Sevilla v. Warden Chillicothe Correctional Institution

Filing 27

ORDER AND REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Jesus Sevilla, 13 MOTION to Dismiss filed by Warden Chillicothe Correctional Institution. The Magistrate Judge RECOMMENDS that Respondent's Motion to Dismiss be GRANTED and that this action be DISMISSED. Objections to R&R due by 10/1/2015. Petitioner's Motion for Production of Discovery Evidence, ECF No. 22 , and Motion for Cause and Prejudice Hearing, ECF No. 24 , are DENIED. Signed by Magistrate Judge Norah McCann King on 9/14/2015. (pes)(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
JESUS SEVILLA,
Petitioner,
Case No. 2:14-cv-02637
Judge Graham
Magistrate Judge King

v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

ORDER and
REPORT AND RECOMMENDATION
Petitioner a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition, ECF No. 1, Respondent’s Motion
to Dismiss, ECF No. 13, Petitioner’s Response and Corrected Response in Opposition to Motion
to Dismiss, ECF Nos. 18, 20, Respondent’s Reply, ECF No. 19, Petitioner’s Supplemental
Memorandum Opposing Motion to Dismiss, ECF No. 21, and the exhibits of the parties. For the
reasons that follow, the Magistrate Judge RECOMMENDS that Respondent’s Motion to
Dismiss, ECF No. 13, be GRANTED and that this action be DISMISSED.
Petitioner’s Motion for Production of Discovery Evidence, ECF No. 22, and Motion for
Cause and Prejudice Hearing, ECF No. 24, are DENIED.
Facts and Procedural History
This case involves Petitioner’s convictions, following a jury trial in the Franklin County
Court of Common Pleas, on charges of murder and attempted murder, each with firearm
specifications. The state appellate court made the following findings of fact:
In the early morning hours of July 4, 2005, appellant and three
other people, including appellant's nephew, went to a party outside
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the Wingate Village apartment complex on the west side of
Franklin County, Ohio. Appellant's nephew got into an altercation
with Salvador Quiroz, one of the people at the party. The two men
were yelling and pushing each other. Appellant was near the
altercation. He pulled out a gun and chambered a round of
ammunition. Quiroz's friend, Victor Fregoso, saw appellant
holding the gun. He ran up from behind Quiroz, grabbed him in a
bear hug, and tried to pull him away from the altercation.
Appellant fired one shot at the two men. Fregoso sustained a
broken jaw from a bullet that entered his right jaw and exited at his
left temple. Quiroz died as a result of a gunshot wound to his upper
chest area. A bullet was later recovered from Quiroz's body. Right
after the shooting, appellant stood over Quiroz and aimed the gun
at him, but the gun jammed and would not fire again. Appellant
then fled the scene. Later that same day, detectives from the
Franklin County Sheriff's Office apprehended appellant after a
brief chase. The detectives found the gun used by appellant under
some rocks in the area where they caught him.
***
Three eyewitnesses testified that appellant was the only person at
the party with a gun and that he fired one shot at Fregoso and
Quiroz. Appellant admitted that he fired a shot at Fregoso and
Quiroz but claimed that he did so in self-defense. The jury rejected
appellant's claim of self-defense and found appellant guilty of
murder and attempted murder as well as the firearm specification
for each count. The jury found appellant not guilty of tampering
with evidence.
***
It is undisputed that Fregoso came up from behind Quiroz, grabbed
him in a bear hug, and tried to pull him away from the altercation.
In this position, Fregoso's head would have been very close to
Quiroz's body. Fregoso's head could easily have gotten in front of
Quiroz's body vis-à-vis appellant as Fregoso attempted to pull
Quiroz away. Therefore, when appellant fired, the bullet could
have hit Fregoso's jaw, exited near his temple, and then entered
Quiroz's chest. The coroner who performed Quiroz's autopsy
testified that Quiroz's wounds were consistent with the bullet
entering and exiting Fregoso's face and then entering Quiroz's
chest. These wounds are not inconsistent with testimony that
appellant fired only one shot.
State v. Sevilla, No. 06AP-954, 2007 WL 1641044, at *1-4 (Ohio App. 10th Dist. June 7, 2007).
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August 22, 2006, the trial court imposed an aggregate term of eighteen years to life incarceration.
ECF No. 13-1, PageID# 252. On June 7, 2007, the Ohio Tenth District Court of Appeals
affirmed the judgment of the trial court. State v. Sevilla, 2007 WL 1641044. On October 24,
2007, the Ohio Supreme Court denied leave to appeal and dismissed the appeal as not involving
any substantial constitutional question. State v. Sevilla, 115 Ohio St.3d 1444 (Ohio 2007).
On February 27, 2008, Petitioner filed a petition for post conviction relief. The trial court
denied the petition, and on February 10, 2009, the appellate court dismissed the action as
untimely. State v. Sevilla, No. 08AP-350, 2009 WL 311440 (Ohio App. 10th Dist. Feb. 10,
2009). On June 12, 2009,1 Petitioner filed a Common Law Motion to Vacate Void Judgment and
Sentence. ECF No. 13-1, PageID# 480. On July 21, 2009, the trial court denied that motion as
an untimely post conviction petition. Id. at PageID# 540. On November 17, 2011, Petitioner
filed a Motion for Release of B.C.I. Evidence. Id. at PageID# 541. On June 21, 2012, the trial
court denied that motion. Id. at PageID# 569.2 On August 1, 2012, Petitioner filed a Motion for
Production of Evidence. Id. at PageID# 571. On July 22, 2013, the trial court denied that
motion.3 Id. at PageID# 587. On October 10, 2013, Petitioner filed a Petition for Evidentiary
Hearing and, on April 15, 2014, he filed a Motion for Summary Judgment. Id at PageID# 632.
On May 23, 2014, the trial court denied the Motion for Summary Judgment. Id. at PageID# 636.
On June 16, 2014, Petitioner filed a Petition for Writ of Mandamus in the state appellate court.

1

 The trial court’s Entry denying the petition for post conviction relief indicates that Petitioner filed the petition on
May 12, 2008. ECF No. 13-1, PageID# 540. Apparently this is an error.
2
 On May 14, 2012, Petitioner filed a Complaint for Writ of Procedendo in the Ohio Supreme Court complaining
that the trial court had failed to issue a decision on his motion. ECF No. 13-1, PageID# 557. On July 25, 2012, the
Ohio Supreme Court dismissed that complaint. Id. at PageID# 570.
3
 On July 17, 2013, Petitioner filed a Petition for a Writ of Procedendo in the state appellate court. ECF No. 13-1,
PageID# 582. On December 13, 2013, the appellate court dismissed that action. Id. at PageID# 606.

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Id. at PageID# 638. On March 3, 2015, the appellate court denied that petition. Id. at PageID#
657.
On December 10, 2014, Petitioner signed the Petition now before this Court. ECF No. 1,
PageID# 15. He alleges that he was denied the effective assistance of counsel (claim one); that
his conviction on the charge of attempted murder is against the manifest weight of the evidence
(claim two); that cumulative error resulted in a miscarriage of justice (claim three); that he was
denied due process (claim four); “engaging relief pursuant to 28 USCS(c)(1) (claim five); and
that he was denied the equal protection of the law (claim six).4 Id.; see also Motion for Leave to
File Supplemental Amendment in Original Action for Habeas Corpus Relief, ECF No. 9.
Respondent moves to dismiss the action as barred by the one-year statute of limitations
established by 28 U.S.C. § 2244(d).
Motion for Production of Discovery
Petitioner alleges that the prosecution withheld exculpatory forensic evidence supporting
his claim of actual innocence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Petitioner
asks the Court to order Respondent to provide the following material in support of this claim:
All hospital reports of physicians who examined Victor Fregoso; forensic evidence collected at
the scene of the crime involving the recovery of the second bullet; DNA test results conducted on
either bullet recovered from the crime scene; and any and all other DNA test results of any
forensic evidence. Motion for Production of Discovery Evidence, ECF No. 22, PageID# 1619.
The discovery processes contained in the Federal Rules of Civil Procedure do not
automatically apply to habeas corpus actions. “A habeas petitioner, unlike the usual civil litigant
in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley,

4

 On April 13, 2015, Petitioner’s Motion for Leave to File Supplemental Amendment in Original Action for Habeas
Corpus Relief, ECF No. 9, by which Petitioner added and deleted certain claims for relief, was granted. Order, ECF
No. 10.                      

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520 U.S. 899, 904 (1997). Rule 6 of the Rules Governing Section 2254 Cases in United States
District Courts provides in relevant part as follows:
(a) Leave of Court Required. A judge may, for good cause,
authorize a party to conduct discovery under the Federal Rules of
Civil Procedure and may limit the extent of discovery. If necessary
for effective discovery, the judge must appoint an attorney for a
petitioner who qualifies to have counsel appointed under 18 U.S.C.
§ 3006A.
(b) Requesting Discovery. A party requesting discovery must
provide reasons for the request. The request must also include any
proposed interrogatories and requests for admission, and must
specify any requested documents.
Under this “good cause” standard, a district court should grant leave to conduct discovery in
habeas corpus proceedings only “‘where specific allegations before the court show reason to
believe that the petitioner may, if the facts are more fully developed, be able to demonstrate that
he is . . . entitled to relief. . . .”’ Bracy, 520 U.S. at 908–909 (quoting Harris v. Nelson, 394 U.S.
286, 300 (1969)). See also Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001).
“The burden of demonstrating the materiality of the information
requested is on the moving party.” Stanford, 266 F.3d at 460. Rule 6
does not “sanction fishing expeditions based on a petitioner's
conclusory allegations.” Rector v. Johnson, 120 F.3d 551, 562 (5th
Cir.1997); see also Stanford, 266 F.3d at 460. “Conclusory
allegations are not enough to warrant discovery under [Rule 6]; the
petitioner must set forth specific allegations of fact.” Ward v.
Whitley, 21 F.3d 1355, 1367 (5th Cir.1994).
Williams v. Bagley, 380 F.3d 932, 975 (6th Cir. 2004).
Petitioner has failed to meet this standard. The record does not indicate that the State
withheld any exculpatory material from the defense.5 Petitioner’s request constitutes the type of
fishing expedition discouraged by the rules governing habeas corpus cases. Moreover, the

5

 In a letter dated December 11, 2011, responding to Petitioner’s request for discovery, the assistant prosecuting
attorney advised Petitioner that complete discovery had been provided to defense counsel during the pendency of the
case. ECF No. 22-2, PageID# 1637.

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record does not indicate that more than one bullet was recovered or that DNA evidence was
recovered from that bullet. In any event, it is not apparent that such evidence, or additional
hospital reports, would assist Petitioner in his challenge to these convictions.

Witnesses

observed Petitioner fire a gun at the victims; Petitioner admitted at trial that he fired the gun,
although he claimed that he did so only in self defense. Furthermore, the coroner testified at trial
and was subject to cross examination by defense counsel. Finally, the discovery sought by
Petitioner is irrelevant to the sole issue presently before the Court, i.e., whether the one-year
statute of limitations forecloses this Court’s review of the merits of Petitioner’s claims.
Petitioner’s discovery request is therefore DENIED.
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a
one-year statute of limitations on the filing of habeas corpus petitions. 28 U.S.C. § 2244(d).
(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.
Id.
Under the terms of 28 U.S.C. § 2244(d)(1)(A), Petitioner’s judgment of conviction
became final on January 22, 2008, i.e., ninety days after the Ohio Supreme Court’s October 24,
2007, dismissal of his appeal, when the time for filing a petition for a writ of certiorari to the
United States Supreme Court expired. See Bronaugh v. Ohio, 235 F.3d 280 (6th Cir. 2000). The
statute of limitations began to run the following day and expired one year later, on January 23,
2009. Yet Petitioner waited until December 10, 2014 - almost six years later - to file Petition,
and he waited until April 9, 2015, to file amendments to the Petition.

Further, none of

Petitioner’s collateral filings tolled the running of the statute of limitations under 28 U.S.C. §
2244(d)(2), because the state courts dismissed those filings as untimely or because the statute of
limitations had already expired by the time they were filed with the state courts.

See Pace v.

DiGuglielmo, 544 U.S. 408, 417 (2008)(“[T]ime limits, no matter their form, are ‘filing’
conditions,” and where the state court rejects a post conviction or collateral action as untimely, it
is not “properly filed” so as to toll the running of the statute of limitations under § 2244(d)(2));
Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004)(per curiam)(concluding that a motion for a
delayed appeal denied by the Ohio Supreme Court as untimely does not toll the running of the
statute of limitations under § 2244(d)(2)). See also Vroman v. Brigano, 346 F.3d 598, 602 (6th
Cir. 2003)(“The tolling provision 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. Once the limitations
period is expired, collateral petitions can no longer serve to avoid a statute of limitations.”).

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Petitioner argues that, under the provisions of 28 U.S.C. § 2244(d)(1)(B), the statute of
limitations will not expire on his attempted murder conviction until July 2016, i.e., when the
sentence on the gun specification expires. Memorandum in Support of Motion in Opposition to
Respondent’s Motion to Dismiss, ECF No. 18, PageID# 1357. He also points to impediments to a
timely filing of the action faced by him. Specifically, Petitioner represents that he was required
to seek “inmate legal assistance (for a fee) after his AEDPA deadlines. . . .” Id. at PageID# 1364.
The statute, 28 U.S.C. § 2244(d)(1)(B), provides that the one-year statute of limitations
may be deemed to run from “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.”
Section 2244(d) (1)(B) governs cases where a State has taken
action to create an impediment that prevents a state prisoner from
filing a 28 U.S.C. § 2254 habeas petition. The State action creating
the impediment must be in violation of the Constitution or laws of
the United States.
Alexander v. Metrish, No. 2:06-cv-41, 2007 WL 542010 (W.D. Michigan February 16, 2007).
“In order to invoke § 2244(d)(1)(B), the prisoner must show that:
(1) he was prevented from filing a petition (2) by State action (3)
in violation of the Constitution or federal law.” Egerton v.
Cockrell, 334 F.3d 433, 436 (5th Cir.2003). Specifically,
“‘[s]ection 2244(d)(1)(B) requires a causal relationship between
the unconstitutional state action and being prevented from filing
the petition.’” Winkfield v. Bagley, 66 Fed. Appx. 578, 583 (6th
Cir.2003) (quoting Dunker v. Bissonnette, 154 F.Supp.2d 95, 105
(D.Mass.2001)).
Butler v. Davis, No. 05-72727, 2006 WL 950263 (E.D. Michigan April 10, 2006).
Nothing in the record even suggests that the State of Ohio acted in violation of the
Constitution or laws of the United States or prevented Petitioner from filing a timely petition.
The fact that Petitioner sought assistance from a fellow prison inmate neither delayed the date on

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which the statute of limitations began to run nor constituted a state created impediment that
prevented his timely filing of this action.
Petitioner also asks that the Court equitably toll the running of the statute of limitations
and insists that he has diligently pursued relief. ECF No. 18, PageID# 1364-65. The one-year
statute of limitations may be subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645
(2010). In order to obtain an equitable tolling of the statute of limitations, a litigant must
establish that he has diligently pursued relief but that some extraordinary circumstance stood in
his way of timely filing. Id. at 649 (citing Pace v. DiGuglielmo, 544 U.S. at 418). “[P]etitioner
bears the. . . burden of persuading the court that he . . . is entitled to equitable tolling.” Griffin v.
Rogers, 308 F.3d 647, 653 (6th Cir. 2002). Moreover, equitable tolling should be only sparingly
applied. 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). The United States
Supreme Court has allowed equitable tolling where a claimant actively pursued judicial remedies
by filing a timely, but flawed, 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). On the other hand, where the claimant has 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 do not provide a sufficient
justification for the equitable tolling of the statute of limitations. Hall v. Warden, Lebanon
Correctional Inst., 662 F.3d 745, 751 (6th Cir. 2011)(citations omitted). These conditions are
typical of most habeas corpus petitioners and do not constitute an extraordinary circumstance
beyond a petitioner’s control. Lowe v. State, No. 2:12-cv-142, 2013 WL 950940, at *7 (S.D.

9 

Ohio March 12, 2013)(citing Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004)). See also
Johnson v. United States, 544 U.S. 295, 311 (2005)(“[W]e have never accepted pro se
representation alone or procedural ignorance as an excuse for prolonged inattention when a
statute’s clear policy calls for promptness”).
Petitioner has failed to meet his burden of establishing that equitable tolling of the statute
of limitations is appropriate, particularly for the time period at issue here. Petitioner waited
almost six years after his judgment of conviction became final to pursue habeas corpus relief.
The record simply does not support his contention that he acted diligently in pursuing federal
habeas corpus relief.
Petitioner also insists that he is actually innocent of the charges on which he was
convicted. ECF No. 18, PageID# 1357-58. Actual innocence may also 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
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innocence exception should “remain rare” and “only be 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)(citing Schlup v. Delo, 513 U.S. 298 (1995)). ‘“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 new evidence.’”

McQuiggin v. Perkins, -- U.S. --, --, 133 S.Ct. 1924, 1935

(2013)(quoting Schlup, 513 U.S. at 327).
Petitioner has failed to meet this standard here.
For all these reasons, it is RECOMMENDED that Respondent’s Motion to Dismiss,
ECF No. 13, be GRANTED and that this action be DISMISSED.
Petitioner’s Motion for Production of Discovery Evidence, ECF No. 22, and Motion for
Cause and Prejudice Hearing, ECF No. 24, are DENIED.

Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within
fourteen 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
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).

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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,
106 S.Ct. 466 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
September 14, 2015

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