Petition for Writ of Certiorari — David Randolph Bedell, Petitioner v. Scott Jordan, Warden

Appendix A

Case 3:16-cv-00 33-CRS Document 13

Filed 06/29/17 Page 1 of 10 PagelD #:

3226

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCY

LOUISVILLE DIVISION

DAVID RANDOLPH BEDELL'

PETITIONER

V.

CIVIL ACTION NO. 3:16-CV-P763-CRS

SCOTT JORDAN

RESPONDENT

MEMORANDUM OPINION AND ORDER

Petitioner, David Randolph Bedell, filed this actio

n pursuant to 28 U.S.C.. § 2254,

seeking a writ of habeas corpus (DN 1) His petition

of-counsel claims as well as a "cumulative effect"

raised a number of meffective-assistance-

claim On preliminary consideration under

Rule 4 of the Rules Governing Section 2254 Case

s in the United States District Courts, the Court

directed Petitioner to show cause why his petition

state court remedies and as outside the applicable

should not be denied for failure to exhaust his

statute of limitations.: Petitioner has responded

(DN 9)

In addition to filing his response, Petitioner has filed

petition (DN 8) and a document titled "Objections

a motion to amend his habeas

Regarding the Proceedings of this Case"

(DN 10):

Motion to amend

In his motion to amend (DN 8), Petitioner states that

that, rather than answering "no" to the question of

he wishes to amend his petition so

whether other than direct appeals he has filed

"any other petitions, applications, or motions conc

erning this judgment of conviction in any state

court," the petition' would indicate that he filed a moti

on for transcript of the record on or around

August 24, 1994. He attaches a copy of a Kentucky

Jefferson Circuit Court's denial of his request to be

Court of Appeals opinion affirming the

provided a.tria1 transcript at state expense.

Case 3:1G-cv-00763CRS Document 13 Filed

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The appellate court affirihed that denial in an opin

ion rendered May 3, 1996. He also attaches a

Suprémç Court of Kentucky order entered April 16,

1997, denying discretionary review of the

appellate court decision not to provide a transcript

.

IT IS ORDERED that Plaintiff's motion (DN 8)

to correct his petition to include his

post-conviction request for a transcript of the reco

rd is GRANTED

Objections to the proceedings in this case

In his "Objections Regarding the Proceedings of this

Case" (DN 10), Petitioner objects to

this Court's Order to show cause why this case shou

ld not be dismissed That document argues

that the Court erred by applying de novo review of

his habeas petition

As set forth in the Court's show cause Order, the Cour

t must conduct prelimmary

0

consideration of the habeas petition under Rule 4

of the Rules Governing Section 2254 Cases in

the United States District Courts Under that Rule

every habeM petition filed pursuant to 28

U.S.C. § 22,54. must be examined, and if "it plain

ly appears from the petition and any attached

exhibits that the petitioner is not entitled to relief

in the district court, the judge must dismiss the

petition and direct the clerk to notify the petitione

r" Only if the petition is not dismissed on

preliminary review, will Respondent be ordered to

•

-

Mean answer or other response. It is this

preliminary review in which the Court is engaging

.

Response to show cause

In 1990, Petitioner was convicted of murder with

a sentence of life without parole for

twenty-five years; first-degree rape with a sentence

of twenty years; kidnapping with a sentence

of twenty years; first-degree wanton endangerment

with a sentence of five years; and first-degree

unlawful imprisonment with a sentence of five year

s, all sentences to run consecutively. In

1993, on dfrect appeal, the Kentucky Supreme Cour

t affirmed the convictions but remanded for

13

2

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Page 3 of 10 PagelD #: .3228

an order directing all other sentences of imprisonment to run concurrently

life imprisonment without parole for twenty-five years. Bedell v.

with the sentence of

Commonwealth, 870 S.W.2d

779, 783 (Ky. 1993)

According to the petition as amended, Petitioner's only post-convict

ion' motion in state

court was the motion for transcript of the record

...

..............

• Exhaustion

........................

..

...........

.....

..-...

It is axiomatic that one may not seek federal habeas corpus relief until

all available state remedies or demonstrated their inadequacies 28 U

he has exhausted

S C § 2254(b), Hannah v

Conley, 49 F 3d 1193, 1196 (6th Cir 1995) (per curiam) Any allege

d constitutional

deprivations must be asserted through the state appellate process

)

O'Sullivan v Boerckel, 526

U.S. 838, 845 (1999) The exhaustion doctrine is designed to give -state

courts "a full and fair

opportunity to resolve federal constitutional claims before those claims

are presented to the

federal courts," therefore, "state prisoners must give the state courts

one full opportunity to

resolve any constitutional issues by invoking one complete round of

the State's established

appellate review process" Id The burden is on the petitioner to demon

strate compliance with

the exhaustion requirement or that the state procedure would be futile

Rust v Zent, 17 F 3d 155,

160 (6th Cir 1994)

"[I}n Kentucky, claims of ineffective-assistance-of-counsel can be brough

t both in a

collateral proceeding pursuant to RCr 11.42 or on direct appeal."

Foley v. White, No. CIV.A.

6:00-552-DCR, 2013 WL375185, at *6 (E.D.Ky. Jan.30, 2013),

amended, No. CIV.A. 6:00-

552-DCR, 2013 WL 990828 (ED Ky. Mar. 12,2013), aff'd, 835

F 3d 561 (6th Cir. 2016)

(citing Humphrey v. Commonwealth, 962 S.W.2d 870

) 872-73 (Ky. 1998); Rodriquez v.

Petitioner's filings actually refer to "post-collateral" proceedings, which

the Court assumes to be a reference to

post-conviction proceedings.

Case 3:16-cv-00753-CRS Document 13 Filed 06/29

/17 Page 4 of 10 PagelD #: 3229

Commonwealth, 87 S.W.3d 8, 11-12 (Ky. 2002)). Petitioner's direc

t appeal did not raise issues

of ineffective assistance of counsel. Bedell v. Commonwealth,

file any post-conviction motion other than his request for a

870 S.W.2d at 780. He did not

transcript of the record.

In response to the show cause 'Order, Petitioner argues that

process only allows a State prisoner a "one-shot' procedure"

Kentucky's "post-collateral"

and asserts that even after

acquiring further knowledge of ineffective assistance of couns

el, there are no available remedies

in Kentucky court DN 9 He cites to the portion of his petiti

on asserting that under RCr 11.42 a

state prisoner can file only one "post-collateral motion challe

nging counsel's effectiveness"

DN 1 at 99 However, according to the petition, Petitioner

never filed an RCr 11.42 motion

Moreover, "post-conviction claims of actual innocence based

a'

typically presented to the state courts via a motion pursuant

on newly-discovered evidence are

to Kentucky Rules of Civil

PEocedure (CR) 6002(t." Cross v. 'White, No. 515CV00158TB

RLLK, 2016 WL 737939, at *3

(W.D. Ky. Feb. 23, 2016). Thus, Petitioner has not shown

that he exhausted his state-court

remedies or that it would have been futile to do so.

Statute of limitations

•'

'

The Antiterrorism and Effective Death Penalty Act (AEDPA),

statute of limitations is set

out in 28 U.S.C. § 2244(d)(1) as follows:

(d)(1) A 1-year period of limitation shall apply to an applicatio

n for a writ of

habeas corpus. by a person in custody pursuant to the judgm

ent of a State court.

The limitation period shall run from the latest of—

the date on which the judgment became final by

the

conclusion of direct review or the expiration. of the time

for

seeking such review;

the date on which the impediment to filing an applicatio

n

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;

4

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10 PagelD #: 3230

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

the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of

due diligence.

.'

Additionally, the statute provides that "[t]he time during which a properly tiled

application for State post-conviction or other collateral review with respect to the pertinen

t

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

this

subsection" § 2244(d)(2)

/

For a petitioner, like the one here, whose state appeals concluded prior to the 1996

passage of AEDPA, courts have applied ,a one-year grace period and hold that the statute

of

.

limitations expires one year from the passage of the AEDPA, that is, on April 24, 1997

Allen v

Yukzns, 366 F 3d 396, 400 (6th Cir 2004)

The statute of limitations in § 2244(d)(1) is not jurisdictional and is subject to equitable

tolling. Sherwood v. Prelesnik, 579 F.3d 581, 587-88 (6th Cir. 2009). However, the Sixth.

Circuit cautions that equitable tolling relief should be granted sparingly. Id. at 588.

Petitioner

bears the burden of denlonstrating that he is entitled to equitable tolling. Connol

ly v. Howes, 304

F. App'x.412, 417 (6th Cir. 2008).

Petitioner has not shown cause why his petition should not be dismissed as untimely.

First, Petitioner argues in his response to the order to show cause that the time period in

RCr 11.42 is a statute of repose, not a statute of limitation. This argument is to no avail.

First, it

is the statute of limitations set out in AEDPA about which the Court is concerned. Second,

RCr 11.42 contains a statute of limitations. See, e.g., Commonwealth v. Stacey,

177 S.W.3d 813,

815 (Ky. 2005) (discussing RCr 11.42(10)'s statute of limitations). Third, a statute of repose

5

is

a

Case. 3.16-cv-007 63- C R S Document 13 Filed 06/29/17 Page 6 of 10

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not subject to equitable tolling. CTS Corp. v. Waldburger,

H

U.S.

134 S. Ct. 2175, 2183

• (2014) ("Statutes of limitations, but not statutes of repose, are subject to equitable

tolling..

.

Petitioner also argues actual innocence predicated on new evidence as tolling the statute

of limitations. He points to "Section (f), Claim for relief IV" (pages .152-70) of his petition.

His

argument in thatsectipn of the petition'dods hat idetitify any new evidence Instead, he points

to

the unreliability of atrial witness, the failure of his defense counsel to investigate and develop

a

trial theory, and defense counsel's failure to raise Petitioner's innocence during trial

The Supreme Court has explained that "actual innocence means factual innocence, not

mere legal insufficiency" Bousley. v United States, 523 U.S.- 614, 623 (1998).::"T6 be credible

,

such a claim 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 counseled that the actual innocence exception should "remain rare"

and "only be applied in the extraordinary case" Id at 321 (internal quotation marks omitted)

Because Petitioner points only to alleged deficiencies of witnesses and counsel during

trial, he has not pointed to any new reliable evidence showing that he is actually innocent of

the

crimes of conviction. See, e.g., Lenoirv. Warden, S. Ohio Corr. Facility; 886 F Supp. 2d 718,

729 (S.D: Ohio 2012) (holding that evidence available at trial is not new evidence); see also

Gulertekzn v Tinnelman-Cooper, 340 F 3d 415, 427 (6th Cu 2003)

• Petitioner also argues that the statute of limitations should be equitably tolled. "To be

• entitled to equitable tolling, [Petitioner] must show '(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely

6

11

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PagelD #: 3232

1•

filing." Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quoting Pace v. DiGuglielmO, 544 U.S.

408,418 (2005)).

Petitioner asserts that he suffered from a state-created impediment to filing. In support,

he points to sections of his petition which argue that he asked for, but was denied by the state

courts,-a free-copy-of all proceedings in- his-case" .--However.-he also states in that setion that he

was provided his "work-product documentation" in 19.97.

First, Petitioner's alleged difficulty in obtaining transcripts does not establish that the

State created an impediment to the filing of his habeas petition in a timely maimer. A prisoner

has no constitutional right to transcripts on collateral review of a conviction, see United States v

.

MacCollom, 426 U.S. 317, 323-24 (1976), and the lack of a transcript itself is not a circumstance

which justifies tolling of a limitations period See Grayson v Grayson, 185 F Stipp 2d 747,

751-52 (E .D. Mich 2002) The Court further notes that requests or motions for transcripts and

other legal materials do not operate to toll the one-year period See Johnson v Randle, 28 F

App'x 341, 343 (6th Cir 2001)

Second, under § 2244(d)(1)(B), the limitations period begins to run on the date that the

•

state-created impediment to filing is removed. Even were access to the trial transcripts to be

considered a state-created impediment, by Petitioner's own reckoning, that impediment was

-removed in 1997 when his attorney provided him with the "work-product documentation."

Powell v. Berghuis, No. 05-CV-70205-DT, 2006 WL 1547726, at *3 (E.D. Mich. Jan., 5, 2006).

Petitioner further argues that from 1998 up to and including August 19, 2009, he was "in

the process of preparing his Federal Habeas Corpus Application, Memorandum of Law in

Support, and an Evidentiary Appendix." He states that in June 1999 he was required to store

excess legal materials pursuant to policies of the Kentucky Department of Corrections; that his

7

/

Case 3:16-cv-00763CRS Document 13 Filed 06/29/17 Page 8 of 10 PageD #: 3233

hardback legal books were confiscated in 2007 when he was transferred to Northpoint Training

Center (NTC); and that the prison law library was inadequate. He further states that on August

20, 2009, he left his petition mNTC's library, and on the next day the library burned to the

ground in a riot

-

To the extent that Petitier claifns that añ madequate prison la' library amünth to i

-

-

state-created impediment, the Sixth Circuit has found that restricted access to prison law libraries

does not constitute a state-created impediment unless the restrictions deny the prisoner access to

the courts See Macun v Robinson, 74 F App'x 587, 589 (6th Cir, 2003), see also Williams v

Brunsman, No 1 08-cv-136, 2009 WL 816265, at *6 (S D Ohio Mar 26, 2009)

Even were the Coirtto consider having to store excess legäl.rnaterials, having legal

books confiscated or the prison library burnmg to be state-created impediments to filmg, all of

these events happened well beyond the expiration of the one-year time period See Colwell v

Tanner, 79 F App'x 89, 93 (6th Cir. 2003) ("Not only must the state impede the petitioner in

some fashion, but also that obstruction must cause the untimely filing of the petition")

Finally, even if Petitioner had shown that an extraordinary circumstance stood in his way,

he would still not be entitled to equitable tolling because he also has the burden of establishing

(I

that he ha4 been pursuing his rights diligently. See Lawrence, 549 US. at 335; Pace, 544 U.S. at

418. Although Petitioner asserts that he has been diligent, he own statements show otherwise.

Petitioner states that he received his defense counsel's "work-product documentation" in

1997; that he -completed his review of that work-product documentation in January 1999; and

that from 1998 up to and including August 19; 2009, he was in the process -of preparing his

habeas petition. But, "AEDPA does not convey a right to an extended delay while a habeas

petitioner gathers every possible scrap of evidence that might support his claim. Neither does the

8

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r

-I-1

i

doctrine of equitable tolling grant such a right." Jurado v. Burt, 337 F.3d 638, 644 (6th dr.

2003) (citing Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998)). The statute of limitations

expired one year from the passage of the AEDPA, i.e., on April 24, 1997 Petitioner did not file

his habeas petition until November 30, 2016 2 A petitioner, even one proceeding without the aid

ofoutLse1;who does not filrptitton nitiI nearly twenty yearraftr the statute of limitations

had expired, clearly 'Was not diligent in pursuing his rights. Johnson v. United States, 544. U.S.

2953 297 (2005) ("[lihe Court has never accepted pro se representation alone or procedural

ignorance as an excuse for prolonged inattention when a statute's clear policy calls for

promptness "), Allen v Yukins, 366 F 3d at 403 (noting that the Sixth Circuit "has declined to

apply equitable tolling where the delay was far less than seven months")

For the foregoing reasons, the Court will, by separate Order, deny the petition and

e...

dismiss this action

CERTIFICATE OF APPEALABILITY

An individual who unsuccessfully petitions for writ of habeas corpus in a federal district

court and subsequently seeks appellate review must secure a certificate of appealability ("COA")

from either "a circuit justice or judge" before the appellate court may review the appeal

28 U.S.C. § 2253(c)(1). A COA may not issue unless "the applicant has made a substantial

showing of the denial of a constitutional right." 5 2253(c)(2);Slack v. McDaniel, 529 U.S. 473,

483(2000).

When a district court denies such a motion on procedural grounds without addressing the

merits of the petition, a COA should issue if the petitioner shows "that jurists of reason would

find it debatable whether the petition states a' valid claim of the denial of a constitutional right

2 Under the mailbox rule, a prisoner's action is deemed filed on the date it was presented to prison

officials for

mailing. Miller v. Collins, 305 F.3d 491, 497-98 (6th Cir. 2002) (citing Houston v. Lack, 487 U.S. 266 (1988)).

According to the petition in this case, that date was November 30, 2016.

9

19

Case 3:16-cv-00763-CRS Document 13 Filed 06/29/17 Page 10 of 10 PagelD #: 3235

j

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

procedural ruling." Slack, 529 U.S. at 484.

When a plain procedural bar is present and a court is correct, to invoke it to dispose of the

matter, a reasonable jurist could not conclude either that the court erred in dismissing the petition

or that the petitlonr should b allowed to proceed firth

Id In such a case, no ppeal is

warranted Id. The Court is satisfied that no jurist of reason could find its procedural ruling to

be debatable Thus, no certificate of appealability is warranted in this case

The Court will enter an Order consistent with this Memorandum Opinion and Order.

Date June 29, 2017

cc

Charles SisOtt

Senior Judge

United States District Court

Petitioner, pro se

Respondent

Attorney General, Commonwealth of Kentucky, Office of Criminal Appeals, 1024 Capital Center Drive,

Frankfort, KY 40601

4411 009

LN

10

Appendix B

I

1: N6.-47,. 585

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

DAVID RANDOLPH BEDELL,

)

)

Petitioner-Appellant,

Feb 13, 2018

DEBORAH S. HUNT, Clerk

)

)

V.

)

ORDER

)

SCOFF JORDAN, Warden,

)

)

Respondent-Appellee.

)

)

)

0

David Randolph Bedell, a Kentucky prisoner proceeding pro Se, appeals a district court

order dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

Bedell has filed an application for a certificate of appealability and a motion to proceed in forma

nauneri S.

In 1990, Bedell was convicted of murder, first-degree rape, kidnapping, first-degree

wanton endangerment, and first-degree unlawful imprisonment. The Kentucky Supreme Court

affirmed Bedell' s convictions but remanded the case for the entry of an order directing all of his

sentences to run concurrently. Bedell v. Commonwealth, 870 S.W.2d 779 (Ky. 1993). In August

1994, Bedell filed a motion for production- of his trial transcript and a motion to proceed in forma

pauperis, which the trial court denied. The Kentucky Court of Appeals affirmed the trial court's

decision in May 1996, and the Kentucky Supreme Court denied leave to appeal in April 1997. In

November 2016, Bedell filed a § 2254 petition. The district court determIned that Bedell failed

E

l

to exhaust his state court remedies, that the §. 2254 petition was untimely, that Bedell was not

entitled to equitable tolling, and that he did not make a viable claim of actual innocence.

No. 17-5859

-2Accordingly, the district court dismissed the § 2254 petition and declined to issue a certificate of

appealability.

A certificate of appealability may be issued "only if the applicant has made a substantial

showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To satisfy this standard

when the district court has denied a § 2254 petition on. procedural grounds, a petitioner must

show "that jurists of reason would find, it. debatable: whether the petition states a valid claim of

the denial of a constitutional right and' that] urists' 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).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a oneyear statute of limitations for filing a federal habeas corpus petition. 28 U.S.C. § 2244(d)( 1).

Generally, a habeas petition must 'be filed :with'in' :a year of "the date on which the judgment

became final by the conclusion of direct review or the expiration of the time for seeking such

review." 28 U.S.C. § 2244(d)(1)(A). However, because Bedell's convictions became final prior

to the effective date of AEDPA, the statute of limitations began running on April 24, 1996. See

Griffin v. Rogers, 399 F.3d 626, 632 (6th Cir. 2005). Since Bedell filed a post-conviction motion

prior to AEDPA's effective date, the statute of limitations arguably remained tolled until April

1997, when the Kentucky Supreme Court denied leave to appeal.

See 28 U.S.C.

§ 2244(d)(2). Therefore the statute of limitations resumed running on April 17, 1997, and

expired one year later on April 17, 1998. Because the § 2254 petition was not filed prior to April

1998, reasonable jurists could not disagree 'with the district court's determination that the

§ 2254 petition was time-barred under § 2244(d)(1).

Section 2254's statute of limitations may be equitably tolled when a petitioner shows

"that he has been pursuing his rights diligently" and "that some extraordinary circumstance stood

in his way and prevented timely filing." Hail. v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749

(6th Cir. 2011) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). Even if he were able to

show that extraordinary circumstances prevented the timely filing of his habeas petition, Bedell

is unable to demonstrate that he pursued his rights diligently because he waited almost twenty

No. 17-5859

-3-

4

years before filing the § 2254 petition. See Jurado v. Burt, 337 F.3d 638, 644 (6th Cir. 2003).

Accordingly, reasonable jurists would not find it debatable whether the district court erred in

determining that Bedell was not entitled to equitable tolling.

In extraordinary cases a colorable claim of actual innocence may be used as a gateway to

review an otherwise barred constitutional claim. McQuiggin v. Perkins, 569 U.S. 383, 386

(2013). In order to show actual innocence based upon new evidence, a petitioner must establish

that "in light of the new evidence, no juror, acting reasonably, would have voted to find him

guilty beyond a reasonable doubt." Id. .(quoting Schiup v. Delo, 513 U.S. 298, 329 (1995)).

While Bedell asserts that biological testing of evidence would establish his actual innocence, he

has not produced any such evidence exonerating him. Accordingly, reasonable jurists would not

find it debatable whether the district court erred in determining that Bedell did not make a

credible showing of actual innocence.

Under these circumstances, reasonable jurists would not debate the district court's

determination that the § 2254 petition was untimely, that Bedell was not entitled to equitable

tolling, and that he did not make a credible showing of actual innocence. Accordingly, we

DENY the application for a certificate of appealability and DENY the motion to proceed in

forma pauperis as moot.

ENTERED BY ORDER OF THE COURT

1411/LI'

Deborah S. Hunt, Clerk