Owens v. Warden Marion Correctional Institution

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATIONS; OVERRULING Petitioner's Objection. This action is DISMISSED. Signed by Judge Algenon L. Marbley on 5/1/2017. (cw)(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
CARLO LAMARR M. OWENS,
CASE NO. 2:16-CV-847
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE KEMP

Petitioner,
v.
JASON BUNTING, WARDEN,
Respondent.

OPINION AND ORDER
On February 15, 2017, the Magistrate Judge issued a Report and Recommendation
pursuant to Rule 4 of the Rules governing Section 2254 Cases in the United States District
Courts recommending that this action be dismissed as barred by the one-year statute of
limitations found in 28 U.S.C. § 2244(d). (ECF No. 5.) Petitioner has filed a Motion to
Amend/Correct Petition for Writ of Habeas Corpus, which has been docketed as an Objection to
the Magistrate Judge’s Report and Recommendation. (ECF No. 6.) 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. 6) is OVERRULED. The Report and Recommendation (ECF No. 5) is
ADOPTED and AFFIRMED. This action is hereby DISMISSED as barred by the one-year
statute of limitations of 28 U.S.C. § 2244(d).
Petitioner challenges his October 1999 convictions pursuant to his guilty plea in the
Franklin county Court of Common Pleas on two counts of aggravated murder, five counts of
aggravated burglary, one count of felonious assault, and one count of carrying a concealed
weapon, with firearm specifications. The trial court imposed two consecutive terms of life
imprisonment without parole plus a variety of other consecutive sentences which, Petitioner

indicates, total 92 ½ years imprisonment. Petition (ECF No. 1, PageID# 1.) On September 18,
2001, the Ohio Tenth District Court of Appeals affirmed the judgment of the trial court. State v.
Owens, No. 00AP-859, 2001 WL 1084167 (Ohio App. 10th Dist. Sept. 18, 2001). Petitioner did
not file a timely appeal. On May 1, 2002, the Ohio Supreme Court denied his motion for a
delayed appeal. State v. Owens, 95 Ohio St.3d 1435 (Ohio 2002). More than ten years later, on
June 13, 2014, Petitioner filed a petition for post conviction relief. On September 27, 2016, the
state trial court denied the post conviction petition as untimely. Petitioner apparently did not file
an appeal. On August 11, 2016, he executed the instant federal habeas corpus petition. He asks
for an order directing the state court to rule on his post conviction motion and also for a new
trial. He asserts that he was denied a fair trial based on deficiencies in the state court indictment,
and claims that he was tricked or coerced into entering his guilty plea. As discussed, the
Magistrate Judge recommended dismissal of this action as time-barred.
Petitioner objects to the Magistrate Judge’s recommendation. Petitioner again raises all
of the arguments he previously presented. Petitioner requests that his habeas corpus petition be
considered under 28 U.S.C. § 2241 and without regard to the one-year statute of limitations on
the filing of federal habeas corpus petitions, on the basis that he is actually innocent and the
victim of a manifest miscarriage of justice, coerced into entering a guilty plea, and his
convictions violate Bailey v. United States, 516 U.S. 137 (1995). Petitioner also appears to argue
that this action is timely, in view of the state trial court’s September 27, 2016, dismissal of his
petition for post conviction relief. He argues that equitable tolling is appropriate in view of his
actual innocence of the charges against him and the State’s perpetration of fraud on the state trial
court.

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Petitioner’s arguments are not persuasive. His judgment of conviction became final in
2001 or 2002, and therefore expired years before he executed the instant federal habeas corpus
petition, and years before he filed a petition for post conviction relief in the state trial court. The
fact that, after the limitations period expired, a state court defendant files a motion of some type
in state court does not restart the limitations period; otherwise, a petitioner could avoid the
statute of limitations altogether just by filing motions or appeals after the one-year period has
elapsed. That is not permissible under federal law. See Vroman v. Brigano, 346 F.3d 598 (6th
Cir. 2003); see also Wright v. Warden, Noble Correctional Institution, No. 1:15-cr-123, 2016
WL 3746259, *5 (S.D. Ohio Feb. 11, 2016)(“Once the limitations period is expired, state
collateral review proceedings can no longer serve to avoid the statute of limitations bar”),
adopted and affirmed 2016 WL 3654463 (S.D. Ohio July 8, 2016). Further, the record fails to
reflect that Petitioner acted diligently in pursuing relief or that some extraordinary circumstances
prevented him from timely filing such that equitable tolling of the statute of limitations would be
appropriate, particularly for the time period at issue here. See Holland v. Florida, 560 U.S. 631,
650 (2010). Moreover, Bailey involves the interpretation of the federal firearms sentencing
specification of 18 U.S.C. § 924(c), which imposes sentences ranging from five to twenty-five
years on any person who uses, carries, or possesses a firearm during or in furtherance of any
crime of violence or drug trafficking offense. See Smith v. Warden, Southern Ohio Correctional
Facility, 20008 WL 4924796, at *2 (S.D. Ohio Nov. 17, 2008). Petitioner, however, was
convicted in state court under O.R.C. § 2941.145, which imposes a mandatory three year
consecutive sentence if the offender used a firearm during the offense. See id. Therefore,
Petitioner’s reliance on Bailey is misplaced. Additionally, “there exists some question whether
state prisoners may ever proceed under § 2241.” Allen v. White, 185 Fed.Appx. 487, 490 (6th

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Cir. 2006)(citing Cook v. N.Y. State Div. of Parole, 321 F.3d 274, 278 (2nd Cir. 2003)). In any
event, Petitioner cannot pursue relief under 28 U.S.C. § 2241 merely to avoid application of the
one-year statute of limitations. See id (citing Greene v. Tenn. Dep’t of Corr., 265 F.3d 369, 371
(6th Cir. 2001); Frazier v. Moore, No. 2:05-cv-1112, 2006 WL 3146436, at *1 (S.D. Ohio Oct.
31, 2006).
The one-year statute of limitations may be equitably tolled upon a “credible showing of
actual innocence.” See Cook v. Ohio, No. 2:15-cv-02669, 2016 WL 374461, at *10 (S.D. Ohio
Feb. 1, 2016)(citing Souter v. James, 395 F.3d 577, 602 (6th Cir. 2005). Accordingly, “a
petitioner whose claim is otherwise time-barred may have the claim heard on the merits if he can
demonstrate through new, reliable evidence not available at trial, that it is more likely than not
that no reasonable juror would have found him guilty beyond a reasonable doubt.” Yates v.
Kelly, No. 1:11-cv-1271, 2012 WL 487991. at *1 (N.D. Ohio Feb. 14, 2012) (citing Souter, 395
F.3d at 590). Actual innocence means factual innocence, not mere legal sufficiency. See
Bousely v. United States, 523 U.S. 614, 623 (1998). However, the Petitioner must overcome a
high hurdle in order to establish his actual innocence.
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 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.
Souter, 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. McQuiggin v. Perkins, - U.S. --, 133 S. Ct. 1924, 1932-33 (2013). Unexplained delay, however, still undermines the
petitioner's credibility. The Supreme Court has emphasized that “[t]o 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).
Petitioner has failed to provide credible evidence of actual innocence. A review of the
record reveals that Petitioner cannot establish a convincing claim of actual innocence. He has
provided no new reliable evidence supporting his claim of actual innocence. Thus, Petitioner has
failed to establish he is entitled to equitable tolling on this basis.
For all of the foregoing reasons, and for the reasons detailed in the Magistrate Judge’s
Report and Recommendation, Petitioner’s Objection (ECF No. 6) is OVERRULED.

The

Report and Recommendation (ECF No. 5) is ADOPTED and AFFIRMED. This action is
hereby DISMISSED as barred by the one-year statute of limitations provided for in 28 U.S.C. §
2244(d).
IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge
DATED: May 1, 2017

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