Gibson v. Warden Hocking Correctional Facility

Filing 23

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 12 Report and Recommendation. The Court ADOPTS and AFFIRMS the Magistrate Judge's Report and Recommendation in its entirety 12 and denies Petitioner's objections 18 . Therefor e, Petitioner's habeas corpus petition is DENIED WITH PREJUDICE. Further, the Court FINDS that a certificate of appealability should not issue with respect to the claims alleged in the petition and CERTIFIES pursuant to 28 U.S.C. § 1915(a) (3) that with respect to any application by Petitioner to proceed on appeal in forma pauperis, an appeal of this Order would not be taken in good faith, therefore DENYING Petitioner leave to appeal in forma pauperis. Signed by Judge S Arthur Spiegel on 8/30/2011. (km1) (Additional attachment(s) added on 8/31/2011: # 1 Certified Mail Receipt) (km1).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KENNETH W. GIBSON,

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Petitioner,
v.
WARDEN, HOCKING CORRECTIONAL
FACILITY,

NO. 1:10-CV-00008

OPINION AND ORDER

Respondent.
This matter is before the Court on the Magistrate Judge’s
Report and Recommendation, (doc. 12) and Petitioner’s objections
thereto (doc. 18).

For the following reasons, the Court AFFIRMS

and ADOPTS the Magistrate Judge’s Report and Recommendation in its
entirety, DENIES Petitioner’s objections, and DENIES WITH PREJUDICE
Petitioner’s habeas petition.
I.

Background and The Magistrate Judge’s Report & Recommendation
Petitioner

respect

to

his

filed

2007

a

plea

petition
and

for

habeas

sentencing

for

corpus

with

involuntary

manslaughter and corrupting another with drugs, for which he was
sentenced to concurrent eight-year terms of imprisonment to be
served consecutively to a three-year term in another case (doc.
12).

The charges related to the death of his step-grandson, who

died of a multiple-drug overdose.

Petitioner presents two grounds

for relief in his petition: first, the trial court erred when it

refused to allow Petitioner to withdraw his guilty plea; and
second, he received ineffective assistance of trial counsel (doc.
2).
The

Magistrate

Judge

recommends

that

Petitioner’s

petition be denied and the case dismissed because she determined
that to the extent Petitioner’s first claim rests on an assertion
that the trial court erred in denying Petitioner’s April 2009
motion to withdraw his January 2007 guilty plea, his claims raise
issues of state-law only, which are not cognizable in a federal
habeas proceeding (doc. 12). With respect to the underlying claims
of constitutional error that were alleged by Petitioner in his
April 2009 motion to withdraw his plea (i.e., that his counsel was
ineffective because he failed to realize that Petitioner’s mental
health prevented him from knowingly and voluntarily entering a
plea; that his counsel failed to investigate the circumstances of
the offense; and that his counsel told him he would perfect his
appellate rights and failed to do so), the Magistrate Judge found
that his habeas petition was filed untimely and that neither
statutory nor equitable tolling was applicable.
Further, the Magistrate Judge determined that Petitioner
had not demonstrated that the limitations period should be lifted
because of a credible showing of actual innocence; that some
extraordinary circumstance prevented him from timely filing his
petition; that he lacked notice or knowledge of the filing time-

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frame; or that he has been diligent in pursuing his rights.

She

acknowledged Petitioner’s assertion that his physical and mental
ailments made him unable to assist in or pursue relief but noted
that “a habeas petitioner must demonstrate that [his] particular
disability constituted an ‘extraordinary circumstance’ severely
impairing [his] ability to comply with the filing deadline, despite
[his] diligent efforts to do so.”

(doc. 12, citing Bolarinwa v.

Williams, 593 F.3d 226, 232 (2d Cir. 2010)).
concluded

that

Petitioner’s

disabilities

prevented

insufficient

to

him

justify

conclusory

from

statement

pursuing

equitable

The Magistrate Judge

relief

tolling,

that

his

se

was

that,

for

pro

noting

example, he was able to pursue the state court remedies of a
delayed appeal and his motion to withdraw his guilty plea.
Consequently,

the

Magistrate

Judge

recommends

that

Petitioner’s petition be denied with prejudice; that a certificate
of appealability not issue; and that the Court certify that any
appeal would not be taken in good faith (doc. 12).
Petitioner

did

not

timely

file

objections

to

the

Magistrate Judge’s report, and the Court affirmed the report in its
entirety (doc. 15).

However, nine days later, Petitioner filed a

motion for leave to file instanter his objections (doc. 18), which
motion the Court granted (doc. 21), and the Court vacated its
earlier order affirming the Magistrate Judge to allow the Court an
opportunity to analyze Petitioner’s objections and conduct a de

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novo review of the record.
II.

Petitioner’s Objections
Petitioner appears to object on the following bases.

First, Petitioner contends that his failure to timely file his
habeas petition should be excused because of his psychological and
medical ailments, which have gotten worse in prison.

He presents

countless exhibits detailing his ailments, which include posttraumatic stress disorder (“PTSD”) from his military service in
Vietnam, bipolar disorder, schizophrenia, throat cancer and lung
cancer.

He contends that his mental illness was an obstacle to

his ability to timely file the petition, and it is a “severe
obstacle which will not ever go completely away.”

Further, he

asserts that his mental illnesses are “direct evidence that he was
not aware of the 28 U.S.C. § 2254 filing deadline and that he had
no basic comprehension of the procedures and directives required in
the filing of the state law claims....”
Second,

Petitioner

manslaughter charge.

claims

actual

innocence

on

the

To support this claim, he has submitted

evidence purporting to demonstrate that his wife controlled all
aspects of his life, including his access to and use of medication,
and excerpts from statements from witnesses at his wife’s trial,
which indicate that both he and his wife (according to one witness)
gave his step-grandson liquid morphine through droppers and that
just his wife did so (according to another witness).

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He asserts

that, given the amount of drugs that these witnesses claimed were
given to the boy, the only way the boy could have ingested the
amount of drugs actually found in his system at his death was for
him to have ingested the drugs himself.
Third, Petitioner claims ineffective assistance on the
deception in obtaining a dangerous drug charges.

To support this

claim, Petitioner has submitted medical records showing that he was
prescribed pain medication for his throat and lung cancers, which,
he contends, proves that he could not have used deception to obtain
the drugs. He asserts that his trial counsel would have discovered
this, and would have known that “there can be no ‘deception’ when
Dr. Collins states the Petitioner is receiving chemotherapy for
lung cancer.’” Because his counsel did not conduct meaningful
discovery or other investigation before Petitioner entered his
plea, Petitioner contends his assistance was ineffective.
Finally, Petitioner claims ineffective assistance prior
to his plea. Specifically, he claims that his counsel’s failure to
recognize that the decedent’s blood screen indicated 5 times the
maximum recommended dose for Oxycodone led to Petitioner’s faulty
guilty plea.

Petitioner’s reasoning here is hard to follow, but

his position appears to be that while he may have given his stepgrandson a few drops of drugs, he did not give him the amount
necessary to lead him to the fatal level.

He seems to allege that

he would not have pleaded guilty had he known about the high levels

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found in his step-grandson’s body. Also, he notes that high levels
of oxymorphone were found in the decedent’s blood, which was not
one of Petitioner’s prescriptions.
III. Discussion
A.

Petitioner’s Mental Illness & Equitable Tolling
Equitable tolling of the one-year limitations period in

28 U.S.C. § 2254 is available in this circuit, but only when “a
litigant’s failure to meet a legally-mandated deadline unavoidably
arose

from

circumstances

beyond

that

litigant’s

control.”

Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)(internal
citations omitted).

A habeas petitioner is entitled to equitable

tolling only if he can make a two-part showing: (1) he has pursued
his rights diligently; and (2) some extraordinary circumstance
prevented timely filing.

See Holland v. Florida, 130 S.Ct. 2549,

2562 (2010).
Here, Petitioner asserts that he suffers from PTSD,
bipolar

disorder

and

schizophrenia.

He

claims

that

those

illnesses, which he alleges have worsened since his incarceration,
prevented him from being able to timely file his habeas petition.
Indeed, he believes his “ongoing mental illnesses are direct
evidence that he was not aware of the...filing deadline” (doc. 18).
The Court is not unsympathetic to Petitioner’s plight.

However,

the mere existence of mental illness is not a per se “extraordinary
circumstance”

that

would

require
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equitable

tolling

of

the

limitations

period.

Mental

illness

is

not,

contrary

to

Petitioner’s assertion, direct evidence of anything related to
one’s awareness of a filing deadline. People with all varieties of
mental illnesses nonetheless do comply with the deadlines for
habeas applications.

And here, as the Magistrate Judge noted,

Petitioner demonstrated that he was capable of pursuing the state
court remedies of a delayed appeal and a post-sentence motion to
withdraw his guilty plea, but he notably has not shown that he
applied diligent efforts to comply with the habeas deadline and was
prevented from complying because of his illnesses.
593 F.3d at 232.

See Bolarinwa,

On the contrary, there is no evidence of diligent

efforts taken with respect to his habeas petition until long after
the limitations period had run.
entitled

to

equitable

Consequently, Petitioner is not

tolling

of

the

one-year

statute

of

limitations for a habeas filing.
B.

Petitioner’s Actual Innocence Claim
“Where an otherwise time-barred habeas petitioner can

demonstrate that it is more likely than not that no reasonable
juror would have found him guilty beyond a reasonable doubt, the
petitioner should be allowed to pas through the gateway and argue
the merits of his underlying constitutional claims.”
Jones, 395 F.3d 577, 602 (6th Cir. 2005).

Souter v.

To establish a credible

claim of actual innocence, Petitioner must “support his allegations
of constitutional error with new reliable evidence–whether it be

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exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence–that was not presented at trial.”
Schlup v. Delo, 513 U.S. 298, 324 (1995).
actual

innocence

means

factual

The Court notes that

innocence,

not

mere

legal

insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998).
The actual innocence exception should remain rare and is “only to
be applied in the ‘extraordinary case.’” Schlup, 513 U.S. at 321.
Here, Petitioner appears to assert actual innocence on
the manslaughter charge on the basis that his wife controlled his
affairs, including his access to medication, and that given the
amount of drugs that these witnesses claimed were given to the
decedent, the only way the boy could have ingested the amount of
drugs actually found in his system at his death was for him to have
ingested the drugs himself. These assertions simply do not rise to
the level required for a successful actual innocence claim. First,
Petitioner knew at the time he pleaded guilty that his wife
controlled his affairs, including his access to medication.
Therefore, this assertion, even accepted as true, does not qualify
as “new reliable evidence.”

Nor does it demonstrate that it is

more likely than not that no reasonable juror could have found him
guilty beyond a reasonable doubt, especially given that at least
one witness at his wife’s trial reported seeing Petitioner give the
decedent medication.
Second, Petitioner’s assertion that the only way the

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decedent could have ingested the amount and type of drugs that were
found in his body at death was for him to have self-administered
the drugs is not evidence at all, let alone new or reliable.
Instead, it is his speculation or conjecture.

It could have been

his theory of defense had he chosen to go to trial, but it is not
evidence.
To

the

extent

Petitioner

seeks

relief

from

the

limitations period based on a claim of actual innocence, he has not
shown that he is entitled to such exceptional relief.
C.

Petitioner’s Ineffective Assistance Claims
The Court need not address the merits of Petitioner’s

ineffective assistance claims because they are time-barred, and
Petitioner has not demonstrated that he is entitled to a tolling of
the limitations period.

However, the Court notes that even if his

habeas petition were not time-barred or if he were eligible for
equitable tolling, Petitioner’s claims of ineffective assistance of
counsel would fail.
In the context of a challenge to a guilty plea on the
basis

of

ineffective

assistance

of

counsel,

Strickland

v.

Washington and its progeny require that Petitioner show both that
his counsel’s representation fell below an objective standard of
reasonableness and that there is a reasonable probability that, but
for his counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.

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Hill v. Lockhart, 474 U.S.

52, 58-59 (1985), citing Strickland v. Washington, 466 U.S. 668
(1984).

Here, Petitioner claims that his counsel was deficient in

two respects: he provided ineffective assistance on the drugsthrough-deception charge because he did not advise Petitioner that
because

Petitioner

was

under

cancer

treatment

he

could

not,

therefore, have used deception to obtain drugs; and he provided
ineffective

assistance

with

respect

to

the

manslaughter

plea

because he failed to advise Petitioner of the level of intoxication
found in the decedent.

Neither of these assertions shows that

Petitioner’s counsel’s behavior fell below an objective standard of
reasonableness.

Thus,

Petitioner’s

claim

fails

the

first

Strickland prong.
But even if these assertions were to be seen as falling
below an objective standard of reasonableness, Petitioner has not
shown that counsel’s awareness of Petitioner’s cancer treatment or
Petitioner’s knowledge of the amount and type of drugs found in the
decedent would have altered Petitioner’s decision to plead guilty
or, importantly, that this evidence or defense would have been
successful at trial.

See Hill, 474 U.S. at 59.

The Court simply

cannot see how a defense of “I gave the boy some drugs but not one
of the kinds found in him and not the amount” would have been a
wise defense or a successful one.

Similarly, the defense that

Petitioner was under cancer treatment and therefore had lawful
access to some types and amounts of drugs does not preclude a

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reasonable jury from finding that Petitioner nonetheless used
deception to obtain drugs beyond those to which he was lawfully
allowed.

Petitioner has offered nothing to compel a finding that

he would have been successful had he chosen to go to trial armed
with the facts he claims now to have been deprived of by his
counsel’s

failure

to

investigate.

Consequently,

he

has

not

satisfied the requirements of Strickland, and his ineffective
assistance claims would fail on the merits even if they were not
time-barred.
IV.

Conclusion
Having conducted a de novo review of this matter pursuant

to 28 U.S.C. § 636, the Court agrees with the findings, rationale
and recommendations of the Magistrate Judge.
Court

ADOPTS

and

AFFIRMS

the

Magistrate

Accordingly, the

Judge’s

Report

and

Recommendation in its entirety (doc. 12) and denies Petitioner’s
objections

(doc.

18).

Therefore,

petition is DENIED WITH PREJUDICE.

Petitioner’s

habeas

corpus

Further, the Court FINDS that

a certificate of appealability should not issue with respect to the
claims alleged in the petition because “jurists of reason” would
not

find

it

debatable

whether

this

Court

is

correct

in

its

procedural rulings and because Petitioner has failed to make a
substantial showing of the denial of a constitutional right. Slack
v. Daniel, 529 U.S. 473 (2000).
Finally, the Court CERTIFIES pursuant to 28 U.S.C. §

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1915(a)(3) that with respect to any application by Petitioner to
proceed on appeal in forma pauperis, an appeal of this Order would
not

be

taken

in

good

faith

and

therefore

Petitioner leave to appeal in forma pauperis.

the

Court

DENIES

Fed. R. App. P.

24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

SO ORDERED.
Dated: August 30, 2011

s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

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