Johnson v. Akers

CHRISTOPHER ANTONIO JOHNSON, Petitioner, v. DANIEL AKERS, Respondent.

Civil Action No. 3:20-CV-00414-CHB-LLK

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

April 29, 2021

MEMORANDUM OPINION AND ORDER ON OBJECTIONS TO MAGISTRATE JUDGE'S FINDINGS OF FACT AND RECOMMENDATION*** *** *** ***

The Petitioner, Christopher Antonio Johnson, filed this action pursuant to 28 U.S.C. § 2254, seeking federal habeas corpus relief. Respondent Daniel Akers filed a Motion to Dismiss, asserting that Petitioner's claims were time barred under the applicable one-year statute of limitations. [R. 12] Petitioner responded in opposition. [R. 15] Upon referral, United States Magistrate Judge Lanny King issued his Findings of Fact and Recommendation ("Report and Recommendation"), recommending that the Court grant Respondent's Motion to Dismiss. [R. 16] Petitioner filed Objections to the Report and Recommendation, and Respondent did not respond. [R. 24] The matter is now ripe for review. For the reasons stated below, the Court will overrule Petitioner's Objections and adopt the Report and Recommendation.

I. Procedural Background

The Court will first explain the complicated procedural background of this case. Petitioner Christopher Antonio Johnson filed pro se for a writ of habeas corpus under 28 U.S.C. § 2254 on June 8, 2020. [R. 1] Petitioner attacked his state-court conviction for first degree robbery on four grounds (Claims 1-4). Id. at 5-12. Claim 1 alleged that Petitioner had ineffective assistance of trial counsel (IATC) because his counsel failed to challenge language in the jury instructions that directed the jury to convict if Petitioner "act[ed] alone or in complicity with another" to commit robbery, even though there was no evidence presented at trial of Petitioner acting in complicity with another. [R. 1-2, pp. 5-6] Claim 2 alleged that the trial court's refusal to include a jury instruction for receiving stolen property violated Petitioner's due process and fair trial rights. Id. at 7. Claim 3 alleged IATC because his counsel failed to challenge evidence obtained in a search of his girlfriend's father's residence. Id. at 8-10. Claim 4 alleged IATC because his counsel failed to interview a potentially exculpatory witness. Id. at 10-12.

Respondent moved to dismiss on the ground that Petitioner's one-year statute of limitations to file a habeas petition under § 2254 had expired.¹ [R. 12, p. 1] Petitioner responded in opposition, arguing, among other things, that the statute of limitations is subject to "equitable tolling" because he could not have discovered the claims he raises without his case file, which he did not receive until March 11, 2020.² [R. 15, pp. 1-2; R. 15-2]

Magistrate Judge King entered a Report and Recommendation on October 7, 2020, finding that the triggering event for the one-year statute of limitations, per § 2244(d)(1)(A), was the disposition of Petitioner's motion for post-conviction review in state court, which occurred on June 4, 2018. [R. 16, p. 5] Because Petitioner did not file this action until June 8, 2020, Judge King found that the statute of limitations had expired. Id. Judge King explained that § 2244(d)(1)(D), which delays the triggering of the statute of limitations until "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence," was inapplicable because Petitioner Johnson was aware of the factualpredicate underlying each of his Claims 1-4 by the time he was sentenced or at least by September 17, 2014, when his "judgment became final by the conclusion of direct review." § 2244(d)(1)(A); [R. 16, pp. 3-5]. Accordingly, Judge King recommended that the Court grant Respondent's Motion to Dismiss and decline to issue a certificate of appealability (COA) to Petitioner. [R. 16, p. 6]

The Report and Recommendation advised the parties that any objections must be filed within 14 days from the date of entry. Id. No objections were filed within that time period. [R. 17, p. 3] On December 1, 2020, the Court adopted the Report and Recommendation after examining the record of this matter. Id. Accordingly, the Court granted Respondent's Motion to Dismiss, entered judgment dismissing the petition, and declined to issue a certificate of appealability. [Id. at 4; R. 18; R. 19]

On December 18, 2020, Petitioner moved to vacate the Court's judgment because he did not receive notice of Judge King's Report and Recommendation while in prison. [R. 20] Consequently, he did not have an opportunity to file objections to the Report and Recommendation. [Id. at 1-2; R. 20-1] Respondent objected to the Motion to Vacate but did not dispute that Petitioner did not receive notice of the Report and Recommendation. [R. 21] On January 12, 2021, the Court granted Petitioner's Motion, vacating the judgment and giving Petitioner 60 days within which to file objections to the Report and Recommendation. On March 15, 2021, Petitioner filed his Objections.³ [R. 24] Respondent did not respond to the Objections.

II. Standard of Review

Under Federal Rule of Civil Procedure 72(b)(2), a petitioner has fourteen days after service to register any objections to the Magistrate Judge's report and recommendation or else forfeit his rights to appeal. When no objections are made, this Court is not required to "review . . . a magistrate's factual or legal conclusions, under a de novo or any other standard . . . ." Thomas v. Arn, 474 U.S. 140, 151 (1985). Parties who fail to object to a magistrate judge's report and recommendation are also barred from appealing a district court's order adopting that report and recommendation. United States v. White, 874 F.3d 490, 495 (6th Cir. 2017); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

For properly made objections, non-dispositive matters are reviewed under a "limited" standard of review: the district court must modify or set aside any part of the order that is clearly erroneous or is contrary to law. Massey v. City of Ferndale, 7 F.3d 506, 509 (6th Cir. 1993); Fed. R. Civ. P. 72(a). Dispositive matters, however, are reviewed de novo if a party makes proper objections. Fed. R. Civ. P. 72(b)(3). In order to receive de novo review by this Court, any objection to the recommended disposition must be specific. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). A specific objection "explain[s] and cite[s] specific portions of the report which [counsel] deem[s] problematic." Robert v. Tesson, 507 F.3d. 981, 994 (6th Cir. 2007) (alteration added by Robert court) (quoting Smith v. Chater, 121 F.3d 709 (Table), 1997 WL 415309, at *2 (6th Cir. July 18, 1997)). A general objection that fails to identify specific factual or legal issues from the recommendation, however, is not permitted, since it duplicates the magistrate's efforts and wastes judicial economy. Howard v. Sec'y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).

III. Discussion

Petitioner's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). Federal courts conducting habeas review are limited in several ways. First, before petitioning for habeas relief in federal court, state prisoners typically must exhaust all available state-court remedies by fairly presenting all claims to the state courts. 28 U.S.C. § 2254(b)-(c); Rhines v. Weber, 544 U.S. 269, 274 (2005); Wilson v. Mitchell, 498 F.3d 491, 498 (6th Cir. 2007). Second, to be timely, a habeas petition must satisfy a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). And third, a federal court generally may not reach the merits of any claims that were procedurally defaulted in state court, either by a state court's express application of a procedural rule or a petitioner's failure to fairly present the claim. Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013); see also Reed v. Farley, 512 U.S. 339, 354-55 (1994).

In his Objections, Petitioner argues that his claims should be considered timely because the Court should apply equitable tolling. [R. 24, p. 2] Petitioner presents three grounds for equitable tolling. First, he argues that equitable tolling should apply to Claims 3 and 4 because Petitioner only discovered the factual predicates to those claims (that is, his counsel failing to challenge the admissibility of a search and to interview an exculpatory witness) in March 2020, when he obtained his counsel's case file. Id. at 3-7. Second, he argues that equitable tolling should apply to Claim 2 (jury instruction for receiving stolen property) based on the "interest of justice." Id. at 9. Third, he argues that the exception recognized in Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2013) to procedural default ("the Martinez exception") should apply and allow Claims 1, 3, and 4 to be heard on the merits. [R. 24, pp. 9-16] Petitioner also requests a certificate of appealability and alleges that "[j]urists of reason could debate each and every issue presented by this habeas petition." Id. at 17.

The Court will discuss each objection raised by Petitioner in turn.

A. Factual Predicate and Equitable Tolling

Petitioner's first objection is that Claims 3 and 4 are timely because the statute of limitations for the claims should be tolled until he received his counsel's file in March 2020. [R. 24, pp. 5-7] Though it is somewhat unclear, Petitioner's argument appears based on both statutory tolling under § 2244(d)(1)(D) and common law equitable tolling. Turning to the statutory argument, habeas petitioners may not bring claims on which the statute of limitations has expired. 28 U.S.C. § 2244(d)(1). The statute of limitations runs for one year after 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

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