Petition for Writ of Certiorari — Clinton Linder, Petitioner v. James Haviland, Warden

No. 17-3044

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Jan 03, 2018

DEBORAH S. HUNT, Clerk

CLINTON LINDER,

Petitioner-Appellant,

ORDER

V.

JAMES HAVILAND,

Respondent-Appellee.

Before: SILER, GRIFFIN, and STRANCH, Circuit Judges.

Clinton Linder petitions for rehearing en banc of this court's order entered on October

26, 2017, denying his application for a certificate of appealability. The petition was initially

referred to this panel, on which the original deciding judge does not sit. After review of the

petition, this panel issued an order announcing its conclusion that the original application was

properly denied. The petition was then circulated to all active members of the court, none of

whom requested a vote on the suggestion for an en banc rehearing. Pursuant to established

court procedures, the panel now denies the petition for rehearing en banc.

ENTERED BY ORDER OF THE COURT

A 5W~4uw

Deborah S. Hunt, Clerk

No. 17-3044

UNITED STATES COURT OF APPEALS

FOR 1]-1E SIXTH CIRCUIT

FILED

CLINTON L1NDER,

Oct 26, 2017

DEBORAH S. HUNT, Clerk

Petitioner-Appellant,

0RDER

V.

JAMES HAVILAND,

Respondent-Appel lee.

Clinton Linder, an Ohio prisoner proceeding pro se, appeals the district court's judgment

dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254, and applies to

this court for a certificate of appealability ("COA"). See Fed. R. App. P. 22(b). He also moves

to proceed in tbrma paupers ("IFP") on appeal.

In 1993, Linder pleaded guilty to aggravated murder with a firearm specification in the

Cuyahoga County (Ohio) Court of Common Pleas, and the trial court sentenced him to

respective terms of twenty years to life and three years, to run consecutively. The Ohio Court of

Appeals affirmed. Slate i'. Linder, No. 66549, 1994 WL 663536 (Ohio Ct. App. Nov. 23, 1994).

In 2012, Linder filed a motion in state court to withdraw his guilty plea, and then filed an

amended motion, asserting that he was actually innocent and that he received ineffective

assistance of trial counsel. Linder attached an affidavit from Terry Russell, in which Russell

recanted the statements he made in 1993 incriminating Linder. The trial court rejected Linder's

motion, Linder appealed, and the Ohio Court of Appeals affirmed the denial. Slate V. Linder,

No. 99350, 2013 WL 6047182 (Ohio Ct. App. Nov. 14, 2013), appeal denied, 4 N.E.3d 1050

(Ohio 2014) (table).

No. 17-3044

-2In 2014, Linder filed a § 2254 petition in the district court asserting that: (1) he was

actually innocent; (2) newly discovered evidence showed that the police coerced Terry Russell

into testifying against him; (3) the trial court violated his right to due process of law by failing to

convene a three-judge panel on the acceptance of his guilty plea; and (4) he received ineffective

assistance of counsel.

Linder also filed a motion to expand the record seeking witness statements, which the

district court granted. The government explained that it did not have the documents Linder

sought and instead provided supplemental reports, which were missing two pages. Linder flied a

supplemental traverse asserting that the supplemental reports did not satisfy his request.

In 2016, the magistrate judge recommended dismissing Linder's petition because:

(I) Linder did not timely file his habeas corpus petition; (2) he did not provide a reason for the

delay or late discovery of the factual predicate; (3) he was not entitled to equitable tolling; and

(4) he did not provide a convincing claim of actual innocence. Linder objected, arguing that his

actual-innocence claim was strong enough to excuse the late filing. Linder also argued for the

first time that two of his relatives could have provided an alibi.

The district court overruled Linder's objection, adopted the magistrate judge's

recommendation, and dismissed Linder's petition. The district court noted that three other

witnesses implicated Under in the murder and that Linder's claim to an alibi was unsupported by

any evidence.

Linder now applies for a COA and argues that: (I) he is actually innocent and therefore

entitled to file an untimely habeas petition; (2) he is entitled to equitable tolling; and (3) the

government's alleged failure to comply with an order to expand the record prejudiced his habeas

corpus proceedings.

To be issued a COA, the petitioner must make "a substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253(c)(2). To satisfy this standard, the applicant must show

that "jurists of reason could disagree with the district court's resolution of his constitutional

No. 17-3044

-3claims or that jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further," Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

When the district court denies a habeas petition on procedural grounds without

reaching the prisoner's underlying constitutional claim, a COA 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.

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

There is a one-year statute of limitations for habeas petitions challenging state-court

judgments. 28 U.S.C. § 2244(d)(1). Because Linder's conviction became final prior to the

effective date of the Antiterrorism and Effective Death Penalty Act, he had until April 24, 1997,

to file a timely habeas petition. See IsraJll v. Russell, 276 F.3d 768, 771 (6th Cir. 2001). The

statute of limitations is tolled while "a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C.

§ 2244(d)(2). The district court determined that Linder's habeas petition was barred because he

Filed it in June 2014.

The one-year limitations period is equitably tolled if a prisoner shows that he

(1) diligently pursued his rights but (2) some extraordinary circumstance beyond his control

stood in his way. Se.e Holland v. Florida, 560 U.S. 631, 649 (2010); Jones v. United Stales. 689

F.3d 621, 627 (6th Cir. 2012). Linder argues that he is entitled to equitable tolling because the

affidavit was not available until 2012. But although this may explain why Linder did not rely on

the affidavit until 2012, it does not explain why Linder failed to pursue his rights in the years

between losing his appeal in state court and filing this habeas petition, especially because the

third claim in his § 2254 petition. Nor did the affidavit, restart Linder's one-year period to raise

habeas claims. Linder claims that the state trial court violated his due-process rights and that his

lawyer provided ineffective assistance; but he knew the facts relevant to those claims well before

he knew of the affidavit. See 28 U.S.C. § 2244(d)(1)(D).

No. 17-3044

-4The limitations period may also be overcome by a "convincing showing" of actual

innocence. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). This "requires petitioner to

support his allegations of constitutional error with new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—

that was not presented at trial." Schiup v. Delo. 513 U.S. 298, 324 (1995). The Supreme Court

has cautioned that "tenable actual-innocence gateway pleas are rare: '[A] petitioner does not

meet the threshold requirement unless he persuades the district court that, in light of the new

evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable

doubt." McQuiggin, 133 S. Ct. at 1928 (quotingSc/llu[, 513 U.S. at 329).

Linder relies on newly discovered evidence in the form of an affidavit from Terry

Russell. Russell originally made statements incriminating Linder in the murder, but in the

affidavit recants those statements, averring that on the day of the murder he "never even saw

[Linder]" and "[Linder] was never there at all." The magistrate judge concluded that this

affidavit was not sufficient to establish Linder's actual innocence. Reasonable jurists would not

disagree. "Recanting affidavits and witnesses are viewed with extreme suspicion."

United

States v. Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991), superseded on other grounds as

recognized in United States v. Avery, 128 F.3d 9667 972 (6th Cir. 1997). And the timing of

Russell's affidavit, nearly twenty years after Linder pleaded guilty, also renders it suspect. See

Herrera v. Collins, 506 U.S. 390. 423 (1993) (O'Connor, J., concurring) (affidavits produced "at

the 11th hour with 110 reasonable explanation for the nearly decade-long delay" are suspect).

Moreover, according to the supplemental reports, three other witnesses implicated Linder in the

murder. Thus, even with Russell's recantation, a reasonable juror could have voted to find

Linder guilty beyond a reasonable doubt. See McQuiggin, 133 S. Ct. at 1935: Schlup, 513 U.S.

at 332.

Linder also argues in his application for a COA that he was prejudiced by the

government's alleged failure to comply with the district court's order to expand the record. The

government explained that it was unable to locate the records in question after approximately

No. l73O44

-5twenty years and provided supplemental reports containing related information. Linder fails to

establish that the government acted in bad faith by not providing him with the witness statements

or that he was unable to develop his arguments with what the government provided instead. This

claim does not deserve encouragement to proceed further.

Accordingly, this court DENIES Linder's application for a COA, and DENIES the

motion to proceed in forma pauperis as moot.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt. Clerk

//: 413

Case: 1:14-.cv-01489-JGC Doe #: 24 Filed: 12/15/16 1 of 4. PagelD

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 1:14CV1489

Clinton Linder,

Plaintiff

ORDER

V.

James Haviland, Warden,

Defendant

This is a state prisoner's habeas case under 28 U.S.C. § 2254.

In 1993, petitioner Clinton Linder pleaded guilty in the Common Pleas Court

of Cuyahoga

County, Ohio to aggravated murder and received an indeterminate sentence of between

twenty years'

and life imprisonment. The Ohio Court of Appeals, Eighth District, affirmed

the denial of Linder's

motion to withdraw his guilty plea. State v. Linder, 1994 WL 663536 (Ohio App.).

Thereafter, Linder took no steps to challenge his conviction until 2012, when

he filed a

e proved that he

second motion to withdraw his plea on the ground that newly discovered evidenc

g his statement

was innocent. (Doc. 4-12). Linder attached an affidavit from Terry Russell recantin

ting Linder. (Id. at

that Linder was the killer and swearing that police had coerced him into implica

22-23).

The state trial court denied the motion, and the Court of Appeals affirmed that

v. Linder, 2013-Ohio-5018 (Ohio App.). The Ohio Supreme Court denied

for a delayed appeal. State v. Linder, 138 Ohio St. 3d 1432 (2014)

denial. State

Linder's ensuing motion

(table).

414

Case: 1:14-cv-01489JGC Doc #: 24 Filed: 12/15/16 2 of 4. PagelD #:

t;

Linder then filed the pending habeas petition, which alleges: 1) he is actually innocen

2) newly discovered evidence proves his innocence; 3) given that prosecutors charged

Linder with

a capital offense, the Common Pleas Court should have convened a three-judge panel

to accept his

guilty plea; and 4) ineffective assistance of counsel based on the "failure to protect

[]iis] right [sic]

during the critical stages of his wrongful aggravated murder conviction." (Doe. I

at 5, 8-9, ii).

ed that

Pending is Magistrate Judge Limbert's Report and Recommendation, which conclud

the petition is untimely. (Doe. 21). Linder has filed an objection. He does not dispute

that the petition

is time-barred, but does contend that his actual-innocence claim is strong enough to

excuse the late

filing. (Doe. 23)

I have reviewed the R&R de novo in light of Linder's objection, but 1 find no basis

do anything other than accept the R&R, adopt it as part of this order, and dismiss the

there to

petition.

The Magistrate Judge determined that Linder's actual-innocence claim did not meet

the high

ggin v. Perkins,

standard for excusing non-compliance with the limitations period. See Jt'IcQui

U.S.

--,

133 S. Ct. 1924, 1928 (2013). As the Magistrate Judge pointed out, even if one accepted

Russell's recantation at face value, there remained at least three other witnesses -Includ

ing Linder's

uncle, Lee Tisdale

-

who implicated him in the murder. (Doe. 21 at 13); see also Linder, supra,

2013-Ohio-5018, ati5.

This conclusion was entirely sound.

To make out an actual-innocence claim, Linder needed to show that, "in light of

the new

ble

a reasona

evidence, no juror, acting reasonably, would have voted to find him guilty beyond

doubt." McQuiggin, supra, 133 S. Ci. at 1928. He needed to "support his

error with new reliable evidence

-

allegations of constitutional

whether it be exculpatory scientific evidence, trustworthy

2

OCas'e 1:14-cv01489-JGC Doc #: 24 Filed: 12/15/16 3 of 4. PageiD #: 415

PW

eyewitnesses accounts, or critical physical evidence— that was not presented at trial."

Schiup v. Delo,

513 U.S. 298, 324 (1995).

But given the remaining eyewitness accounts implicating Linder, the Russell affidavi

t

-

after the plea

which, like the innocence claim itself, did not emerge until 2012, nearly twenty years

is insufficient to meet that high bar. A rational jury could readily discredit the recantati

on in favor

-

of the other evidence, especially Tisdale's statement, implicating Linder.

also,

Finally, Linder mentions, apparently for the first time in these habeas proceedings (and

it seems, for the first time in any proceeding), that two of his relatives could have

provided an

" for

"alibi." (Doc. 23 at 7). According to Linder, Darlene and Tanisha Kilgore "may have vouched

is supplied).

the fact that Linder was with them at the time of the murder. (Doe. 23 at 7) (emphas

But Linder points to no statement or affidavit from these witnesses themselves,

and his

gin standard.

assertion that they "may" provide an alibi for him plainly does not meet the McQuig

It is, therefore

ORDERED THAT

Linder's objection (Doe. 23) to the Magistrate Judge's Report and Recommendation

be, and the same hereby is, overruled;

The Report and Recommendation (Doe. 21) be, and the same hereby is, adopted as

the order of the court;

The petition for a writ of habeas corpus (Doe. 1) be, and the same hereby is,

dismissed with prejudice;

No certificate of appealability will issue, as reasonable judges would not debate that

the petition is untimely; and

3

PUP

Case: I' .- 14-cv-01489-JG Doc 4: 24 Filed: 12/15/16 4 of 4. PagelD #: 416

W

In accordance with 28 U.S.C. § 191 5(a)(3), 1 certify that an appeal could not be taken

in good faith, and none shall be allowed without prepayment of the filing fee.

So ordered.

/s/ James G. Carr

Sr. U.S. District Judge

4