Hughbanks v. Hudson

Filing 202

DECISION AND ORDER ON MOTION TO DISMISS - Warden's Motion to Dismiss for Untimely Filing the Fourth Ground for Relief (ECF No. 191) is GRANTED. Petitioner concedes that his Fifteenth, Sixteenth, Seventeenth, and Eighteenth Claims for Relief are barred by the statute of limitations (ECF No. 19) As to those four Claims for Relief, the Motion to Dismiss is also GRANTED. Signed by Magistrate Judge Michael R. Merz on 1/31/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
GARY HUGHBANKS,
Petitioner,

:

Case No. 1:07-cv-111

- vs Magistrate Judge Michael R. Merz
STUART HUDSON, Warden,
:
Respondent.

DECISION AND ORDER ON MOTION TO DISMISS

This capital habeas corpus case is before the Court on the Warden’s Motion to Dismiss
for Untimely Filing (ECF No. 191). Petitioner has filed a Response (ECF No. 195) and the
Warden has filed a Reply in Support (ECF No. 197).
The Warden initially asserted the following claims were untimely filed:
Claim Asserted Barred

Location of Claim in Second Am. Petition

2nd Claim Miranda/polygraph

Doc 188, Page ID 15287-15290

4th Claim Miranda/coerced confession

Doc 188, Page ID 15293-15295

13th Claim (¶ 286) IAC, no suppression psych

Doc 188, Page ID 15328

13th Claim (¶ 299) IAC, liar/opening

Doc 188, Page ID 15331

13th Claim (¶ 304-305) IAC, Leeman cross

Doc 188 Page ID 15332-15333

13th Claim (¶ 307-308) IAC, Det. Kemper Doc 188 Page ID 15333
cross
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13th Claim (¶ 309) IAC, no Kemper/Jay Doc 188 Page ID 15333
objection

13th Claim (¶ 334) IAC, no fingerprint match

Doc 188, Page ID 15338

14th Claim (¶ 357-381) IAAC direct appeal
Doc 188, Page ID 15334-15350
(excluding ¶ 375 – second claim: petit jury
bias, Page ID 15346, and ¶ 375 – fourth
claim: public trial, Page ID 15347)
15th Claim (¶ 382-392) IAC, PC
Doc 188, Page ID 15350-15353
16th Claim (¶
unconstitutional

393-496)

Ohio

DP Doc 188, Page ID 15354-15369

17th Claim (¶
unconstitutional

497-518)

Ohio

DP Doc 188, Page ID 15369-15373

18th Claim (¶ 519-554) Ohio DP/PC uncon.

(Motion, ECF No. 191, PageID 15446.)

Doc 188, Page ID 15373-15380.

However, in his Reply, the “Warden accepts

Hughbanks’ representation and agrees that the following passages of Hughbanks [sic] second
amended petition are subsumed within existing habeas claims:

Second Claim for Relief,

Thirteenth Claim for Relief ¶¶ 286, 299, 304-305, 307-08, and 334, and Fourteenth Claim for
Relief, ¶¶ 357-81 (ECF No. 197, PageID 15756-58.) No further analysis is required of these
claims.
Allegations made in an amended pleading “relate back” to the date of the original
pleading and thereby escape the bar of the statute of limitations is the allegations arise out of the
same transaction or occurrence originally pled. In the habeas corpus context, the Supreme Court
has interpreted the relation back doctrine as follows:
An amended habeas petition ... does not relate back (and thereby
escape AEDPA's one-year time limit) when it asserts a new ground
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for relief supported by facts that differ in both time and type from
those the original pleading set forth.
Mayle v. Felix, 545 U.S. 644, 650 (2005). Relation back depends on a “common core of
operative facts” between the new claim and the claim made in the original petition. Cowan v.
Stovall, 645 F.3d 815, 818 (6th Cir. 2011)(quoting Mayle v. Felix, 545 U.S. at 650).

Fourth Claim for Relief

In the Second Amended Petition, in the summary paragraph on the Fourth Claim for
Relief, Hughbanks alleges:
The trial court violated Hughbanks’ rights to be free from selfincrimination, right to counsel, and due process as guaranteed by
the Fifth, Sixth, and Fourteenth Amendments when it admitted his
custodial statement which was not the product of his own free will
but instead the product of the overreaching tactics employed by
Detectives Millstone and Filippelli.
(2AP, ¶ 120, ECF No. 188, PageID 15295.)
The Warden argues that this claim does not relate back because the original Petition
contains no allegation that Hughbanks’ admissions were coerced as required by Colorado v.
Connelly, 479 U.S. 157 (1986). In attempting to show the claim relates back, Petitioner merely
quotes ¶ 551.
The Court agrees with Respondent’s position. There are no allegations that Hughbanks’
admissions were the product of police misconduct in the Petition or First Amended Petition. The
Warden’s Motion to Dismiss the Fourth Ground for Relief as untimely is GRANTED.

1

Again misciting it as ¶ 56.

3

Petitioner concedes that his Fifteenth, Sixteenth, Seventeenth, and Eighteenth Claims for
Relief are barred by the statute of limitations (ECF No. 195, PageID 15748.) As to those four
Claims for Relief, the Motion to Dismiss is also GRANTED.

January 31, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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