Camelin v. Warden, Southeastern Correctional Institution

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Scott M. Camelin,

Petitioner, Case No. 2:21-cv-4070

Vv. Judge Michael H. Watson

Warden, Southeastern Magistrate Judge Jolson

Correctional Institution,

Respondent.

OPINION AND ORDER

Scott M. Camelin (“Petitioner”) objects to aspects of the Report and

Recommendation (“R&R”) issued by the Magistrate Judge in this habeas corpus

case. Obj., ECF No. 19. For the following reasons, Petitioner’s objections are

OVERRULED.

I. PROCEDURAL HISTORY

On May 19, 2017, Petitioner was indicted on ten counts of rape and nine

counts of sexual battery—all involving his minor daughter—by a Ross County

Grand Jury (“Case 1”). Record, ECF No. 6, PAGEID ## 26-31. The State later

filed a second indictment under a different case number, charging another count

of sexual battery (“Case 2”). /d., PAGEID ## 37-38. The trial court subsequently

consolidated the two cases. /d., PAGEID # 43.

On April 6, 2018, Petitioner moved to dismiss the indictment in Case 1 for

speedy trial violations and filed an identical motion to dismiss Case 2 a few days

later. /d., PAGEID ## 44-60. Shortly thereafter, the trial court held a hearing

and denied the motions to dismiss. /d., PAGEID ## 73-74. The same day,

Petitioner entered a plea of no contest to three counts of Sexual Battery (counts

eleven, thirteen, and nineteen), and the trial court sentenced him to an aggregate

term of ten years. /d., PAGE ID ## 75-79.

Petitioner appealed to the Fourth District Court of Appeals; his sole

contention of error was the trial court’s ruling on his speedy trial motion. /d.,

PAGEID ## 80-106. On March 22, 2019, the Fourth District overruled his

contention of error and affirmed the judgment of the trial court. /d., PAGEID

## 133-45. Petitioner timely appealed to the Supreme Court of Ohio, but the

Supreme Court of Ohio declined to accept jurisdiction on July 23, 2019. /d.,

PAGEID ## 146-47, 178. Petitioner did not seek a writ of certiorari before the

Supreme Court of the United States.

On August 2, 2021, Petitioner filed a pro se federal habeas petition with

one ground of relief, “Due Process, Speedy Trial.” Petition, ECF No. 1, PAGEID

#5. Respondent moved to dismiss the petition as untimely, arguing it is barred

by the statute of limitations. ECF No. 7. Without receiving leave to amend his

petition, Petitioner then filed a traverse in which he purportedly raised two

additional grounds for relief, although all three grounds still related to the alleged

denial of Petitioner's due process and speedy trial rights. ECF No. 11.

Subsequently, and again without receiving leave to do so, Petitioner filed an

“amended pro se traverse,” in which he raised a fourth ground for relief: actual

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innocence. ECF No. 13. Specifically in response to Respondent's arguments

about the statute of limitations, Petitioner argues that equitable tolling saves his

petition. ECF Nos. 11, 13, & 19.

ll. REPORT AND RECOMMENDATION

Pursuant to the Court’s General Orders, Magistrate Judge Jolson issued

an R&R on Respondent's motion. R&R, ECF No. 16. The R&R recommends

granting the motion and dismissing the petition as untimely. /d. It considers

Petitioner's arguments about equitable tolling and actual innocence but finds they

lack merit. /d. Petitioner timely objected to the R&R. Obj., ECF No. 19.

lll. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 72(b), the Court determines de

novo those portions of the R&R that were properly objected to.

IV. ANALYSIS

As the R&R correctly explained, under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA’), there is a one-year statute of limitations

for habeas corpus petitions filed under 28 U.S.C. § 2254. The statute provides

as follows:

(d)(1) A 1-year period of limitation shall apply to an application for a

writ of habeas corpus by a person in custody pursuant to the judgment

of a State court. The limitation period shall run 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

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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.

(2) The time during which a properly filed application for State post-

conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period

of limitation under this subsection.

Here, only § 2244(d)(1)(A) is relevant. Pursuant to that provision,

Petitioner's judgment became final on October 21, 2019, when the time to

petition to the Supreme Court of the United States for a writ of certiorari expired.

So, his statute of limitations expired on October 21, 2020. Petitioner did not file

his petition until August 2021. ECF No. 1. So, it is untimely and, therefore, must

be dismissed unless some exception applies.

Petitioner offers two arguments against dismissal. First, he argues that

equitable tolling should apply because he had trouble obtaining his case file from

his trial attorney and because the prison restricted access to the law library and

other resources during the COVID-19 pandemic. Obj., ECF No.19. Next, he

argues that the Court should excuse his untimeliness because he is actually

innocent. /d.

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A. Equitable Tolling

AEDPA’s limitations period is not jurisdictional and is subject to equitable

tolling. Holland v. Fla., 560 U.S. 631, 645-49 (2010). Such equitable tolling,

however, is granted sparingly in habeas cases. See Hall v. Warden, Lebannon

Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011). To establish equitable tolling, a

petitioner must demonstrate that (1) he has “been pursuing his rights diligently,”

and (2) some “extraordinary circumstance stood in his way” and prevented him

from filing in a timely fashion. Holland, 560 U.S. at 649 (internal quotation marks

and citations omitted). The petitioner bears the burden of showing that he is

entitled to equitable tolling. Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011).

Here, Petitioner offers two factual bases for equitable tolling. First, he

asserts that he had difficulty obtaining his case file from his attorney, and,

second, he argues that the prison restricted access to the law library and other

resources due to the COVID-19 pandemic. Obj., ECF No. 19.

Petitioner does not show “extraordinary circumstances.” It “is well-settled

in the Sixth Circuit that [a] petitioner's pro se status, lack of legal knowledge, or

lack of access to legal materials are not sufficient to warrant equitable tolling.”

Klein v. Warden, Ohio State Penitentiary, No. 1:21-CV-357, 2022 WL 356539, at

*8 (S.D. Ohio Feb. 7, 2022) (collecting cases). 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). The mere inability to obtain transcripts or other relevant court

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documents does not constitute an extraordinary circumstance justifying equitable

tolling of the statute of limitations. See Hall, 662 F.3d at 751 (citations omitted);

see also Chrysler v. Guiney, 14 F.Supp.3d 418, 444 (S.D.N.Y. 2014) (citations

omitted).

Here, the restricted access to the law library and other resources is exactly

the type of circumstance that is “typical of many prisoners” and is not an

“extraordinary circumstance.” See Groomes, 2008 WL 123935, at *5.

As to his attorney’s alleged delinquency in sending his case file, that

argument fails for several reasons. First, as the R&R explained, Petitioner

contacted his attorney only twice within the limitations period; all of Petitioner's

other communications with his attorney occurred after the limitations period

expired. R&R, ECF No. 16. More importantly, however, Petitioner does not

explain, nor does the Court see, how the case file was necessary for Petitioner to

file his habeas petition. That is, at all times since the trial court’s hearing on his

speedy trial motions and subsequent plea, Petitioner has known about the facts

related to the tolling of his speedy trial rights. /d. (citing the record). Thus, even

without his case file, Petitioner “clearly knew what took place at [the trial court]

and what his grounds for relief were.” Hall, 662 F.3d at 751. So, Petitioner's

arguments about his lack of access to legal materials and his case file are

without merit.

To the extent that Petitioner argues the COVID-19 pandemic by itself

warrants tolling the statute of limitations, that argument is unpersuasive. True, as

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the R&R explained, the “COVID-19 pandemic may qualify as an extraordinary

circumstance justifying equitable tolling of the statute of limitations.” Hager v.

Warden, Ross Corr. Inst., No. 2:21-CV-2472, 2021 WL 2291319, at *3 (S.D. Ohio

June 4, 2021), report and recommendation adopted, No. 2:21-CV-2472, 2021

WL 2670622 (S.D. Ohio June 29, 2021) (citation omitted). However, even

assuming that the pandemic was an extraordinary circumstance warranting

tolling the statute of limitations as to Petitioner—a somewhat dubious

assumption, as explained at length in the R&R—he could not rely on the

pandemic to toll the statute of limitations. Petitioner had five months of his

limitations period prior to the pandemic that were unaffected by COVID-19, and

he has not shown that he diligently pursued his claims during that time. R&R,

ECF No. 16. In other words, Petitioner does not demonstrate that he diligently

pursued his claims from the time his judgment became final (October 21, 2019)

to the start of pandemic-related restrictions in approximately March 2020. As

another court of appeals has explained, if a petitioner does not explain his lack of

diligence during the months before the pandemic-related restrictions went into

place, equitable tolling is inappropriate. See Donald v. Pruitt, 853 F. App’x 230,

234 (10th Cir. 2021) (“[The petitioner] has not explained why he was not diligent

for the nine months before COVID restrictions were implemented. Therefore,

[he] hasn't made the requisite showing that he is due an exception to the

statutory bar.”). So, because Petitioner does not demonstrate that he diligently

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pursued his claims before the start of the COVID-19 pandemic restrictions, the

pandemic does not excuse his untimeliness.

For these reasons, equitable tolling is not appropriate in this case.

B. Actual Innocence

Petitioner also argues that his untimeliness should be excused because he

is actually innocent. The one-year statute of limitations may be subject to

equitable tolling upon a reliable “credible showing of actual innocence.”

McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). A petitioner must overcome a

high hurdle to establish his actual innocence; to succeed, he must “show that it is

more likely than not that no reasonable juror would have convicted him in the

light of the new evidence.” /d. at 399 (internal quotation marks and citations

omitted). “Thus, the threshold inquiry is whether new facts raise sufficient doubt

about the petitioner’s guilt to undermine confidence in the result of the trial.”

Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005) (cleaned up). Although a

petitioner who asserts a claim of actual innocence need not establish diligence,

unexplained delay “bears on the determination whether the petitioner has made

the requisite showing.” McQuiggin, 569 U.S. at 399 (internal quotation marks

and citations omitted).

Here, Petitioner has failed to provide credible evidence of actual

innocence. As the Magistrate Judge explained, the only “new evidence”

Petitioner submitted was an alibi as to count nineteen only (one of the counts to

which he pled guilty). First, this alibi is hardly “new” as it is provided by his son,

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and both Petitioner and his son would have known of their whereabouts at the

time Petitioner entered his plea. Even assuming, however, that the Court

considered this alibi as sufficient “new evidence” for actual innocence as to count

nineteen, Petitioner has submitted no new evidence which casts any doubt on

the other two counts to which he pleaded guilty. So, as the R&R aptly held,

Petitioner has not demonstrated actual innocence."

Petitioner objects to the R&R’s conclusions on actual innocence for

several reasons. First, he argues that if he is innocent of count nineteen

(because of his “new” alibi), he must be innocent of a// counts. Petitioner

apparently reads the other counts as being dependent on count 19. Froma

review of the indictments, the Court disagrees—each count reads as a stand-

alone offense. Record, ECF No. 6, PAGEID ## 26-37. Neither is there any

indication in the plea or judgment entry that Petitioner’s convictions on counts

eleven and thirteen were dependent on the conviction on count nineteen. /d. at

PAGEID ## 75-79. Further, to the extent Petitioner argues that the State’s case

largely hinged on the victim’s testimony and, if Petitioner presented his alibi, the

1 In one of his “responses” to the motion to dismiss, Petitioner makes several arguments

about his alibis. For example, he asserts that he had alibis for eighteen of the nineteen

counts of the original indictment. Response, ECF No. 11-1, PAGEID # 298. To

whatever extent these arguments are attempts to demonstrate actual innocence, they

are without merit. If for no other reason, Petitioner provides no specifics about what his

alibis are (beyond references to “work schedule” or “room numbers”) and, therefore, the

Court cannot evaluate whether they meet the actual innocence standard. See, e.g.,

Response, ECF 11, PAGEID ## 274-86. Further, Petitioner does not demonstrate how

these alibis are so ironclad that no reasonable jury could convict him of the charged

offenses. So, to whatever extent Petitioner is arguing these alibis are a basis for actual

innocence, that argument fails.

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victim’s credibility would be undermined, that argument is far too speculative.

Even assuming all those “ifs” came to pass, a reasonable jury could still choose

to believe the victim over the alibi witness, and could certainly believe the victim

as to the other eighteen counts. In other words, this argument does not show “it

is more likely than not that no reasonable juror would have convicted him in the

light of the new evidence.” McQuiggin, 569 U.S. at 399 (internal quotation marks

and citations omitted). So, the argument is without merit.

Next, Petitioner argues that he could not have committed the acts alleged

in count nine because the victim was at a doctor’s appointment at the time of the

charged crimes. This argument is irrelevant as he did not plead guilty to, and

was not convicted of, count nine.

Finally, Petitioner argues that the allegations against him were false. In

addition to generally arguing that the indictments were based on false

allegations, Petitioner also argues that the victim was untruthful in her reports

about his crimes (apparently both convicted and alleged). None of these

arguments are persuasive. Most of Petitioner’s complaints of “false allegations”

and “liars” are so vague and conclusory that the Court cannot evaluate their

merit. The only “false accusation” complaint for which Petitioner provides

specificity is his argument that the victim gave an inaccurate physical description

of him because she misdescribed a birth mark. This argument also fails. First,

Petitioner makes no effort to explain how this allegedly untrue statement was not

known to him at the time of his guilty plea. In other words, Petitioner does not

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explain how this is “new evidence.” Second, even if this untrue statement were

“new evidence,” one incorrect description of a birthmark is not the kind of fatal

blow that means “no reasonable jury” would have convicted Petitioner. See

Hayes v. Dir., No. 3:16CV144, 2017 WL 474146, at *5 (E.D. Va. Feb. 3, 2017)

(rejecting a habeas petitioner's argument that his actual innocence could toll the

statute of limitations where the petitioner asserted that a victim misdescribed the

color of his jacket). So, this argument is unavailing.

Accordingly, Petitioner has failed to establish that he is entitled to equitable

tolling based on actual innocence.

V. OTHER MATTERS

Petitioner has two pending motions: a motion for discovery, ECF No. 14,

and a motion for an evidentiary hearing, ECF No. 15, both apparently related to

the statute of limitations issue. The R&R recommended that both motions be

denied because the petition is untimely. R&R, ECF No. 16. Even read liberally,

Petitioner offers only general objections to this conclusion. See, e.g., Obj., ECF

No. 19, PAGEID # 558 (“I do believe that an evidentiary hearing would prove

what I’m claiming can be proven to be true.”). Generally, the “failure to file

specific objections to a magistrate’s report constitutes a waiver of those

objections.” Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004) (citation

omitted). Therefore, the Court is not obligated to review those portions of the

R&R. Moreover, neither evidentiary hearings nor discovery are a matter of

course in habeas proceedings. See, e.g., DiCenzi v. Rose, 452 F.3d 465, 472

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(6th Cir. 2006) (explaining that a district court should only hold an evidentiary

hearing on statute of limitations issues in habeas cases in special

circumstances); Bracy v. Gramley, 520 U.S. 899, 904 (1997) (“A habeas

petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery

as a matter of ordinary course.”). Petitioner has not directed the Court's attention

to any exception to that general rule here, nor is the Court independently aware

of any. So, in agreement with the Magistrate Judge, Petitioner's motions, ECF

Nos. 14 and 15, are DENIED.

VI. CONCLUSION

For these reasons and for the reasons detailed in the R&R, Petitioner's

objections, ECF No. 19, are OVERRULED. The R&R, ECF No 16 is ADOPTED

and AFFIRMED. This action is hereby DISMISSED as barred by the one-year

statute of limitations under 28 U.S.C. § 2244(d).

Vil. CERTIFICATE OF APPEALABILITY

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

States District Courts, the Court must consider whether to issue a Certificate of

Appealability. A state prisoner who seeks a writ of habeas corpus in federal

court does not have an automatic right to appeal a district court’s adverse

decision unless the court issues a Certificate of Appealability. 28 U.S.C.

§ 2253(c)(1)(A). The district court makes the first determination as to whether to

issue a Certificate of Appealability in appeals of § 2254 or § 2255 petitions.

Kincade v. Sparkman, 117 F.3d 949, 953 (6th Cir. 1997).

Case No. 2:21-cv-4070 Page 12 of 13

When a claim has been denied on procedural grounds, a Certificate of

Appealability may be issued if the petitioner establishes “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.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). As reasonable jurists would not disagree with the Court's

analysis, Petitioner is DENIED a Certificate of Appealability.

Moreover, the Court CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that

any appeal of this Opinion and Order would be objectively frivolous and therefore

would not be taken in good faith.

The Clerk is DIRECTED enter judgment in favor of Respondent and close

this case.

IT IS SO ORDERED. | / Ky

L Le Lusch bY (tary

M EL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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