Thornton v. Richard

Filing 68

REPORT AND RECOMMENDATIONS; DECISION AND ORDER DENYING MOTION FOR EVIDENTIARY HEARING - It is respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner sho uld be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Petitioner's Motion for Evidentiary Hearing (ECF No. 61) is DENIED. Objections to R&R due by 6/6/2019. Signed by Magistrate Judge Michael R. Merz on 5/23/2019. (kpf) .

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
KEVIN MICHAEL THORNTON,
Petitioner,

:

- vs -

Case No. 1:14-cv-561
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

TIM BUCHANAN1, Warden,
Noble Correctional Institution
:
Respondent.

REPORT AND RECOMMENDATIONS; DECISION AND ORDER
DENYING MOTION FOR EVIDENTIARY HEARING

This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the
merits as presented by Petitioner Kevin Michael Thornton’s Second/Successive Petition for Writ
of Habeas Corpus (ECF No. 47), the Warden’s Return of Writ (ECF No. 52), the State Court
Record (ECF Nos. 5 and 51), and Petitioner’s Traverse (ECF No. 56). Also pending is Petitioner’s
Motion for Evidentiary Hearing (ECF No. 61). Respondent opposes the Motion (ECF No. 66) and
Petitioner has filed a Reply in support (ECF No. 67).

Litigation History

On September 21, 2007, a Clermont County, Ohio, grand jury indicted Petitioner for the

1

Respondent’s counsel advises that Petitioner is now incarcerated at Noble Correctional Institution and its current
Warden, Tim Buchanan, is Petitioner’s custodian. Pursuant to Fed.R.Civ.P. 25(d), Mr. Buchanan is substituted as
Respondent and the caption amended as set forth above.

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September 11, 2007, armed robbery of the Cash Express on Main Street in Milford, Ohio. A first
trial jury was unable to reach a verdict. At a second trial he was convicted of aggravated robbery,
kidnapping, and a firearm specification and sentenced to twelve years imprisonment.
The Twelfth District Court of Appeals affirmed except for finding that the robbery and
kidnapping offenses should be merged under Ohio Revised Code § 2941.25. State v. Thornton,
12th Dist. Clermont No. CA2008-10-92, 2009-Ohio-3685 (Jul. 27, 2009), appellate jurisdiction
declined, 124 Ohio St. 3d 1539 (2010).
On August 31, 2009, Thornton filed an Application for Reopening the direct appeal under
Ohio R. App. P. 26(B), asserting in part that he received ineffective assistance of appellate counsel
when his appellate counsel did not raise the claim that the store surveillance video record showed
he was taller than the perpetrator. (State Court Record, ECF No. 5-28, PageID 1008-22). The
Twelfth District characterized this as a manifest weight of the evidence claim and rejected it as res
judicata because a manifest weight claim had been raised and decided. State v. Thornton, No.
CA2008-10-092 (12th Dist. Nov. 12, 2009) (unreported; copy at State Court Record, ECF No. 530, PageID 1035-38.), appellate jurisdiction declined, State v. Thornton, Case No. 2009-2171 (Jan.
27, 2010) (Entry, State Court Record, ECF No. 5-34).
Thornton filed a pro se petition for writ of habeas corpus in this Court July 22, 2010 (Case
No. 1:10-cv-497). The undersigned recommended dismissal and District Judge Barrett adopted
that recommendation on September 27, 2011. Id. at ECF Nos. 25-26. Thornton did not appeal.
Thornton then obtained representation from the Ohio Innocence Project. Attorney Karla
Hall of the Project filed a motion for leave to file a delayed motion for new trial or a delayed
petition for post-conviction relief on Thornton’s behalf on May 23, 2012. The Clermont County
Court of Common Pleas denied relief (State Court Record, ECF No. 5-49, PageID 1256.).

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Thornton appealed, and the Twelfth District affirmed. State v. Thornton, 12th Dist. Clermont No.
CA2012-09-63, 2013-Ohio-2394 (Jun. 10, 2013), appellate jurisdiction declined, 136 Ohio St. 3d
1559 (2013).
Thornton, still represented by Innocence Project attorneys, filed his Petition in this current
case July 8, 2014 (ECF No. 1). On October 27, 2014, Petitioner moved to stay this case pending
exhaustion of his actual innocence claim for relief in the Ohio courts (ECF No. 14). On Magistrate
Judge Litkovitz’s recommendation (ECF No. 20), District Judge Barrett granted that Motion July
21, 2015 (ECF No. 21), then reopened the case after exhaustion on December 30, 2015 (ECF No.
24). On December 19, 2016, Magistrate Judge Litkovitz recommended the case be transferred to
the United States Court of Appeals for the Sixth Circuit as a second or successive habeas petition
(Report and Recommendations, ECF No. 35). Judge Barrett adopted that recommendation March
22, 2017 (ECF No. 41).
The Sixth Circuit then granted Thornton permission to file a second or successive petition.
In re: Thornton, No. 17-3282, 2017 U.S. App. LEXIS 23284 (6th Cir. Nov. 17, 2017). The court
concluded Thornton’s ineffective assistance of trial counsel claim was not the same claim he had
raised in the earlier petition:
The State of Ohio argues that Thornton's first claim—that trial
counsel rendered ineffective assistance by failing to obtain DNA
testing or photogrammetric analysis—is duplicative of a claim in his
original habeas petition—that trial and appellate counsel rendered
ineffective assistance by failing to raise “the identification issue.”
But this is not the same claim—Thornton is now challenging
counsel's failure to obtain evidence, not counsel's failure to raise an
ambiguously defined issue.
Id. at *5. Applying the standard from 28 U.S.C. § 2244(b)(2)(B)(i) and (ii), the court concluded:
Thornton argues that his claims rely on newly discovered evidence
in the form of the results of his Y-STR DNA testing and
photogrammetric analysis. Both of these appear to be new evidence.
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The State of Ohio argues that Y-STR DNA testing and
photogrammetric analysis were possible prior to trial, and the
materials in question were available prior to Thornton's first petition.
But, although it was theoretically possible for Thornton to have
sought Y-STR DNA testing and photogrammetric analysis in
conjunction with his first petition, it is hard to imagine how, even
with the exercise of due diligence, he could have known to do so.
As noted by the Ohio Court of Appeals, even trial counsel "was
unaware of Y-STR DNA testing at the time of the trials." Thornton,
2013-Ohio-2394, 2013 WL 2636129, at *5.
Thornton has made a prima facie showing that, if taken in light of
the evidence as a whole, this newly discovered evidence would be
sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found him guilty of the underlying
offense. “‘Prima facie' in this context means simply sufficient
allegations of fact together with some documentation that would
'warrant a fuller exploration in the district court.’” Lott, 366 F.3d at
433 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir.
1997)). The fact that DNA results from the zip ties would not have
named Thornton as a source raises doubts as to his guilt. And, as
noted by the trial court, “[t]he findings of the photogrammetry
expert might have gone a long way toward confirming the argument
. . . that [Thornton] is too tall to be the perpetrator seen on the
surveillance video.”
Id. at *5-6. Given that permission, Thornton moved to reopen this case (ECF No. 45). Magistrate
Judge Litkovitz granted leave and Thornton filed his Second/Successive Petition January 2, 2018
(ECF No. 47). Respondent supplemented the previously filed State Court Record (ECF No. 51)
and filed an Answer/Return of Writ (ECF No. 52). After Petitioner filed his Reply (ECF No. 56),
the Magistrate Judge reference in the case was transferred to the undersigned February 11, 2019
(ECF No. 57). Noting that the Petition asked for discovery and an evidentiary hearing, the
undersigned asked Petitioner to brief those two requests. That briefing being complete, the case
is ripe for decision.

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Analysis

Thornton’s Second/Successive Habeas Corpus Petition pleads two Claims for Relief. The
First Claim is that “[b]y failing to investigate the available, scientific evidence in the case, Mr.
Thornton’s trial counsel performed deficiently and prejudiced Mr. Thornton, thereby depriving
Mr. Thornton of his right to effective assistance of counsel as secured by the Sixth and Fourteenth
Amendments to the United States Constitution.” (ECF No. 47, PageID 2058). The Second Claim
is that “[u]nder Herrera v. Collins, 506 U.S. 390 (1993), Mr. Thornton is entitled to habeas relief
because he is actually innocent of the crime of which he has been convicted.” Id. at PageID 2060.

The Statute of Limitations

Respondent argues the Petition should be dismissed as barred by the statute of limitations.
That statute, 28 U.S.C. § 2244(d), provides:

(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of —
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
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been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.
Respondent calculates that Thornton’s conviction became final on direct appeal on July 13,
2010, the last day on which he could have sought a writ of certiorari from the United States
Supreme Court. Thus, the statute as calculated under § 2244(d)(1)(A) expired July 14, 2011
(Return, ECF No. 52, PageID 2235). The Petition here was not filed until July 8, 2014, almost
three years later.
Petitioner concedes the accuracy of that calculation under § 2244(d)(1)(A), but claims the
benefit of (d)(1)(D), asserting that “the factual predicate of his claims were [sic] not known until
March 27, 2012, when DNA Diagnostics Center issued the report regarding the presence of DNA
on the zip ties.” (Traverse, ECF No. 56, PageID 2264).
The test in § 2244(d)(1)(D) is not the date of actual discovery of the factual predicate, but
the date when the predicate could have been learned through the exercise of due diligence. Noting
Respondent’s argument that Thornton did not even pursue DNA and photogrammetric evidence
until “years after his conviction,” Petitioner’s counsel rejoins, however, that this argument “ignores
. . . the nature of the evidence in this case.”
The factual predicate upon which Mr. Thornton’s claims rely
consists of scientific testing—testing that was, in fact, not widely
known even among the defense bar or to prosecutors in the State of
Ohio at the time of Mr. Thornton’s conviction. Indeed, a Westlaw
search for “photogrammetry” or “photogrammetric” yields only

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three cases, apart from the Twelfth District’s decision affirming the
denial of postconviction relief to Mr. Thornton [footnote omitted].
(Traverse, ECF No. 56, PageID 2264).
This argument misses the point. The question is not whether Thornton exercised due
diligence to pursue scientific testing whose nature and availability were unknown to him and
indeed to most of the bar in 2008 when he was tried.2 The question is what Thornton did to pursue
any new evidence.
In denying Thornton’s Motion for Leave to File a delayed motion for new trial or postconviction petition, Judge McBride found that there was not clear and convincing proof that this
new evidence was unavailable prior to trial in that both types of scientific evidence in fact existed
and Thornton could have sought funds to pay for them (Decision, State Court Record, ECF No. 549, PageID 1251).
On appeal, the Twelfth District found that Thornton contacted the Innocence Project
approximately two years after being re-sentenced on September 11, 2009 (Opinion, State Court
Record, ECF No. 5-55, PageID 1352, ¶¶ 5-6.) That court affirmed the findings of the trial court
that both types of scientific testing were available at the time of trial. Id. at PageID 1357-58, ¶¶
23-26. It is also true that the evidence upon which the testing was performed – the ties and the
surveillance video – were both available for testing prior to trial and known to Thornton and his
counsel.
Thornton has not presented any evidence to this Court to overcome these relevant factual
findings by the Ohio courts, which are therefore entitled to deference under 28 U.S.C. § 2254(d)(2).
And if Thornton was not unavoidably prevented from discovering this evidence in 2007-2008, he

2

Note that his trial attorney Jim Hunt filed an affidavit on July 11. 2012, in support of the new trial motion which
avers he did not know of Y-STR DNA testing at the time of either trial (Hunt Aff., ECF No. 56-1), PageID 2272, ¶¶
3-5).

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has shown even less due diligence in pursuing this evidence between being re-sentenced in
September 2009 and when he contacted the Innocence Project in 2011?
The burden is on a habeas petitioner to show that he has exercised due diligence in seeking
the factual predicate of his claims. Jefferson v. United States, 730 F.3d 537, 544 (6th Cir. 2013).
“This standard ‘does not require maximum feasible diligence, but only due, or reasonable
diligence.’” Id., quoting DiCenzi v. Rose, 452 F.3d 465, 470 (6th Cir. 2006). But here, Thornton
has made no demonstration that he exercised due diligence in the two years between his resentencing and his contact with the Innocence Project.
In addition to relying on the discovery date under 28 U.S.C. § 2244(d)(1)(D), Thornton
also relies on his claim of actual innocence to overcome the barrier of the statute, relying on Schlup
v. Delo, 513 U.S. 298 (1995), and McQuiggin v. Perkins, 569 U.S. 383 (2013) (Traverse, ECF No.
56, PageID 2266). In McQuiggin, the Supreme Court did recognize an equitable exception to the
statute of limitations for cases where the petitioner produces evidence of actual innocence which
would satisfy the Schlup “‘actual innocence’ gateway to federal habeas review[.]” 569 U.S. at
386, 401. As the Sixth Circuit has explained,
[I]f a habeas petitioner “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 [sic]
constitutional error, the petitioner should be allowed to pass through
the gateway and argue the merits of his underlying claims.” Schlup
v. Delo, 513 U.S. 298, 316 (1995).” Thus, the threshold inquiry is
whether “new facts raise[] sufficient doubt about [the petitioner's]
guilt to undermine confidence in the result of the trial.” Id. at 317.
To establish actual innocence, “a petitioner must show that it is more
likely than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt.” Id. at 327. The Court has noted
that “actual innocence means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 140
L.Ed.2d 828, 118 S.Ct. 1604 (1998). “To be credible, such a claim
requires petitioner to support his allegations of constitutional error
with new reliable evidence -- whether it be exculpatory scientific
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evidence, trustworthy eyewitness accounts, or critical physical
evidence -- that was not presented at trial.” Schlup, 513 U.S. at 324.
The Court counseled however, that the actual innocence exception
should “remain rare” and “only be applied in the ‘extraordinary
case.’” Id. at 321.
Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005).
Thornton has produced evidence of the quality required by Schlup, 513 U.S. at 324: both
the DNA test results and the photogrammetric evidence are new scientific evidence not presented
at trial. However, this evidence is not so strong as to prove that it is more likely than not that no
reasonable juror would have found Thornton guilty beyond a reasonable doubt.
First, take the DNA evidence. The Magistrate Judge takes it as established that the DNA
tested by Dr. Heinig from the ties was that of a male other than Thornton (Petition, ECF No. 47,
PageID 2057). But that does not prove Thornton was not the perpetrator. Although the depositor
of the DNA has not been identified, there are numerous ways as found by the state courts that
another male who was not the perpetrator could have deposited the DNA. Moreover, there is
strong evidence from both the victim and the surveillance footage that the perpetrator, whoever he
or she was, wore gloves during the crime which would have prevented the deposit of DNA (ECF
No. 52, PageID 2240-41, citing Trial Trans., ECF No. 5-12, PageID 271).
The photogrammetric evidence, which appears to be stronger than the DNA, nevertheless
has not been subjected to cross-examination or the laying of a scientific foundation such as is
required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). As the Twelfth
District found, the jury was able to make the height comparison in the video surveillance and heard
argument that Thornton was taller than the perpetrator. Thornton, 2013-Ohio-2394, at ¶ 27.
Precedent requires us to consider not only the new evidence, but the other evidence of guilt
presented at trial. Thornton was a person known to the Milford, Ohio, police and was identified

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by them from the surveillance video. When they executed a search warrant at his residence, he
commented to his mother in their presence that they thought he had robbed the Cash Express before
any mention of that robbery had occurred. Having claimed that he had been at home with his
mother when the crime occurred, he changed his story after it was shown that she was not at home
at the time and he produced no other alibi witness. 2013-Ohio-2394, at ¶¶ 2-3. He voluntarily
confessed the crime to another person.3 The victim identified Thornton in a photographic lineup
about which no claim of suggestiveness has been made. She also identified clothing recovered
from Thornton’s residence as the clothing worn by the perpetrator. Id. at ¶ 44.
In sum, the DNA evidence is equivocal and the photogrammetric evidence is cumulative.
When considered with the other evidence of guilt presented at trial, the Magistrate Judge concludes
Thornton has not satisfied the Schlup gateway requirements. The Petition should therefore be
dismissed as time-barred.
In the interest of completeness, however, the Court considers both claims made in the
Petition and Respondent’s defenses.

Ground One: Ineffective Assistance of Trial Counsel

In his First Claim for Relief, Thornton claims he received ineffective assistance of trial
counsel when his trial attorney failed to obtain and present Y-STR DNA testing of the zip ties used
to bind the victim and photogrammetric analysis of the comparative heights of the perpetrator
shown in the surveillance video of the crime and Thornton himself. The conclusion of the Ohio

3

Thornton’s counsel characterize this witness as one of those infamous jailhouse snitches about whom so much has
been written and even seek to present expert testimony on the unreliability of such testimony. The Twelfth District,
however, characterized this witness as a friend of Thornton’s. (ECF No. 5-55, ¶ 44).

10

courts to the contrary allegedly “constitutes an unreasonable application of clearly established
federal law.” (Second/Successive Petition, ECF No. 47, PageID 2058).
Thornton does not seek an evidentiary hearing on Claim Two, but only on Claim One
(Motion, ECF No. 61, PageID 2284). In support of Ground One he seeks to present the testimony
of (1) Julie Heinig, a witness who conducted Y-STR DNA testing on the zip tie used to bind the
victim; (2) Phil Locke, a witness who performed photogrammetric analysis on the surveillance
video footage; (3) James Hunt, Thornton’s trial attorney; and (4) one or more experts regarding
the unreliability of informant testimony. Id. at PageID 2286-87.
Petitioner asserts that Cullen v. Pinholster, 563 U.S. 170 (2011), does not preclude the
evidentiary hearing he seeks, because the Ohio courts did not rule on the merits of his ineffective
assistance of trial counsel claim (Reply, ECF No. 67, PageID 2303). He avers this claim was first
presented to the Ohio courts in his motion for leave to file a new trial motion or a delayed petition
for post-conviction relief (Motion, ECF No. 61, PageID 2282-83, citing State Court Record, ECF
Nos. 5-45, 5-46). He asserts the Clermont County Common Pleas Court did not address the merits
of his ineffective assistance of trial counsel claim. Id. at PageID 2283.
The Common Pleas Court denied leave to file a delayed motion for new trial or a delayed
petition for post-conviction relief because Thornton had failed to show he was unavoidably
prevented from discovering the DNA and photogrammetry evidence prior to trial (Decision/Entry,
State Court Record, ECF No. 5-49, PageID 1251, 1254-55). The Twelfth District affirmed this
result. Thornton, 2013-Ohio-2394. In the alternative, it held Thornton had failed to demonstrate
ineffective assistance of trial counsel in failing to obtain and introduce his new evidence because
that evidence did not show no reasonable factfinder would have found him guilty. Id. at ¶41. This
alternative holding is plainly on the merits of Thornton’s Claim One and is entitled to deference

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under 28 U.S.C. § 2254(d)(1) unless it is an objectively unreasonable application of the relevant
Supreme Court precedent, Strickland v. Washington, 466 U.S. 668 (1984), and its progeny.
The governing standard for ineffective assistance of trial counsel was adopted by the
Supreme Court in Strickland:
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel=s challenged
conduct, and to evaluate the conduct from counsel=s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action “might be
considered sound trial strategy.”
466 U.S. at 689.
As to the second prong, the Supreme Court held:

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The defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d
313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987); see generally
Annotation, 26 ALR Fed 218.
Regarding the deficient performance prong of Strickland, counsel’s performance is
measured by “prevailing professional norms” at the time of the alleged errors. Strickland,466 U.S.
at 690; Maryland v. Kulbicki, 577 U.S. ___, 136 S.Ct. 2, 4 (2015) (per curiam); Rickman v. Bell,
131 F.3d 1150, 1154 (6th Cir. 1997). Kulbicki rejects retrospective perfectionism regarding
lawyer’s conduct and notes the difference between finding forensic material in 1995 and 2015.
Thornton’s own admissions undercut his argument that it was ineffective assistance of trial
counsel to fail to obtain the photogrammetric expert opinion in 2007-2008.
The factual predicate upon which Mr. Thornton’s claims rely
consists of scientific testing—testing that was, in fact, not widely
known even among the defense bar or to prosecutors in the State of
Ohio at the time of Mr. Thornton’s conviction. Indeed, a Westlaw
search for “photogrammetry” or “photogrammetric” yields only
three cases, apart from the Twelfth District’s decision affirming the
denial of postconviction relief to Mr. Thornton.

(Traverse, ECF No. 56, PageID 2264.)

If forensic photogrammetric evidence was largely

unknown at the bar in 2007-2008, it can hardly have been deficient performance for Mr. Hunt to
fail to seek funds to employ it.
DNA testing was more widely known at the time of trial, although perhaps not the Y-STR
testing done here. But Thornton’s ineffective assistance of trial counsel claim based on failure to
obtain the DNA evidence fails on the second prong. For the reasons discussed above on the Schlup

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gateway actual innocence claim, it is unlikely that the DNA evidence, which does not exclude
Thornton, would have had an impact on the outcome.4
Because it is neither contrary to nor and objectively unreasonable application of Strickland,
the Twelfth District’s decision on the merits of Thornton’s ineffective assistance of trial counsel
claim is entitled to deference under 28 U.S.C. § 2254(d)(1).
Since Thornton’s First Claim for Relief is both time-barred and without merit, the Court
need not consider Respondent’s alternative procedural default defense.

Ground Two: Actual Innocence as a Stand-Alone Claim

In his Second Claim for Relief, Thornton asserts that because he is actually innocent, it is
unconstitutional to continue to imprison him under both the Cruel and Unusual Punishment Clause
of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to the United
States Constitution (Second/Successive Petition, ECF No. 47, PageID 2060).
Respondent asserts this claim is not cognizable in habeas corpus and Thornton admits in
his Traverse that “the Supreme Court has declined, thus far, to recognize such a claim.” (ECF No.
56, PageID 2270). He cites, however, “a growing body of social scientific literature [that] shows
the deleterious effects of wrongful convictions,” and concludes “the time has come to recognize
that the continued incarceration of the actually innocent is intolerable under the constitution.” Id.
Under the AEDPA as codified at 28 U.S.C. § 2254(d)(1), that is an argument that must first
gain acceptance by the Supreme Court before it can become the basis of granting the writ. Or

4

Mr. Hunt disclaims any strategic reason for not seeking DNA testing (Hunt Aff., ECF No. 56-1, PageID 2272, ¶ 5),
but a reasonable attorney in his place, knowing how much evidence there was against Thornton, might not have wanted
to take the risk that the DNA evidence would also be bad.

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perhaps the Congress could be persuaded to return to the district courts the power to consider
constitutional questions de novo. Until one of those events happens, this Court is without authority
to grant relief on the basis of a stand-alone actual innocence claim.

Motion for Evidentiary Hearing

Because the state courts decided both claims on the merits, this Court is limited to
considering the record upon which they made their decision. An evidentiary hearing is barred in
this case. Cullen, supra. The Motion for Evidentiary hearing is accordingly DENIED.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and therefore should not be permitted to
proceed in forma pauperis.

May 23, 2019.
s/ Michael R. Merz
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. A party may respond
to another party’s objections within fourteen days after being served with a copy thereof. Failure
to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v.
Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

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