Russell v. Warden, North Central Corectional Complex

Filing 34

REPORT AND RECOMMENDATIONS RE: 33 MOTION filed by Christopher M Russell Objections to R&R due by 7/18/2016. Signed by Magistrate Judge Michael R. Merz on 6/30/2016. (srb)(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.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Motion Requesting Relief
from Judgment (the “Motion,” ECF No. 33). Mr. Russell brings the Motion pursuant to Fed. R.
Civ. P. 60(b)(1), claiming a mistake of law by the Magistrate Judge in the Report and
Recommendations of December 4, 2015 (ECF No. 25) which were adopted by Judge Rice in his
Decision of March 25, 2016 (ECF No. 28).
The Magistrate Judge’s asserted mistake of law was in using Hall v. Warden, 662 F.3d
745 (6th Cir. 2011) “as the 6th Circuit governing precedent against using the conditions of an
institutional law service as consideration toward equitable tolling” because that case is argued to
be “in conflict with this Court[‘s], other Federal Courts’, and the United States Supreme Court’s
rulings on equitable consideration as it ignores the consideration of ‘meaningful access to
court.’” (Motion, ECF No. 33, PageID 634.)

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Procedural History

Mr. Russell filed his Petition for writ of habeas corpus on April 30, 2015 (ECF No. 1).
The Court ordered the Warden to respond (ECF No. 7) which he did by filing a Motion to
Dismiss the Petition as time-barred (ECF No. 10). Mr. Russell responded with arguments for
“equitable tolling due to his effort to overcome procedural hurdles out of his control (a counsel’s
failure to present issues and an impairment to his ability to research adequate supportive issues)
and actual innocence supported both by the face of the written record and by scientific
evidence.” (Petitioner’s Answer, ECF No. 12, PageID 246.) On August 28, 2015, the Magistrate
Judge recommended the Motion to Dismiss be granted (Report and Recommendations, ECF No.
13).
The Report concluded Mr. Russell’s conviction became final November 5, 2012, so that
the one-year statute of limitations expired November 6, 2013, almost eighteen months before the
Petition was filed (Report, ECF No. 13, PageID 514). The Report further concluded Russell had
not shown his entitlement to equitable tolling under Holland v. Florida, 560 U.S. 631, 645
(2010), or actual innocence as required by McQuiggin v. Perkins, 569 U.S. ___, 133 S. Ct. 1924,
185 L. Ed. 2d 1019, 1035 (2013). Hall v. Warden, supra, was not cited or relied on.
Mr. Russell objected (ECF No. 16), Judge Rice recommitted the case (ECF No. 17), and
the Magistrate Judge again recommended dismissal, this time citing Hall v. Warden, supra, for
the proposition that “pro se status and limited law library access are insufficient to ground
equitable tolling.” (Supplemental Report, ECF No. 18, PageID 535.)
Mr. Russell again objected (ECF No. 19), Judge Rice again recommitted the case (ECF

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No. 20), and the Magistrate Judge again recommended dismissal of the Petition as time-barred
(Second Supplemental Report, ECF No. 21). When Russell had not objected within the time
allowed by law, Judge Rice adopted the Second Supplemental Report on November 10, 2015,
and dismissed the case with prejudice (ECF No. 22, PageID 585). Russell never appealed from
that decision and his time to appeal expired December 10, 2015.
Russell did file late Objections (ECF No. ECF No. 23) which the Magistrate Judge
agreed to treat as a motion to amend the judgment under Fed. R. Civ. P. 59(e) but recommended
be denied (ECF No. 25). Russell objected (ECF No. 27), but Judge Rice adopted the Report and
denied modification of the judgment (Decision, ECF No. 28). Russell has appealed from that
Decision (ECF No. 29) and his appeal remains pending in the Sixth Circuit Court of Appeals
(Case No. 16-3415). The instant Motion under Fed. R. Civ. P. 60(b)(1) followed.

Analysis

Because there is a pending appeal, this Court lacks authority to grant the instant Motion,
although it may make an indicative ruling. Fed. R. Civ. P. 62.1.
Russell essentially asks the Court to correct what he regards as a mistake of law. He
criticizes Hall v. Warden, supra, as in conflict with other cases he cites. Hall had appealed from
dismissal as time-barred of his petition for writ of habeas corpus in which he had attacked an
Ohio conviction. Hall was only five days late in filing his habeas petition. 662 F.3d at 748. The
Sixth Circuit held that under Holland a habeas petitioner seeking equitable tolling must show
that he has been pursuing his rights diligently and that some extraordinary circumstance stood in
his way.
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Russell argues against applying Hall because he says the “mention of legal services in
this section takes up less than three sentences within a section that demonstrates numerous other
errors which overshadow the claim, therefore the issue of legal services in Hall was effectively
harmless if not moot.” (Motion, ECF No. 33, PageID 635.) In Hall, the district court denied
equitable tolling despite Hall’s argument that his limited access to the law library supported
equitable tolling. The argument did not justify a certificate of appealability either from the
district court or from the court of appeals; the circuit court issued a certificate only on whether
lack of access to the trial transcript was a valid factor. 462 F.3d at 747. By implication, the issue
of law library access was so lacking in merit as not to be debatable among jurists of reason,
which is the standard for a certificate of appealability.
Instead of relying on Hall, Russell says this Court should follow Roy v. Lampert, 465
F.3d 964 (9th Cir. 2006). Roy is a Ninth Circuit case decided before the Supreme Court accepted
equitable tolling in habeas cases in Holland. While the Roy court did find the transfer of the
petitioners in that case from Oregon to a prison in Arizona with a very poor law library could be
considered an extraordinary weighing in favor of equitable tolling, it also emphasized the
petitioner’s obligation to prove diligence in pursuing his rights.
Russell claims the Magistrate Judge’s Report is in conflict with Bounds v. Smith, 430
U.S. 817 (1977). Bounds is indeed a seminal case on prisoner’s rights to law library access, but
it does not hold that inadequate access will support equitable tolling. Knop v. Johnson, 667 F.
Supp. 467 (W.D. Mich.1 1987) was a successful injunctive action by prisoners to obtain more
law library access, but did not involve equitable tolling. Kendrick v. Bland, cited by Russell as
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Not a Sixth Circuit case as Russell asserts at Motion, PageID 635.

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appearing at 587 F. Supp. 1563, is not a case appearing in the Lexis district courts database after
January 1, 1970.
Even if the Court were to accept Russell’s argument that inadequate access to the law
library could be an extraordinary circumstance preventing a filing, Russell would still be faced
with the Court’s determination that he was not diligent in pursuing his rights.
Logically, inadequate access to a law library has little to do with timely filing. A
potential habeas petitioner knows what issues he raised in the state courts. In seeking federal
habeas relief on those grounds, he does not need law library access before filing. Indeed the
standard form of 2254 petition specifically instructs petitioners not to cite case law.
Russell has not shown this Court made a mistake of law in dismissing his Petition as
time-barred. His Motion for Relief from Judgment should be DENIED.

June 30, 2016.
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
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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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