Johnson v. Warden Pickaway Correctional Institution

Filing 6

REPORT AND RECOMMENDATIONS; ORDER DENYING APPOINTMENT OF COUNSEL AND EVIDENTIARY HEARING - It is therefore respectfully recommended that the Petition herein be dismissed with prejudice as barred by the statute of limitations. Petitioner's Motion s for Appointment of Counsel (Doc. No. 2) and for an Evidentiary Hearing (Doc. No. 3) are denied as moot. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court sho uld certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 3/30/2015. Signed by Magistrate Judge Michael R Merz on 3/12/2015. (kpf1)(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

JEFFREY LISATH, Warden,
Pickaway Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS; ORDER DENYING
APPOINTMENT OF COUNSEL AND EVIDENTIARY HEARING

This habeas corpus case is before the Court for initial review pursuant to Rule 4 of the
Rules Governing § 2254 Cases which provides in pertinent part: “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief in the district court,
the judge must dismiss the petition and direct the clerk to notify the petitioner.”
The Petition reveals that Johnson was convicted of two counts of aggravated murder, one
count of aggravated robbery, and one count of attempted aggravated murder, all counts carrying
firearm specifications, in the Montgomery County Common Pleas Court in 1992 and sentenced
to the term of imprisonment he is now serving (Petition, Doc. No. 1-1, PageID 12).
28 U.S.C. § 2244 (d) provides:

(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

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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
post-conviction 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.
A district court may dismiss a habeas petition sua sponte on limitations grounds when
conducting an initial review under Rule 4 of the Rules Governing § 2254 Cases. Day v.
McDonough, 547 U.S. 198 (2006)(upholding sua sponte raising of defense even after answer
which did not raise it); Scott v. Collins, 286 F.3d 923 (6th Cir. 2002).
When completing the timeliness section of the Petition, Mr. Johnson states:
Petitioner's case presents substantial constitutional violations based
on constitutional discovery issues, and the denial of court records.
In addition to these issues, the factual back ground was not fully
developed to Petitioner knowledge until after the decision was
published in the case of United States v. DeWitt, 2004 U.S. Dist.
Lexis 30523. The DeWitt case raises serious concerns of witness
tampering or coaching as can be seen by the discrepancy in
testimony by the surviving victim, Mr. Ralph Allen. Petitioner
states that appointed appellate counsel Thomas Whiteside never
provided petitioner with a copy of pretrial, trial, or sentencing
transcripts, pursuant to rules of professional responsibility DR 2110 (A)(2) it states that after employment a lawyer shall not
withdraw from employment until he has taken reasonable steps to
avoid foreseeable prejudice to the rights of his client, including
giving due notice to his client, delivering to the client all papers
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and property to which the client is entitled. Petitioner states that
Thomas Whiteside ignored his duty pursuant to DR 2- 110 (A)(2),
because under the law counsel has a essential duty not to cause
their clients to commit any procedural defaults by withholding
essential documents, such as trial transcripts. A violation of DR110 (A)(2) is a prima facie showing of ineffectiveness of counsel.

(Doc. No. 5, PageID 90.) Assuming the truth of these allegations, Mr. Whiteside’s failure to
furnish transcripts in 1992 would not excuse a delay in filing of more than twenty years. And
even assuming that something critical about this case was revealed in the opinion in United
States v. Dewitt, 2004 U.S. Dist. LEXIS 30523 (S.D. Ohio Jan. 20, 2004), that decision was
published more than eleven years ago.
It is therefore respectfully recommended that the Petition herein be dismissed with
prejudice as barred by the statute of limitations. Petitioner’s Motions for Appointment of
Counsel (Doc. No. 2) and for an Evidentiary Hearing (Doc. No. 3) are denied as moot. 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.
March 12, 2015.
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
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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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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