Cochrane v. Kelly

Filing 23

ORDER adopting and affirming 17 the Report and Recommendation; granting 12 Respondent's Motion to Dismiss. Signed by Judge Michael H. Watson on 6/19/15 (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Richard Cochrane,
Petitioner,

2:14-cv-1689

v.

Judge Watson
Magistrate Judge King

Bennie Kelly, Warden,
Respondent.
ORDER
This habeas corpus case arises out of Petitioner's 2001 murder conviction
in the Franklin County Court of Common Pleas. Petitioner claims that he is
actually innocent of the crime for which he was convicted. On April 6, 2015, the
Magistrate Judge denied Petitioner's Motion for Expansion of the Record, ECF
15, and recommended dismissal of this action as untimely. Order and Report
and Recommendation, ECF 17. Petitioner objects to that recommendation. Obj.,
ECF 20. 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 20, is
OVERRULED. The Order and Report and Recommendation, ECF 17, is
ADOPTED and AFFIRMED. Respondent's Motion to Dismiss, ECF 12, is
GRANTED.
Respondent contends in the motion to dismiss, ECF 12, that the action

was untimely filed. In opposing the motion to dismiss and in objecting to the
Magistrate Judge's recommendation that the same be granted, Petitioner insists
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that he is actually innocent of the crime for which he was convicted. He argues
that expansion of the record is necessary to prevent a manifest miscarriage of
justice.
The Petition, ECF 1, raises a free-standing claim of actual innocence. As
even Petitioner appears to concede, the Petition was not filed within the one-year
period established by 28 U.S.C. § 2244(d). Actual innocence, if proved, may
serve as a gateway through which a petitioner may pass to obtain review of a
time-barred claim. McQuiggin v. Perkins, 133 S.Ct. 1924 (2013); Souter v. Jones,
395 F.3d 577, 602 (6th Cir. 2005). Petitioner contends that expansion of the
record will establish his actual innocence. He asks that the Court order that "the
DNA profile, fingerprints, palm prints, and other trace evidence found at the
scene of the murder of Heather Stambaugh" be compared to that of one Melvin
Fields, to whom Petitioner points as the perpetrator of the murder. Obj., ECF 20,
PageiD# 850.
However, the record indicates that DNA evidence was obtained prior to
trial and that testing of that evidence excluded Petitioner, who was nevertheless
convicted. See Motion to Dismiss, ECF 12-1, PageiD# 246. It is therefore not
apparent that further testing of DNA evidence would support a credible claim of
actual innocence. See Schlup v. Delo, 513 U.S. 298, 329 (1995) ("[A] petitioner
does not meet the threshold requirement unless he persuades the district court
that, in light of the new evidence, no juror, acting reasonably, would have voted
to find him guilty beyond a reasonable doubt.").
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For this reason, and for the reasons detailed by the Magistrate Judge,
Petitioner's Objection, ECF 20, is OVERRULED. The Order and Report and
Recommendation, ECF 17, is ADOPTED and AFFIRMED. Respondent's Motion
to Dismiss, ECF 12, is GRANTED.
This action is hereby DISMISSED.
The Clerk is DIRECTED to enter FINAL JUDGMENT.

~ATSON,JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:14-cv-1689

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