Lenoir v. Warden Southern Ohio Correctional Facility

Filing 77

REPORT AND RECOMMENDATIONS re 2 Petition for Writ of Habeas Corpus filed by Lamar Lenoir - the Court RECOMMENDS that Petitioners motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b) (doc. 72 ) be DENIED. Objections to R&R due by 7/19/2012. Signed by Magistrate Judge Michael J Newman on 07/02/12. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LAMAR LENOIR,

:

Case No. 3:09-cv-286

:

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Petitioner,
vs.
WARDEN, SOUTHERN OHIO
CORRECTIONAL FACILITY,

:

Respondent.
:
______________________________________________________________________________
REPORT AND RECOMMENDATION1 THAT
PETITIONER’S FED. R. CIV. P. 60(b)(2) MOTION (DOC. 72) BE DENIED
____________________________________________________________________________
This matter is before the Court on Petitioner’s motion for relief from judgment denying
him an evidentiary hearing based on newly discovered evidence pursuant to Fed. R. Civ. P.
60(b)(2). Doc. 72.
I. Background
On March 30, 2012, the Court dismissed Petitioner’s 28 U.S.C. § 2254 habeas corpus
petition. Doc. 64. The Court also denied his motion for an evidentiary hearing. Doc. 66.
Petitioner originally requested leave to file his Rule 60(b) motion, but the Court denied that
request because leave is not required to file such a motion. See doc. 73. At that time, the Court
ordered Petitioner to produce his alleged “newly discovered evidence,” i.e., the “audio confession
from the State’s primary witness Kirby Peterson,” and Petitioner did so on June 27, 2012. See
docs. 73, 75.

Specifically, Petitioner produced a digital audio recording of a telephone

conversation between his sister, Jamisla Meaux, and Kirby Peterson; a certified transcript of that

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Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.

conversation; and two affidavits authenticating that recording and the transcript. See doc. 75.
The Court listened to the audio recording, and read the transcript and affidavits.
In his motion, Petitioner claims that Kirby Peterson’s statements support his habeas claim
in Ground One – that the prosecutors knowingly suborned false testimony from Kirby Peterson, its
primary witness. See doc. 72. It appears that Petitioner is relying on the following portion of the
recorded telephone conversation:
JAMISLA MEAUX:

KIRBY PETERSON:
JAMISLA MEAUX:
KIRBY PETERSON:
JAMISLA MEAUX:
KIRBY PETERSON:
JAMISLA MEAUX:
KIRBY PETERSON:
JAMISLA MEAUX:
KIRBY PETERSON:
JAMISLA MEAUX:
KIRBY PETERSON:
JAMISLA MEAUX:

KIRBY PETERSON:
JAMISLA MEAUX:

He thinks that the prosecutor told you what to say when
it was up there – when you was up there on the witness
stand.
Oh, yeah, they did.
You said what, Kirby?
They did that.
They told you what to say?
Well, yeah.
Okay. Okay.
I mean, like they was like showing me old pictures of
what happened.
Yeah.
And –
But you – you was locked up at that time, wasn’t you?
Huh?
Yeah. What – what time?
I said you was – I said you was locked up at that time,
wasn’t you? When they – when you went – when
Lemar [Petitioner] went to trial for that?
Yeah. Yeah.
Okay. Okay. All right. Well –

Audio Recording Transcription, at 11-12.
II. Analysis
The Court finds that Petitioner’s motion is actually a second or successive habeas petition.
When a Rule 60(b) motion’s “factual predicate deals primarily with the constitutionality of the
underlying state . . . conviction or sentence,’ the motion should be treated as a second or successive
petition.” Smith v. Anderson, 402 F.3d 718, 723 (6th Cir. 2005) (quoting Abdur’Rahman v. Bell,
392 F.3d 174, 181 (6th Cir. 2004)). Such is the case here. Essentially, with this new evidence,
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Petitioner seeks to vacate his state criminal judgment by attempting to show that Kirby Peterson
lied on the witness stand, and the prosecution knew he was lying. See id. at 724-25.
Under 28 U.S.C. § 2244(b)(3), Petitioner must obtain authorization from the Sixth Circuit
Court of Appeals before he can file a second or successive habeas petition in this Court. See id. at
723. Thus, because Petitioner has not obtained authorization from the Sixth Circuit, this Court
lacks jurisdiction over his motion. See id.
Further, the Court notes that Petitioner’s Rule 60(b) motion should be denied even if the
Court had jurisdiction. Petitioner is not entitled to an evidentiary hearing because, as noted in the
Report and Recommendation, his claim is procedurally defaulted.

See doc. 47 at PageID

2086-88; see also Schriro v. Landrigan, 550 U.S. 465, 474-75 (2007).
Petitioner’s newly presented evidence of an audio recording does not support a claim of
actual innocence under Schlup v. Delo, 513 U.S. 298 (1995) to excuse his procedural default. The
Sixth Circuit has explained the Schulp standard as follows:
[I]f 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 v. Delo, 513 U.S. 298, 316 (1995). 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. 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. The Court
has noted that “actual innocence means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (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. The Court counseled however, that
the actual innocence exception should “remain rare” and “only be applied in the
‘extraordinary case.’” Id. at 321.

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Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005). Thus, even if the Court did have
jurisdiction to consider his newly discovered evidence, Petitioner has nonetheless failed to meet
the Schulp standard to excuse his procedural default of Ground One.
Petitioner is ADVISED that he may present his audio recording and transcript to the state
courts by filing a petition for post-conviction relief pursuant to Ohio Rev. Code § 2953.23.
III. Recommendation
In conclusion, the Court RECOMMENDS that Petitioner’s motion for relief from
judgment pursuant to Fed. R. Civ. P. 60(b) (doc. 72) be DENIED.

s/ Michael J. Newman
United States Magistrate Judge

July 2, 2012

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within FOURTEEN days after being served with
this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to
SEVENTEEN days because this Report is being served by one of the methods of service listed in
Fed. R. Civ. P. 5(b)(2)(B)(C), or (D) and may be extended further by the Court on timely motion
for an extension. Such objections shall specify the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters occurring of record at an oral hearing,
the objecting party shall promptly arrange for the transcription of the record, or such portions of it
as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. A party may respond to another party=s objections within FOURTEEN
days after being served with a copy thereof. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir. 1981);
Thomas v. Arn, 474 U.S. 140 (1985).

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