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Evans v. Smith

United States District Court, E.D. Kentucky, Northern Division, Ashland

January 25, 2018

TRUMAN EVANS PETITIONER
v.
AARON SMITH, WARDEN RESPONDENT

          ORDER ADOPTING RECOMMENDED DISPOSITION

          David L, Bunning United States District Judge

         I. INTRODUCTION

         This matter is before the Court on Truman Evans' petition for a writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. # 1). Consistent with local practice, this matter was referred to United States Magistrate Judge Robert E. Wier for the purpose of reviewing the petition and preparing a Report and Recommendation. On August 25, 2017, Judge Wier issued his Recommended Disposition (Doc. # 9) whereby he recommends that Evan's petition be denied. Evans having filed objections to the Recommended Disposition (Doc. # 10), both are ripe for review. For the reasons set forth herein, Evans' objections (Doc. # 10, are overruled and the Recommended Disposition (Doc. # 9) is adopted as the Opinion of the Court.

         II. ANALYSIS

         A. Standard of Review The Court reviews de novo those portions of the R&R to which specific objections have been filed. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Where no objections are made, or the objections are vague or conclusory, the Court is not required to review under a de novo, or any other, standard. Thomas v. Arn, 474 U.S. 140, 150 (1985); United States v. Jenkins, No. 6:12-cr-13-GFVT, 2017 WL 3431834, at *1 (E.D. Ky. Aug. 8, 2017).

         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.” United States v. Shephard, No. 5:09-cr-81-DLB, 2106 WL 9115464, at *1 (E.D. Ky. Sept. 18, 2016) (quoting VanDiver v. Martin, 304 F.Supp.2d 934, 938 (E.D. Mich. 2004); Holl v. Potter, No. C-1-09-618, 2011 WL 4337038, at *1 (S.D. Ohio Sept. 15, 2011)); see also Shabazz-el-Bey v. Daley, No. 2:115-cv-173-DLB, 2016 WL 7217633, at *1 (E.D. Ky. Dec. 13, 2016). Thus, “objections that merely restate arguments in the memoranda considered by the Magistrate Judge are not proper, and the court may consider such repetitive arguments waived.” Holl, 2011 WL 4337038 at *1. Where an objection is simply a repetition of what the Magistrate Judge has already considered, it fails “to put the Court on notice of any potential errors in the Magistrate's R&R.” Shephard, 2016 WL 9115464 at *1 (citing VanDiver, 304 F.Supp.2d at 938).

         B. Background

         Evans' § 2254 petition raises one argument:

[H]is constitutional right to a unanimous verdict was violated because at trial, the victim testified to multiple indistinguishable instances of sexual abuse and multiple indistinguishable instances of sodomy as having occurred during the relevant time period, and so there is no assurance that each of the jurors were focused upon the same occurrence when they cast their respective guilty votes.
Upon review of the date of Evans' conviction and subsequent history, noting that almost three (3) years had elapsed between when his court judgment became final and Evans began attempting to collaterally attack the matter in Kentucky state court, Judge Wier ordered Evans to show cause why his petition should not be dismissed. (Doc. # 3). Judge Wier also noted that, based upon the record in front of him, equitable tolling would not apply. Id. at 4. Evans filed a motion arguing that that he should be afforded equitable tolling. (Doc. # 5). The United States responded, (Doc. # 8), and on August 25, 2017, Judge Wier issued his Recommended Disposition. (Doc. # 9).
Evans timely raised four specific objections to Judge Wier's recommendation on equitable tolling, arguing that Judge Wier erred in: (1) disregarding the merits of Evans' claim; (2) finding that Evans had not diligently pursued his claim; (3) finding that Evans' “inactivity of a little more than three years automatically denies a finding of equitable tolling”; and (4) recommending that no certificate of appealability should issue. (Doc. # 10 at 3-4).

         C. Equitable Tolling is not applicable to this Petition.

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one year statute of limitations for filing § 2254 motions. 28 U.S.C. §§ 2254 and 2244(d). In his Recommended Disposition, Judge Wier found that Evans' Judgment was affirmed by the Supreme Court of Kentucky on October 21, 2004, and became final on January 19, 2005. (Doc. # 9 at 2). He had one year from that date to file his § 2254 motion; instead, he waited almost three years-until October 18, 2007-to file a state-court post-conviction relief motion. Id. After the Supreme Court of Kentucky denied his request to review the Court of Appeals of Kentucky's decision affirming denial of his motion for post-conviction relief, id. at 3, Evans continued to file motions in the Kentucky state courts. (Doc. # 5 at 4).

         The Sixth Circuit is clear that AEDPA's statute of limitations begins to run the day after a conviction becomes final. Allen v. Yukins, 366 F.3d 396, 400 (6th Cir. 2004). And although the filing of state-court post-conviction relief motions may toll the statute of limitations, it does not restart the clock. Id. at 401 (citing McClendon v. Sherman, 329 F.3d 490 (6th Cir. 2003)). Thus, Evans failed to file his petition within the one-year statute of ...


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