Cochrane v. Kelly

Filing 17

ORDER AND REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus, filed by Richard Cochrane, 12 MOTION to Dismiss as time-barred filed by Bennie Kelly. It is RECOMMENDED that this action be dismissed as untimely or, in the alternative, as without merit. Objections to R&R due by 4/23/2015. Petitioner's MOTION for Expansion of the Record Pursuant to USCS 2254 R.7 (doc. 15 ) is DENIED. Signed by Magistrate Judge Norah McCann King on 4/6/2015. (pes1)(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
RICHARD COCHRANE,
PETITIONER,
Case No. 2:14-cv-1689
Judge Watson
Magistrate Judge King

v.

BENNIE KEELY, WARDEN,
RESPONDENT.
ORDER AND
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of
habeas corpus under 28 U.S.C. § 2254, claiming that he is actually
innocent of the murder for which he was convicted. This matter is now
before the Court on the Petition, ECF 1, respondent’s Motion to
Dismiss, ECF 12, petitioner’s Response in Opposition, ECF 16, and the
exhibits of the parties. For the reasons that follow, the Court
concludes that the action was untimely filed and that, in any event,
the Petition fails to state a claim upon which federal habeas corpus
relief can be granted. Petitioner’s Motion for Expansion of the
Record, ECF 15, is, in light of this conclusion, DENIED.
Petitioner was convicted of murder in the Franklin County Court
of Common Pleas on November 19, 2001. Exhibit 2, attached to Motion to
Dismiss. Petitioner timely pursued a direct appeal but, on September
10, 2002, the Ohio Court of Appeals for the Tenth District affirmed
the judgment of conviction. Exhibit 6, attached to Motion to Dismiss.
Petitioner’s motion for delayed appeal was denied on October 15,
2003. Exhibit 7, attached to Motion to Dismiss.

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Petitioner’s post-conviction petition was dismissed by the trial
court as untimely on February 10, 2004. Exhibit 11, attached to Motion
to Dismiss. Petitioner did not pursue an appeal from that decision.
On April 16, 2004, petitioner filed an application to reopen his
direct appeal pursuant to Ohio R. App. P. 26(B), alleging the
ineffective assistance of his appellate counsel.

Exhibit 23, attached

to Motion to Dismiss. That application was denied as untimely and
insufficient. Exhibit 26, attached to Motion to Dismiss. Petitioner’s
motions for reconsideration of that denial were denied by the state
court of appeals in August and September 2004, respectively. Exhibit
28, Exhibit 31, attached to Motion to Dismiss.
In July 2004, petitioner filed a petition for post-conviction
relief based on the claimed ineffective assistance of his trial
counsel. Exhibit 32, attached to Motion to Dismiss. That application
was denied by the trial court on August 31, 2004, as untimely, without
merit and barred by the doctrine of res judicata. Exhibit 35, attached
to Motion to Dismiss.
Petitioner filed a second petition for post-conviction relief on
May 10, 2006, based on alleged prosecutorial misconduct. Exhibit 36,
attached to Motion to Dismiss. That petition was denied by the trial
court on July 23, 2007. Exhibit 38, attached to Motion to Dismiss.
Petitioner’s appeal from that decision was denied as untimely and
without merit. Exhibit 43, attached to Motion to Dismiss. The Ohio
Supreme Court declined jurisdiction and dismissed the appeal on July
23, 2008. Exhibit 47, attached to Motion to Dismiss.
On August 3, 2010, petitioner filed a motion for a de novo
sentencing, arguing that the trial court had improperly imposed a term

2

of post-release control in the original sentence. On October 11, 2011,
a resentencing hearing was held at which the same terms of
imprisonment were imposed, but without post-release supervision.
Exhibit 57, attached to Motion to Dismiss. On direct appeal, the
resentencing decision of the trial court was affirmed on December 11,
2012. Exhibit 62, attached to Motion to Dismiss. Petitioner’s motion
for a delayed appeal to the Ohio Supreme Court, Exhibit 66, Exhibit
67, attached to Motion to Dismiss, was granted, Exhibit 69, attached
to Motion to Dismiss, but the Ohio Supreme Court denied jurisdiction
on October 23, 2013. Exhibit 71, attached to Motion to Dismiss.
Petitioner has also filed a number of requests for DNA testing
pursuant to O.R.C. § 2953.72. Exhibit 12, Exhibit 14, Exhibit 17,
Exhibit 18, attached to Motion to Dismiss. Those requests were denied
by the trial court Exhibit 16, Exhibit 21, Exhibit 22, attached to
Motion to Dismiss. In October 2006, petitioner filed a motion for a
DNA comparison. Exhibit 48, attached to Motion to Dismiss.

That

motion was denied by the trial court on February 1, 2007. Exhibit 50,
attached to Motion to Dismiss.

Petitioner did not pursue an appeal

from that decision.
Petitioner filed the Petition in this Court on September 16,
2014, raising as his single claim his actual innocence. Respondent
contends that the action is untimely and that, in any event,
petitioner’s single claim for habeas corpus relief is without merit.
Federal law establishes a one-year statute of limitations on the
filing of habeas corpus actions:
[T]he the one-year limitation period shall run from the
latest of—

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(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 by 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.
28 U.S.C. § 2244(d)(1).
Respondent contends that petitioner’s conviction became final on
October 25, 2003 or, at the latest, on November 29, 2003. Motion to
Dismiss, PAGEID # 55-56. In response, petitioner appears to concede
that the Petition is untimely, but he argues that the Court should
nevertheless consider the merits of his claim because he is actually
innocent of the crime for which he was convicted.

Response in

Opposition, PAGEID # 765-68.
“[W]here

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 pass through the gateway and argue the merits of
his underlying constitutional claims.” Souter v. Jones, 395 F.3d 577,
602

(6th

Cir.

2005).

However,

in

order

to

serve

as

a

gateway

to

consideration of the merits of an otherwise untimely petition, the

4

claim

of

actual

innocence

must

be

based

on

newly-presented

and

reliable evidence, Chavis-Tucker v. Hudson, 348 Fed. Appx. 125, 133
(6th Cir. 2009), which can take the form of “exculpatory scientific
evidence,

trustworthy

eyewitness

accounts,

or

critical

physical

evidence – that was not presented at trial.” Schlup v. Delo, 513 U.S.
298,

327

(1995).

The

evidence

of

actual

innocence

upon

which

petitioner relies, Appendix, attached to Response in Opposition, does
not meet this standard.
In support of his claim of actual innocence, petitioner refers to
testimony presented at his trial, particularly the testimony of one
Melvin Fields, and to a discussion between the trial judge and trial
counsel which was conducted during the course of petitioner’s trial
but outside the presence of the jury. Id. Petitioner also refers to
his many unsuccessful attempts to secure additional DNA testing. This
is

simply

not

the

“exculpatory

scientific

evidence,

trustworthy

eyewitness accounts, or critical physical evidence – that was not
presented at trial,” see Schlup, 513 U.S. at 327, that will serve to
excuse the untimely filing of a petition for a writ of habeas corpus
under 28 U.S.C. § 2254.
Even assuming that petitioner has presented new and reliable
evidence of actual innocence sufficient to overlook the untimeliness
of the petition, the action must nevertheless be dismissed. The
“gateway actual innocence claim” does not require the grant of the
writ. Cleveland v. Bradshaw, 693 F.3d 626, 631-32 (6th Cir. 2012).

The

United States Supreme Court has held that a free-standing claim of
actual innocence, even if based on new and reliable evidence, is not a

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ground for federal habeas relief “unless the federal habeas court is
itself convinced that those new facts unquestionably establish [the
petitioner’s] innocence.” Schlup, at 317 (citing Herrera v. Collins,
506 U.S. 390 (1993)). This Court is not persuaded that petitioner has
presented such evidence in this case.
It is therefore RECOMMENDED that this action be dismissed as
untimely or, in the alternative, as without merit.
In light of the foregoing, petitioner’s Motion for Expansion of
the Record, ECF 15, is DENIED.

If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s
ability

recommendations
to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,

6

984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

April 6, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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to