Burns v. Warden, Chillicothe Correctional Institution

Filing 4

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Robert L. Burns, Jr. It is RECOMMENDED that this action be DISMISSED. Objections to R&R due by 2/15/2018. Signed by Magistrate Judge Chelsey M. Vascura on 2/1/2018. (kpt)(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
ROBERT L. BURNS, JR.,
CASE NO. 2:18-CV-00055
CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Chelsey M. Vascura

Petitioner,
v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. This matter is before the Court on its own motion to consider the sufficiency
of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts. For the reasons that follow, it is RECOMMENDED that this action be
DISMISSED.
Facts and Procedural History
Petitioner challenges his April 25, 2012 convictions after a jury trial in the Licking
County Court of Common Pleas on three counts of illegal use of a minor in nudity oriented
performance, in violation of O.R.C. § 2907.323; three counts of corruption of a minor, in
violation of O.R.C. § 2907.04(A); and one count of corrupting another with drugs, in violation of
O.R.C. § 2925.02. Petitioner was sentenced to an aggregate term of thirteen years and three
months incarceration and classified as a sexually oriented offender. See State v. Burns, No.
2012-CA-37, 2012 WL 4831630 (Ohio Fifth App. Dist. Oct. 9, 2012). On October 9, 2012, the
state appellate court affirmed the judgment of the trial court. Id. Petitioner apparently did not
file an appeal to the Ohio Supreme Court.

On October 22, 2015, more than three years after his trial,
appellant filed a pro se petition for post-conviction relief (“PCR”).
Via a judgment entry issued on November 25, 2015, the trial court
denied appellant's petition for post-conviction relief as untimely.
On July 6, 2016, we affirmed. See State v. Burns, 5th Dist. Licking
No. 15–CA–98, 2016–Ohio–4833. Appellant's attempts to have the
decision reviewed by the Ohio Supreme Court and the United
States Supreme Court were unsuccessful. See State v. Burns, 147
Ohio St.3d 1506, 2017–Ohio–261, 67 N.E.3d 824; Burns v. Ohio,
138 S.Ct. 73, 199 L.Ed.2d 50 (2017).
In addition, on February 23, 2015, prior to his aforesaid PCR
petition, appellant had filed a post-conviction “motion for
production of Brady material.”FN1 Then, on June 22, 2017,
appellant filed a “motion to compel disclosure of exculpatory
material and information.” The State filed a response on August 3,
2017.
On August 8, 2017, the trial court denied appellant's motion to
compel disclosure via a judgment entry.
On August 31, 2017, appellant filed a notice of appeal. He herein
raises the following sole Assignment of Error:
“I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DENIED
APPELLANT'S
‘MOTION
TO
COMPEL
DISCLOSURE OF EXCULPATORY MATERIAL AND
INFORMATION,’ WHEN IT IS CLEAR THAT SOME OF THE
DISCOVERY WAS SUPPRESSED, AND OTHER DISCOVERY
WAS MARKED ‘COUNSEL ONLY’ BY THE PROSECUTION
WHO SET OUT TO MISLEAD THE TRIAL PROCESS, IN
VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS.”
FN1: See Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194,
10 L.Ed.2d 215.
State v. Burns, No. 17 CA 0069, 2018 WL 355162, at *1 (Ohio App. 5th Dist. Jan. 8, 2018). On
January 8, 2018, the appellate court affirmed the judgment of the trial court. Id. Petitioner
apparently did not file an appeal to the Ohio Supreme Court.
On January 22, 2018, Petitioner filed this pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He asserts that the state courts improperly denied his petition for

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post-conviction relief (claim one); and that he was denied the effective assistance of trial and
appellate counsel due to the admission of tainted evidence, the suppression of exculpatory and
impeachment evidence, prosecutorial misconduct, and based on his attorney’s failure to file a
request for a competency evaluation or a motion to dismiss due to the violation of Petitioner’s
right to a speedy trial (claim two).
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which became
effective on April 24, 1996, imposes a one-year statute of limitations on the filing of habeas
corpus petitions. 28 U.S.C. § 2244(d) provides:
(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.
(2) The time during which a properly filed application for State
postconviction 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.

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Applying the language of § 2244(d)(1)(A), Petitioner's conviction became final in
November 2012, forty-five days after the appellate court’s October 9, 2012, decision affirming
Petitioner’s convictions, and when the time for filing a timely appeal to the Ohio Supreme Court
expired. See Albert v. Warden, Chillicothe correctional Institution, No. 2:16-cv-1110, 2017 WL
2189561, at *3 (S.D. Ohio May 18, 2017) (citing Norris v. Bunting, No. 2:15-cv-764, 2017 WL
749200, at *8 (S.D. Ohio Feb. 27, 2017) (citing Crangle v. Kelly, 838 F.3d 673, 679 (6th Cir.
2016); Adams v. Chillicothe Correctional Institution, No. 2:16-cv-00563, 2016 WL 3906235, at
*2 (S.D. Ohio July 19, 2016) (citing Worthy v. Warden, No. 2:12-cv-652, 2013 WL 4458798, at
*2 (S.D. Ohio Aug. 19, 2013)) (citing Searcy v. Carter, 246 F.3d 515, 518–19 (6th Cir. 2001);
Marcum v. Lazarof, 301 F.3d 480, 481 (6th Cir. 2002)). The statute of limitations expired one
year later, in November 2013. Petitioner’s February 23, 2015 and October 22, 2015 postconviction motions did not affect the running of the statute of limitations because Petitioner filed
these actions after the statute of limitations had already expired. “State collateral actions filed
after the statute of limitations has expired do not toll the running of the statute of limitations
under 28 U.S.C. § 2244(d) (2).” Lacking v. Jenkins, No. 2:15-cv-3069, 2016 WL 4505765, at *3
(S.D. Ohio Aug. 29, 2016) (citing 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.”). Moreover, the state
courts dismissed Petitioner’s October 22, 2015 post-conviction petition as untimely. “A postconviction petition that is rejected as untimely by the state courts is not “properly filed” within
the meaning of § 2244(d)(2) and does not toll the running of the statute of limitations. See
Henderson v. Bunting, 698 F. App’x 244, 246-47 (6th Cir. 2017) (citing Allen v. Siebert, 552

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U.S. 3, 7 (2007). Thus, the statute of limitations expired in November 2013. Petitioner waited
more than three years later, until January 21, 2018, to execute this habeas corpus petition. (ECF
No. 1, PageID# 29.)
According to the Petitioner, this action nonetheless is timely because he filed his postconviction petition on the basis of newly discovered evidence that was not submitted at trial, and
his court-appointed counsel was working with the State to secure his convictions and refused to
provide him with paperwork that would establish that the State fabricated or tampered with
evidence. Additionally, Petitioner claims that his convictions are the result of fraud upon the
court, and the one-year statute of limitations therefore does not apply. He asserts that he is
actually innocent and the victim of a manifest miscarriage of justice. He further argues that the
trial court’s failure to order a competency evaluation constitutes grounds for equitable tolling of
the statute of limitations. (PageID# 29.) Petitioner’s arguments are not persuasive.
Petitioner alleges that police tampered with a tape recording of a telephone conversation
he had with the alleged victim in which he made incriminating statements regarding the
allegations against him. (See ECF No. 1-1, PageID# 60.) He claims that police “planted” the
evidence of drugs and child pornography in his home, and that some of the photographs of the
alleged victim show that they were taken in the bedroom of his son, who recanted his testimony
against Petitioner prior to trial. (ECF No. 1, PageID# 8-9.) Petitioner alleges that his attorney
helped to conceal this exculpatory evidence from him. (PageID# 10.) However, Petitioner’s
allegations are entirely without support. Moreover, the record does not indicate that Petitioner
could not have earlier raised these claims, or that he was prevented from doing so for the time
period at issue here. In a letter dated October 3, 2016, the Licking County prosecutor noted that
Petitioner’s allegations of fraud and prosecutorial misconduct could have been raised at trial and

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that Petitioner knew of the factual basis for his claims as early as in March 2000, but at that time
he absconded from the authorities and remained “on the run for many years” before he was rearrested on September 12, 2011. (ECF No. 1-1, PageID# 41-44.)
Under the provision of 28 U.S.C. § 2244(d)(1)(D), the statute of limitations does not
begin to run until “the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.” The question is not when the
petitioner first learns of the factual predicate for his claim but, rather, when the petitioner should
have learned of the basis for his claim had he exercised reasonable care. Townsend v. Lafler, 99
F. App’x 606, 608 (6th Cir. 2004) (citations omitted). “Section 2244(d)(1)(D) . . . does not
convey a statutory right to an extended delay while a habeas petitioner gathers evidence that
might support a claim.” Brooks v. McKee, 307 F. Supp. 2d 902, 906 (E.D. Mich. 2004) (citation
omitted). It is the petitioner's burden to establish that he exercised due diligence in searching for
the factual predicate for his habeas corpus claim. Redmond v. Jackson, 295 F.Supp.2d 767, 772
(E.D. Mich. 2008) (citing Stokes v. Leonard, 36 F. App’x 801, 804 (6th Cir. 2002)). He has
failed to meet this burden.
Further, the record does not indicate 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. See Holland v. Florida, 560 U.S. 631,
650 (2010) (A petitioner is entitled to equitable tolling only if he shows “1) that he has been
pursuing his rights diligently, and 2) that some extraordinary circumstances stood in his way”
and prevented timely filing) (citing Pace, 544 U.S. at 418).

While a petitioner’s mental

incompetence that prevents him from timely filing a habeas petition may warrant equitable
tolling of the statute of limitations, “a blanket assertion of mental incompetence is insufficient to

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toll the statute of limitations . . . . Rather, a causal link between the mental condition and
untimely filing is required.” Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011) (citing McSwain v.
Davis, 287 F. App’x 450, 456 (6th Cir. 2008)).
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
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.

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Souter, at 589-90 (footnote omitted).

“To invoke the miscarriage of justice exception to

AEDPA's statute of limitations . . . 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.’ ” McQuiggin v.
Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup, 513 U.S. at 327). Petitioner has failed to
provide credible evidence 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 under this exception.
Additionally, Petitioner’s claim that the state court abused its discretion by dismissing his
post-conviction petition does not provide him a basis for relief.

“The Sixth Circuit has

consistently held that errors in post-conviction proceedings are outside the scope of federal
habeas corpus review.” Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007) (citing Kirby v.
Dutton, 794 F.2d 245, 246-47 (6th Cir. 1986); Roe v. Baker, 316 F.3d 557, 571 (6th Cir. 2002)).
See also Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 854-55 (6th Cir. 2017)
(declining to revisit the issue) (citations omitted).
Recommended Disposition
For the reasons set forth above, it is RECOMMENDED that this action be
DISMISSED.
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

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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/ Chelsey M. Vascura___
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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