Russell v. Warden, North Central Corectional Complex

Filing 40

SUPPLEMENTAL REPORT AND RECOMMENDATIONS; ORDER DENYING DISCOVERY AND EXPANSION OF THE RECORD - Having reconsidered the matter in light of Russell's Objections, the Magistrate Judge remains persuaded that Russell's Motion for Relief from Jud gment (ECF No. 33) should be DENIED. 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 objectivel y frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 8/22/2016. Signed by Magistrate Judge Michael R. Merz on 8/4/2016. (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; ORDER
DENYING DISCOVERY AND EXPANSION OF THE RECORD

This habeas corpus case is before the Court on Petitioner’s Motion Requesting Relief
from Judgment (“Motion,” ECF No. 33). Mr. Russell claims the Magistrate Judge made a
mistake of law 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.)
The Magistrate Judge recommended denying the Motion (Report, ECF No. 34). Shortly
thereafter, Judge Rice ordered to be filed correspondence received from Petitioner in January
2016 (ECF No. 35) and recommitted the case for reconsideration in light of the correspondence
and any objections by Petitioner to the Report (ECF No. 36). Additionally, Russell has now filed

1

Objections which include a motion to expand the record and for discovery (ECF No. 37). The
Warden has filed a Response (ECF No. 39).
On November 22, 2015, Judge Rice dismissed this case (ECF No. 22). Mr. Russell
moved to amend that judgment (ECF No. 23) and to expand the record (ECF No. 24). Judge
Rice denied these motions on March 25, 2016 (ECF No. 28) and Mr. Russell has appealed (ECF
No. 29). The appeal remains pending on the docket of the Sixth Circuit as Case No. 16-3415.

Analysis

The January 2016 Correspondence

Mr. Russell’s correspondence of January 21, 2016, is an admittedly ex parte attempt to
argue the merits of his case directly to Judge Rice without copying the Assistant Attorney
General representing the Warden. The letter was faxed on January 21, 2016, after Russell’s
attempted delivery of the same by certified mail was returned as “refused.” Russell was at pains
to have the letter delivered directly to Judge Rice; he states “The mailing address has since been
verified by three independent sources, so it is unclear as to why the letter was not delivered to
you.”
Federal judges are strictly forbidden from considering ex parte communications on the
merits of pending cases. Canon 3(A)(4) of the Code of Judicial Conduct. Refusal of a certified
letter from a party is a perfectly appropriate way to comply with that Canon. When the party
2

persists, as Russell did with the fax transmission, another way recognized by the Canons is to
notify the other parties and permit them to respond, which is what Judge Rice has done by
causing the correspondence to be filed and allowing the Warden an opportunity to respond.
With respect to the content of the correspondence, it largely consists of rhetorical
questions arguing the merits of the case. When he dismissed the case last November, Judge Rice
did not decide any of the issues presented on the merits because he agreed with the Magistrate
Judge that the Petition was time-barred (ECF No. 22). The letter concludes with shameless
flattery obviously intended to improperly influence Judge Rice1 and a request for a certificate of
appealability. By that time, Judge Rice had already determined that a certificate of appealability
was not warranted in this case and the letter makes no arguments on the merits of that question.
In sum, nothing in Mr. Russell’s January 2016 correspondence warrants reconsideration
of this Court’s decision to dismiss the case as time-barred.

The July 2016 Objections

Clarification and Expansion of the Record
Mr. Russell combines his Objections with a Motion for Clarification and a Motion to
Correct and/or Expand the Record (ECF No. 37, PageID 650).
In the absence of timely objections to the Second Supplemental Report and
Recommendations, Judge Rice adopted that Report and dismissed the Petition as time barred on

1

“[F]or nearly a year and a half. . .there has been only one judge universally praised by the incarcerated men of this
State for his fairness: you Your Honor.”

3

November 10, 2015 (ECF No. 22). Petitioner’s Objections were received by the Clerk and filed
two days later on November 12, 2015 (ECF No. 23). Those Objections, which contain no
certificate of service or other declaration about when they were deposited in the prison mail
system, were stricken as untimely filed by Notation Order on November 16, 2015.
On December 1, 2015, Russell moved to expand the record, arguing he did timely mail
the objections (ECF No. 24). The Magistrate Judge then granted the motion to expand the record
and vacated the Notation Order striking the Objections (ECF No. 25, PageID 601). Treating the
Objections as a motion to amend the judgment under Fed. R. Civ. P. 59(e), the Magistrate Judge
recommended it be denied. Id. Russell objected (ECF No. 27). Judge Rice overruled the
Objections on March 25, 2016 (ECF No. 28) and Russell appealed April 25, 2016 (ECF No. 29).
Russell correctly points out that the following language in the pending Report and
Recommendations is in error: “Russell never appealed from that decision and his time to appeal
expired December 10, 2015.” (ECF No. 34, PageID 639.) That language is in error and is
WITHDRAWN. Given that ruling, Russell’s Motion to Expand and/or Correct is MOOT.

Objections

The Objections center on criticizing the Magistrate Judge’s reliance on Hall v. Warden,
662 F.3d 745 (6th Cir. 2011), for the proposition that that the conditions of institutional law
service should not be considered in determining whether an inmate is entitled to equitable tolling
of the habeas corpus statute of limitations. Hall is a published decision of the Sixth Circuit Court
of Appeals directly in point. It was decided the year after the Supreme Court held in Holland v.
4

Florida, 560 U.S. 631 (2010), that the AEDPA statute of limitations was subject to equitable
tolling. Hall had missed the deadline by only five days. The Sixth Circuit expressly held that
limited law library access, even when combined with other factors, did not justify equitable
tolling. Hall, 662 F.3d at 752.
Mr. Russell does not deny that Hall holds what the Report and Recommendations says it
holds, repeated above. Instead, he wants this Court to apply different case law. One case on
point for his position is Roy v. Lampert, 465 F.3d 964 (9th Cir. 2006), but this Court may not
follow Ninth Circuit precedent when there is later published Sixth Circuit precedent to the
contrary. The other cases cited by Mr. Russell are distinguished in the Report (ECF No. 34,
PageID 640-41). An exception is Kendrick v. Bland for which Russell previously provided the
incorrect citation “587 F. Supp. 1563”. He has now apologized and provided the citation “587 F.
Supp. 1536”, but the case that appears at that location is Jones v. ITT Educational Services, a
Title VII case from the Eastern District of Missouri and obviously not relevant. There is no case
titled Kendricks v. Bland in the LEXIS district court databased decided since January 1, 2000.
Mr. Russell criticizes the Report for misunderstanding the issue which he says is “access
to the courts,” not necessarily to a prison law library (Objections, ECF No. 37, PageID 650).
However, it is lack of prison law library services on which Russell relied to bolster his equitable
tolling argument. And, Russell emphasizes, it is the law library services at Lebanon Correctional
of which he is complaining, not Ohio prison libraries generally. In fact he reports that at his
current place of imprisonment, he
has, over the last three months, initiated seven different issues in
various courts (the appeal to the Sixth Circuit, certiorari to
SCOTUS of this courts ruling, three motions for mandamus to the
5

Ohio Supreme Court against various agencies of Clark So., Ohio,
this motion for relief from judgment and a civil case against NCCC
concerning inmate theft)

Id. at PageID 653. He thus asserts his diligence in pursuing his rights, because he says all but
one of these filings has to do with this case. The question before the Court is not recent
diligence, but diligence in filing the habeas petition in the first place.
In the midst of his Objections, he asserts that he “was never informed by counsel on the
proper timing for Habeas Corpus (only discovering the proper timing when he received the
motion to dismiss).” Id. But there was no attorney under an obligation to give him this advice.
The right to appointed counsel in a non-capital criminal case extends to the first appeal of right
and no further. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Ross v. Moffitt, 417 U.S. 600
(1974). And ignorance of the law, particularly of the statute of limitations, does not excuse
untimely filing. Actually, the Second District Court of Appeals excused Russell’s failure to file
a 26(B) application for the five months he did not know of the affirmance of his conviction, but
found the application untimely because he waited an entire additional year to file the
26(B)(Report, ECF No. 21, PageID 580). Then he waited more than an additional year before
filing here. Id.
Because the Magistrate Judge has not accepted Russell’s explanations, he asserts “[t]he
Magistrate seems to be calling Mr. Russell a liar by not accepting or investigating the claim that
a particular institution of the State of Ohio is operating outside of both Constitutional parameters
and State mandates . . .” Id. As a cure and in lieu of an evidentiary hearing, Russell moves to
compel discovery pursuant to Fed. R. Civ. P. 26(b). Id. at PageID 654. Discovery in habeas

6

corpus cases is not governed by the Rules of Federal Procedure, but by the Rules Governing §
2254 Cases. Those Rules provide that a habeas petitioner is not entitled to discovery as a matter
of course, but only upon a fact-specific showing of good cause and in the Court’s exercise of
discretion. Rule 6(a), Rules Governing § 2254 Cases; Bracy v. Gramley, 520 U.S. 899 (1997);
Harris v. Nelson, 394 U.S. 286 (1969); Byrd v. Collins, 209 F.3d 486, 515-16 (6th Cir. 2000).
Conducting discovery on the wide scope proposed by Russell is not warranted because it is
untimely, the case being on appeal, and immaterial under the holding in Hall.
Russell reminds the Court that Haines v. Kerner, 404 U.S. 519, 520-21 (1972), requires
liberality in the construction of pro se pleadings. While that is certainly true and well-accepted,
construing a pleading liberally and finding it timely are different exercises.

The liberal

construction required by Haines does not apply to straightforward scheduling requirements
which are as understandable by a layman as by a lawyer. Jourdan v. Jabe, 951 F.2d 108 (6th Cir.
1991). “Where . . . a pro se litigant fails to comply with an easily understood court-imposed
deadline, there is no basis for treating that party more generously than a represented litigant.”
Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). The Sixth Circuit has held that lack of
counsel, lack of a trial transcript, unfamiliarity with the English language, and short time for
legal research in prison do not excuse a pro se prisoner’s failure to appeal to the Ohio Supreme
Court within forty-five days of affirmance on appeal. Bonilla v. Hurley, 370 F.3d 494, 497 (6th
Cir. 2004)(citations omitted).
Mr. Russell really does not want this Magistrate Judge involved with his case. He writes
of the undersigned:
¶ 18. In one of his objections, Mr. Russell noted his concern with
the entrenching mindset of Mr. Merz and requested the case be
removed from his consideration. It is now further disconcerting
7

that the same Magistrate who Petitioner believes made his R&Rs
with the erroneous mindset now questioned has been permitted to
give an R&R for the motion challenging the error. In previous
reports, Mr. Merz iterated the issue of the nature of Mr. Russell's
charges, made note of a not-on-the-record "confession", and
brought up other issues indicative of a mindset biased against the
Petitioner. These issues, however, had no business even being on
the mind of anyone viewing the issues of the process at hand; the
motion by the State to dismiss a habeas petition challenging those
very issues! If the issues of prosecutorial misconduct, ineffective
assistance of counsel, and unconstitutionally flawed evidence (the
claims raised in the habeas the State wishes dismissed) had been
prevented during trial or handled before trial, no reasonable,
properly instructed juror would have voted to convict. Petitioner
believes the Magistrate is making an egregious, deliberate effort to
preserve a conviction without considering the merits of the
Petitioner (Jud Miscon, Rule 3(h)(D)).
(Objections, ECF No. 37, PageID 655.) Although Russell gives no citations to the place or
places in the record where the supposedly biased mindset is displayed, from the examples given,
the Magistrate Judge assumes Russell is referring to the description of the evidence of his crimes
and confession which appear in the Second Supplemental Report and Recommendations on the
merits (ECF No. 21, PageID 582). Because Russell claimed his actual innocence excused his
tardy filing, it was necessary to compare what he claimed was new evidence of that innocence
with what was presented at trial. This is the process commanded by the Supreme Court for
evaluation of actual innocence gateway claims in Schlup v. Delo, 513 U.S. 298, 316 (1995), and
McQuiggin v. Perkins, 569 U.S. ___, 133 S. Ct. 1924, 1928, 185 L. Ed. 2d 1019, 1035 (2013).
The evidence of Russell’s guilt of the crimes he was charged with is completely relevant in
deciding whether he has made out a claim of actual innocence to excuse his untimely filing.

8

Conclusion

Having reconsidered the matter in light of Russell’s Objections, the Magistrate Judge
remains persuaded that Russell’s Motion for Relief from Judgment (ECF No. 33) should be
DENIED. 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.

August 4, 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
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).

9

10