Shingleton v. Warden London Correctional Institution, No. 3:2003cv00450 - Document 30 (S.D. Ohio 2008)
Court Description: DECISION AND ENTRY ADOPTING INITIAL (DOC. 16 ) AND SUPPLEMENTAL (DOC. 27 ) REPORTS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE, AS SUPPLEMENTED HEREIN; PLAINTIFF-PETITIONER'S OBJECTIONS TO SAID JUDICIAL FILINGS (DOCS. 19 AND 28 ) OVERRULED; JUDGMENT TO ENTER IN FAVOR OF DEFENDANT-RESPONDENT AND AGAINST PLAINTIFF-PETITIONER, DISMISSING PLAINTIFF-PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS AS TIME BARRED; CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED; TERMINATION ENTRY. Signed by Judge Walter H Rice on 2/5/2008. (sc1, )
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Shingleton v. Warden London Correctional Institution Doc. 30 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON GEORGE R. SHINGLETON, : Plaintiff-Petitioner, : vs. Case No. 3:03cv450 : DEBORAH TIMMERMAN-COOPER, WARDEN, LONDON CORRECTIONAL INSTITUTION, JUDGE WALTER HERBERT RICE : Defendant-Respondent. DECISION AND ENTRY ADOPTING INITIAL (DOC. #16) AND SUPPLEMENTAL (DOC. #27) REPORTS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE, AS SUPPLEMENTED HEREIN; PLAINTIFF-PETITIONER S OBJECTIONS TO SAID JUDICIAL FILINGS (DOCS. #19 AND #28) OVERRULED; JUDGMENT TO ENTER IN FAVOR OF DEFENDANT-RESPONDENT AND AGAINST PLAINTIFFPETITIONER, DISMISSING PLAINTIFF-PETITIONER S PETITION FOR WRIT OF HABEAS CORPUS AS TIME BARRED; CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED; TERMINATION ENTRY Based upon the reasoning and citations of authority set forth by the United States Magistrate Judge in her Initial (Doc. #16) and Supplemental (Doc. #27) Reports and Recommendations, as well as upon a thorough de novo review of this Court s file and the applicable law, this Court adopts said Reports and Recommendations, as supplemented herein. Plaintiff-Petitioner s Objections to said Dockets.Justia.com judicial filings (Docs. #19 and #28) are overruled. Judgment will be ordered entered in favor of the Defendant-Respondent and against Plaintiff-Petitioner, dismissing Plaintiff-Petitioner s Petition for Writ of Habeas Corpus, as barred by the applicable statute of limitations. This Court notes that the Magistrate Judge held, in accordance with then binding Sixth Circuit authority, that the statute of limitations was tolled for 90 days, during which Plaintiff-Petitioner could have sought a writ of certiorari from the United States Supreme Court, in order to review the dismissal of his request for post-conviction relief in state court under ยง 2923.21, following dismissal of that petition through the state court system. See Doc. #16 at 7; Doc. #20 at 3-4. Subsequently, however, the United States Supreme Court held that the statute of limitations for habeas corpus proceedings is not tolled under those circumstances. Lawrence v. Florida, U.S. , 127 S.Ct. 1079 (2007). Of course, the decision by the Lawrence Court merely means that Plaintiff-Petitioner s request for a writ of habeas corpus is even more barred by the statute of limitations, than indicated by the Magistrate Judge. In addition, this Court will briefly set forth its reasons for concluding that Plaintiff-Petitioner s claim of actual innocence does not equitably toll the statute of limitations. In Ross v. Berghuis, 410 F.3d 552 (6th Cir. 2005), the Sixth Circuit explained its holding in Souter v. Jones, 395 F.3d 577 (6th Cir. 2005), noting that it had held therein that actual innocence could equitably toll the statute of -2- limitations, if the petitioner [could] prove that new[,] reliable evidence establishes his innocence by a more-likely-than-not standard. Id. at 556. The Ross court also noted that the holding in Souter was based upon the decision of the United States Supreme Court in Schlup v. Delo, 513 U.S. 298 (1995). Id. Herein, the PlaintiffPetitioner has not presented new, reliable evidence which would establish his innocence under any standard. On the contrary, he has merely argued that the witnesses who testified against him were not credible and that, therefore, his conviction cannot stand. Accordingly, this Court concludes that the PlaintiffPetitioner has failed to make a showing of actual innocence, which would equitably tool the statute of limitations in this litigation. Because this Court s Opinion herein would not be debatable among jurists of reason and, further, because any appeal from the decision rendered herein would be objectively frivolous, this Court denies both a Certificate of Appealability and anticipated request for leave to appeal in forma pauperis. The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton. /s/ Walter Herbert Rice February 5, 2008 WALTER HERBERT RICE UNITED STATES DISTRICT JUDGE -3- Copies to: George R. Shingleton, Pro Se Jerri Lynne Fosnaught, Esq. Stephanie L. Watson, Esq. Magistrate Judge Sharon L. Ovington -4-
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