United States District Court, E.D. Kentucky, Southern Division, Pikeville
AMUL R. THAPAR, District Judge.
Petitioner Eugene Goble filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. R. 1. On initial review of the petition under Rule 4 of the Rules Governing Section 2254 Cases, Magistrate Judge Robert E. Wier found the petition to be untimely. See R. 2 at 1. Judge Wier then provided Goble with "fair notice and an opportunity" to present his position, Day v. McDonough, 547 U.S. 198, 210 (2006), by allowing him to demonstrate that his petition should not be dismissed as untimely. Id. Goble filed a response to Judge Wier's Order, R. 8, and Warden Clark Taylor replied to Goble's response, R. 11. In a Recommended Disposition, Judge Wier concluded that Goble's petition was untimely and recommended that this Court dismiss the petition with prejudice. R. 12. Judge Wier also recommended that the Court deny a certificate of appealability. Id. Goble timely objected to Judge Wier's Recommended Disposition. R. 13. After reviewing Goble's objections de novo, the Court adopts Judge Wier's Recommended Disposition and denies Goble's petition.
The Court provides a brief summary of the facts as Judge Wier's Recommended Disposition has ably recounted the background of the case. See R. 12. On September 15, 1992, a Kentucky jury convicted Goble on one count of rape, two counts of incest, two counts of sodomy in the first degree and two counts of sodomy in the third degree. R. 1 at 1; R. 11-2 at 2. Goble was sentenced to three concurrent life sentences on the rape count and first-degree sodomy counts, and a thirty-year sentence on the incest and remaining sodomy counts, to be served concurrently with the life sentences. R. 11-2 at 2-4. The Kentucky Supreme Court affirmed his conviction, except it reversed and remanded on one count of incest. Goble v. Commonwealth, 93-SC-88-MR (Ky. Oct. 28, 1993) (unpublished), R. 11-2 at 9-21. The Commonwealth did not retry Goble on that count. See R. 11 at 2.
On September 22, 1997-close to four years after the Kentucky Supreme Court denied Goble's direct appeal-Goble submitted a petition for state post-conviction relief. R. 11-2 at 22. The trial court denied Goble's petition in 2000, and Goble did not appeal. Id. at 47, 52.
Goble waited another eleven years before making his next post-conviction move. Then, in October 2011, Goble filed a motion for relief from judgment pursuant to Kentucky Rule of Civil Procedure 60.02. R. 11-2 at 54-60. The trial court denied the motion as untimely, the Kentucky Court of Appeals affirmed, and the Kentucky Supreme Court denied discretionary review. R. 11-2 at 61-64; see also Goble v. Commonwealth, No. 2012-CA-000349-MR, 2013 WL 1488828 (Ky. Ct. App. Apr. 12, 2013) (unpublished).
Now moving with great haste, Goble filed his petition for a writ of habeas corpus, 28 U.S.C. § 2254, on April 15, 2014. R. 1. In his petition, Goble contends that his conviction was not supported by sufficient evidence and that the trial court denied his right to present DNA evidence. See id.
AEDPA imposes a one-year statute of limitations on state prisoners filing a federal habeas petition. The limitations period begins to run from the latest of four possible dates:
(1) "the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review"; (2) "the date on which the impediment to filing an application 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"; (3) "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"; and (4) "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).
Because Goble did not file a petition for certiorari in the United States Supreme Court following the Kentucky Supreme Court's denial of relief on direct review, Goble's judgment became final "when the time for pursuing direct review in th[e] [Supreme] Court... expire[d]." Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012). Goble had ninety days from October 28, 1993, the date of the Kentucky Supreme Court's decision, to file a petition for certiorari. Sup.Ct. R. 13.1. That means Goble's judgment was final on January 26, 1994. See 28 U.S.C. § 2244(d)(1)(A). Because Goble's judgment was final before the passage of AEDPA, his limitations period started on the date of AEDPA's enactment: April 24, 1996. Beginning on that day, Goble had one year to file his federal habeas petition. See Searcy v. Carter, 246 F.3d 515, 517 (6th Cir. 2001) ("Petitioners whose convictions became final prior to the effective date of AEDPA, April 24, 1996, have one year from the effective date in which to file their petitions."). Goble did not file his petition within one year of April 24, 1996, or within five, ten or fifteen years of that date. Goble waited until April 4, 2014, to file his federal habeas petition, close to seventeen years after the expiration of the statute of limitations.
Judge Wier concluded that Goble's petition was untimely because Goble filed his petition more than one year after the conclusion of his direct review. R. 12 at 1. Judge Wier rejected Goble's argument that a 2013 amendment to Kentucky statute ("KRS") § 422.285, which expanded DNA testing to non-capital offenses, was a new "factual predicate" restarting the limitations period under § 2244(d)(1)(D). Id. at 7-8. Judge Wier also concluded that Goble could not take advantage of equitable tolling or the actual-innocence exception to escape the statute of limitations. Id. at 8-16. Goble then filed the following timely objections to Judge Wier's recommended disposition: (1) the statute of limitations period started on the enactment date of the amendment to KRS § 422.285, see 28 U.S.C. § 2244(d)(1)(D); (2) the statute of limitations does not apply because he is actually innocent; and (3) the statute of limitations should be equitably tolled. The Court makes "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Because Goble's objections are without merit, the Court adopts Judge Wier's Recommended Disposition.
I. Amendment to KRS § 422.285
Goble contends that the relevant starting point for the statute of limitations is the 2013 amendment to KRS § 422.285, which expanded access to DNA testing for defendants convicted of non-capital offenses. See Ky. Rev. Stat. Ann. § 422.285 (West 2013); R. 13 at 3. The pre-2013 version of KRS § 422.285 applied only to capital cases. Goble contends that DNA testing would establish that he is innocent of the rape count. R. 13 at 6. Relying on § 2244(d)(1)(D), Goble asserts that the amendment of KRS § 422.285 is a "factual predicate, " which could not have been discovered with "due diligence" until its ...