Albert v. Warden, Chillicothe Correctional Institution

Filing 9

ORDER adopting and affirming 7 Report and Recommendation; granting 5 Motion to Dismiss. This action is hereby DISMISSED. Moreover, Petitioner's request for a certificate of appealability is DENIED and the Court CERTIFIES, pursuant to 28 U .S.C. § 1915(a)(3), that an appeal from the judgment entered in this action would be objectively frivolous and not made in good faith. Signed by Judge George C. Smith on 6/20/2017. (agm)(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

SHANE ALBERT,
Petitioner,
Case No. 2:16-cv-1110
JUDGE GEORGE C. SMITH
Magistrate Judge King

v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On May 18, 2017, the Magistrate Judge recommended that Respondent’s Motion to
Dismiss (Doc. 5) be granted, and that this action be dismissed as barred by the one-year statute of
limitations established by 28 U.S.C. § 2244(d).

Report and Recommendation (Doc. 7).

Petitioner objects to that recommendation. Objection (Doc. 8). Pursuant to 28 U.S.C. § 636(b),
this Court has conducted a de novo review. For the reasons that follow, Petitioner’s Objection
(Doc. 8) is OVERRULED. The Report and Recommendation (Doc. 7) is ADOPTED and
AFFIRMED. Respondent’s Motion to Dismiss (Doc. 5) is GRANTED. This action is hereby
DISMISSED. Moreover, Petitioner’s request for a certificate of appealability is DENIED and
the Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from the judgment
entered in this action would be objectively frivolous and not made in good faith.
Petitioner challenges his December 2013 convictions, following a jury trial in the
Franklin County Court of Common Pleas, on four counts of aggravated arson, murder, and
kidnapping, with firearm specifications. On January 27, 2015, the appellate court remanded the
case to the trial court for re-sentencing on Petitioner’s firearm specifications, but otherwise

affirmed the judgment of the trial court. On October 5, 2016, the Ohio Supreme Court denied
Petitioner’s motion for a delayed appeal. In the meantime, on May 1, 2015, the trial court issued
a re-sentencing entry pursuant to the order of remand. On November 17, 2016, Petitioner filed
this habeas corpus petition pursuant to 28 U.S.C. § 2254, alleging that he had been denied the
effective assistance of counsel (claim one); that the trial court committed plain error by failing to
resolve allied offenses or to advise Petitioner regarding the terms of post release control (claim
two); that the trial court erred in admitting prejudicial photographs of the victim (claim three);
and that the evidence is constitutionally insufficient to sustain his convictions and that his
convictions are against the manifest weight of the evidence (claim four). As noted supra, the
Magistrate Judge recommended the dismissal of this action as time-barred.
In his Objection, Petitioner asks that his pleadings be liberally construed and he argues
that the statute of limitations has yet to expire, because his state court judgment is void in light of
his allegedly improper sentence on allied offenses of similar import and because he was denied
the effective assistance of counsel. Petitioner also claims that he is actually innocent of the
charges against him and that he is the victim of a fundamental miscarriage of justice so as to
warrant a merits review of his claims. In this regard, Petitioner represents that the coroner found
that the death of Charles Calloway, the alleged murder victim, was accidental and yet the State
pursued the charges against Petitioner by relying on the testimony of one Janae Davis. Petitioner
also seeks a certificate of appealability. Objection (Doc. 8, PageID# 186).
“[T]he objections of a petitioner appearing pro se will be construed liberally and held to
less stringent standards than documents drafted by lawyers.” Ybarra v. Oswalt, No. 2:16-cv00366, 2016 WL 3355457, at *1 (S.D. Ohio June 17, 2016)(citing Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam). However, and despite Petitioner’s argument to the contrary, the

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record does not confirm his assertion that a final appealable order was never entered, nor does it
appear that the state court judgment entered against him is “void” such that the statute of
limitations has yet to commence.
As discussed by the Magistrate Judge, the statute of limitations began to run on March
14, 2015, i.e., after the expiration of the time for the filing of a timely appeal with the Ohio
Supreme Court. See 28 U.S.C. § 2244(d)(1)(A). The statute of limitations expired one year later,
on March 14, 2016. Yet Petitioner waited more than eight months, until November 17, 2016, to
file his Petition in this Court.1 Petitioner’s underlying allegations regarding his sentence and his
claim that he was denied the effective assistance of trial counsel do not affect this determination.
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. Bousley v.
United States, 523 U.S. 614, 623 (1998)(citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).
See also Schlup v. Delo, 513 U.S. 298 (1995). However, a 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
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Petitioner did not indicate the date on which the Petition was either signed or submitted to prison officials for
mailing.

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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
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, 395 F.3d 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).

Still, unexplained delay will

undermine 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 provided no new, reliable evidence supporting his claim of actual
innocence. Thus, Petitioner has failed to establish that he is entitled to equitable tolling of the
statute of limitations on this basis.
Under all these circumstances, the Court concludes that Petitioner’s Objection (Doc. 8) to
the Report and Recommendation is without merit. The Report and Recommendation (Doc. 7) is
ADOPTED AND AFFIRMED. Respondent’s Motion to Dismiss (Doc. 5) is GRANTED. This
action is DISMISSED as untimely.

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Petitioner requests a certificate of appealability. “In contrast to an ordinary civil litigant,
a state prisoner who seeks a writ of habeas corpus in federal court holds no automatic right to
appeal from an adverse decision by a district court.” Jordan v. Fisher, — U.S. —. —, 135 S.Ct.
2647, 2650 (2015); 28 U.S.C. § 2253(c)(1)(requiring a habeas petitioner to obtain a certificate of
appealability in order to appeal.) Where, as here, a claim has been denied on procedural grounds,
a certificate of appealability may issue if the petitioner establishes that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional right,
and that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463
U.S. 880, 893, n. 4 (1983)).
Upon review of the record, this Court is not persuaded that jurists of reason would find it
debatable whether this Court was correct in its procedural ruling. Therefore, the Court
DECLINES to issue a certificate of appealability.
The Clerk is DIRECTED to enter FINAL JUDGMENT.
Moreover, and acting pursuant to 28 U.S.C. § 1915(a) (3) and Rule 24(a)(3)(A) of the
Federal Rules of Appellate Procedure, the Court DECLINES to grant leave to proceed on appeal
in forma pauperis. See Coppedge v. United States, 369 U.S. 438, 445 (1962).

IT IS SO ORDERED.

s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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