Champion v. Warden, London Correctional Institution
Filing
7
SUPPLEMENTAL REPORT AND RECOMMENDATIONS; DECISION AND ORDER DENYING MOTION FOR ABEYANCE - Because Champion has not presented a credible actual innocence claim, it is again respectfully recommended that the Petition be dismissed with prejudice as barr ed by the statute of limitations. Decision of this case will not be stayed pending an Ohio Supreme Court decision on any motion for delayed appeal which Champion may file there. Because reasonable jurists would not disagree with this conclusion, Peti tioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous. Petitioner's Motion for Abeyance (Doc. No. 5) is DENIED. Objections to R&R due by 10/24/2013. Signed by Magistrate Judge Michael R Merz on 10/7/2013. (kpf1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BRUCE R. CHAMPION,
Petitioner,
:
- vs -
Case No. 3:13-cv-315
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
DEB TIMMERMAN-COOPER,
Warden, London Correctional
Institution,
:
Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS;
DECISION AND ORDER DENYING MOTION FOR ABEYANCE
This habeas corpus case is before the Court on Petitioner’s Objections (Doc. No. 4) to the
Magistrate Judge’s Report and Recommendations (Doc. No. 2) and also on Petitioner’s Motion
for Abeyance (Doc. No. 5). Judge Rose has recommitted the matter for reconsideration in light
of the Objections (Doc. No. 6).
This case was brought pro se by Petitioner Bruce R. Champion to obtain relief from his
conviction and consequent sentence in the Montgomery County Common Pleas Court in that
court’s Case No. 1997-CR-1509. The procedural history is recited in the original Report (Doc.
No. 2).
The Report concluded that the judgment in this case became final on June 6, 2001, and
that the one-year statute of limitations in 28 U.S.C. § 2244(d) therefore expired June 6, 2002. It
therefore recommended the Petition be dismissed as untimely by eleven years.
In his Objections, Champion claims he can overcome the statute of limitations by a
1
showing of actual innocence, relying on McQuiggin v. Perkins, 569 U.S. ___, 133 S. Ct. 1924,
185 L. Ed. 2d 1019 (2013), and its predecessor in this Circuit, Souter v. Jones, 395 F.3d 577 (6th
Cir. 2005). In McQuiggin, the Supreme Court held:
[A]ctual innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar, as
it was in Schlup and House, or, as in this case, expiration of the
statute of limitations. We caution, however, that tenable actualinnocence gateway pleas are rare: “[A] petitioner does not meet the
threshold requirement unless he persuades the district court that, in
light of the new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt.” Schlup, 513
U. S., at 329, 115 S. Ct. 851, 130 L. Ed. 2d 808; see House, 547 U.
S., at 538, 126 S. Ct. 2064, 165 L. Ed. 2d. 1 (emphasizing that the
Schlup standard is “demanding” and seldom met). And in making
an assessment of the kind Schlup envisioned, “the timing of the
[petition]” is a factor bearing on the “reliability of th[e] evidence”
purporting to show actual innocence. Schlup, 513 U. S., at 332,
115 S. Ct. 851, 130 L. Ed. 2d. 808.
***
[A] federal habeas court, faced with an actual-innocence gateway
claim, should count unjustifiable delay on a habeas petitioner’s
part, not as an absolute barrier to relief, but as a factor in
determining whether actual innocence has been reliably shown.
McQuiggin, 133 S. Ct. at 1928.
Champion’s actual innocence claim, as the Court understands it, is that he was convicted
in part on the statement of co-defendant Lloyd Jackson to police that Champion was present at
the scene of the crime and Jackson has recanted that statement. Champion asserts that Jackson’s
Affidavit “suggest[s] Petitioner did not play a part at all.” (Objection, Doc. No. 4, PageID 38.)
The Second District Court of Appeals made the following findings of fact on direct
appeal:
According to the surviving victim, Beverly Williams, Champion
and Jackson, both of whom were known to her, entered her
residence on May 30, 1997. George Robinson was also in the
residence at that time. After entering, Champion said, "I'm tired.
2
It's been a rough day. I need some money," pulled out a black
revolver, and laid it on the table. Jackson, following Champion's
instructions, taped Robinson's wrists and ankles.
Champion then told Jackson to tape Williams's hands. When
Williams refused to cooperate, Champion picked up the gun and
ordered her to turn around. Jackson taped Williams's mouth and
wrists, but taped her wrists loosely. Champion mocked Jackson,
asking him if he had learned how to tape in the Boy Scouts; then
Champion re-taped Williams's hands more tightly.
While this was going on, Williams's phone rang, and Jackson
answered the phone. Juan Crawford was calling to tell Williams he
was on his way to her house. Jackson hung up the phone, and told
Champion that Crawford would be coming over shortly. Champion
handed Jackson the gun, and told him to get behind the door. When
Crawford knocked, Jackson, whom Crawford knew, opened the
door. Crawford saw the gun, Jackson, and Williams on the floor,
with her mouth taped. He fled. He did not see Champion.
Champion then pulled the phone cord out of the wall, wrapped the
cord around Williams's neck, and began to choke her. Since
Williams was struggling, Champion took his gun back from
Jackson. He continued choking Williams, and demanding money.
When Williams finally told Champion that she had money in her
bra, he tore her sweater to get the money. He also took her watch
and ring, and then began choking her again with the phone cord.
Despite the fact that Williams was able to get her fingers under the
phone cord, Champion continued choking her until she passed out.
When Williams regained consciousness, she crawled to a
neighbor's house, and police were notified. The police officers
responding to the call found Robinson lying dead on the floor. Two
spent .38 caliber bullets were found near the body. Additional .38
bullets and bullet fragments were retrieved during the autopsy. The
cause of death was multiple gunshot wounds. Robinson had
wounds to his leg, hands, abdomen and chest.
Williams identified Champion and Jackson, both of whom she
knew previously, as the perpetrators. Crawford, who had
previously known Jackson by sight but not by name, picked
Jackson's photograph from a photo spread, without having had the
opportunity to talk to Williams beforehand. Crawford was positive
in his identification of Jackson as the man standing behind the door
with the gun; he had had no opportunity to observe the other
perpetrator.
3
Champion and Jackson were apprehended in Kentucky, and
charged in connection with these offenses. Champion was tried
separately from Jackson. Specifically, Champion was indicted
upon one count of Aggravated Burglary, two counts of
Kidnapping, two counts of Aggravated Robbery, and one count of
Aggravated Murder. At trial, a police officer was permitted to
testify, over Champion's objection, that Jackson had admitted his
presence at Williams's house at the time of the offense. A jury
found Champion guilty of all counts, except the Aggravated
Murder count, of which Champion was acquitted. The jury also
found Champion guilty of firearm specifications with respect to all
of the counts for which he was convicted. A judgment of
conviction was entered upon the jury's verdict, and Champion was
sentenced accordingly. From his conviction and sentence,
Champion appeals.
State v. Champion, 1999 Ohio App. LEXIS 841, *2-5 (2nd Dist. Mar. 5, 1999).
Champion has not placed the Jackson affidavits1 before this Court, so the Court only
knows that what Champion claims they contain. If indeed they are a recantation of Jackson’s
statement to the police that Champion was present, then they are some evidence of actual
innocence.
However, Jackson’s recantation falls very far short of the sort of proof of actual
innocence required by Supreme Court precedent. "To be credible, such a claim [of actual
innocence] 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 v. Delo, 513 U.S. 298, 324
(1995).
The Jackson Affidavits are plainly not exculpatory scientific or critical physical
evidence. They are from an eyewitness who was unavailable at trial because, as Champion
through his counsel stipulated, Jackson would have invoked his Fifth Amendment privilege
against self-incrimination had he been called to testify. That problem no longer exists for
1
Both the Petition and the Second District Court of Appeals decision affirming denial of post-conviction relief
refers to multiple affidavits without distinguishing what each of them says.
4
Jackson who is protected by Double Jeopardy from any new accusations on which the State has
already tried him.
Jackson’s claim that Beverly Williams’ testimony was also false, at least in some
respects, is not reliable. Williams testimony at trial as the surviving victim formed the principal
basis for the findings of fact made by the court of appeals. Juan Crawford also testified and
identified Jackson; although he could not identify Champion, he testified that there was a coperpetrator.
Williams knew both Jackson and Champion from before the crime, so her
identification is not in doubt. And Champion does not suggest that Ms. Williams has repudiated
her testimony.
As Champion notes in his Objections, delay in presenting new evidence of actual
innocence is not of itself fatal to the claim, but is to be weighed in assessing its credibility. And
Champion gives no explanation of why he waited more than eleven years to present that
evidence in a habeas petition.
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." Schlup at
327. A jury would have to decide which of Jackson’s statements was true. Even if a jury
believed the recantation, it would still have to weigh Jackson’s statements against the testimony
of Williams and Crawford. It is very unlikely under those circumstances that no reasonable juror
would have found Champion guilty.
Motion for Abeyance
Contemporaneous with his Objections, Champion filed a Motion for Abeyance (Doc. No.
5). He claims he wishes to “utilize a state court Supreme Court remedy to seek a delayed appeal
5
for his felony case” under Ohio Sup. Ct. R. Prac. 7.01(A)(4). As reflected in the original Report,
Champion apparently never appealed to the Ohio Supreme Court from the decision of the Second
District Court of Appeals affirming his conviction on direct appeal. Thus a motion for delayed
appeal under the referenced Ohio Supreme Court rule is theoretically available to him.
The United States Supreme Court has decided that district courts have authority to grant stays in
habeas corpus cases to permit exhaustion of state court remedies in consideration of the
AEDPA’s preference for state court initial resolution of claims. It cautioned, however,
[S]tay and abeyance should be available only in limited
circumstances. Because granting a stay effectively excuses a
petitioner's failure to present his claims first to the state courts, stay
and abeyance is only appropriate when the district court
determines there was good cause for the petitioner's failure to
exhaust his claims first in state court. Moreover, even if a
petitioner had good cause for that failure, the district court would
abuse its discretion if it were to grant him a stay when his
unexhausted claims are plainly meritless. Cf. 28 U.S.C. §
2254(b)(2) ("An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State"). . . .
On the other hand, it likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition if the
petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally dilatory
litigation tactics.
Rhines v. Weber, 544 U.S. 269, 277-278 (2005).
Since the Second District entered judgment on March 5, 1999, Champion’s time for
taking an appeal in the ordinary course expired forty-five days later, on April 19, 1999. Ohio
Sup. Ct. R. Prac. 7.01(A)(4)(i) requires the appellant to explain the delay, and Champion offers
nothing here of that nature. This Court has no basis to find good cause for the delay.
Champion also suggests that his state court sentence is void because of a failure to
6
impose a statutory term of post-release control, relying on State v. Fischer, 128 Ohio St. 3d 92
(2010). Champion misreads Fischer. Resentencing under Ohio law to properly impose postrelease control does not restart the time for filing habeas corpus. Mackey v. Warden, 2013 U.S.
App. LEXIS 9551 (6th Cir. May 9, 2013).
The Motion for Abeyance is DENIED.
Conclusion
Because Champion has not presented a credible actual innocence claim, it is again
respectfully recommended that the Petition be dismissed with prejudice as barred by the statute
of limitations. Decision of this case will not be stayed pending an Ohio Supreme Court decision
on any motion for delayed appeal which Champion may file there.
Because reasonable jurists would not disagree with this conclusion, Petitioner should be
denied a certificate of appealability and the Court should certify to the Sixth Circuit that any
appeal would be objectively frivolous.
October 7, 2013.
s/ Michael R. Merz
United States Magistrate Judge
7
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 Recommendations. 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)(C), (D), (E), or (F). 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 Recommendations are 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).
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?