Johnson v. Warden Pickaway Correctional Institution

Filing 35

REPORT AND RECOMMENDATIONS re 28 MOTION to Dismiss case as time-barred filed by Warden Pickaway Correctional Institution - It is Recommended that Johnsons Petition is barred by the statute of limitations and should therefore be dismis sed with prejudice. 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 and th erefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 9/22/2017. Signed by Magistrate Judge Michael R. Merz on 9/8/17. (pb)(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
WESTERN DIVISION AT DAYTON
DERRICK L. JOHNSON,
Petitioner,

:

- vs -

Case No. 3:15-cv-090
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

CHARLES BRADLEY1, Warden,
Pickaway Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS

This is habeas corpus case is before the Court on Respondent’s Motion to Dismiss the
Petition as time-barred (ECF No. 28) and Petitioner’s Memorandum in Opposition (ECF No. 34).
Petitioner Derrick Johnson was indicted by a Montgomery County grand jury on August
9, 1991, on two counts of aggravated murder, one count of aggravated robbery, one count of
attempted aggravated murder, and one count of having weapons under disability; the first four
counts had appended firearms specifications. A trial jury found Johnson guilty on the first four
counts and the firearm specifications and Johnson was sentenced to the imprisonment term he is
now serving in Respondent’s custody. The crimes involved are the murders at 3600 LibertyEllerton Road on June 29, 1991, in which Cedric Sinkfield and Keith DeWitt, although tried
separately, were co-defendants with Johnson.
Johnson appealed and pleaded one assignment of error, to wit, prosecutorial misconduct

1

Mr. Bradley is the current Warden at Petitioner’s place of confinement and is therefore substituted as Respondent
in this case; the caption is amended as set forth above. Fed. R. Civ. P. 25.

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in failing to advise the court, defense counsel, and the jury on numerous inconsistencies between
the trial testimony of the victim of the attempted murder, Ralph Allen, and other statements
made by Allen. The Second District Court of Appeals affirmed. State v. Johnson, 1993 WL
248136 (2nd Dist. July 7, 1993). Johnson failed to appeal to the Ohio Supreme Court; his last day
to do so was August 21, 1993. For a state prisoner who does not seek review in a State’s highest
court, the conviction becomes final on the last day when such review could have been sought.
Gonzalez v. Thaler, 565 U.S. 134 (2012).
The Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the "AEDPA") was enacted effective April 24, 1996, and provided for the first time a
statute of limitations of one year for habeas corpus claims. Because there had not been a prior
statute of limitations, the courts held that the statute began to run on the effective date for
persons whose convictions had become final prior to that date and therefor expired one year later
on April 24, 1997. The absence of such a grace period would have rendered the new statute of
limitations unconstitutional as to any habeas claims which accrued before April 24, 1996. Block
v. North Dakota, 461 U.S. 273, 286 at n. 23 (1983); Texaco, Inc., v. Short, 454 U.S. 516, 527 at
n.21 (1982), quoting Wilson v. Iseminger, 185 U.S. 55 (1902); Terry v. Anderson, 95 U.S. 628
(1877); Sohn v. Waterson, 84 U.S. 596 (1873). Because Johnson’s conviction was final before
April 24, 1996, the statute expired on April 24, 1997, unless some event before that date to toll
the statute. Johnson does not assert any such event occurred.
In addition to the date on which a state conviction becomes final, 28 U.S.C. 2244(d)(1)
provides three alternative start dates for the statute which are
(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;
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(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.

In his Memorandum in Opposition, Johnson appears to claim the benefit of §
2244(d)(1)(D) by discussing the newly-discovered evidence he presented to the Montgomery
County Court of Common Pleas in a motion for leave to file a delayed motion for new trial under
Ohio R. Crim. P. 33 which he filed January 27, 2014. The trial court’s denial of a new trial was
affirmed by the Second District. In the new trial motion, Johnson
claimed to have obtained newly-discovered evidence that
undermined the validity of his 1992 convictions. The evidence
consisted of April 2003 testimony by Ralph Allen in connection
with a federal-court sentencing hearing for another defendant,
Keith DeWitt. In his motion, Johnson argued that Allen's 2003
federal-court testimony demonstrated that Allen had committed
perjury when testifying against Johnson in 1992. Specifically,
Allen purportedly told the federal court that he had been in
possession of eight kilograms of cocaine at the time of the home
invasion, whereas Allen had denied being involved in drug dealing
when he testified against Johnson. Second, Johnson asserted that
the prosecutor in his criminal case had failed to disclose to defense
counsel “rough notes and statements” from F.B.I. agents that
proved he had nothing at all to do with the home-invasion robbery
and shooting. Johnson argued that he had been unavoidably
prevented from filing a new-trial motion within 120 days of the
jury's verdict as required by Crim.R. 33.

State v. Johnson, 2016-Ohio-4888, 2016 WL 3655427, ¶ 3 (2d Dist. July 8, 2016). As the
Second District pointed out, while Johnson could not have discovered Allen’s 2003 federal court
testimony within 120 days of his conviction, he offered no explanation of why he waited “nearly
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11 years” after Allen’s 2003 testimony to seek leave to file for a new trial. Id. at ¶ 11. In his
Petition, Johnson claimed that he learned of Allen’s 2003 federal court testimony upon the
reporting of United States v. Dewitt, 2004 U.S. Dist. LEXIS 30523 (S.D. Ohio Jan. 20,
2004)(Petition, ECF No. 5, PageID 104).

Assuming that Allen’s federal court testimony

constitutes newly-discovered evidence within the meaning of § 2244(d)(1)(D), Johnson has
offered no explanation of why he waited more than twelve years to file his federal habeas
petition after discovering that evidence.
Johnson argues he is entitled to equitable tolling of the statute. The one-year statute of
limitations in 28 U.S.C. § 2244 is subject to equitable tolling. Holland v. Florida, 560 U.S. 631,
645 (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 circumstance stood in his way’ and
prevented timely filing.” Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct. 750,
193 L. Ed. 2d 652(2016); Ata v. Scutt, 662 F.3d 736 (6th Cir. 2011), quoting Holland, 130 S. Ct.
at 2562, quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). “[T]he second prong of the
equitable tolling test is met only where the circumstances that caused a litigant’s delay are both
extraordinary and beyond its control.” Menominee Indian Tribe, 136 S. Ct. at 756, citing
Holland (emphasis sic). “Equitable tolling allows courts to review time-barred habeas petitions
‘provided that a litigant’s failure to meet a legally-mandated deadline unavoidably arose from
circumstances beyond that litigant’s control.’” Keeling v. Warden, 673 F.3d 452, 462 (6th Cir.
2012). Johnson simply has not offered any proof that he was prevented from filing in federal
court from January 2004 until March 2015. He is therefore not entitled to equitable tolling for
any of that period.
Johnson attempts to calculate his time to file as running from final denial of his second

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state court motion for new trial. However, a motion for new trial is a collateral proceeding and
not a part of direct review. A properly filed collateral attack on a judgment only tolls the statute
of limitations; it does not restart it.
Johnson also claims the benefit of the actual innocence exception to the statute of
limitations, relying on Souter v. Jones, 395 F.3d 577 (6th Cir. 2005), where the Sixth Circuit held
Congress enacted the statute of limitations in 28 U.S.C. § 2244(d)(1) “consistent with the Schlup
[v. Delo] actual innocence exception.” The Souter court also held:
[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, 140 L. Ed. 2d 828, 118 S. Ct. 1604 (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.
Id. at 590.
The controlling precedent on this point is now the Supreme Court’s decision in
McQuiggin v. Perkins, 569 U.S. ___, 133 S. Ct. 1924, 185 L. Ed. 2d 1019 (2013).

[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
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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 v. Perkins, 569 U.S. ___, 133 S. Ct. 1924, 1928, 185 L. Ed. 2d 1019, 1035 (2013).
The new evidence Johnson presents does not meet the standards of Souter and Schlup v.
Delo. It is not reliable new eyewitness testimony. Instead, it is new evidence undermining the
reliability of an eyewitness who did testify. It is not scientific or physical evidence at all.

Evidentiary Hearing

At numerous points in his Memorandum in Opposition, Johnson claims entitlement to
expand the record with an evidentiary hearing. In Cullen v. Pinholster, 563 U.S. 170 (2011), the
Supreme Court held that a federal court’s review of a state court decision under 28 U.S.C. §
2254(d)(1) is strictly limited to “review of the state court record,” and that evidence acquired
through use of an evidentiary hearing may not be considered. Id. at 182. The Supreme Court
further stated that section 2254(e)(2) only “continues to have force where Section 2254(d)(1)
does not bar federal habeas relief.” Id. at 185.
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Conclusion

Johnson’s Petition is barred by the statute of limitations and should therefore be
dismissed with prejudice. 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 and therefore should not be permitted to
proceed in forma pauperis.

September 8, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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 mail. .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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140,
153-55 (1985).

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