Harper v. Warden Belmont Correctional Institution

Filing 40

ORDER adopting 36 Report and Recommendations.; denying 14 Motion for Summary Judgment. Signed by Judge Gregory L. Frost on 7/27/15. (kn)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HENRY N. HARPER,
CASE NO. 2:14-CV-01220
JUDGE GREGORY L. FROST
MAGISTRATE JUDGE KEMP

Petitioner,
v.
WARDEN, BELMONT CORRECTIONAL
INSTITUTION,
Respondent.

OPINION AND ORDER
On June 23, 2015, the Magistrate Judge issued a Report and Recommendation
recommending that Petitioner’s Motion for Summary Judgment (ECF No. 14) be denied and that
this action be dismissed.

(ECF No. 36.)

This matter is before the Court on Petitioner’s

Objection to the Magistrate Judge’s Report and Recommendation (ECF No. 38), and
Respondent’s Response.

(ECF No. 39.)

Pursuant to 28 U.S.C. § 636(b), this Court has

conducted a de novo review. For the reasons that follow, Petitioner’s Objection (ECF No. 38) is
OVERRULED.

The Report and Recommendation (ECF No. 36) is ADOPTED and

AFFIRMED. Petitioner’s Motion for Summary Judgment (ECF No. 14) is DENIED.

This

action is hereby DISMISSED.
Petitioner objects to the Magistrate Judge’s recommendation of dismissal of his Motion
for Summary Judgment and petition for a writ of habeas corpus as barred by the one-year statute
of limitations under 28 U.S.C. § 2244(d).1 Petitioner asserts that his actual innocence justifies
equitable tolling of the statute of limitations based on the affidavit of Tina Harper and because
the trial transcript indicates that the evidence is constitutionally insufficient to sustain his

1

 Respondent does not object to the Magistrate Judge’s recommendations, and reiterates the arguments raised in the
Motion to Dismiss.   

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convictions. He argues that the state appellate court failed to review the record and that the state
courts improperly denied his petitions for post conviction relief. Petitioner asserts that his
Motion to Object to the appellate court’s Nunc Pro Tunc Judgment Entry to correct scrivener’s
errors tolled the running of the statute of limitations, as did his request for grand jury transcripts.
Petitioner has submitted an Affidavit from Tina Harper, his spouse, dated January 11,
2012, in which she denies that Petitioner kidnapped her, and indicates that she so informed the
prosecutor and defense counsel at and prior to the date of trial. On August 4, 2010, and October
12, 2010, she advised the prosecutor she had not been kidnapped and requested that the charge
be dropped. She testified against the charge of kidnapping. (ECF No. 38, PageID# 2427; 243435.) Petitioner has submitted portions of the trial transcripts in support of his claim that he is
actually innocent of the charge of kidnapping in view of Tina Harper’s trial testimony. PageID#
2436-39.
“To establish a credible claim of actual innocence, petitioner must “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.” Snyder v. Warden, Marion Correctional Inst., No. 2:11-cv-800, 2013 WL 3367863, at
*1 (S.D. Ohio July 5, 2013)(evidence already presented at trial or available at that time does not
constitute new evidence of actual innocence)(citing Lenoir v. Warden, Southern Ohio
Correctional Facility, 886 F.Supp.2d 718, 729 (S.D.Ohio 2012) (quoting Schlup v. Delo, 513
U.S. 298, 324 (1995)); see also Gulertekin v. Tinnelman–Cooper, 340 F.3d 415, 427 (6th Cir.
2003)); see Stout v. Warden, Toledo Correctional Inst., 2014 WL 1682824, at *11 (N.D. Ohio
April 17, 2014)(citing Schlup, 513 U.S. at 327)(same)). By his own account, Petitioner does not
present new evidence in support of his claim of actual innocence. Tina Harper conveyed her

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denial of the charge of kidnapping to defense counsel and the prosecutor in the case. Defense
counsel cross-examined her in this regard.
Petitioner further argues, as the basis for his claim of actual innocence, that the evidence
is constitutionally insufficient to sustain his convictions, because it failed to conform to the
charges against him, the Ohio Court of Appeals misstated the evidence against him, and in view
of Tina Harper’s Affidavit and trial testimony. However, these issues, and the correctness of the
factual findings of the Ohio Court of Appeals2 are not presently before the Court. The Court
now solely considers whether the one-year statute of limitations of 28 U.S.C. § 2244(d) bars this
case from review, or whether Petitioner can establish that equitable tolling nonetheless permits
review of his claims. As discussed, neither evidence already introduced at trial or the Affidavit of
Tina Harper satisfy the requirement of new evidence required to support a claim of actual
innocence.
Petitioner argues that the state appellate court improperly dismissed his post conviction
petition(s) as untimely. He again argues that his filing of a request for grand jury transcripts and
his objection to the appellate court’s Opinion Nunc Pro Tunc to correct scrivener’s errors tolled
the running of the statute of limitations. This Court need not address the former of these issues.
Regardless of whether the state trial court dismissed Petitioner’s post conviction petitions as
untimely, the state appellate court affirmed the dismissal of such actions on the basis of res
judicata, and on this basis the Magistrate Judge gave Petitioner the benefit of concluding that all
of Petitioner’s post conviction petitions tolled the running of the statute of limitations under 28
U.S.C. § 2244(d)(2). See Report and Recommendation (ECF No. 36, PageID# 2414-15.) For the
reasons detailed in the Magistrate Judge’s Report and Recommendation, this Court is not

2

 See 28 U.S.C. 2254(e)(1), which provides that “a determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 

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persuaded by Petitioner’s contention that either his request for jury transcripts or objection to the
appellate court’s Opinion Nunc Pro Tunc to correct scrivener’s errors tolled the running of the
statute of limitations under 28 U.S.C. § 2244(d)(2).
For all of the foregoing reasons and for the reasons discussed in the Magistrate Judge’s
Report and Recommendation, Petitioner’s Objection (ECF No. 38) is OVERRULED. The
Report and Recommendation (ECF No. 36) is ADOPTED and AFFIRMED.

Petitioner’s

Motion for Summary Judgment (ECF No. 14) is DENIED. This action is hereby DISMISSED.
IT IS SO ORDERED.
/s/ GREGORY L. FROST
GREGORY L. FROST
United States District Judge

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