Callender v. Warden, Ross Correctional Institution

Filing 12

REPORT AND RECOMMENDATION re 10 Petitioner's MOTION to Stay and Abeyance: The Magistrate Judge RECOMMENDS that the Motion for Stay and Abeyance be DENIED and that this action be DISMISSED. Objections to R&R due by 9/7/2017. Signed by Magistrate Judge Norah McCann King on 8/24/2017. (er)(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
JESEAN CALLENDER,
Petitioner,
Case No. 2:16-cv-1120
JUDGE ALGENON L. MARBLEY
Magistrate Judge King

v.
WARDEN, ROSS
CORRECTIONAL INSTITUTION,
Respondent.

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 (Doc. 1), Respondent’s Return of
Writ (Doc. 9), Petitioner’s Motion for Stay and Abeyance (Doc. 10), Respondent’s Response in
Opposition (Doc. 11), and the exhibits of the parties. For the reasons that follow, the Magistrate
Judge RECOMMENDS that Petitioner’s Motion for Stay and Abeyance (Doc. 10) be DENIED
and that this action be DISMISSED.
Facts and Procedural History
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
the case as follows:
The basic facts are not in dispute. On January 17, 2013, a large
group of students left Linden–McKinley High School at the end of
the school day and walked a few blocks to a nearby McDonald's
restaurant. Many of the students made this trip to observe a fight
between rival gang members. The two gangs were “PTSQ” and
“Squad.” Callender was a member of PTSQ and went by the street
name “J Dunk.” The two participants in the fight were supposed to
have been Demonte Walker, a/k/a Monte, and Michael Douglas,
a/k/a Magic Mike. Prior to Monte's arrival, Magic Mike and
Kaewaun Coleman agreed to engage in a fight. Coleman was a
member of Squad. Before Monte and Magic Mike could begin,
witnesses saw Callender fire a pistol several times into the crowd.

Coleman was hit by those shots and died as a result. Witnesses
claimed that Shyquan Washington, a/k/a Lil Mook, a member of
PTSQ, had provided the firearm to Callender immediately before
the shooting.
Officers found a 9–millimeter handgun near McDonald's. They
also found a spent shell casing from a 9–millimeter round. In
December of 2012, Columbus police officers had been called to Lil
Mook's residence to investigate a “shots fired” call where they
collected shell casings. Subsequent testing by the Columbus Crime
Laboratory confirmed that the pistol found at the scene fired all the
shell casings found at Lil Mook's residence; the shell casing found
at McDonald's; and the bullet recovered from Coleman's corpse.
Callender was indicted on March 19, 2014 on one count of
aggravated murder and one count of murder. Both counts
contained a three-year firearm specification and a three-year
criminal gang specification. On October 24, 2014, after a four-day
trial, the jury returned verdicts of guilty as to both aggravated
murder and murder and returned verdicts of guilty as to the
specifications. On November 6, 2014, the trial court held a
sentencing hearing and imposed a term of imprisonment of 30
years to life on Count One of aggravated murder, plus three years
for the gun specification and three years for the gang specification.
The judgment entry was filed on December 11, 2014, and a notice
of appeal was timely filed on January 9, 2015.
State v. Callender, No. 15AP-15, 2015 WL 5943504, at *1 (Ohio 10th App. Dist. Oct. 13, 2015).
Petitioner raised the following claims on direct appeal:
I. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT
OF DUE PROCESS OF LAW AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE
OHIO CONSTITUTION BY FINDING HIM GUILTY OF
AGGRAVATED MURDER AND MURDER AS THOSE
VERDICTS WERE NOT SUPPORTED BY SUFFICIENT
EVIDENCE AND WERE ALSO AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT BY PERMITTING THE STATE TO INTRODUCE
HIGHLY
PREJUDICIAL
EVIDENCE
WITHOUT
ESTABLISHING A PROPER FOUNDATION.

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Id. On October 13, 2015, the appellate court affirmed the judgment of the trial court. Id.
Petitioner did not file a timely appeal from that decision to the Ohio Supreme Court. On
February 19, 2016, Petitioner filed a motion for a delayed appeal. (Doc. 9-1, PageID# 174, 177).
On April 20, 2016, the Ohio Supreme Court denied the motion for a delayed appeal. State v.
Callender, 145 Ohio St.3d 1442 (2016).
Meanwhile, on August 18, 2015, Petitioner filed a pro se petition for post conviction
relief in the state trial court. (PageID# 204). He asserted that his sentence violated the Eighth
Amendment, and that he had been denied the effective assistance of counsel because the DNA on
the gun and ballistics evidence indicated that the bullet found in the victim did not in fact match
the gun. (PageID# 205). On August 28, 2017, the trial court denied the post conviction petition.
(PageID# 215). Petitioner apparently did not file an appeal from that decision.
Petitioner indicates that, on November 19, 2016, he submitted the Petition to prison
officials for mailing. Petition (Doc. 1, PageID# 16). He asserts that the trial court improperly
permitted admission of YouTube music videos and Facebook photographs (claim one); and that
the evidence was constitutionally insufficient to sustain his convictions on aggravated murder
and murder, and that these convictions are against the manifest weight of the evidence (claims
two, three, and four). Respondent contends that Petitioner’s claims are procedurally defaulted or
fail to provide a basis for federal habeas relief.
Motion for Stay and Abeyance
Petitioner has filed a motion for a stay of these proceedings. According to the Petitioner,
he has obtained newly discovered evidence of his actual innocence, i.e., an affidavit from the
purported actual assailant acknowledging guilt and indicating that Petitioner had no culpability;
Petitioner wishes to present this affidavit to the state courts in a petition for post conviction

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relief. Petitioner has not attached the purported affidavit to his motion, and he concedes that he
has not yet obtained the affidavit; he represents that, when he does obtain the affidavit, he will
pursue state post conviction relief. Motion for Stay and Abeyance (Doc. 10).
Before a federal habeas court may grant relief, a state prisoner must exhaust his available
remedies in the state courts. 28 U.S.C. § 2254(b)(1); Castille v. Peoples, 489 U.S. 346, 349
(1989); Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993). If a habeas petitioner has the
right under state law to raise a claim by any available procedure, he has not exhausted that claim.
28 U.S.C. § 2254(b), (c). Moreover, a constitutional claim for relief must be presented to the
state's highest court in order to satisfy the exhaustion requirement. O’Sullivan v. Boerckel, 526
U.S. 838 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990).
Furthermore, federal habeas courts may not entertain “mixed petitions,” i.e., petitions that
present both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509 (1982). However,
federal courts have the discretion to stay a mixed petition in order to permit a petitioner to
present any unexhausted claim to the state courts, and then to return to federal court for review of
all, now exhausted, claims. Rhines v. Weber, 544 U.S. 269 (2005). However, stays under these
circumstances should be only sparingly used; stays are not appropriate, for example, when the
unexhausted grounds are plainly meritless. Id. at 278. A petitioner seeking a stay to permit
exhaustion of an unexhausted claim must demonstrate both good cause for having failed to
exhaust his state court remedies and a potentially meritorious claim. Id. at 277-78.
None of the claims currently before the Court is unexhausted.
Some courts, including lower courts within the Sixth Circuit, have
declined to extend the Rhines stay-and-abeyance procedure to
petitions, such as this, containing only unexhausted claims. See,
e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006);
Hust v. Costello, 329 F. Supp. 2d 377, 380 (E.D. N.Y. 2004) (and
cases cited therein); Robinson v. Gidley, No. 2:15cv10572, 2015
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WL 1120118, at *2 (E.D. Mich. Mar.11, 2015) (and numerous
cases cited therein); Taylor v. Kelly, No. 1:13cv2577, 2014 WL
4436595, at *1, *9 (N.D. Ohio Sept.9, 2014) (and numerous cases
cited therein); Secessions v. Warden, Lebanon Corr. Inst., No.
5:13cv195, 2014 WL 2919186, at *1, *5 (N.D. Ohio June 27,
2014); Gatlin v. Clipper, No. 5:13cv2434, 2014 WL 2743208, at
*2, *5 (N.D. Ohio June 17, 2014) (and cases cited therein); Warren
v. Warren, No. 2:13cv11234, 2013 WL 1875948, at *2 (E.D. Mich.
May 3, 2013); Sidibeh v. Buchanan, No. 2:12cv558, 2012 WL
6568231, at *8 (S.D. Ohio Dec.17, 2012) (King, M.J.) (Report &
Recommendation), adopted, 2013 WL 80362 (S.D. Ohio Jan.27,
2013) (Graham, J.); Mimms, supra, 2009 WL 890509, at *3. But
cf. Doe v. Jones, 762 F.3d 1174, 1176–81 (10th Cir. 2014)
(holding that the district court had “discretion to consider a Rhines
stay even though petitioner filed an unmixed petition” in a case
where the petitioner had “little chance of exhausting [his] claims in
state court and returning to federal court before the limitations
period” expired), cert. denied, —U.S. — , 135 S.Ct. 1424, 191
L.Ed.2d 386 (2015); Heleva v. Brooks, 581 F.3d 187, 191–92 (3d
Cir. 2009) (holding that the district court erred in ruling that
“Rhines confines the availability of stay-and-abeyance solely to
mixed petitions” given that in Pace v. DiGuglielmo, 544 U.S. 408,
125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), which was decided one
month after Rhines, the Supreme Court “sanctioned the use of stayand-abeyance in a context outside that of mixed petitions” in a case
involving the petitioner's “reasonable confusion about state filing
requirements”); Hyman v. Keller, No. 106652, 2011 WL 3489092,
at *10–11 (4th Cir. Aug. 10, 2011) (same); Dolis v. Chambers, 454
F.3d 721, 724–25 (7th Cir. 2006) (vacating the dismissal of a
habeas petition containing only unexhausted claims and remanding
with instructions to consider whether a stay was warranted in case
where any future habeas petition would be time-barred). Courts
that have held [that] a stay is inappropriate for petitions containing
only unexhausted claims have reasoned that (1) the district court
lacks jurisdiction over the petition while the petitioner pursues his
claims in state court in the absence of “exhausted claims that could
stay the petition;” and (2) “if district courts were to stay habeas
petitions that were completely unexhausted in order to maintain
their timeliness under the AEDPA, federal courts would be turned
into a jurisdictional parking lot for unexhausted claims.” Hust, 329
F. Supp. 2d at 380 (internal citation and quotation marks omitted);
Warren, supra, 2013 WL 1875948, at *2; see also United States v.
Hickman, 191 F. App'x 756, 757 (10th Cir. 2006) (denying
certificate of appealability in a case where a petition containing
only unexhausted claims was dismissed rather than stayed).

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Peterson v. Warden, Pickaway Corr. Inst., No. 1:14-cv-604, 2015 WL 3970171, at *7 (S.D. Ohio
June 30, 2015) (declining to resolve the issue “because there appears to be a conflict among the
circuit courts and it does not appear that the Sixth Circuit has weighed in on the issue[.]”); see
also Gaitlin v. Clipper, No. 5:13CV2434, 2014 WL 2743208, at *2 (N.D. Ohio June 17, 2014)
(holding that stay and abeyance procedure does not apply where the petitioner does not present a
mixed petition) (citing Witherspoon v. Howes, 1:07–CV–981, 2008 WL 3833751 *2 (W.D.
Mich. Aug. 13, 2008); Draheim v. Harry, No. 1:05–cv–587, 2005 WL 2758089 at *3 (W.D.
Mich. Oct.25, 2005)).
This Court need not resolve this apparent conflict because it does not appear that
Petitioner’s unexhausted claim of actual innocence is potentially meritorious so as to justify a
stay. Petitioner has attached no affidavit in support of his motion, and his allegation is utterly
without evidentiary support. Moreover, several eyewitnesses identified Petitioner as the shooter.
Recantation testimony, particularly when it is belatedly submitted,
is considered “of little value” and “viewed with great suspicion.”
See Carter v. Mitchell, 443 F.3d 517, 539 (6th Cir. 2006) (and
cases cited therein). See also Herrera v. Collins, 506 U.S. 390, 423
(1993) (O'Connor, J., concurring)) (holding the petitioner had
failed to demonstrate a credible claim of actual innocence “under
the demanding Schlup standard” given that “recanting affidavits
are always viewed with ‘extreme suspicion’ ” and “new statements
from witnesses years after the crime are inherently suspect” and
“are to be viewed with a ‘degree of skepticism’ ”); Byrd v. Collins,
209 F.3d 486, 508 n. 16 (6th Cir. 2000)(“‘Recanting affidavits and
witnesses are viewed with extreme suspicion by the courts.’”)
(quoting Spence v. Johnson, 80 F.3d 989, 997 (5th Cir.1996));
Gray v. Hudson, 2008 WL 1995362, at *7 (N.D. Ohio May 5,
2008) (Boyko, J.)(stating that “the inherent suspiciousness of the
recanting affidavits [of prosecution witnesses] coupled with their
late filing more than three years after conviction and the lack of
explanation as to why they were filed so late” failed to demonstrate
“new reliable evidence” of the petitioner's actual innocence);
Cleveland, 65 F.Supp.3d at 523 (“[A] recantation must be looked
upon with the utmost suspicion”)(quoting Ortega v. Duncan, 333
F.3d 102, 107 (2nd Cir. 2003)). This is particularly so where a
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“recantation is repudiated and a new one substituted.” Campbell v.
Curtis, 2008 WL 4104346 at *6 (E.D. Mich. Aug. 29, 2008)
(quoting U.S. v. Brown, 417 F.Supp. 340, 343 (E.D. Pa. 1976)).
Davis v. Bradshaw, No. 1:14-cv-2854, 2016 WL 8257676, at *29 (N.D. Ohio June 16, 2016). In
view of the substantial evidence of Petitioner’s guilt which was presented at his trial, it appears
unlikely that any affidavit would provide Petitioner relief. Moreover, a free-standing claim of
actual innocence does not provide a basis for federal habeas relief absent a separate
constitutional violation. See Legrone v. Birkett, 571 Fed.Appx. 417, 421 (6th Cir. 2014) (citing
Herrera v. Collins, 506 U.S. 390, 400 (1993)).
Therefore, the Magistrate Judge RECOMMENDS that Petitioner’s Motion for Stay and
Abeyance (Doc. 10) be DENIED. The Court will proceed to consider the issues presented by the
Petition.
Procedural Default
Respondent contends that Petitioner’s claims are procedurally defaulted. Congress has
provided that state prisoners who are in custody in violation of the Constitution or laws or
treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28
U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to protect the
constitutional rights of criminal defendants, and in order to prevent needless friction between the
state and federal courts, a state criminal defendant with federal constitutional claims is required
to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails
to do so, but still has an avenue open to him by which he may present his claims, then his
petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459
U.S. 4, 6, 103 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)).
Where a petitioner has failed to exhaust his claims but would find those claims barred if later

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presented to the state courts, “there is a procedural default for purposes of federal habeas....”
Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).
The term “procedural default” has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular claim to
the highest court of the State so that the State has a fair chance to correct any errors made in the
course of the trial or the appeal before a federal court intervenes in the state criminal process.
This “requires the petitioner to present ‘the same claim under the same theory’ to the state courts
before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir.
2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly
presenting” a claim to the state courts is that a habeas petitioner must do so in a way that gives
the state courts a fair opportunity to rule on the federal law claims being asserted. That means
that if the claims are not presented to the state courts in the way in which state law requires, and
the state courts therefore do not decide the claims on their merits, neither may a federal court do
so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977),
“contentions of federal law which were not resolved on the merits in the state proceeding due to
respondent's failure to raise them there as required by state procedure” also cannot be resolved
on their merits in a federal habeas case-that is, they are “procedurally defaulted.”
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a
federal habeas claim is waived by the petitioner's failure to observe a state procedural rule.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court must determine that there
is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to
comply with the rule.” Id. Second, the Court must determine whether the state courts actually
enforced the state procedural sanction.

Id.

Third, it must be decided whether the state

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procedural forfeiture is an adequate and independent state ground upon which the state can rely
to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that
a state procedural rule was not complied with, and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate that there was cause for him not to follow the
procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This
“cause and prejudice” analysis applies to failures to raise or preserve issues for review at the
appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner
must show that “some objective factor external to the defense impeded counsel's efforts to
comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
Constitutionally ineffective counsel may constitute cause to excuse a procedural default.
Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective
assistance of counsel claim generally must “ ‘be presented to the state courts as an independent
claim before it may be used to establish cause for a procedural default.’ ” Edwards, 529 U.S. at
452 (quoting Murray, 477 U.S. at 479). That is because, before counsel's ineffectiveness will
constitute cause, “that ineffectiveness must itself amount to a violation of the Sixth Amendment,
and therefore must be both exhausted and not procedurally defaulted.” Burroughs v. Makowski,
411 F.3d 665, 668 (6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to
“satisfy the ‘cause and prejudice’ standard with respect to the ineffective-assistance claim itself.”
Edwards, 529 U.S. at 450–51).
If, after considering all four factors of the Maupin test, the court concludes that a
procedural default occurred, it must not consider the merits of the procedurally defaulted claim
unless “review is needed to prevent a fundamental miscarriage of justice, such as when the

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petitioner submits new evidence showing that a constitutional violation has probably resulted in
a conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir.
2013) (citing Murray, 477 U.S. at 495–96).
In claim one, Petitioner alleges that the trial court improperly permitted admission of
YouTube music videos and Facebook posts without establishing a proper foundation. In claims
two through four, Petitioner alleges that the evidence was constitutionally insufficient to sustain
his convictions, and that his convictions are against the manifest weight of the evidence.1
Petitioner has waived these claims by failing to file a timely appeal of the appellate court’s
decision to the Ohio Supreme Court.2 See Boddie v. Ohio, No. 2:16-cv-820, 2017 WL 2079836,
at *14 (S.D. Ohio May 15, 2017) (citing Backie v. Moore, No. 1:13-cv-00507, 2015 WL
2137164, at *11 (N.D. Ohio May 7, 2015) (citing Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir.
2004)(per curiam)). The Ohio Supreme Court denied Petitioner's motion for a delayed appeal.
The United States Court of Appeals for the Sixth Circuit has held that the Ohio Supreme Court's
denial of a motion for leave to file a delayed appeal constitutes a procedural ruling sufficient to
bar federal habeas corpus review. Bonilla, 370 F.3d 494. See also Baker v. Bradshaw, 495 Fed.
Appx. 560, 565 (6th Cir. 2012).

1

Moreover, Petitioner’s claim that his convictions are against the manifest weight of the evidence does not provide a
basis for federal habeas corpus relief. See Williams v. Jenkins, No. 1:15cv00567, 2016 WL 2583803, at *7 (N.D.
Ohio Feb. 22, 2016) (citing Nash v. Eberlin, 258 Fed.Appx. 761, 765, n.4 (6th Cir. 2007)); Norton v. Sloan, No.
1:16-cv-854, 2016 WL 525561, at *5 (N.D. Ohio Feb. 9, 2017) (citing Ross v. Pineda, No. 3:10-cv-391, 2011 WL
1337102, at *3 (S.D. Ohio)) (“Whether a conviction is against the manifest weight of the evidence is purely a
question of Ohio law.”); see also Taylor v. Warden, Lebanon Correctional Inst., No. 2:16-cv-237, 2017 WL
1163858, at *10–11 (S.D. Ohio March 29, 2017) (same) (citations omitted).
2
Petitioner’s claim that the trial court improperly admitted YouTube music videos and Facebook posts into evidence
without establishing a proper foundation also fails to provide a basis for relief. A federal court may review a state
prisoner's habeas corpus petition only on the ground that the challenged confinement is in violation of the
Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal court may not issue a writ of
habeas corpus “on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37 (1984); Smith v.
Sowders, 848 F.2d 735, 738 (6th Cir. 1988). A federal habeas court does not function as an additional state
appellate court reviewing state courts' decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th
Cir. 1988). “‘[F]ederal courts must defer to a state court's interpretation of its own rules of evidence and
procedure’” in considering a habeas petition. Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985).

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Petitioner may still secure this Court’s review of the merits of his claims if he
demonstrates cause for his failure to follow the state procedural rules, as well as actual prejudice
from the constitutional violations that he alleges. “[P]etitioner has the burden of showing cause
and prejudice to overcome a procedural default.” Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir.
2001) (citing Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999) (internal citation omitted)). A
petitioner's pro se status, ignorance of the law, or ignorance of procedural requirements are
insufficient bases to excuse a procedural default. Bonilla, 370 F.3d 498. Instead, in order to
establish cause, a petitioner “must present a substantial reason that is external to himself and
cannot be fairly attributed to him.” Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007).
Petitioner has failed to do so here.
The United States Supreme Court has also held that a claim of actual innocence may be
raised “to avoid a procedural bar to the consideration of the merits of [a petitioner's]
constitutional claims.” Schlup v. Delo, 513 U.S. 298, 326–27 (1995). “[I]n an extraordinary
case, where a constitutional violation has probably resulted in the conviction of one who is
actually innocent, a federal habeas court may grant the writ even in the absence of a showing of
cause for the procedural default.” Murray, 477 U.S. at 496. In Schlup, the Supreme Court held
that a credible showing of actual innocence was sufficient to authorize a federal court in reaching
the merits of an otherwise procedurally-barred habeas petition. Id. at 317. However, a claim of
actual innocence is “‘not itself a constitutional claim, but instead a gateway through which a
habeas petitioner must pass to have his otherwise barred constitutional claim considered on the
merits.’” Id. at 315 (quoting Herrera, 506 U.S. at 404).
The actual innocence exception to procedural default allows a petitioner to pursue his
constitutional claims if it is “more likely than not” that new evidence – i.e., evidence not

11

previously presented at trial – would allow no reasonable juror to find him guilty beyond a
reasonable doubt. Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). The Court of Appeals for the
Sixth Circuit explained this exception as follows:
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
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). Petitioner does not meet these standards here.
After an independent review of the record, the Court does not deem this to be so extraordinary a
case as to relieve petitioner of his procedural default.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that Petitioner’s Motion for Stay and
Abeyance (Doc. 10) be DENIED and that this action be DISMISSED.

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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).
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
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
August 24, 2017

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