Ayers v. Ohio Dep't of Rehab. & Corr.

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KAYLA JEAN AYERS, PETITIONER, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS, DIRECTOR, RESPONDENT.

No. 5:20-cv-1654

United States District Court, N.D. Ohio, Eastern Division

August 2, 2023

MEMORANDUM OPINION AND ORDER

HONORABLE SARA LIOI UNITED STATES DISTRICT COURT CHIEF JUDGE

Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge Carmen E Henderson, recommending dismissal of the petition for writ of habeas corpus filed, pursuant to 28 U.S.C. § 2254, by petitioner Kayla Jean Ayers (“Ayers” or “petitioner”). (Doc. No. 18.) Ayers filed timely objections to the R&R, pursuant to Fed.R.Civ.P. 72(b)(2). (Doc. No. 20.) Respondent Director of the Ohio Department of Rehabilitation and Corrections (“Respondent”) filed no opposition to the objections and the time for doing so under the rule has expired. Because the petition is time-barred, and Ayers is not entitled to equitable tolling the petition is dismissed.

I. Standard of Review

Under 28 U.S.C. § 636(b)(1), “[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” See also Powell v. United States, 37 F.3d 1499 (Table), 1994 WL 532926, at *1 (6th Cir. Sept. 30, 1994) (“Any report and recommendation by a magistrate judge that is dispositive of a claim or defense of a party shall be subject to de novo review by the district court in light of specific objections filed by any party.”); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.”) “An ‘objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an ‘objection' as that term is used in this context.” Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich. 2004). After review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

II. Timeliness

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“ADEPA”), “[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.” 28 U.S.C. § 2244(d)(1). This one year period runs from the latest of four events: the date on which the state court judgment became final by the conclusion of direct review; the date on which a State-created impediment to filing an application has been removed; the date on which a constitutional right is newly-recognized by the Supreme Court; or the date on which the factual predicate of the claims presented could have been discovered through the exercise of due diligence. § 2244(d)(1)(A)-(D).

The statute of limitations is subject to equitable tolling in circumstances where a petitioner demonstrates: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (internal quotation marks and citation omitted). The Sixth Circuit has stated, however, that “federal courts sparingly bestow equitable tolling.” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000) (citing cases); see, e.g., Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010)). “Typically, equitable tolling applies only when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond the litigant's control.” Graham-Humphreys, 209 F.3d at 560-61 (citation omitted). “Absent compelling equitable considerations, a court should not extend limitations by even a single day.” Id. at 561 (citation omitted). The petitioner bears the burden of proof and must satisfy both prongs of the test to be entitled to equitable tolling. See Menominee Indian Tribe of Wisc. v. United States, 577 U.S. 250, 256, 136 S.Ct. 750, 193 L.Ed.2d 652 (2016); Keenan v. Bagley, 400 F.3d 417, 420 (6th Cir. 2005).

III. De Novo Review

A. Ayers' Petition and the R&R

The R&R sets forth the factual predicate for the underlying criminal offenses, as found by the state appellate court, as well as the procedural history in the state courts, including Ayers' 2013 jury trial, which resulted in convictions for aggravated arson and endangering children. Ayers does not take issue with the magistrate judge's recitation of the factual and procedural history, and the Court accepts the magistrate judge's summary, as if rewritten herein. (Doc. No. 18, at 2-8.^[1])

For purposes of resolving Ayers' objections to the R&R, it is sufficient to note that Ayers was convicted of crimes surrounding the 2012 fire that started in the basement of her father's house in Massillon, Ohio. At the time of the fire, Ayers and the youngest of her three children, a three-year old boy, were the only persons in the house and both managed to escape. The defense's theory was that Ayers' son, whom Ayers claimed was playing with a cigarette lighter, had accidently set the fire. At trial, the prosecution called Inspector Reginald Winters (“Winters”) of the Massillon Fire Department, who had investigated the fire and provided expert testimony on the origins of the fire. He opined that a mattress in the basement was the point of origination of the fire, and that there were two distinct start points at separate ends of the mattress. He further opined that if Ayers' son had started the fire, he would have had to light the fire at one end of the mattress and then crawl across the burning mattress to light it at the second ignition point. See State v. Ayers, No. 2021CA00134, 2022 WL 1946586, at *1-4 (Ohio Ct. App. June 6, 2022).

Following the jury trial and guilty verdicts, Ayers was sentenced to an aggregate term of imprisonment of seven years and was released from prison on August 22, 2019.^[2] (Id. at 4 n.3; see Doc. No. 15-1 (Judgment Entry, dated 02/01/2013), at 39-42.) On July 27, 2020, Ayers filed, through counsel, a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) The federal habeas proceedings were stayed while Ayers attempted to exhaust her claims in state court. (Order [non-document], 12/03/2020; see Doc. No. 2 (Motion to Hold in Abeyance).) Following the resolution of state collateral proceedings and the Court's lifting of the stay, Ayers amended her petition on December 19, 2022. (Doc. No. 14 (Amended Petition).)

As amended, Ayers' petition raised four grounds for relief. In Count One, Ayers alleged that trial counsel was ineffective for failing to consult with an expert witness regarding the origin of the fire and for failing to challenge the State's purportedly false expert testimony. (Id. ¶¶ 1417.) In Count Two, Ayers asserted that the prosecution violated her due process rights when it offered at trial a previously undisclosed expert opinion, in violation of Ohio R. Crim. P. 16(K), that was also false and unsupported by the record. (Id. ¶¶ 18-21.) Count Three alleged that the State's expert testimony was unreliable, false, and unsupported, and resulted in a verdict that was fundamentally unfair. (Id. ¶¶ 25-29.) Finally, Count Four purported to raise a claim of “actual innocence,” again premised on the notion that the expert testimony offered at trial was flawed. (Id. ¶¶ 30-32.)

In her R&R, the magistrate judge recommends that the petition be dismissed as untimely. (Doc. No. 18, at 18.) In support, the magistrate judge determined that Ayers' judgment became final on January 24, 2014-when her time to file a notice of appeal to the Ohio Supreme Court expired-and that, therefore, the statute of limitations under 28 U.S.C. § 2244(d)(1)(A) began to run on January 24, 2014, and expired a year later on January 26, 2015. (Id. at 12-13.) Accordingly, Ayers' federal petition, filed more than five years after the expiration of the one-year statutory filing period (on July 27, 2020), was untimely under § 2244(d)(1)(A). (Id. at 13.)

In so ruling, the magistrate judge determined that Ayers could not take advantage of § 2244(d)(1)(D), which allows for the filing of a federal habeas petition within one year of the “date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Counts One, Three, and Four of the amended petition directly relied on the July 29, 2019 expert report of John J. Lentini (the “Lentini Report”), that challenged several of the conclusions reached by Winters. (Doc. No. 15-1 (Lentini Report), at 233-51.) Of particular relevance, the Lentini Report questioned Winters' conclusion that the fire had two points of origin.

(Id. at 237-38.) The magistrate judge recommends that the Court find that Ayers had failed to demonstrate that she could not have obtained the Lentini Report-or any other expert report on the origin of the fire-through due diligence prior to July 2019. (Doc. No. 18, at 13.)

Additionally the magistrate judge rejected Ayers' suggestion that the limitations period should be equitably tolled, finding that her trial counsel's failure to obtain an expert witness did not rise to the level of an “extraordinary circumstance,” as described in Holland, 560 U.S. at 649. (Id. at 16.) The magistrate judge also discounted Ayers' claim that she is actually innocent of the crimes for which she was convicted in state court. (Id. at 16-17.) Specifically, the magistrate judge found that, based on all of the evidence offered at trial-including testimony that...