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holding that the petitioner was unable to obtain habeas relief based on a freestanding claim of actual innocence because the Supreme Court has never recognized such a claim
Summary of this case from Levingston v. Warden, Warren Corr. Inst.Opinion
CASE NO. 2:12-CV-277 CRIM. NO. 06-CR-129(5)
04-07-2014
RANDOLPH SPEER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
JUDGE MARBLEY
MAGISTRATE JUDGE ABEL
OPINION AND ORDER
On February 11, 2014, the Magistrate Judge issued a Report and Recommendation recommending that the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be dismissed. Petitioner has filed an Objection, Addendum to the Objections, a Motion to Expand the Record, and Motions for Reconsideration. For the reasons that follow, Petitioner's Objection and Addendum to the Objections, Doc. Nos. 1293, 1294, are OVERRULED. His Motion to Expand the Record, and Motions for Reconsideration, Doc. Nos. 1287, 1290-91, are DENIED.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. The Report and Recommendation is ADOPTED and AFFIRMED. This action hereby is DISMISSED.
Petitioner objects to the factual findings of the United States Court of Appeals for the Sixth Circuit, recited in the factual history of this case. See United States v. Speer, 419 Fed.Appx. 562, unpublished, 2011 WL 1211097 (6th Cir. April 1, 2011). Petitioner goes on to argue at some length that these facts are incorrect, and offers his reasons for disputing the factual findings of the United States Court of Appeals. He also argues at length regarding the basis for his claims that the evidence is constitutionally insufficient to sustain his convictions, he is actually innocent of the charges against him, and a victim of prosecutorial misconduct. He contends, as he did previously, that the government purposely misrepresented and distorted the truth, intentionally engaging in misconduct in order to obtain a conviction. Objection, PagelD #26754-55.
This Court is without the authority to alter the findings of fact of the Court of Appeals. "Under the doctrine of law of the case, findings made at one point in the litigation become the law of the case for subsequent stages of that same litigation." United States v. Eziolisa, No. 3:10-cr-39, 2013 WL 4081125, at *2 (S.D. Ohio Aug. 13, 2013)(citing United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994)(citing United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993)); see also United States v. Turner, 436 Fed.Appx. 599, unpublished, 2011 WL 3857231, at *1 (6th Cir. Sept. 1, 2011)( Under the law of the case doctrine, a district court cannot vary or examine the holding of the Court of Appeals "for any other purpose than execution; or give any other or further relief; or review it, even for apparent error.")(citations omitted.)
To the extent that Petitioner again argues that the evidence is constitutionally insufficient to sustain his convictions, those claims already have been addressed on direct appeal, and will not again be considered here. See DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996)("Absent exceptional circumstances, not present in these proceedings,"[a] § 2255 motion may not be used to relitigate an issue that was raised on [direct] appeal.")
Petitioner also objects to the Magistrate Judge's recommendation of dismissal of his claim of prosecutorial misconduct as procedurally defaulted based on his failure to raise the claims on direct appeal. As discussed by the Magistrate Judge, however, the record is without support for Petitioner's claim(s) of prosecutorial misconduct; therefore, he cannot establish, as cause for this procedural default, that he was denied the effective assistance of counsel.
Petitioner contends he is actually innocent of the charges against him, and a victim of a manifest miscarriage of justice. The basis for this claim, again, is Petitioner's contention that the government lied and withheld and suppressed exculpatory information in order to obtain these criminal convictions against him. Objection, PageID #26775.
The United States Supreme Court has held that a claim of actual innocence can be raised "to avoid a procedural bar to the consideration of the merits of [the petitioner's] constitutional claims." Schlup v. Delo, 513 U.S. 298, 326-27 (1995). "[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray v. Carrier, 477 U.S. 478, 496 (1986). In Schlup, the Supreme Court held that a credible showing of actual innocence was sufficient to enable a court to reach the merits of an otherwise procedurally-barred habeas petition. Schlup, 513 U.S. at 317, 115 S.Ct. 851, 130 L.Ed.2d 808. The actual innocence claim in Schlup is "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Id. at 315, (citing Herrera v. Collins, 506 U.S. 390, 404 (1993)).
The actual innocence exception allows a petitioner to pursue his constitutional claims if it is "more likely than not" that new evidence-not previously presented at trial-would allow no reasonable juror to find him guilty beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). The threshold inquiry is whether "new facts raise[ ] sufficient doubt about [the petitioner's] guilt to undermine confidence in the result of the trial." Schlup, 513 U.S. at 317. Actual innocence is restricted to factual innocence and does not encompass mere legal insufficiency. Sorter at 590 (citing Bousley v. U.S., 523 U.S. 614, 623 (1998)). Application of the actual innocence exception should be "rare" and "only in the extraordinary case." Schlup at 321.
Petitioner provides no new evidence of his actual innocence that was not already available to him at the time of trial, and the record fail to reflect this is the type of rare or extraordinary case that will provide a gateway to a merits consideration of Petitioner's procedurally defaulted claims. Further, although Petitioner argues at length to the contrary, the evidence fails to reflect his factual innocence or, as previously discussed, that the evidence against him was a result of prosecutorial misconduct.
The United States Supreme Court has never recognized a free-standing claim of actual innocence. See Cress v. Palmer, 484 F.3d 844, 854 (6th Cir. 2007)(citing Zuern v. Tate, 336 F.3d 478, 482, n.1 (6th Cir. 2003), and Staley v. Jones, 239 F.3d 769, 780, n.12 (6th Cir. 2001). Petitioner therefore cannot obtain relief on this basis.
For these reasons, and for the reasons already discussed in the Magistrate Judge's Report and Recommendation, Petitioner's Objection and Addendum to the Objections, Doc. Nos. 1293-94, are OVERRULED. His Motion to Expand the Record, Motion for Reconsideration, Doc. Nos. 1287, 1290-91, are DENIED.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. The Report and Recommendation is ADOPTED and AFFIRMED. This action hereby is DISMISSED.
IT IS SO ORDERED.
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ALGENON L. MARBLEY
United States District Judge