Jeffers v. Warden Southern Ohio Correctional Facility
Filing
11
REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by John Clayton Jeffers: Recommending Respondent's 7 MOTION to Dismiss be Granted. Objections to R&R due by 2/3/2014. Signed by Magistrate Judge Elizabeth Preston Deavers on 1/15/2014. (Copy sent to Petitioner regular U.S. mail and certified mail, receipt #7009 2820 0003 5794 7584.) (sln1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN CLAYTON JEFFERS,
CASE NO. 2:13-CV-229
JUDGE MICHAEL H. WATSON
Magistrate Judge Elizabeth A. Preston Deavers
Petitioner,
v.
WARDEN, SOUTHERN OHIO
CORRECTIONAL FACILITY,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. This case involves Petitioner’s underlying convictions after a jury trial in
the Gallia County Court of Common Pleas on murder and theft of a motor vehicle. On April 4,
2008, the State court imposed a sentence of life with possibility of parole after fifteen years. The
Ohio Appellate Court affirmed Petitioner’s convictions. He did not timely appeal. The Ohio
Supreme Court denied his motion for a delayed appeal.
This matter now is before the Court on Respondent’s Motion to Dismiss, Petitioner’s
Response, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge
concludes that this action is barred by the one-year statute of limitations under 28 U.S.C. §
2244(d) and therefore RECOMMENDS that Respondent’s Motion to Dismiss, Doc. No. 7, be
GRANTED and this action be DISMISSED.
Facts and Procedural History
The Ohio Fourth District Court of Appeals summarized the facts and procedural history
of this case as follows:
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A jury found John Clayton Jeffers, defendant below and appellant
herein, guilty of (1) murder in violation of R.C. 2903.02(A), and
(2) theft of a motor vehicle in violation of R.C. 2913.02(A)(1).
Appellant assigns the following errors for review: [FN1]
FN1. Appellant’s brief contains “propositions of law,” rather than
“assignments of error” as required by App.R. 16. We will
nevertheless treat them as “assignments of error.” Also, the brief
does not contain a “statement of the assignments of error” as
required by App.R. 16(A)(3).
FIRST ASSIGNMENT OF ERROR:
“THE LOWER COURT ERRED WHEN IT PERMITTED THE
STATE
TO
CALL
INTO
QUESTION
APPELLANT–DEFENDANT’S CHARACTER TRAIT AND
PROPENSITY FOR VIOLENCE BY ALLOWING A KEY
STATE WITNESS TO TESTIFY THAT HE HAD A HISTORY
OF VIOLENCE IN A MURDER TRIAL.”
SECOND ASSIGNMENT OF ERROR:
“THE LOWER COURT COMMITTED REVERSIBLE ERROR
BY ADMITTING A FIVE–PAGE STATEMENT OF WITNESS
INTO EVIDENCE WHEN IT WAS CLEARLY INADMISSIBLE
HEARSAY.”
Andrea Hughes first met appellant when she was sixteen years old
and he thirty-two. The couple had a sporadic two year relationship
and eventually reunited on July 13, 2007 when Hughes decided to
“stay” with appellant. The couple took up residence on the bank of
the Ohio River near the Island View Motel. [FN2]
FN2. It is unclear whether the two were “camping” or were
homeless and living by the river. Hughes’s testimony suggests the
latter, but the term “campsite” was also used several times during
the testimony.
On the evening of July 19, 2007, appellant and Hughes walked to
the motel. They soon met Larry Cox, who was residing at the
motel during the summer while working at a nearby power plant.
The three visited Cox’s room and began to drink beer and watch
Country Music Television. [FN3]
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FN3. Appellant and Hughes both admitted to drinking whiskey and
being somewhat inebriated before they met Cox.
At some point during the evening, appellant removed his boot and
began to complain about his feet. Cox looked at appellant,
dismissed his complaint and stated that his feet were in far worse
shape and hurt more than appellant’s feet. Not to be outdone,
appellant proclaimed that he was “from an abusive family,” spent
“10 years in prison” and had lived a “rough life.” Recognizing this
rhetorical gauntlet, Cox responded that he, in fact, lived a much
harder life than appellant. This exchange soon escalated into a
heated argument over who had lived the more difficult life.
Eventually, appellant attacked Cox, knocked him to the floor and
stomped his head and neck.
After the attack, appellant ordered Hughes to grab Cox’s wallet
and keys. The couple ran outside, found the victim’s vehicle and
drove to appellant’s sister’s house in West Virginia. Cox managed
to exit the motel room and walk approximately one hundred feet
before he collapsed and died. Appellant was arrested the following
day.
The Gallia County Grand Jury returned an indictment charging
appellant with murder and motor vehicle theft. At trial, appellant
admitted to the motor vehicle theft and, despite his earlier denials
during police interviews, admitted that he was in the motel room
and with the victim on the day in question. Appellant testified,
however, that Cox attacked him, that he and Cox then had a
normal fight and that he did not “stomp” Cox. Further, appellant
claimed that he observed Cox sitting on a bed, seemingly fine,
when he and Hughes left the motel.
After hearing the evidence, the jury found appellant guilty as
charged on both counts. For the murder conviction, the trial court
sentenced appellant to serve life imprisonment without possibility
of parole for fifteen years. For motor vehicle theft, the court
ordered an additional eighteen month sentence with the prison
sentences to be served consecutively. This appeal followed.
Appellant’s first assignment of error involves the testimony of his
girlfriend, Andrea Hughes. [FN4] Hughes testified that appellant
was the aggressor in the confrontation, that he repeatedly
“stomped” the victim and that she obeyed his command to take
Cox’s car keys and wallet because she was afraid of appellant.
When asked to elaborate on this last point, Hughes explained that
Jeffers had beaten her in the past, and that if she disobeyed him,
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she was afraid that she may be “next” (i.e. receive abusive physical
contact). Appellant argues that this evidence was prejudicial and
deprived him of a fair trial. We disagree with appellant.
FN4. It is unclear whether Hughes and appellant are still involved
in a relationship. Although Hughes was the chief prosecution
witness against appellant, she also testified that she has continued
to write letters to him.
Our review of the record reveals that during cross-examination,
defense counsel thoroughly and expertly challenged Hughes’s
credibility. Among other things, she was asked if she did “anything
to stop” the assault. At another point, counsel pointed out to the
jury that the victim was “lying [there] bleeding” and all Hughes
did was “grab the wallet ... and his keys” but “offer [ed] no help.”
This was effective defense advocacy. By the same token, however,
the prosecution rehabilitated Hughes to explain why she was afraid
of appellant, not only to stop the assault but also why she followed
appellant’s command to take Cox’s wallet and keys. Hughes was
thus asked on re-direct examination how many times appellant had
struck her. She responded that she “couldn’t even begin to tell.”
We believe that this testimony was not introduced, as appellant
contends, to prove a character trait of violence and to show that
appellant acted in conformity with that character trait, but rather to
explain why Hughes was afraid of appellant and (1) did nothing to
stop the assault and (2) grabbed Cox’s keys and wallet when
appellant instructed her to do so. We readily acknowledge that
relevant evidence should be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. See
Evid. R. 403(A). Courts, however, have considerable discretion to
make that determination and those decisions should not be
reversed absent an abuse of that discretion. State v. Beal, Clark
App. No. 07–CA–86, 2008–Ohio–4007, at ¶ 51.
It is also important to recognize that an abuse of discretion is more
than either an error of law or judgment; rather, it implies that a
trial court’s attitude is unreasonable, arbitrary or unconscionable.
State v. Clark (1994), 71 Ohio St.3d 466, 470, 644 N.E.2d 331,
335; State v. Moreland (1990), 50 Ohio St.3d 58, 61, 552 N.E.2d
894, 898. In reviewing for an abuse of discretion, appellate courts
must not substitute their judgment for that of the trial court. State
ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d
728, 732, 654 N.E.2d 1254; In re Jane Doe 1 (1991), 57 Ohio
St.3d 135, 137–138, 566 N.E.2d 1181. Generally, to establish an
abuse of discretion the result must be so palpably and grossly
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violative of fact or logic that it evidences not the exercise of will,
but perversity of will; not the exercise of judgment, but defiance of
judgment; and not the exercise of reason, but, instead, passion or
bias. Vaught v. Cleveland Clinic Found, 98 Ohio St.3d 485, 787
N.E.2d 631, 2003–Ohio–2181, ¶ 13; Nakoff v. Fairview Gen.
Hosp. (1996), 75 Ohio St.3d 254, 256, 662 N.E.2d 1.
In the case sub judice, in view of the questions asked of Hughes on
cross-examination and the prosecution’s need to explain and
convince the jury that Hughes was indeed afraid of appellant and
why she followed his commands, we find nothing arbitrary,
unreasonable or unconscionable in the trial court’s decision to
allow Hughes to testify that appellant had previously beaten her.
Accordingly, based upon the foregoing reasons, we hereby
overrule appellant’s first assignment of error.
Appellant’s second assignment of error involves the trial court’s
decision to admit into evidence, over appellant’s objection, a
handwritten statement that Hughes made to police. The
prosecution introduced this evidence apparently in response to the
fact that appellant’s counsel pointed out during his crossexamination that Hughes expected to receive favorable sentencing
treatment for her complicity to auto theft conviction and that her
trial testimony conflicted with the earlier statement that she had
given to the police. Appellant claims that Hughes’s statement
constitutes inadmissible hearsay and the “damaging contents of the
statement” were prejudicial to him, thus meriting a reversal.
Hearsay is defined as a statement, other than one made by the
declarant at trial, offered to prove the truth of the matter asserted.
Evid. R. 801(C). Hearsay evidence is generally inadmissible. Evid.
R. 802. Police reports are usually considered to be inadmissible
hearsay and should not be submitted to the jury. State v. Leonard
104 Ohio St.3d 54, 2004–Ohio–6235, 818 N.E.2d 229. However,
certain rules of evidence and exceptions may apply and result in a
statement’s admissibility.
Evid. R. 801(D)(1)(b) provides that a statement is not hearsay if
the declarant testifies at trial or hearing and is subject to crossexamination concerning the statement, and the statement is
consistent with the declarant’s testimony and is offered to rebut an
express or implied charge against the declarant of recent
fabrication or improper influence or motive. Thus, the rule permits
the rehabilitation of a witness whose credibility has been attacked
by means of a charge of fabrication or false testimony in return for
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improper motivation or influence. State v. Lopez (1993), 90 Ohio
App.3d 566, 630 N.E.2d 32; State v. Totarella Lake App.
No.2002–L–147, 2004–Ohio1175. To fall under Evid. R.
801(D)(1)(b), the consistent statements that the offering party
seeks to introduce to rehabilitate their witness must have been
made prior to the emergence of the improper influence or motive.
State v. Edwards (1999), Lorain App. No. 97CA006775. Once
again, we point out that the admission or exclusion of evidence
generally rests in the trial court’s sound discretion. State v. Sage
(1987), 31 Ohio St.3d 173, 51 N.E.2d 343. This standard also
applies to decisions concerning hearsay statements. However,
questions concerning evidentiary issues that also involve
constitutional protections, including confrontation clause issues,
should be reviewed de novo. State v. Hardison Summit App. No.
23050, 2007–Ohio–366. Technical rules of evidence and hearsay
questions cannot defeat fundamental due process rights. State v.
Landrum (1990), 53 Ohio St.3d 107, 115, 559 N.E.2d 710, citing
Green v. Georgia (1979), 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d
738.
In the case sub judice, appellant’s trial strategy challenged
Hughes’s testimony, both concerning her accuracy and her
motivation. Appellant noted that Hughes had entered a plea to a
criminal charge and had agreed to cooperate with authorities to
testify at appellant’s trial. Hughes’s sentencing was scheduled to
occur after appellant’s trial. In light of the events that transpired at
trial, we find no error with the trial court’s decision to admit
Hughes’s statement into evidence.
Moreover, even if we assume for purposes of argument that the
statements’s admission constitutes error, we do not believe that
such error constitutes reversible error. Harmless trial errors are to
be disregarded and the erroneous admission of evidence is not
reversible unless it affects a substantial right that prejudices the
defendant. See Crim.R. 52(A); Evid. R. 103(A); State v. Mathers,
Lorain App. No. 07CA9242, 2008–Ohio–2902, at ¶ 26; State v.
Drew, Franklin App. No. 07AP467, 2008–Ohio–2797, at ¶ 22. We
find nothing of that sort here.
Our review of the record reveals nothing in Hughes’s statement to
police that is more prejudicial than her actual trial testimony.
Indeed, the statement appears largely consistent, cumulative and
repetitive. See State v. Granderson 177 Ohio App.3d 424,
2008–Ohio–3757, 894 N.E.2d 1290. We also point out the
overwhelming nature of the evidence against appellant. Not only
did appellant’s girlfriend testify against him, but several witnesses
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who saw him shortly after the attack observed that he was very
nervous and that he asked them to refrain from mentioning that
they had seen him. The Ohio Bureau of Criminal Investigation
(BCI) found the victim’s blood on appellant’s boot, which is
consistent with the “stomping” that Hughes described. The Gallia
County Corner further corroborated Hughes’s version of events, as
well as an assistant coroner from Montgomery County who
oversaw Cox’s autopsy. Perhaps the most damaging evidence,
however, was appellant’s admission that immediately after his
arrest, he lied to police about not being present at the motel.
Appellant later admitted to virtually everything in this case, except
about who instigated the conflict and the severity with which
appellant attacked Cox. In short, we simply cannot conclude that
the admission of Hughes’s statement prejudiced appellant.
Accordingly, based upon the foregoing reasons, we hereby
overrule appellant’s second assignment of error. Having
considered all the errors assigned and argued in the brief, and
finding merit in none of them, the judgment of the trial court is
hereby affirmed.
State v. Jeffers, No. 08CA7, 2009 WL 930063 (Ohio App. 4th Dist. March 31, 2009). Petitioner
did not file a timely appeal to the Ohio Supreme Court. On October 26, 2011, Petitioner filed a
motion for a delayed appeal.
On December 21, 2011, the Ohio Supreme Court denied
Petitioner’s motion for a delayed appeal.
On March 11, 2013, Petitioner filed the instant pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He indicates that he executed the petition on February 25, 2013.
See Petition, Doc. No. 1, PageID #14. He asserts that he is in the custody of the Respondent in
violation of the Constitution of the United States based upon the following grounds, repeated
here verbatim:
1.
The lower court erred when it permitted the State to call into
question Appellant-Defendant’s character at trial and
propensity for violence by allowing a key State witness to
testify he had a history of violence in a murder trial.
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2.
The lower court committed reversible error by admitting a five
page statement of [a] witness into evidence when it was clearly
inadmissible hearsay.
3. My appeal was late for filing in the Supreme Court of Ohio
because I didn’t have proper paper work and didn’t have help
from counsel to prepare my case.
It is the position of the Respondent that this action must be dismissed as time-barred and that
Petitioner’s claims, in any event, are procedurally defaulted.
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), which became effective
on April 24, 1996, imposes a one-year statute of limitations on the filing of federal habeas
corpus petitions. 28 U.S.C. § 2244(d) provides:
(d) (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 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.
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(2) The time during which a properly filed application for State
post-conviction 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.
Here, Petitioner’s judgment of conviction became final in May 2009, when the forty-five
days passed for him to file a timely appeal to the Ohio Supreme Court. See Keeling v. Warden,
Lebanon Corr. Inst., 673 F.3d 452, 460 (6th Cir. 2012) (citing Gonzalez v. Thaler, –- U.S. ––,
132 S.Ct. 641 (2012)). The statute of limitations expired one year later, on May 18, 2010.
Petitioner’s October 26, 2011 motion for a delayed appeal to the Ohio Supreme Court did not
toll the running of the statute of limitations because Petitioner filed this motion after the statute
of limitations had already expired. See Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir.2003)
(The tolling provision of § 2244(d) (2) “does not ... ‘revive’ the limitations period (i.e., restart
the clock at zero); it can only serve to pause a clock that has not yet fully run”). Additionally,
the Ohio Supreme Court denied the motion for a delayed appeal. Petitioner’s motion for a
delayed appeal therefore is not considered a “properly filed” action so as to toll the running of
the statute of limitations under 28 U.S.C. § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408,
413-14 (2005) (existence of exceptions to a timely filing requirement can prevent a late
application from being considered improperly filed) (citing Artuz v. Bennet, 531 121 S.Ct. 361);
Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001) (when a court denies a motion for delayed
appeal, the statute of limitations does not reset, although it is tolled during the time the motion
was pending. motion for relief from judgment not properly filed under § 2244(d)(2)).
Further, Petitioner has not alleged any extraordinary circumstances that would justify
equitable tolling of the statute of limitations. See Holland v. Florida, 560 U.S. ––––, 130 S.Ct.
2549, 2560 (2010) (statute of limitations may be equitably tolled in extraordinary
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circumstances). Petitioner asserts his pro se status, loss of paperwork in the prison system for
sixth months; the death of two family members; and limited access to the prison’s law library as
justification for equitable tolling of the statute of limitations. See Memorandum in Support of
Petitioner’s Response. This Court is not persuaded by these arguments.
In Holland, 130 S.Ct 2562-63, the Supreme Court explained that a petitioner is entitled to
equitable tolling only if he shows “(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way” and prevented timely filing. Id. (citing Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005). Petitioner has failed to meet this standard.
“[P]etitioner bears the ... burden of persuading the court that he or she is entitled to
equitable tolling.” Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). Equitable tolling should
be used sparingly. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002); Humphreys v. Memphis
Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000) (citations omitted). “Typically,
equitable tolling applies only when a litigant’s failure to meet a legally-mandated deadline
unavoidably arose from circumstances beyond that litigant’s control.” Id. at 560–61. The
Supreme Court has allowed equitable tolling where a claimant actively pursued judicial remedies
by filing a timely, but defective pleading, or where he was induced or tricked by his opponent’s
misconduct into allowing the filing deadline to pass. Irwin v. Dep’t of Veterans Affairs, 498 U.S.
89, 96 (1990). Where the claimant failed to exercise due diligence in preserving his legal rights,
courts are much less forgiving. Id.; Jurado v. Burt, 337 F.3d 638, 642–43 (6th Cir. 2003). A
prisoner’s pro se incarcerated status, lack of knowledge regarding the law, and limited access to
the prison’s law library or to legal materials together or along do not provide a sufficient
justification to apply equitable tolling of the statute of limitations. Hall v. Warden, Lebanon
Corr. Inst., 662 F.3d 745, 751 (6th Cir. 2011) (citation omitted). These conditions are typical of
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most habeas corpus petitioners and do not constitute an extraordinary circumstance beyond the
Petitioner’s control. Lowe v. State, No. 2:120CV–142, 2013 WL 950940, at *7 (S.D. Ohio March
12, 2013) (citing Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004)). Further, nothing in the
record indicates that Petitioner’s limited access to the prison’s law library or legal materials
prevented him from filing his Petition for the length of time at issue here. Moreover, the record
fails to reflect the Petitioner was diligent in pursuing his claims. The Ohio Supreme Court denied
Petitioner’s motion for a delayed appeal on December 21, 2011. Petitioner waited more than
two years later, until February 25, 2013, to execute this habeas corpus petition.
Actual innocence may justify the equitable tolling of the statute of limitations. Souter v.
Jones, 395 F.3d 577 (6th Cir. 2005):
The United States Supreme Court has held that if 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
constitutional error, the petitioner should be allowed to pass
through the gateway and argue the merits of his underlying
claims.” Schlup, 513 U.S. at 316, 115 S.Ct. 851, 130 L.Ed.2d
808. 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, 513 U.S. 298, 115
S.Ct. 851, 130 L.Ed.2d 808. 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, 513 U.S. 298, 115 S.Ct. 851, 130
L.Ed.2d 808. The Court has noted that “actual innocence means
factual innocence, not mere legal insufficiency.” Bousley v.
United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d
828 (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 evidence,
trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup, 513 U.S. at 324, 115
S.Ct. 851, 130 L.Ed.2d 808. The Court counseled however, that
the actual innocence exception should “remain rare” and “only be
11
applied in the ‘extraordinary case.’ ” Id. at 321, 513 U.S. 298,
115 S.Ct. 851, 130 L.Ed.2d 808.
Id., at 589–90 (footnote omitted).
A petitioner who asserts a convincing claim of actual
innocence need not establish that he was diligent in pursuing this claim.1 McQuiggin v. Perkins,
-- U.S. --, 133 S.Ct. 1924, 1932-33 (2013) Unexplained delay, however, still undermines the
petitioner’s credibility. “To invoke the miscarriage of justice exception to AEDPA's statute of
limitations, we repeat, a petitioner ‘must show that it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence.’” Id. at 1935 (quoting Schlup,
513 U.S. at 332, 327).
Here, Petitioner has failed to argue or provide credible evidence of actual innocence.
Moreover, a review of the record reveals that Petitioner cannot establish a convincing claim of
actual innocence. Thus, Petitioner has failed to establish he is entitled to equitable tolling
because he is actually innocent, regardless of his diligence in pursuing relief on this claim.
WHEREUPON, the Magistrate Judge RECOMMENDS that respondent’s Motion to
Dismiss, Doc. No. 7, be GRANTED and this action be DISMISSED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A judge of this Court shall make a de novo
The United States Supreme Court noted that “[a] showing that delay was part of a deliberate
attempt to manipulate the case . . . might raise a different ground for withholding equitable
relief.” The Supreme Court, however, did not reach the issue because it was not raised in this
particular case. McQuiggin v. Perkins, 133 S.Ct. at 1936.
1
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determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. §
636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.
_/s Elizabeth A. Preston Deavers_____
Elizabeth A. Preston Deavers
United States Magistrate Judge
Date: January 15, 2014
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