Powell v. Warden Noble Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Carlin Powell, Case No. 1:21-cv-01591

Plaintiff,

v. ORDER

Jay Forshey, Warden,

Defendant.

This case concerns a writ of habeas corpus under 28 U.S.C. § 2254. I referred the petition

to Magistrate Judge Carmen E. Henderson for a Report & Recommendation. Now before me is

Petitioner’s filing titled “Deprivation of rights under color of law.” (Doc. 47). For the reasons

below, I strike that filing from the docket, and I grant petitioner an opportunity to file a motion to

amend his habeas corpus petition.

Discussion

Following the referral to Judge Henderson, Petitioner filed several motions with the

Court. (See Docs. 17, 20, 23, 34, 35).1 I adopted Judge Henderson’s orders denying those

motions. (Doc. 45, pgID 3267).

I denied Petitioner’s Motion to Reconsider Judge Henderson’s January 20, 2023 order at

Doc. 23. (Doc. 45, pgID 3267–68). I overruled Petitioner’s objections and amended objections to

1 Petitioner titled these motions “Motion for Leave in Request for the Discovery Evidence of the

Documentary ‘I Am Evidence’ for Corroboration in Undisputable Evidence of Facts in Support

of Habeas Corpus” (Doc. 17); “Motion for leave (Request) for the Submittance of ‘New

Evidence’ Pursuant to 2254(e)(1), (A)(i)(ii), (B), (f) along with removable flash drive” (Doc.

20); “Motion/Request for Reconsideration” (Doc. 23); “Motion for Relief from Judgment or

Order” (Doc. 34); and “Motion for Relief from Judgment or Order” (Doc. 35).

Judge Henderson’s May 10, 2023 order at Docs. 36, 38. (Doc. 45, pgID 3267–68). I denied

Petitioner’s “Notice of Incorrect Document Text” at Doc. 40 as irrelevant and moot. (Doc. 45,

pgID 2366 n.3). Finally, I denied Petitioner’s various requests, at Docs. 37, 38, and 39, for leave

to file an interlocutory appeal. (Doc. 45, pgID 3267).2

In light of this slew of ancillary filings, I ordered the clerk not to accept further filings

from the Petitioner outside of any objection he may have to Magistrate Judge Henderson’s

forthcoming Report and Recommendation on the merits. (Id., pgID 3268)). I further cautioned

Petitioner:

[N]oncompliance with the restriction on further filings before Judge Henderson

has issued her Report and Recommendation on the § 2254 Petition will subject

Petitioner to a finding that he is a vexatious litigator. This designation will subject

him to further limitations on his ability to file pleadings in this—or any other

case—he may undertake to bring in this—or any other—Federal Court.

(Id.).

On January 26, 2024, Petitioner filed a document which he styles, “Deprivation of rights

under color of law” (“Filing”). (Doc. 47). This is not an objection to the forthcoming Report and

Recommendation. It violates my prior order restricting Petitioner’s filings in this matter.

Nevertheless, because of its substance, I will consider the Filing here.

Discussion

Because Petitioner is a pro se litigant, I must “construe [his] filings liberally.” Spotts v.

United States, 429 F.3d 248, 250 (6th Cir. 2005) (citing Haines v. Kerner, 404 U.S. 519, 520

(1972)). “The appropriate liberal construction requires active interpretation in some cases[.]”

2 Petitioner also filed three notices of appeal, before any final decision on the merits. (Docs, 28,

29, 31). The circuit court dismissed each for lack of appellate jurisdiction. (Doc. 30, 32, 33).

Stanley v. Vining, 602 F.3d 767, 771 (6th Cir. 2010) (citing Franklin v. Rose, 765 F.2d 82, 85

(6th Cir.1985)).

The Filing purports to be a claim for damages under 42 U.S.C. § 1983 against four

putative defendants—different from the Defendant in the instant habeas corpus petition. (Doc.

47, pgID 2370). The Petitioner never explains who these putative defendants are, but they appear

to be three Cuyahoga County prosecutors that were responsible for the underlying Ohio state

criminal case along with one government trial witness, an investigator with the Cuyahoga

County prosecutor’s office. (See Doc. 13, pgID 38).

According to the Filing, “[the putative defendants] in their individual capacity violated

the plaintiff's constitutional rights of due process, when they all willingly, intentionally, and

mischievously withheld factual visual material discovery interview evidence of informational

interview recordings that was not shared with the plaintiff or his counsel prior to the criminal

trial.” (Id., pgID 2372). Petitioner appears to say that if he received this evidence, he and his

counsel would have been able to cross examine the government trial witness with it. (See id.,

pgID 2384). Petitioner asks for $20 million in damages, but he does not ask me to disturb his

conviction and 126-month incarceration. (Id., pgID 2390; see also Doc. 13, pgID 47–48).

1. Liberal Construction of Petitioner’s Filing

I interpret the Filing as a motion for leave to amend the habeas corpus petition to raise a

new issue that the prosecutors withheld exculpatory evidence in violation of the due process

clause of the Fourteenth Amendment, as established in Brady v. Maryland, 373 U.S. 83 (1963).

I do not interpret the Filing as a 42 U.S.C. § 1983 complaint for three reasons. First,

Petitioner did not file this as a separate lawsuit for damages against new defendants. Instead, he

filed in his pending case seeking relief under 28 U.S.C. § 2254. See Heck v. Humphrey, 512 U.S.

477, 480 (1994) (“This case lies at the intersection of the two most fertile sources of federal-

court prisoner litigation . . . 42 U.S.C. § 1983, and the federal habeas corpus statute, 28 U.S.C.

§ 2254. Both of these provide access to a federal forum for claims of unconstitutional treatment

at the hands of state officials, but they differ in their scope and operation.”).

Second, Petitioner cannot bring a § 1983 claim for a Brady violation related to his current

conviction and sentence. “Habeas corpus is the sole means for an inmate to challenge the legality

or length of his confinement. So damages claims that necessarily imply the invalidity of the

defendant's conviction or sentence are not cognizable under § 1983 unless the conviction or

sentence has previously been invalidated.” Ruiz v. Hofbauer, 325 F. App’x 427, 430 (6th Cir.

2009) (internal citation omitted). Brady violation claims “necessarily implies the invalidity of the

underlying conviction.” Hobbs v. Faulkner, 2020 WL 12933850, at *2 (6th Cir. June 9, 2020)

(quoting Ruiz, 325 F. App’x at 431).

The Ohio appellate court affirmed Petitioner’s convictions. State v. Powell, 2019-Ohio-

4345, ¶ 2 (8th Dist. Ct. App.). No other court has invalidated that result. Thus, Petitioner “cannot

use § 1983 to obtain relief where success would necessarily demonstrate the invalidity of [his]

confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 74–75 (2005).

Third, the Filing, on its face, is time barred as a § 1983 claim. The Filing alleges a Brady

violation that Petitioner learned of during his 2018 jury trial. (See Doc. 47, pgID 2375) (“As the

trial record transcript reveal[s], it wasn’t until the middle of trial . . . that plaintiff was first made

known [sic] about anything regarding [certain evidence and portions of witness interviews].”);

see also Kuhnle Bros., Inc. v. Cnty. of Geauga, 103 F.3d 516, 520 (6th Cir. 1997) (“Ordinarily,

the limitations period starts to run when the plaintiff knows or has reason to know of the injury

which is the basis of his action. In determining when the cause of action accrues in section 1983

actions, we have looked to what event should have alerted the typical lay person to protect his or

her rights.”) (internal citation and quotation marks omitted).

Thus, whatever unconstitutional conduct alleged in the Filing appears to fall well outside

the two-year statute of limitations. See Browning v. Pendleton, 869 F.2d 989, 990 (6th Cir. 1989)

(“[T]he two-year limitations period is the appropriate statute of limitations for actions arising in

Ohio under 42 U.S.C. § 1983.”) (internal citation omitted); see also Montgomery v. Ferentino,

2021 WL 3204843, at *2 (6th Cir. Feb. 24, 2021) ([Plaintiff’s claims] are untimely under Ohio’s

two-year statute of limitations applicable to claims under § 1983 and Bivens.) (citing Browning,

869 F.2d at 992); Kuhnle Bros., supra, 103 F.3d at 519 (applying Ohio’s two-year statute of

limitations in § 1983 cases not concerning personal injury).

2. Motion for Leave to Amend

Petitioner’s Filing attempts to amend his habeas corpus petition to raise a new claim. But

he has not sought leave to do so, and he can no longer amend his petition as a matter of course.

See Fed. R. Civ. P. 15(a)(1); see also Rule 12, Rules Governing Section 2254 Cases in the

United States District Courts (“The Federal Rules of Civil Procedure, to the extent that they are

not inconsistent with any statutory provisions or these rules, may be applied to a proceeding

under these rules.”); cf. Clark v. United States, 764 F.3d 653, 661 (6th Cir. 2014) (“[A] motion to

amend a § 2255 motion [attacking a sentence] is generally governed by the Federal Rules of

Civil Procedure.”). Under Federal Rule of Civil Procedure 15(a)(2), “a party may amend its

pleading only with the opposing party’s written consent or the court’s leave.”

District courts “should freely give leave [to amend pleadings] when justice so requires.”

Fed. R. Civ. P. 15(a)(2). “At the same time, justice does not require courts to allow for

a futile amendment.” Bare v. Cardinal Health, Inc., 2023 WL 395026, at *3 (6th Cir. Jan. 25,

2023).

Allowing Petitioner to amend his habeas corpus petition to add the Brady violation issue

would be futile for two reasons.

First, Petitioner’s Brady violation issue is procedurally defaulted. The doctrine of

procedural default limits access to federal court review of the merits of a constitutional claim.

Daniels v. United States, 532 U.S. 374, 381 (2001). Procedural default may occur in two ways:

(1) failing “to comply with state procedural rules in presenting his claim to the appropriate state

court,” and the state court dismisses the claim on that ground; or (2) failing “to raise a claim in

state court, and pursue that claim through the state’s ordinary appellate review procedures.”

Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (internal quotation marks omitted). “If,

at the time of the federal habeas Petition, state law no longer allows the Petitioner to raise the

claim, the claim is procedurally defaulted.” Id.

Here, Petitioner never raised the instant Brady claim when he sought review in the Court

of Appeals of Ohio. See Powell, supra, 2019-Ohio-4345, ¶ 1. Petitioner’s three assignments of

error on appeal were: “[1] [A witness’s] testimony detailing evidence collection by a forensic

scientist who has since been fired for misconduct violated Powell’s right to confrontation and the

state rules of evidence which bar such hearsay. [2] Powell’s rights to due process and a

fundamentally fair trial were compromised by the jury's improper exposure to evidence of a third

victim who the state did not call as a witness. [3] Powell was deprived of his Sixth Amendment

right to the effective assistance of counsel.” Id. Nowhere did Petitioner argue on appeal that the

government withheld exculpatory evidence in violation of Brady and its progeny. The Ohio

courts never had the opportunity to evaluate Petitioner’s Brady claim, and it is therefore

procedurally defaulted. Williams, supra, 460 F.3d at 806 (“[I]f an Ohio petitioner failed to raise a

claim on direct appeal, which could have been raised on direct appeal, the claim is procedurally

defaulted.”).

Second, Petitioner’s Brady claim is barred by the one-year statute of limitations period

for § 2254 petitions. The limitation period runs 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.” 28 U.S.C. §2244(d)(1).

The state-court judgment became final on October 13, 2020, when the Ohio Supreme

Court declined review. State v. Powell, 2020-Ohio-4811 (Sup. Ct.). Petitioner learned of the

potential Brady violation during the 2018 jury trial. (See Doc. 47, pgID 2375). Both instances are

well outside the one-year statute of limitations. Petitioner’s Brady claim is time-barred.

Therefore, allowing Petitioner an opportunity to amend his habeas corpus petition to add

a Brady claim—or any other procedurally defaulted or time-barred claim—would be futile. See

Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (discussing the futility

of an amendment where it could not withstand a motion to dismiss). I deny his Motion to Amend

the Habeas Corpus Petition.

Conclusion

It is, therefore, ORDERED THAT:

1. The Filing titled “Deprivation of rights under color of law” (Doc. 47) be, and the

same hereby is, construed to be a Motion for Leave to Amend the Habeas Corpus

Petition.

2. Petitioner’s Motion for Leave to Amend the Habeas Corpus Petition be, and the same

hereby is, denied as futile.

3. Petitioner shall not file any other papers other than one filing stating his

objections to Judge Henderson’s forthcoming Report& Recommendation on the

merits. Noncompliance with this restriction will subject Petitioner to a finding

that he is a vexatious litigator. This designation will subject him to further

limitations on his ability to file pleadings in this—or any other case—he may

undertake to bring in this—or any other—Federal Court.

4. The Clerk is directed to return Petitioner’s original Filing (Doc. 47), and the Clerk

shall mail a copy of this order to Petitioner at his current address.

SO ORDERED.

/s/ James G. Carr

Sr. U.S. District Judge