Camelin v. Warden, Southeastern Correctional Institution

Filing 20

OPINION and ORDER adopting and affirming Report and Recommendations re 16 Report and Recommendation. Signed by Judge Michael H. Watson on 5/6/2022. (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Scott M. Camelin,
Case No. 2:21-cv-4070

Petitioner,

Judge Michael H. Watson

V.

Magistrate Judge Jolson

Warden, Southeastern
Correctional Institution,

Respondent.

OPINION AND ORDER
Scott M. Camelin ("Petitioner") objects to aspects of the Report and
Recommendation ("R&R") issued by the Magistrate Judge in this habeas corpus
case. Obj., ECF No. 19. For the following reasons, Petitioner's objections are
OVERRULED.

I.

PROCEDURAL HISTORY

On May 19, 2017, Petitioner was indicted on ten counts of rape and nine
counts of sexual battery-all involving his minor daughter-by a Ross County

Grand Jury ("Case 1"). Record, ECF No. 6, PAGEID## 26-31. The State later
filed a second indictment under a different case number, charging another count

of sexual battery ("Case 2"). Id., PAGE! D ## 37-38. The trial court subsequently
consolidated the two cases. Id., PAGEID # 43.

On April 6, 2018, Petitioner moved to dismiss the indictment in Case 1 for
speedy trial violations and filed an identical motion to dismiss Case 2 a few days

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later. Id., PAGEID ## 44-60. Shortly thereafter, the trial court held a hearing
and denied the motions to dismiss. Id., PAGEID ## 73-74. The same day,

Petitioner entered a plea of no contest to three counts of Sexual Battery (counts
eleven, thirteen, and nineteen), and the trial court sentenced him to an aggregate
term often years. Id., PAGE ID ## 75-79.
Petitioner appealed to the Fourth District Court of Appeals; his sole
contention of error was the trial court's ruling on his speedy trial motion. Id.,
PAGEID ## 80-106. On March 22, 2019, the Fourth District overruled his

contention of error and affirmed the judgment of the trial court. Id., PAGEID
## 133-45. Petitioner timely appealed to the Supreme Court of Ohio, but the

Supreme Court of Ohio declined to accept jurisdiction on July 23, 2019. Id.,
PAGEID ## 146-47, 178. Petitioner did not seek a writ of certiorari before the
Supreme Court of the United States.

On August 2, 2021, Petitioner filed a pro se federal habeas petition with
one ground of relief, "Due Process, Speedy Trial. " Petition, EOF No. 1, PAGEID
# 5. Respondent moved to dismiss the petition as untimely, arguing it is barred
by the statute of limitations. ECF No. 7. Without receiving leave to amend his
petition, Petitioner then filed a traverse in which he purportedly raised two
additional grounds for relief, although all three grounds still related to the alleged
denial of Petitioner's due process and speedy trial rights. ECF No. 11
Subsequently, and again without receiving leave to do so, Petitioner filed an

"amended pro se traverse, " in which he raised a fourth ground for relief: actual
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innocence. ECF No. 13. Specifically in response to Respondent's arguments
about the statute of limitations. Petitioner argues that equitable tolling saves his

petition. ECF Nos. 11, 13, & 19.
II.

REPORT AND RECOMMENDATION

Pursuant to the Court's General Orders, Magistrate Judge Jolson issued
an R&R on Respondent's motion. R&R, ECF No. 16. The R&R recommends

granting the motion and dismissing the petition as untimely. Id. It considers
Petitioner's arguments about equitable tolling and actual innocence but finds they
lack merit. Id. Petitioner timely objected to the R&R. Obj., ECF No. 19.

III.

STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 72(b), the Court determines de
novo those portions of the R&R that were properly objected to.
IV.

ANALYSIS

As the R&R correctly explained, under the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), there is a one-year statute of limitations
for habeas corpus petitions filed under 28 U. S. C. § 2254. The statute provides
as follows:

(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
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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 bythe 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.

Here, only § 2244(d)(1 )(A) is relevant. Pursuant to that provision,
Petitioner's judgment became final on October 21, 2019, when the time to

petition to the Supreme Court of the United States for a writ of certiorari expired.
So, his statute of limitations expired on October 21, 2020. Petitioner did not file
his petition until August 2021 . ECF No. 1. So, it is untimely and, therefore, must
be dismissed unless some exception applies.

Petitioner offers two arguments against dismissal. First, he argues that

equitable tolling should apply because he had trouble obtaining his case file from
his trial attorney and because the prison restricted access to the law library and
other resources during the COVID-19 pandemic. Obj., ECF No.19. Next, he
argues that the Court should excuse his untimeliness because he is actually
innocent. Id.

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A.

Equitable Tolling
AEDPA's limitations period is notjurisdictional and is subject to equitable

tolling. Holland v. Fla., 560 U. S. 631, 645-49 (2010). Such equitable tolling,
however, is granted sparingly in habeas cases. See Hall v. Warden, Lebannon
Corr. Inst., 662 F. 3d 745, 749 (6th Cir. 2011). To establish equitable tolling, a
petitioner must demonstrate that (1) he has "been pursuing his rights diligently,"

and (2) some "extraordinary circumstance stood in his way" and prevented him
from filing in a timely fashion. Holland, 560 U. S. at 649 (internal quotation marks
and citations omitted). The petitioner bears the burden of showing that he is
entitled to equitable tolling. Ma \f. Scutt, 662 F. 3d 736, 741 (6th Cir. 2011).
Here, Petitioner offers two factual bases for equitable tolling. First, he

asserts that he had difficulty obtaining his case file from his attorney, and,
second, he argues that the prison restricted access to the law library and other
resources due to the COVID-19 pandemic. Obj., ECF No. 19.
Petitioner does not show "extraordinary circumstances. " It "is well-settled
in the Sixth Circuit that [a] petitioner's pro se status, lack of legal knowledge, or

lack of access to legal materials are not sufficient to warrant equitable tolling."
Klein v. Warden, Ohio State Penitentiary, No. 1;21-CV-357, 2022 WL 356539, at

*8 (S. D. Ohio Feb. 7, 2022) (collecting cases). These are conditions "typical for
many prisoners" and "do not rise to the level of exceptional circumstances."
Groomes v. Parker, No. 3:07-cv-0124, 2008 WL 123935, at *5 (M. D. Tenn. Jan.

9, 2008). The mere inability to obtain transcripts or other relevant court
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documents does not constitute an extraordinary circumstance justifying equitable

tolling of the statute of limitations. See Hall, 662 F. 3d at 751 (citations omitted);
see a/so Chrysler v. Guiney, 14 F. Supp. Sd 418, 444 (S. D. N.Y. 2014) (citations
omitted).
Here, the restricted access to the law library and other resources is exactly

the type of circumstance that is "typical of many prisoners" and is not an
"extraordinary circumstance. " See Groomes, 2008 WL 123935, at *5.
As to his attorney's alleged delinquency in sending his case file, that
argument fails for several reasons. First, as the R&R explained, Petitioner
contacted his attorney only twice within the limitations period; all of Petitioner's
other communications with his attorney occurred after the limitations period
expired. R&R, ECF No. 16. More importantly, however, Petitioner does not
explain, nor does the Court see, how the case file was necessary for Petitioner to
file his habeas petition. That is, at all times since the trial court's hearing on his
speedy trial motions and subsequent plea, Petitioner has known about the facts

related to the tolling of his speedy trial rights. Id. (citing the record). Thus, even
without his case file, Petitioner "clearly knew what took place at [the trial court]
and what his grounds for relief were. " Hall, 662 F. 3d at 751. So, Petitioner's

arguments about his lack of access to legal materials and his case file are
without merit.

To the extent that Petitioner argues the COVID-19 pandemic by itself

warrants tolling the statute of limitations, that argument is unpersuasive. True, as
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the R&R explained, the "COVID-19 pandemic may qualify as an extraordinary
circumstance justifying equitable tolling of the statute of limitations. " Hager v.
Warden, Ross Corr. Inst., No. 2:21-CV-2472, 2021 WL 2291319, at *3 (S. D. Ohio
June 4, 2021), report and recommendation adopted, No. 2:21-CV-2472, 2021
WL 2670622 (S. D. Ohio June 29, 2021) (citation omitted). However, even
assuming that the pandemic was an extraordinary circumstance warranting
tolling the statute of limitations as to Petitioner-a somewhat dubious
assumption, as explained at length in the R&R-he could not rely on the
pandemic to toll the statute of limitations. Petitioner had five months of his
limitations period prior to the pandemic that were unaffected by COVID-19, and
he has not shown that he diligently pursued his claims during that time. R&R,
ECF No. 16. In other words, Petitioner does not demonstrate that he diligently

pursued his claims from the time hisjudgment became final (October 21, 2019)
to the start of pandemic-related restrictions in approximately March 2020. As
another court of appeals has explained, if a petitioner does not explain his lack of
diligence during the months before the pandemic-related restrictions went into
place, equitable tolling is inappropriate. See Donald v. Pruitt, 853 F. App'x 230.

234 (10th Cir. 2021) ('TThe petitioner] has not explained why he was not diligent
for the nine months before COVID restrictions were implemented. Therefore,

[he] hasn't made the requisite showing that he is due an exception to the
statutory bar. "). So, because Petitioner does not demonstrate that he diligently

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pursued his claims before the start of the COVID-19 pandemic restrictions, the
pandemic does not excuse his untimeliness.
For these reasons, equitable tolling is not appropriate in this case.
B.

Actual Innocence

Petitioner also argues that his untimeliness should be excused because he
is actually innocent. The one-year statute of limitations may be subject to
equitable tolling upon a reliable "credible showing of actual innocence."
McQuiggin v. Perkins, 569 U. S. 383, 392 (2013). A petitioner must overcome a

high hurdle to establish his actual innocence; to succeed, he must "showthat it is
more likely than not that no reasonable juror would have convicted him in the

light of the new evidence. " Id. at 399 (internal quotation marks and citations
omitted). "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."
Souter v. Jones, 395 F. 3d 577, 590 (6th Cir. 2005) (cleaned up). Although a
petitioner who asserts a claim of actual innocence need not establish diligence,
unexplained delay "bears on the determination whether the petitioner has made
the requisite showing. " McQuiggin, 569 U. S. at 399 (internal quotation marks
and citations omitted).

Here, Petitioner has failed to provide credible evidence of actual
innocence. As the Magistrate Judge explained, the only "new evidence"
Petitioner submitted was an alibi as to count nineteen only (one of the counts to

which he pled guilty). First, this alibi is hardly "new" as it is provided by his son,
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and both Petitioner and his son would have known of their whereabouts at the

time Petitioner entered his plea. Even assuming, however, that the Court
considered this alibi as sufficient "new evidence" for actual innocence as to count
nineteen. Petitioner has submitted no new evidence which casts any doubt on

the other two counts to which he pleaded guilty. So, as the R&R aptly held,
Petitioner has not demonstrated actual innocence.1
Petitioner objects to the R&R's conclusions on actual innocence for
several reasons. First, he argues that if he is innocent of count nineteen

(because of his "new" alibi), he must be innocent of all counts. Petitioner
apparently reads the other counts as being dependent on count 19. From a
review of the indictments, the Court disagrees-each count reads as a standalone offense. Record, ECF No. 6, PAGEID ## 26-37. Neither is there any

indication in the plea or judgment entry that Petitioner's convictions on counts
eleven and thirteen were dependent on the conviction on count nineteen. Id. at
PAGEID ## 75-79. Further, to the extent Petitioner argues that the State's case

largely hinged on the victim's testimony and, if Petitioner presented his alibi, the
1 In one of his "responses" to the motion to dismiss, Petitioner makes several arguments
about his alibis. For example, he asserts that he had alibis for eighteen of the nineteen

counts of the original indictment. Response, ECF No. 11-1, PAGEID # 298. To
whatever extent these arguments are attempts to demonstrate actual innocence, they
are without merit. If for no other reason, Petitioner provides no specifics about what his
alibis are (beyond references to "work schedule" or "room numbers") and, therefore, the
Court cannot evaluate whether they meet the actual innocence standard. See, e. g.,

Response, ECF 11, PAGEID ## 274-86. Further, Petitioner does not demonstrate how
these alibis are so ironclad that no reasonable jury could convict him of the charged
offenses. So, to whatever extent Petitioner is arguing these alibis are a basis for actual
innocence, that argument fails.
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victim's credibility would be undermined, that argument is far too speculative.
Even assuming all those "ifs" came to pass, a reasonable jury could still choose
to believe the victim over the alibi witness, and could certainly believe the victim

as to the other eighteen counts. In other words, this argument does not show "it
is more likely than not that no reasonable juror would have convicted him in the
light of the new evidence. " McQuiggin, 569 U. S. at 399 (internal quotation marks
and citations omitted). So, the argument is without merit.

Next, Petitioner argues that he could not have committed the acts alleged
in count nine because the victim was at a doctor's appointment at the time of the

charged crimes. This argument is irrelevant as he did not plead guilty to, and
was not convicted of, count nine.

Finally, Petitioner argues that the allegations against him were false. In
addition to generally arguing that the indictments were based on false
allegations, Petitioner also argues that the victim was untruthful in her reports
about his crimes (apparently both convicted and alleged). None of these
arguments are persuasive. Most of Petitioner's complaints of "false allegations"
and "liars" are so vague and conclusory that the Court cannot evaluate their

merit. The only "false accusation" complaint for which Petitioner provides
specificity is his argument that the victim gave an inaccurate physical description
of him because she misdescribed a birth mark. This argument also fails. First,
Petitioner makes no effort to explain how this allegedly untrue statement was not
known to him at the time of his guilty plea. In other words, Petitioner does not
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explain how this is "new evidence. " Second, even if this untrue statement were
"new evidence, " one incorrect description of a birthmark is not the kind of fatal
blow that means "no reasonable jury" would have convicted Petitioner. See

Hayes v. Dir., No. 3:16CV144, 2017 WL 474146, at *5 (E. D. Va. Feb. 3, 2017)
(rejecting a habeas petitioner's argument that his actual innocence could toll the
statute of limitations where the petitioner asserted that a victim misdescribed the
color of hisjacket). So, this argument is unavailing.
Accordingly, Petitioner has failed to establish that he is entitled to equitable
tolling based on actual innocence.

V.

OTHER MATTERS

Petitioner has two pending motions: a motion for discovery, ECF No. 14,
and a motion for an evidentiary hearing, ECF No. 15, both apparently related to
the statute of limitations issue. The R&R recommended that both motions be

denied because the petition is untimely. R&R, ECF No. 16. Even read liberally,
Petitioner offers only general objections to this conclusion. See, e. g., Obj., ECF
No. 19, PAGEID # 558 ("I do believe that an evidentiary hearing would prove
what I'm claiming can be proven to be true. "). Generally, the "failure to file

specific objections to a magistrate's report constitutes a waiver ofthose
objections. " Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004) (citation
omitted). Therefore, the Court is not obligated to review those portions ofthe
R&R. Moreover, neither evidentiary hearings nor discovery are a matter of

course in habeas proceedings. See, e. g., DiCenzi v. Rose, 452 F.3d 465, 472
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(6th Cir. 2006) (explaining that a district court should only hold an evidentiary
hearing on statute of limitations issues in habeas cases in special
circumstances); Bracy v. Gramley, 520 U. S. 899, 904 (1997) ("A habeas
petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery
as a matter of ordinary course. "). Petitioner has not directed the Court's attention
to any exception to that general rule here, nor is the Court independently aware

of any. So, in agreement with the Magistrate Judge, Petitioner's motions, ECF
Nos. 14 and 15, are DENIED.

VI.

CONCLUSION

For these reasons and for the reasons detailed in the R&R, Petitioner's

objections, ECF No. 19, are OVERRULED. The R&R, ECF No 16 is ADOPTED
and AFFIRMED. This action is hereby DISMISSED as barred by the one-year
statute of limitations under 28 U. S. C. § 2244(d).
VII.

CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11 of the Rules Governing § 2254 Cases in the United
States District Courts, the Court must consider whether to issue a Certificate of

Appealability. A state prisoner who seeks a writ of habeas corpus in federal
court does not have an automatic right to appeal a district court's adverse
decision unless the court issues a Certificate of Appealability. 28 U. S. C.

§ 2253(c)(1 )(A). The district court makes the first determination as to whether to
issue a Certificate of Appealability in appeals of § 2254 or § 2255 petitions.
Kincade v. Sparkman, 117 F. 3d 949, 953 (6th Cir. 1997).
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When a claim has been denied on procedural grounds, a Certificate of

Appealability may be issued 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). As reasonable jurists would not disagree with the Court's
analysis, Petitioner is DENIED a Certificate of Appealability.
Moreover, the Court CERTIFIES pursuant to 28 U. S. C. § 1915(a)(3) that

any appeal of this Opinion and Orderwould be objectively frivolous and therefore
would not be taken in good faith.
The Clerk is DIRECTED enter judgment in favor of Respondent and close
this case.

IT IS SO ORDERED.
M
EL H. WAT N, JUDGE
U ITED STATES DISTRICT COURT

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