
2546, 115 L. Ed. 2d 640 (1991) (holding that a state prisoner fails to comply with an independent
and adequate state procedural rule when he fails to file a timely appeal).
Having procedurally defaulted on his claims, Wilson can only obtain habeas review “by
showing that there was cause for the default and prejudice resulting from the default, or that a
miscarriage of justice will result from enforcing the procedural default in the petitioner’s case.”
Seymour, 224 F.3d at 550. Wilson attempts the latter course. A prisoner can establish a
fundamental miscarriage of justice by showing that “‘in light of all the evidence, it is more likely
than not that no reasonable juror would have convicted him.’” See Bousley v. United States, 523
U.S. 614, 622, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998) (quoting Schlup v. Delo, 513 U.S. 298,
327–28, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995)). In other words, he must demonstrate that a
“constitutional violation has resulted in the conviction of one who is actually innocent[.]”
Schlup, 513 U.S. at 324. “To be credible, [a claim of actual innocence] requires [a] petitioner to
support his allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—
that was not presented at trial.” Id.
Wilson posits that the testimony purportedly offered by his co-defendant in a separate
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trial—that a cell phone that was alleged to have been used in the planning and/or facilitating of
the charged robbery did not belong to Wilson—establishes his actual innocence. Though his
Brady claim is not entirely clear, Wilson appears to suggest that his co-defendant, Kenny Erwin,
testified in a separate trial that the cell phone in question belonged to him [Erwin] and that Erwin
merely told Wilson that Lidia Briley had called and was in need of help. This testimony, Wilson
believes, is consistent with his own trial theory that he only went to the scene of the robbery to
assist Briley. (Obj. at 835–37.) He suggests that the government withheld this allegedly
exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.
2d 215 (1963). (Obj. at 836–38.)
His freshly minted “Brady” claim raises a new argument that was never presented to the
magistrate judge. “It is well established that a party may not raise an argument, advance a theory,
or marshal evidence before a District Judge that was not fairly presented to the magistrate
judge.” Marr v. Foy, No. 1:07-cv-908, 2010 WL 3061297, at *4 (W.D. Mich. Aug. 3, 2010). In
Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000), the Sixth Circuit held that a party is
not permitted to raise a new argument, for the first time, in objection to a Report and
Recommendation, and that failure to raise the argument before the magistrate judge constitutes a
waiver. “The Magistrates Act was not intended ‘to give litigants an opportunity to run one
version of their case past the magistrate, then another past the district court.’” Jones-Bey v.
Caruso, No. 1:07-cv-392, 2009 WL 3644801, at *1 (W.D. Mich. Oct. 30, 2009) (quoting
Greenhow v. United States, 863 F.2d 633, 638–39 (9th Cir. 1988), rev’d on other grounds by
United States v. Hardesty, 977 F.2d 1347 (9th Cir. 1992) (en banc)). Therefore, this argument is
waived.
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Even if the Court were to consider the Brady claim on the merits, the purported testimony
at best creates a legal insufficiency; it in no way demonstrates factual innocence by way of
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.2
See generally Schlup at 324. Furthermore, the testimony of a co-defendant, which does not
establish that Wilson was uninvolved in the robbery, does not demonstrate “it is more likely than
not that no reasonable juror would have convicted.”3 Id. at 316, 327. (The actual innocence
gateway should open only when “a petition presents evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial
was free of nonharmless constitutional error”); see generally Allen v. Yukins, 366 F.3d 396, 405–
06 (6th Cir. 2004) (affidavits from co-defendants are inherently suspect with regard to actual
innocence claims); In re Byrd, 269 F.3d 561, 574 (6th Cir. 2001) (same).
To the extent that Wilson suggests that his co-defendant’s trial testimony calls into
question the credibility of Briley, a government witness and accomplice who testified as to
Wilson’s involvement in the robbery (see Obj. at 837–88), this likewise would not meet the
actual innocence standard under Schlup. See Sawyer v. Whitley, 505 U.S. 333, 349, 112 S. Ct.
2514, 120 L. Ed. 2d 269 (1992) (newly discovered impeachment evidence “will seldom, if ever,”
establish actual innocence); see, e.g., Weaver v. Attorney Gen. of Mont., 370 F. App’x 869, 870

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Wilson points to no evidence to establish that the content of the testimony of his co-defendant qualified as Brady
material or was otherwise suppressed by the government. See Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555,
131 L. Ed. 2d 490 (1995) (A successful Brady claim requires, among other things, a showing that the government
improperly withheld exculpatory evidence in its possession); United States v. Clark, 928 F.2d 733, 738 (6th Cir.
1991) (no duty to disclose agent testimony from detention hearing). In fact, the standard for gateway actual
innocence is higher than the standard for materiality under Brady. Because Wilson cannot meet the lower Brady
standard, it follows that his showing is insufficient to satisfy the actual innocence standard. See, e.g., Jimerson v.
Kelley, 350 F. Supp. 3d 741, 755 (E.D. Ark. 2018).
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This is especially true given the fact that Wilson concedes that he was at the scene of the robbery. (See Obj. at
838.)
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(9th Cir. 2010) (holding that new evidence “tending to undercut the credibility of the state’s key
witness” did not establish actual innocence); Llamas v. Valenzuela, No. CV 15-3760, 2015 WL
9947679, at *8 (C.D. Ca. Nov. 30, 2015) (quoting McDowell v. Lemke, 737 F.3d 476, 483–84
(7th Cir. 2013) (noting that impeachment evidence “seldom, if ever, make[s] a clear and
convincing showing that no reasonable juror would have believed the heart of [the witness’s]
account”)).
Accordingly, Wilson cannot use an “actual innocence” claim as a gateway through which
this Court may consider his procedurally defaulted claims.4
IV. CONCLUSION
The Court has reviewed the magistrate judge’s R&R and ADOPTS the same.
Accordingly, the Court OVERRULES the objections and DISMISSES the petition. Further, the
Court CERTIFIES 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. § 1915(a)(3), 2253(c); Fed.
R. App. P. 22(b).
IT IS SO ORDERED.

Dated: August 6, 2019
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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Wilson also makes a vague, nonsensical argument that respondent somehow interfered with his ability to file a
timely appeal with the Ohio Supreme Court. (See Obj. at 832.) Even affording a liberal interpretation appropriate for
pro se filings, the Court cannot find that Wilson has demonstrate cause and prejudice to excuse his default. See
generally Coleman 501 U.S. at 729. The Court has no duty to guess at a pro se petitioner’s objection or construct an
objection for him. Further, this argument was not raised before the magistrate judge and is waived.
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