Russell v. Warden, North Central Corectional Complex

Filing 18

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Upon reconsideration the Magistrate Judge again respectfully recommends the Petition be dismissed as time-barred. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denie d 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. Objections to R&R due by 10/8/2015. Signed by Magistrate Judge Michael R. Merz on 9/21/2015. (kpf)(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
CHRISTOPHER M. RUSSELL,
Petitioner,

:

- vs -

Case No. 3:15-cv-165
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

NEIL TURNER, WARDEN, North Central
Correctional Complex,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This case is before the Court on Petitioner=s Objections (ECF No. 16) to the Magistrate
Judge’s Report and Recommendations (ECF No. 13). District Judge Rice has recommitted the
case to the Magistrate Judge for reconsideration in light of the Objections (ECF No. 17).
The Report recommended that Respondent’s Motion to Dismiss the Petition as timebarred be granted despite Russell’s claims of equitable tolling and actual innocence. Russell
objects to both conclusions.

Equitable Tolling

Russell’s conviction became final on direct appeal on November 5, 2012, the last day he
could have appeal to the Ohio Supreme Court. The next challenge to his conviction that he filed
was an application for reopening under Ohio R. App. P. 26(B) which was not filed until February

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10, 2014. The Second District dismissed the application for untimely filing. That court had
affirmed on September 21, 2012. State v. Russell, Case No. 2011-CA-10, 2012-Ohio-4316, 2012
Ohio App. LEXIS 3786 (2nd Dist. Sept. 21, 2012). To be timely, a 26(B) application was
required to be filed within ninety days of that judgment, or no later than December 20, 2012.
The Second District credited Russell’s claim that his appellate attorney had not advised him of
the judgment and he had only learned of it from LEXIS in January 2013. While it found that
would excuse the delay until sometime after he learned of the judgment, it did not excuse his
waiting an entire additional year until February 2014. It also rejected his excuses of lack of trial
transcript and limited law library access because “Russell has failed to provide sufficient facts to
establish good cause.” (Decision and Entry, State Court Record, ECF No. 9, Exh. 18, PageID
187.)
The Second District denied reopening April 14, 2014. Id. The Ohio Supreme Court
declined jurisdiction July 9, 2014. Id. at Entry, Exh. 21, PageID 213. Russell then waited almost
eleven more months to file his Petition here on April 30, 2015. The Report concluded the
Second District’s rejection of his 26(B) delay was reasonable and he had offered no additional
excuse for his further delay in filing the Petition (Report, ECF No. 13, PageID 518).
In his Objections, Russell reargues his reasons for delay in filing the 26(B)(Objections,
ECF No. 16, PageID 526). Without explaining the additional delay for filing the Petition, he
asserts that if the delay for the 26(B) is credited as time when the statute was equitably tolled,
“all delays can be equitably tolled as the subsequent appeal to the Ohio Supreme Court and the
Petition are then both timely, a sign of Mr. Russell’s diligence.” (Objections, ECF No. 16,
PageID 529.) Russell’s position seems to be that if some portion of the delay in filing a habeas
petition is excused, then any amount of time consumed will be equitably tolled.

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That misunderstands the nature of equitable tolling. The “equity” involved is not just a
label for accepting whatever excuse a pro se

habeas petitioner may offer.

Rather, the

extraordinary circumstances which make it equitable to toll the statute are sufficient only as long
as the extraordinary circumstances continue to exist. Russell’s lack of knowledge that his appeal
had been decided ceased in January, 2013. The other circumstances on which he relies are not
legally sufficient. The Sixth Circuit has expressly held that pro se status and limited law library
access are insufficient to ground equitable tolling. Hall v. Warden, 662 F.3d 745, 751-52 (6th
Cir. 2011).
Moreover, Russell has offered no more evidence in support of equitable tolling than he
offered before the Report was filed. Instead, he asserts this Court should hold one or more
evidentiary hearings to determine the equitable tolling questions (Objections, ECF No. 16,
PageID 525). As authority he relies on Roy v. Lampert, 465 F.3d 964 (9th Cir. 2006). While Roy
is in point, it is not precedential in the Sixth Circuit and this Court is unaware of any Sixth
Circuit precedent requiring an evidentiary hearing on an equitable tolling claim, particularly
when our circuit has rejected the law library access claim on which Russell relies. Moreover,
Roy was decided long before the Supreme Court severely limited the availability of evidentiary
hearings in habeas corpus cases. Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388 (2011). At
the very least, Pinholster appears to limit this Court’s reexamination of the factual basis for the
Second District’s determination that the 26(B) application was untimely.
Finally, Roy does not commend itself for adoption by other courts. Actually litigating the
requests made and granted or denied for law library access by a prisoner over a period of more
than a year, along with what legal resources were available in the prison law library, and how
much time would be reasonably needed by a pro se litigant to research the precise issues in his

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case sounds like a proceeding that would take months. Perhaps the need to hold hearings under
Roy is the reason why district courts in California are years behind in adjudicating habeas corpus
cases.
Russell also relies on Balistreri v. Pacifica Police Dep’t., 901 F.2d 696 (9th Cir. 1998),
but that case involved civil rights litigation under 42 U.S.C. § 1983 and is not pertinent to habeas
litigation.
The burden is on a late habeas petitioner to establish his entitlement to equitable tolling.
Russell has not done so.

Actual Innocence

Russell claims his actual innocence also equitably tolls the statute of limitations. The
Report notes that while new evidence of actual innocence can equitably toll the statute, the
petitioner must present “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).
As the Report notes, Russell presents no new evidence at all. Instead, he asks this Court
to exclude his admissions to police as unconstitutionally obtained and then weigh the remaining
evidence against new expert testimony on the fallibility of memory (Elizabeth Loftus) and his
wife.
Russell admits that this is not new evidence within the meaning of Schlup, supra, but
suggests it is adequate under Mobley v. United States, 974 F. Supp. 553 (E.D. Va. 1997). In
Mobley the district court allowed a federal criminal defendant in a § 2255 proceeding to excuse a

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procedural default on direct appeal by showing that he was actually innocent of a sentencing
enhancement which could have been but was not raised on direct appeal. As the Mobley opinion
shows, there is a split in the circuits courts about whether to apply this type of actual innocence
exception at all in non-capital cases and Mobley cites no authority for applying it in § 2254 cases.
Of course, serious federalism concerns must be addressed in § 2254 cases which are not present
in § 2255 cases, allowing different process. For example, while failure to raise an ineffective
assistance of trial counsel claim on direct appeal will procedurally default that claim in a § 2254
case, the federal courts have generally mandated presenting ineffective assistance of trial counsel
in federal cases after appeal in § 2255 applications. Massaro v. United States, 538 U.S. 500
(2003); United States v. Neuhausser, 241 F.3d 460 (6th Cir. 2001); United States v. Fortson, 194
F.3d 730, 736 (6th Cir. 1999).
In any event, even if Mobley were applicable in the Sixth Circuit, it would not justify the
sort of “actual innocence” claim Russell proposes. Under Mobley, the error is evidence on the
record already before the District Court. Russell essentially wants to retry his state case, asking
this Court first to excuse his tardiness by speculating what new evidence he might be able to
obtain, then appointing counsel to acquire and present that evidence. This proposal does not
satisfy the requirements of Schlup.

Conclusion

Upon reconsideration the Magistrate Judge again respectfully recommends the Petition be
dismissed as time-barred. 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

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Circuit that any appeal would be objectively frivolous and therefore should not be permitted to
proceed in forma pauperis.

September 21, 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
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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