Payton v. Warden, Chillicothe Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DANIEL G. PAYTON,

CASE NO. 2:19-CV-3391

Petitioner, JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Chelsey M. Vascura

v.

TIM SHOOP, WARDEN,

CHILLICOTHE CORRECTIONAL INST.,

Respondent.

OPINION AND ORDER

On August 14, 2019, the Magistrate Judge issued a Report and Recommendation

pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District

Courts recommending that this action be dismissed as barred by the one-year statute of

limitations provided for under 28 U.S.C. § 2244(d). (ECF No. 3.) Petitioner has filed an

Objection to the Magistrate Judge’s Report and Recommendation. (ECF No. 6.) Pursuant to 28

U.S.C. § 636(b), this Court has conducted a de nove review. For the reasons that follow,

Petitioner’s Objection (ECF No. 6) is OVERRULED. The Report and Recommendation (ECF

No. 3) is ADOPTED and AFFIRMED. This action is hereby DISMISSED.

The Court DECLINES to issue a certificate of appealability.

On February 22, 2006, Petitioner pleaded guilty in the Fayette County Court of Common

Pleas to charges of aggravated murder and kidnapping. On March 14, 2006, the trial court

sentenced him pursuant to the joint agreement of the parties to an aggregate term of thirty years

to life. Petitioner did not file an appeal or otherwise challenge his convictions until October

2016, when he pursued post-conviction relief. The state appellate court dismissed that action as

untimely and barred by res judicata. (Judgment Entry, ECF No. 1-1, PAGEID # 45-46.) On

May 9, 2018, the Ohio Supreme Court declined to accept jurisdiction of the appeal. (Eniry, ECF

No. 1-1, PAGEID # 40.) Approximately fourteen months later, on July 19, 2019, Petitioner

executed this habeas corpus petition. (ECF No. 1-1, PAGEID # 29.)

Petitioner nonetheless objects to the dismissal of this action as time barred. According to

the Petitioner, the statute of limitations has not begun to run because the judgment against him is

void. He also asserts the dismissal of this action will constitute a manifest miscarriage of justice.

Petitioner further alleges that his attorney coerced or threatened him to enter a guilty plea. He

maintains that he was denied the effective assistance of counsel and that his attorney colluded

with the prosecution. According to Petitioner, he diligently pursued relief, but it took him years

to seek redress because neither the trial court nor his attorney advised him of his legal rights, he

“struggled with mental cognizance while under the influence of psychotropic medication,” and in

view of his pro se incarcerated status. (Objection, ECF No. 6, PAGEID # 95-96.)

A petitioner cannot avoid the one-year statute of limitations by characterizing his

conviction as void. See Brock v. Warden, No. 2:16-cv-843, 2018 WL 4442591, at *2 (S.D. Ohio

Sept. 18, 2018) (citing Westerfield v. Warden, Chillicothe Corr. Inst., No. 2:14-ev-2012, 2015

WL 3422269, at *1 (S.D. Ohio May 27, 2015)). Moreover, the record does not reflect that

equitable tolling of the statute of limitations applies. See Holland v. Florida, 560 U.S. 631, 650

(2010). A petitioner is entitled to equitable tolling only if he shows “1) that he has been pursuing

his rights diligently, and 2) that some extraordinary circumstances stood in his way” and

prevented timely filing. Jd. (citing Pace, 544 U.S. at 418), Equitable tolling should be applied

“sparingly.” Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011) (citing Solomon v. United States,

467 F.3d 928, 933 (6th Cir. 2006)). The Supreme Court has allowed equitable tolling where a

claimant actively pursued judicial remedies by filing a timely, but defective, pleading or where

he was induced or tricked by his opponent’s misconduct into allowing the filing deadline to pass.

Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990). Where the claimant failed to exercise

due diligence in preserving his legal rights, courts are much less forgiving. Id.; Jurado v. Burt,

337 F.3d 638, 642-13 (6th Cir. 2003). A prisoner’s pro se incarcerated status, lack of

knowledge regarding the law, and limited access to the prison’s law library or to legal materials

do not provide a sufficient justification to apply equitable tolling of the statute of limitations.

Hall v, Warden, Leganon Corr. Inst., 662 F.3d 745, 751 (6th Cir. 201 1) (citation omitted); see

also Johnson v. United States, 544 U.S. 295, 311 (2005) (“[W]e have never accepted pro se

representation alone or procedural ignorance as an excuse for prolonged inattention when a

statute's clear policy calls for promptness”)). These are conditions typical for many prisoners

and do not rise to the level of exceptional circumstances. Groomes v. Parker, No. 3:07—cv—

0124, 2008 WL 123935, at *5 (M.D. Tenn. Jan.9, 2008) (citing Allen v. Yukins, 366 F.3d 396,

403 (6th Cir. 2004)). Similarly, a habeas petitioner’s reliance on inaccurate legal advice from

counsel generally does not provide a valid ground for equitable tolling of the statute of

limitations. Brown vy. Bauman, No. 2:10-cv— 264, 2012 WL 1229397, at *9 (W.D. Mich. Apr.

12, 2012) (citations omitted); see Holland v. Florida, 560 U.S. 631, 651 (2010) (garden variety

claims of excusable neglect do not justify equitable tolling of the statute of limitations).

Where a petitioner’s mental incompetence or condition prevents him from timely filing a

habeas petition, equitable tolling of the statute of limitations may be warranted. However, “a

bianket assertion of mental incompetence is insufficient to toll the statute of limitations. . ..

Rather, a causal link between the mental condition and untimely filing is required.” Ata,, 662

F.3d at 742 (citing McSwain v. Davis, 287 F. App’x 450, 456 (6th Cir. 2008)). In other words, a

petitioner must establish that his mental incompetence made him unable to comply with the

AEDPA’s statute of limitations in order to obtain equitable tolling on this basis. Billingsley v.

Haviland, No. 18-3042, 2018 WL 3390408, at *2 (6th Cir. July 9, 2018) (citing Ata, 662 F.3d at

742). Further, “[e]quitable tolling based on mental incapacity is limited to ‘exceptional

circumstances.”” Brown v. McKee, 232 F.Supp.2d 761, 768 (E.D. Mich. Nov. 20, 2002) (citing

Smith v, Saffle, 28 F. App’x 759, 760 (10th Cir. 2001) (internal citation omitted)). The petitioner

bears the burden of production and persuasion on this issue. Kitchen v. Bauman, 629 F. App’x

743, 747 (6th Cir. 2015) (citing Ata, 662 F.3d at 741). Applied here, the Court finds that

Petitioner has failed to meet this burden. Nothing in the record indicates that Petitioner’s mental

condition prevented him from timely filing.

In DiCenzi v. Rose, 452 F.3d 465, 470-71 (6th Cir. 2006), the United States Court of

Appeals for the Sixth Circuit held that where a criminal defendant is not advised of and does not

know of his right to appeal, claims relating to events that occurred at the time of sentencing may

be timely under 28 U.S.C. § 2244(d)(1)(D) if the petitioner acted reasonably diligently in

learning about his right to appeal. Again, however, the petitioner bears the burden of proving

that he acted diligently. Jd. at 471 (citation omitted). Further, the Court construes DiCenzi v.

Rose in conjunction with Johnson v. United States, 544 U.S. 295 (2005), which requires

consideration of the petitioner’s exercise of diligence. Thus, a petition will not be deemed timely

where the petitioner fails to act with reasonable diligence. Lacking v. Jenkins, No. 2:15-cv-3 069,

2016 WL 4505765, at *5 (S.D. Ohio Aug. 29, 2016) (citations omitted). In this case, the record

does not reflect that Petitioner acted diligently. Rather, Petitioner waited more than ten-and-one

-half years from the date that the trial court imposed sentence to pursue any state collateral relief.

Petitioner does not explain what action he took during this time to learn about his right to appeal

or identify any factor that would have prevented him from earlier learning about his legal rights.

In addition, Petitioner waited more than one year after the Ohio Supreme Court dismissed his

post-conviction appeal before executing this habeas corpus petition. Petitioner likewise fails to

explain this delay.

The one-year statute of limitations may be equitably tolled upon a “credible showing of

actual innocence.” Souter v. James, 395 F.3d 577, 602 (6th Cir. 2005). Accordingly, “a

petitioner whose claim is otherwise time-barred may have the claim heard on the merits if he can

demonstrate through new, reliable evidence not available at trial, that it is more likely than not

that no reasonable juror would have found him guilty beyond a reasonable doubt.” Yates v.

Kelly, No. 1:11-cv-1271, 2012 WL 487991 (N.D. Ohio Feb.14, 2012) (citing Souter, 395 F.3d at

590). Actual innocence means factual innocence, not mere legal insufficiency. See Bousely v.

United States, 523 U.S. 614, 623 (1998). Petitioner does not allege, and the record does not

reflect, that he can establish that his actual innocence so as to justify equitable tolling on this

basis.

For the foregoing reasons and for the reasons detailed in the Magistrate Judge’s Report

and Recommendation, Petitioner’s Objection (ECF No. 6) is OVERRULED. The Report and

Recommendation (ECF No, 3) is ADOPTED and AFFIRMED. This action is hereby

DISMISSED.

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States

District Courts, the Court now considers whether to issue a certificate of appealability. “In

contrast to an ordinary civil litigant, a state prisoner who secks a writ of habeas corpus in federal

court holds no automatic right to appeal from an adverse decision by a district court.” Jordan v.

Fisher, 135 8. Ct. 2647, 2650 (2015); 28 U.S.C. 2253(c)(1) (requiring a habeas petitioner to

obtain a certificate of appealability in order to appeal). The petitioner must establish the

substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This

standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529

U.S. 473, 484 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). To make

a substantial showing of the denial of a constitutional right, a petitioner must show “that

reasonable jurists could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893

n. 4).

Where the Court dismisses a claim on procedural grounds, however, a certificate of

appealability “should issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district court was correct in its procedural

ruling.” Jd. Thus, there are two components to determining whether a certificate of appealability

should issue when a claim is dismissed on procedural grounds: “one directed at the underlying

constitutional claims and one directed at the district court's procedural holding.” Jd. at 485. The

court may first “resolve the issue whose answer is more apparent from the record and

arguments.” Jd.

This Court is not persuaded that reasonable jurists would debate the dismissal of this

action as time-barred. Therefore, the Court DECLINES to issue a certificate of appealability.

The Court certifies that the appeal would not be in good faith and that an application to

proceed in forma pauperis on appeal should be DENIED.

The Clerk is DIRECTED to enter FINAL JUDGMENT.

IT IS SO ORDERED.

H-i¥-2.014

EDM - SARGUS, JR.

UNIT STATES DISTRICT JUDGE