Petition for Writ of Certiorari — Alan Singleton, Petitioner v. Tom Watson, Warden

Case: 22-3071

Document: 13-1

Filed: 06/30/2022

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Deborah S. Hunt

Clerk

Page: 1

Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: June 30, 2022

Ms. Maura O'Neill Jaite

Office of the Attorney General

of Ohio

30 E. Broad Street

23rd Floor

Columbus, OH 43215

Mr. Alan Singleton

North Central Correctional

P.O.Box 1812

Marion, OH 43301

Re: Case No. 22-3071, Alan Sngleton v. TomVtetson

Originating Case No. : l:19-cv-00249

Dear Counsel and Mr. Singleton,

The Court issued the enclosed Order today in this case. Judgment to follow.

Sincerely yours,

s/Ryan E. Orme

Case Manager

Direct Dial No. 513-564-7079

cc: Ms. Sandy Opacich

Enclosure

No mandate to issue

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Case: 22-3071

Document: 13-2

Filed: 06/30/2022

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Page: 1

No. 22-3071

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Jun 30, 2022

DEBORAH S. HUNT, Clerk

ALAN SINGLETON,

Petitioner-Appellant,

v.

TOM WATSON, Warden,

Respondent-Appellee.

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ORDER

Before: CLAY, Circuit Judge.

Alan Singleton, a pro se Ohio prisoner, appeals a district court’s judgment denying his

28 U.S.C. § 2254 petition for a writ of habeas corpus. He has applied for a certificate of

appealability (“COA”) and has moved to proceed in forma pauperis (“IFP”) on appeal. See Fed.

R. App. P. 22(b), 24(a)(5).

Singleton was convicted at a bench trial of gross sexual imposition and kidnapping with a

sexual-motivation specification. Prosecution witnesses included the victim’s mother, a sexual

assault nurse examiner (“SANE”), a social worker, and a police detective. The victim, Singleton’s

four-year-old daughter, did not testify because she had been found incompetent at a pretrial

hearing. The trial court merged the counts of conviction and sentenced Singleton to life in prison

with the possibility of parole. The Ohio Court of Appeals affirmed the trial court’s judgment on

June 30, 2016. State v. Singleton, 69 N.E.3d 118 (Ohio Ct. App. 2016).

On September 11, 2017, Singleton moved for leave to file a motion for new trial, asserting

that the victim’s mother had lied under oath and that he had newly discovered evidence of the

mother’s untreated mental illness. That evidence consisted of a complaint against the mother filed

by the Cuyahoga County Division of Children and Family Services on October 27, 2016, alleging

that the mother had neglected her children and had “untreated mental health problems, specifically

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-2post-traumatic stress disorder, bipolar disorder, depression, and anxiety.” At a hearing on the

complaint, the mother conceded the allegation of mental illness. On October 20, 2017, the trial

court denied Singleton’s new-trial motion as untimely.

On June 21,2018, Singleton filed a motion in the Ohio Supreme Court for a delayed appeal

of his criminal judgment. The court denied his motion on August 15, 2018.

In his § 2254 petition, filed February 1, 2019, Singleton raised the following claims:

(1)

the evidence presented at trial was insufficient to prove his guilt beyond a

reasonable doubt because the SANE nurse expressed doubt about her own

statements;

(2)

trial counsel rendered ineffective assistance by failing to expose the SANE

nurse’s doubts about her statements;

(3)

the SANE nurse’s testimony was not expressed as a probability and

therefore was inadmissible;

(4)

the victim’s statements did not meet the requirements for hearsay

exceptions;

(5)

trial counsel rendered ineffective assistance by failing to cross-examine the

victim during the competency hearing;

(6)

trial counsel rendered ineffective assistance by failing to properly impeach

the mother with a police report;

(7)

trial counsel rendered ineffective assistance by failing to question a police

officer about his relationship with the victim’s mother;

(8)

the social worker’s entire testimony was hearsay, depriving Singleton of his

right to confront witnesses and his right to a fair trial;

(9)

trial counsel rendered ineffective assistance by failing to obtain a medical

expert to identify the victim’s white discharge;

(10)

trial counsel rendered ineffective assistance by failing to impeach the social

worker about “tapping” on the victim’s leg;

(11)

new evidence, i.e., the Family Services complaint against the mother,

revealed that the mother was incompetent to testify at trial; and

(12)

the trial judge should not have looked at case law when determining guilt.

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-3The State responded that Singleton’s § 2254 petition was time-barred and that his claims were

unexhausted or otherwise procedurally defaulted. Singleton replied that the untimeliness of his

petition should be excused due to actual innocence.

A magistrate judge recommended denying Singleton’s § 2254 petition as untimely. After

considering the Family Services complaint in conjunction with the evidence presented at trial, the

magistrate judge concluded that Singleton had not made a sufficient showing of actual innocence

to toll the one-year statute of limitations. The magistrate judge observed:

At trial, the sexual assault nurse examiner testified about her findings of redness,

swelling, and tissue damage to the victim’s genitalia, all of which were consistent

with digital touching. A social worker testified that the child-victim pointed to the

vaginal area on a drawing and disclosed that Mr. Singleton touched her there with

his finger.

The Complaint, on the other hand, does not establish when [the mother] was

diagnosed with the identified mental health conditions, whether she suffered from

those conditions at the time of trial, or the effect, if any, those conditions may have

had on her ability to testify truthfully.

Singleton filed objections, arguing in part that the magistrate judge did not fairly consider all of

the evidence.

The district court overruled Singleton’s objections, finding that they were merely

restatements of his claims. The court declined to issue a COA.

In his COA application, Singleton argues that he was denied due process when the district

court refused to review his objections de novo and that his proof of actual innocence should excuse

the untimeliness of his petition.

An individual seeking a COA is required to make a substantial showing of the denial of a

federal constitutional right. 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s resolution of his

constitutional claims 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

appeal concerns a district court’s procedural ruling, a COA should issue if the petitioner

demonstrates “that jurists of reason would find it debatable whether the petition states a valid claim

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-4of 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).

A § 2254 petition must be filed within one year after the latest of certain events, including

“the date on which the judgment became final by the conclusion of direct review or the expiration

of the time for seeking such review” and “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)(A), (D).

A prisoner may toll the limitations period by properly filing a state

application for post-conviction review. 28 U.S.C. § 2244(d)(2).

If a prisoner fails to file a timely § 2254 petition, the prisoner is entitled to equitable tolling

of the limitations period upon a showing that he was diligently pursuing his rights but was

prevented from timely filing the petition by an extraordinary circumstance. Holland v. Florida,

560 U.S. 631,649 (2010); Jones v. United States, 689 F.3d 621,627 (6th Cir. 2012). Alternatively,

the untimeliness of a petition may be excused on the ground of actual innocence when a petitioner

“show[s] that it is more likely than not that no reasonable juror would have convicted him in the

light of the new evidence.” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup v.

Delo, 513 U.S. 298, 327 (1995)).

Although Singleton arguably waived any challenge to whether his § 2254 petition was

timely filed by tendering deficient objections, this court may excuse his default in the interests of

justice. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Keeling v. Warden, Lebanon Corr. Inst.,

673 F.3d 452, 458 (6th Cir. 2012).

In any event, jurists of reason would agree that Singleton did not file his § 2254 petition

within one year of the conclusion of direct review. His deadline for filing a direct appeal with the

Ohio Supreme Court was August 14, 2016, 45 days after the Ohio Court of Appeals affirmed his

criminal judgment. See Ohio S.Ct.Prac.R 7.01(A)(1). The limitations period then began to run

and expired one year later on August 14, 2017. Singleton did not file his petition until 2019.

Moreover, he did not toll the limitations period by seeking collateral review in state court within

the one-year period, and his subsequent attempts to do so did not revive the limitations period. See

Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003).

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-5Jurists of reason would agree that Singleton is not entitled to equitable tolling of the

limitations period because he has not demonstrated that he was prevented from timely filing his

§ 2254 petition by an extraordinary circumstance. Furthermore, for the reasons stated by the

magistrate judge, jurists of reason would agree that Singleton has failed to make a showing of

actual innocence sufficient to excuse the untimeliness of the petition. See Perkins, 569 U.S. at 399.

To the extent that Singleton seeks to raise a free-standing claim of actual innocence, the

Supreme Court has not recognized such a claim in a non-capital case. See Herrera v. Collins, 506

U.S. 390, 404 (1993); Hodgson v. Warren, 622 F.3d 591, 601 (6th Cir. 2010).

Accordingly, the court DENIES Singleton’s COA application and DENIES as moot his

IFP motion.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

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:ase: l:19-cv-00249-BYP Doc#: 38 Filed: 12/21/21 lof7. PagelD#:900

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ALAN SINGLETON,

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Petitioner,

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v.

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CASE NO. L19CV249

JUDGE BENITA Y. PEARSON

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NEIL TURNER, in his official capacity as

Warden,

Respondent.

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MEMORANDUM OF OPINION AND

ORDER

[Resolving ECF Nos. 29, 31, 32,35]

Pending before the Court is Petitioner Alan Singleton’s Objection to Magistrate Judge

Darrell A. Clay’s (“Magistrate Judge Clay”) Report and Recommendation. ECF No. 35.} The

case was referred to Magistrate Judge Clay for a Report and Recommendation pursuant to 28

U.S.C. § 636 and Local Rule 72.2. Magistrate Judge Clay recommended that the Court deny the

petition because it was untimely. ECF No. 34. Also, Magistrate Judge Clay recommended that

Petitioner’s pending motions to supplement the record (ECF Nos. 29, 3J_, 32) be denied as moot.

For the following reasons, Petitioner’s objections are overruled, the Report and

Recommendation is adopted, the petition is dismissed, and Petitioner’s pending motions to

supplement the record are denied as moot.

1 Petitioner filed a duplicative copy of his objections to Magistrate Judge Clay’s

Report and Recommendation. ECF No. 36.

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(1:19CV249)

I. Background

In March 2015, Petitioner was charged with multiple sexual violence-related offenses in

Cuyahoga County Common Pleas Court.2 In April 2015, Petitioner pled not guilty to each

charge. After waiving his right to a jury trial, the state trial court found Petitioner guilty of gross

sexual imposition and kidnapping in July 2015. In August 2015, Petitioner filed a Motion for

Judgment of Acquittal that was denied 8 days later. Petitioner was sentenced to life in prison

with the possibility of parole, after fifteen years.

In September 2015, with the assistance of newly appointed appellate counsel, Petitioner

appealed the conviction and sentence, arguing that (l) the trial court erred by determining that

the child witness was incompetent but still allowing the child’s statement into evidence, (2) the

trial court erred by admitting incriminating statements and impermissible hearsay statements, (3)

trial counsel was ineffective because they failed to (i) effectively cross examine the state’s expert

witness, and (ii) pursue the defense that the child victim’s injuries were self-inflicted, (4) due

process was denied because the prosecution asserted incorrect sentencing alternatives, and (5) all

the convictions are against the manifest weight of the evidence. The state appellate court

affirmed the convictions and the sentence in June 2016.

In September 2017, through his appellate counsel, Petitioner filed a Motion

for Leave to File a Motion for New Trial. Petitioner claimed that he was entitled to a new trial

because the prosecution’s main witness lied under oath and suffered from an untreated mental

illness. The state trial court denied Petitioner’s motion, finding that Petitioner’s motion was not

filed timely, and failed to meet the clear and convincing evidentiary standard.

2 The State of Ohio v. Alan Singleton, Case No. CR-15-593884-A.

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In June 2018, Petitioner moved the state trial court for an order requiring the prosecuting

attorney to turn over exculpatory evidence. The court, interpreting the motion as post-conviction

relief, denied the request. That same month, Petitioner appealed both the trial court’s denial of

the motion and a Motion for Delayed Appeal with the Ohio Supreme Court. As a basis for the

delayed appeal, Petitioner asserted legal claims of (1) ineffective assistance of counsel, and (2)

perjury. The Ohio Supreme Court denied his motion for delayed appeal in August 2018. Two

days after the Ohio Supreme Court’s denial, Petitioner filed another Motion for Post-Conviction

Relief, which the state trial court denied as untimely.

Petitioner filed the instant habeas petition on February 1, 2019 (ECF No. 1-3) setting

forth twelve grounds for relief under 28 U.S.C. § 2254:

1. “The evidence presented at trial was insufficient to prove petitioner’s guilt

beyond a reasonable doubt. The SANE nurse repeatedly expressed doubt in

her own statements.” ECF No. 1-3 at PagelD #: 23 -27. (emphasis in original).

2. “Petitioner was denied his right to effective assistance of counsel as guaranteed

by the 6th Amendment. Counsel failed to expose the SANE nurse’s doubts.” ECF

No. 1 -3 at PagelD #: 27 - 29. (emphasis in original).

3. “The SANE nurse’s testimony was not expressed as a probability and was

therefore inadmissible.” ECF No. 1-3 at PagelD #: 29-30. (emphasis in original)

4. “The victim’s statements did not meet the requirements to be hearsay

exceptions (Ohio R. Evid. 807).” ECF No. 1 -3 at PagelD #: 31 - 34.

5. “Petitioner was denied his right to effective assistance of counsel as guaranteed

by the 6th Amendment. Counsel did not cross-examine the child during the

competency hearing.” ECF No. 1-3 at PagelD #: 34.

6. “Petitioner was denied his right to effective assistance of counsel as guaranteed

by the 6th Amendment. The victim’s mother’s testimony was inconsistent

with the police reports.” ECF No. 1-3 at PagelD #: 35 - 37.

7. “Petitioner was denied his right to effective assistance of counsel as guaranteed

by the 6th Amendment. Counsel failed to question police officer about

relationship with victim’s mother.” ECF No. 1-3 at PagelD #: 37 - 38.

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8. “The social worker’s entire testimony was heresay [sic]. He should not have

been allowed to testify at all. Petitioner was denied his right to confront

witnesses and was denied a fair trial.” ECF No. 1-3 at PagelD #: 39 — 41.

9. “Petitioner was denied his right to effective assistance of counsel. Counsel did

not obtain a medical expert to identify the victim’s white discharge.” ECF No. 1-3

at PagelD #: 41 -43.

10. “Petitioner received ineffective assistance of counsel. Counsel should have

impeached the social worker about “tapping” on the victim’s leg.” ECF No. 1-3 at

PagelD#: 44-45.

11. “New evidence obtained after trial reveals that the State’s main witness, the

victim’s mother, was incompetent to testify.” ECF No. 1-3 at PagelD #: 46.

12. “Judge should not have looked at case law when determining petitioner’s guilt

or innocence.” ECF No. 1 -3 at PagelD #: 46 - 48.

Having found that Petitioner’s habeas petition was filed one and a half years after the

cutoff, and that Petitioner did not demonstrate entitlement to statutory equitable tolling,

Magistrate Judge Clay recommended that it be dismissed as time-barred. ECF No. 34 at PagelD

#: 873. Relatedly, because the petition was time-barred, Magistrate Judge Clay recommended

that Petitioner’s pending motions to supplement the record (ECF Nos. 29, 31, 32) be denied as

moot. ECF No. 34 at PagelD #: 873 - 74. Magistrate Judge Clay further recommended that

Petitioner not be granted a certificate of appealability. ECF No. 34 at PagelD #: 874.

II. Standard of Review for a Magistrate Judge’s Report and Recommendation

When objections have been made to the Magistrate Judge’s Report and Recommendation.

the District Court standard of review is de novo. Fed. R. Civ. 72fb¥31. A district judge: “must

determine de novo any part of the magistrate judge’s disposition that has been properly objected

to.” Id. The district judge may accept, reject, or modify the recommended disposition; receive

further evidence; or return the matter to the magistrate judge with instructions.” Id.

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(1:19CV249)

Pursuant to 28 U.S.C. $ 2254(d). as amended by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), a writ of habeas corpus may not be granted unless the state court

proceedings: (1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the

United States; or (2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. 5

2254('d~)m-('2~): see also Harris v. Stovall. 212 F.3d 940. 942 f6th Cir. 20001

A federal court may review a state prisoner’s habeas petition only on the grounds that the

challenged confinement violates the Constitution, laws or treaties of the United States. 28

U.S.C. § 2254(a). A federal court may not issue a writ of habeas corpus “on the basis of a

perceived error of state law.” Pulley v. Harris, 465 U.S. 37. 41 0984'); see Smith v. Sowders,

848 F.2d 735. 738 (6th Cir, 1988V Because state courts are the final authority on state-law

issues the federal habeas court must defer to and is bound by the state court’s rulings on such

matters. See Estelle v. McGuire. 502 U.S. 62. 63 (19911 (“[I]t is not the province of a federal

habeas court to reexamine state-court determinations on state-law questions”); see also Cristini

v. McKee, 526 F.3d 888. 897 (6th Cir, 20081 (“[A] violation of state law is not cognizable in

federal habeas [] unless such error amounts to a fundamental miscarriage of justice or a violation

of the right to due process in violation of the United States Constitution.”)

III. Discussion

Petitioner raises two objections to Magistrate Judge Clay’s Report and Recommendation.

In the first objection, Petitioner claims that Magistrate Judge Clay “did not fairly consider all the

evidence in recommending that [the] petition be dismissed, violating the standards set by the

U.S. Supreme Court.” ECF No. 35 at PagelD #: 876. Petitioner cites the record, specifically

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challenging the credibility of the testimony of a nurse at trial. Petitioner avers that the nurse was

not certain beyond a reasonable doubt and, therefore, no reasonable juror could have found the

Petitioner guilty. ECF No. 35 at PagelD #: 876 - 879. In the second objection, Petitioner states

that “trial counsel was ineffective in violation of the Sixth Amendment, constituting both cause

and prejudice.” ECF No. 35 at PagelD #: 879. As support, Petitioner claims trial counsel was

ineffective because (1) they did not challenge the testimony of Nurse Bogard, and (2) no medical

expert was called. Id. at PagelD #: 879 - 881.

Petitioner is unable to meet the requisite standard for habeas relief. The grounds offered

by Petitioner are merely a restatement of Grounds One, Two, Three, and Nine raised in the initial

petition. Objections to a magistrate judge’s Report and Recommendation are not opportunities to

reassert arguments already raised in the original habeas petition. Roberts v. Warden. Toledo

Corr. Inst.. No. 1:08-CV-00113. 2010 WL 2794246. at *7 (S.D. Ohio July 14. 2010) (“The Court

is under no obligation to review de novo objections that are merely perfunctory or an attempt to

have the Court reexamine the same arguments set forth in the original petition”); Speed v.

Fender. No, 1:18-CV-1296. 2021 WL 4437056. at *8 fN.D. Ohio Sent. 28. 2020 (stating that

petitioner's “restatement of the arguments in his petition is not a proper objection” under §

2254); Warmus v. Larose. No. 14 CV 1925. 2017 WL 392969. at *9 (N.D. Ohio Jan. 30.

2017s) (overruling petitioner's objection because it “merely restates the arguments” in the original

petition.). Because Petitioner's objections were already raised in his original petition, and

addressed in Magistrate Judge Clay’s Report and Recommendation, both objections are

overruled.

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(1:19CV249)

IV. Conclusion

Petitioner’s Objections (ECF No. 35) are overruled and the Report and Recommendation

fECF No. 341 is adopted. Alan Singleton’s Petition for a Writ of Habeas Corpus (ECF No. 1) is

dismissed. Petitioner’s pending motions to supplement the record (ECF Nos. 29, 31, 32) are

denied as moot.

The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3). that an appeal from this decision

could not be taken in good faith, and that there is no basis upon which to issue a certificate of

appealability. 28 U.S.C. 6 2253(c): Fed. R. Add. P. 22(bl

IT IS SO ORDERED.

A/ Benita Y. Pearson

Benita Y. Pearson

United States District Judge

December 21, 2021

Date

7

Case: 22-3071

Document: 16-1

Filed: 08/26/2022

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Deborah S. Hunt

Clerk

Page: 1

Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: August 26, 2022

Ms. Maura O'Neill Jaite

Office of the Attorney General

of Ohio

30 E. Broad Street

23rd Floor

Columbus, OH 43215

Mr. Alan Singleton

North Central Correctional

P.O. Box 1812

Marion, OH 43301

Re: Case No. 22-3071, Alan Sngleton v. TomV\fetson

Originating Case No. : l:19-cv-00249

Dear Counsel and Mr. Singleton,

The Court issued the enclosed Order today in this case.

Sincerely yours,

s/Ryan E. Orme

Case Manager

Direct Dial No. 513-564-7079

cc: Ms. Sandy Opacich

Enclosure

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No. 22-3071

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Aug 26, 2022

DEBORAH S. HUNT, Clerk

ALAN SINGLETON,

Petitioner-Appellant,

v.

TOM WATSON, Warden,

Respondent-Appellee.

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ORDER

Before: SILER, MOORE, and WHITE, Circuit Judges.

Alan Singleton, a pro se Ohio prisoner, petitions this Court to rehear its order of June 30,

2022, denying his application for a certificate of appealability (“COA”). See Fed. R. App. P. 22(b).

After careful consideration, we conclude that the court did not overlook or misapprehend

any point of law or fact when it denied Singleton’s COA application. See Fed. R. App. P. 40(a)(2).

Accordingly, we DENY Singleton’s petition for rehearing.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk