Avery v. Wainwright

• Decision Date: 12 May 2022
• Docket Number: 20-3530
• Parties: EDWARD B. AVERY, SR., Petitioner-Appellant, v. LYNEAL WAINWRIGHT, Warden, Respondent -Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

EDWARD B. AVERY, SR., Petitioner-Appellant, v. LYNEAL WAINWRIGHT, Warden, Respondent -Appellee.

No. 20-3530

United States Court of Appeals, Sixth Circuit

May 12, 2022

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

Before: GUY, MOORE, and GIBBONS, Circuit Judges.

Julia Smith Gibbons, Circuit Judge

Edward B. Avery, Sr. appeals the district court's denial of his fourth habeas corpus petition as procedurally defaulted. The district court issued a certificate of appealability limited to Ground 2 of Avery's petition, which alleges his due process rights were violated by the presence of an alternate juror during jury deliberations. Avery filed a motion to expand the certificate of appealability to include Ground 1 which alleges that Avery's consecutive rape and kidnapping sentences violate double jeopardy. On appeal Avery argues that neither Ground 1 nor 2 is procedurally defaulted. Alternatively, he argues that any procedural default of Ground 2 is excusable because he can demonstrate cause and prejudice due to ineffective assistance of appellate counsel. The Warden argues the district court's judgment should be affirmed because Avery's petition is time-barred and he is not entitled to equitable tolling.

We deny Avery's motion to expand the certificate of appealability to include Ground 1, and we affirm the district court's denial of Avery's claims as procedurally defaulted.

I

Avery was convicted of rape, robbery, aggravated burglary, and kidnapping in 1997. The Ohio Court of Appeals summarized the facts:

The facts leading to appellant's conviction[s] for the above crimes occurred on March 14, 1997. That morning appellant returned to an apartment complex in Marysville Ohio, after a long night of drinking, to find himself locked out of the apartment where he was staying. While waiting for the other occupants of the apartment to return home appellant sought refuge from the rain on an apartment patio belonging to Vicky Johnson, another tenant in the complex. From her patio, appellant watched Vicky Johnson and her boyfriend until they left the building. While they were gone, appellant entered the apartment through an unlocked door.

Meanwhile, Johnson drove her boyfriend to work and returned home shortly before 6:00 a.m. As Johnson entered her bedroom, she was attacked by appellant. A short struggle ensued as appellant covered Johnson's head with a shirt and threw her down on the bed. Appellant proceeded to rape Johnson, using a blanket to further blind her and protect his anonymity. At one point, Johnson did catch a glimpse of appellant's fingers and knew her attacker was black. After the rape, appellant led Johnson to the bathroom, her head still covered, and told her to shower. Although the door to the restroom did not lock, Johnson was able to brace her body between the sink and the door to keep appellant from reentering the bathroom. Appellant finally left Johnson's apartment through the patio door, picking up $2 from a coffee table before leaving.

Appellant was subsequently arrested and confessed to the events surrounding the rape of Vicky Johnson on March 14, 1997. Appellant pled not guilty to the charges against him, and his case proceeded to trial. Appellant was subsequently found guilty by a jury of rape, aggravated burglary, robbery, and kidnapping . . . .

State v. Avery, 709 N.E.2d 875, 878 (Ohio Ct. App. 1998). Avery was sentenced to an aggregate term of thirty years of imprisonment and adjudicated a sexual predator. See id.

Avery appealed, and the state appellate court affirmed the trial court's judgment. Id. at 887. After failing to timely appeal to the Ohio Supreme Court, Avery filed a motion for a delayed appeal, which the Ohio Supreme Court denied. State v. Avery, 743 N.E.2d 401 (Ohio 2001).

Avery filed an application for reopening of the appeal under Ohio Appellate Rule 26(B), which the appellate court denied. He then filed a motion for reconsideration, which the appellate court also denied. The Ohio Supreme Court dismissed the appeal on December 23, 1998.

In 2010, after further motion practice, the trial court conducted a de novo sentencing hearing because, although it notified Avery of the terms of post-release control at his sentencing hearing, it failed to include those terms and specify the method of conviction in its Journal Entry of Sentencing. State v. Avery, No. 14-10-35, 2011 WL 3656470, at *1 (Ohio Ct. App. Aug. 22, 2011). Avery was resentenced to an aggregate sentence of thirty years of imprisonment, with credit for time served, and correctly informed as to post-release control both orally and in writing. Id. The method of conviction was also included in the resentencing entry. Id. Avery unsuccessfully appealed the resentencing judgment. Id. at *4.

This appeal stems from Avery's fourth federal habeas petition. His first petition was dismissed without prejudice at his request on June 9, 2000. On January 13, 2003, Avery's second petition was dismissed as time-barred. His third petition was transferred to our court as second or successive on September 13, 2013. On May 21, 2014, our court denied Avery's motion to authorize the district court to consider the second or successive habeas petition.

Undeterred, Avery again moved our court for an order authorizing the district court to consider a second or successive habeas petition. This time, we explained that "a habeas petitioner, after a full resentencing and the new judgment that goes with it, may challenge his undisturbed conviction without triggering the 'second or successive' requirements." DE 7-1, Order, Page ID 951 (quoting King v. Morgan, 807 F.3d 154, 156 (6th Cir. 2015)). Avery's 2010 resentencing resulted in a new judgment, so we concluded Avery did not need authorization to file a habeas petition.

On April 12, 2018, Avery filed his fourth habeas petition in the Southern District of Ohio, in which he pursued nine claims for relief.^[1] The Warden moved to dismiss Avery's petition, arguing it was time-barred. On referral, U.S. Magistrate Judge Kimberly Jolson held an evidentiary hearing and recommended denying the Warden's motion to dismiss. Although the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act ("AEDPA") had passed, Judge Jolson found that equitable tolling was warranted. After considering objections from both parties, the district court adopted Judge Jolson's Report and Recommendation ("R. &. R.").

After full briefing on the petition, Judge Jolson recommended dismissing Avery's claims as procedurally defaulted. Avery filed objections to the R. & R. The district court overruled Avery's objections, adopted the R. & R., and dismissed Avery's claims as procedurally defaulted. Avery now appeals, seeking a certificate of appealability for Ground 1, challenging the district court's dismissal of his claims as procedurally defaulted, and asking this court to award habeas relief.

II

Whether the district court properly calculated the timeliness of a habeas corpus petition is reviewed de novo. DiCenzi v. Rose, 452 F.3d 465, 467 (6th Cir. 2006). A district court's determination regarding a habeas petitioner's procedural default is reviewed de novo. Hicks v. Straub, 377 F.3d 538, 551 (6th Cir. 2004). The district court's application of the "cause and prejudice" test excusing procedural default is also reviewed de novo. Hargrave-Thomas v. Yukins, 374 F.3d 383, 387 (6th Cir. 2004).

III

First we address the Warden's arguments that Avery's petition is time-barred and he is not entitled to equitable tolling. Because Avery diligently pursued his rights and extraordinary circumstances prevented the timely filing of his fourth habeas petition, we agree with the district court's conclusion that Avery was entitled to equitable tolling and that the instant habeas application is timely.

A

A petition for a writ of habeas corpus must be filed within one year of the latest of four dates, here, "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). That one-year period is subject to equitable tolling, which allows a court to toll the statute of limitations where the petitioner shows (1) he has pursued his rights diligently and (2) some extraordinary circumstance prevented timely filing. Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)); see also Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749-50 (6th Cir. 2011). "[E]quitable tolling is used sparingly by federal courts. The party seeking equitable tolling bears the burden of proving he is entitled to it." Robertson, 624 F.3d at 784 (citation omitted).

The district court must exercise its equitable powers on a case-by-case basis, with an emphasis on the need for flexibility and for avoiding mechanical rules. Holland, 560 U.S. at 649- 50 (quoting Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946)). This means "exercis[ing] judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case." Id. at 650. Where a district court's ruling on equitable tolling is based on undisputed facts or an issue of law, this court's review is de novo; in all other cases, it is for an abuse of discretion. Robertson, 624 F.3d at 784. Despite Avery's argument to the contrary, the facts here are undisputed, and so we review the district court's grant of equitable tolling de novo.

B

Avery was resentenced in 2010. This judgment became final on April 17, 2012, ninety days after the Supreme Court of Ohio dismissed his...