United States District Court, E.D. Kentucky, Northern Division, Ashland
ORDER ADOPTING RECOMMENDED DISPOSITION
L, Bunning United States District Judge
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
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).
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).
§ 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).
Equitable Tolling is not applicable to this
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).
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 ...