facts raise[ ] sufficient doubt about [the petitioner's] guilt to undermine

confidence in the result of the trial.” Id. at 317, 513 U.S. 298, 115 S.

Ct. 851, 130 L.Ed.2d 808 .... “To be credible, such a claim requires

petitioner to support his allegations of constitutional error with new

reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that

was not presented at trial.” Schlup, 513 U.S. at 324, 115 S. Ct. 851,

130 L.Ed.2d 808. The Court counseled however, that the actual

innocence exception should “remain rare” and “only be applied in the

‘extraordinary case.” Id. at 321, 513 U.S. 298, 115 S. Ct. 851, 130

L.Ed.2d 808.

Souter, at 589-90 (footnote omitted). “To invoke the miscarriage of justice
exception to AEDPA’s statute of limitations . . . a petitioner ‘must show that it is
more likely than not that no reasonable juror would have convicted him in the
light of the new evidence.” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013)
(quoting Schiup, 513 U.S. at 327). Petitioner does not refer to any credible
evidence of actual innocence and has provided no new reliable evidence
supporting his claim of actual innocence. Thus, Petitioner has failed to establish
he is entitled to equitable tolling, or that his procedurally defaulted claims may
nonetheless be addressed on the merits under this exception.

Consideration of the transcript of Petitioner's guilty plea hearing will not
assist him.

For the foregoing reasons, and for the reasons detailed in the Magistrate
Judge’s Order and Report and Recommendation, Petitioner's Objection, ECF No.
16, is OVERRULED. The Order and Report and Recommendation, ECF No. 15,
is ADOPTED and AFFIRMED. Respondent's Motion to Dismiss, ECF No. 10, is
GRANTED. This action is hereby DISMISSED.

Case No. 2:17-cv-1129 Page 5 of 7


evidence in his case evaluated by a jury, the standard nevertheless remains the
same—i.e., the petitioner still must show that, ‘in light of all the evidence, it is
more likely than not that no reasonable juror would have convicted him.”
Lucidore v. New York, State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000)
(citing Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotation
marks omitted)); see also Rosario v. United States, 164 F.3d 729, 733 (2d Cir.
1998) (applying actual innocence standard of reasonable juror to guilty plea,
citing), cert. denied, 527 U.S. 1012 (1999); Saylor v. Mack, 27 F. App’x 321 (6th
Cir. 2001) (requiring new evidence to support claim of actual innocence after
entry of guilty plea). Actual innocence means factual innocence, not mere legal
sufficiency. See Bousley, 523 U.S. at 623. The fundamental miscarriage of
justice exception also permits a merits review of claims that have otherwise been
procedurally defaulted, see Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013).
The exception requires a showing that, in light of new evidence, no juror, acting
reasonably, would have voted to find the Petitioner guilty beyond a reasonable
doubt. Schlup v. Delo, 513 U.S. 298, 329 (1995).

The Petitioner must overcome a high hurdle in order to establish his actual
innocence. As the Sixth Circuit explained,

The United States Supreme Court has held that if a habeas petitioner

“presents evidence of innocence so strong that a court cannot have

confidence in the outcome of the trial unless the court is also satisfied

that the trial was free of nonharmless constitutional error, the

petitioner should be allowed to pass through the gateway and argue

the merits of his underlying claims.” Schiup, 513 U.S. at 316, 115 S.

Ct. 851, 130 L.Ed. 2d 808. Thus, the threshold inquiry is whether “new

Case No. 2:17-cv-1129 Page 4 of 7


Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for
the United States District Courts, the Court now considers whether to issue a
certificate of appealability. See 28 U.S.C. § 2255(d). When a claim has been
denied on the merits, a certificate of appealability may issue only if the petitioner
“has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). To make a substantial showing of the denial of a
constitutional right, a petitioner must show “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)). When a
claim has been denied on procedural grounds, a certificate of appealability may
be issued if the petitioner establishes that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right, and
that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling. /d.

Upon review of the record, this Court is not persuaded that reasonable
jurists could debate whether petitioner’s claims should have been resolved
differently or that jurists of reason would find it debatable whether this Court was
correct in its procedural rulings. Therefore, the Court DECLINES to issue a

certificate of appealability.

Case No. 2:17-cv-1129 Page 6 of 7


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Xay X. Amnathphonthip,

Petitioner,
v. Case No. 2:17-cv-1129
Warden, North Central Judge Michael H. Watson

Correctional Complex,
Magistrate Judge Jolson
Respondent.
OPINION AND ORDER

On July 26, 2018, the Magistrate Judge issued an Order and Report and
Recommendation, denying Petitioner's request to expand the record, and
recommending that Respondent's motion to dismiss, ECF No. 10, be granted
and that this action be dismissed. ECF No. 15. Petitioner has filed an Objection.
ECF No. 16. Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de
novo review. For the reasons that follow, Petitioner’s objection, ECF No. 16, is
OVERRULED. The Order and Report and Recommendation, ECF No. 15, is
ADOPTED and AFFIRMED. Respondent's motion to dismiss, ECF No. 10, is
GRANTED. Petitioner's request to expand the record with a copy of the
transcript of his guilty plea hearing is DENIED. This action is hereby
DISMISSED.

Petitioner challenges his September 2015, convictions pursuant to his

guilty plea in the Franklin County Court of Common Pleas on two counts of


The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal
would not be in good faith and that an application to proceed in forma pauperis
on appeal should be DENIED.

The Clerk is DIRECTED to enter final JUDGMENT.

rasoomen Ld bet

MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:17-cv-1129 Page 7 of 7


conspiracy, in violation of Ohio Revised Code § 2923.01. He first asserts in his
petition that he was denied due process and equal protection when the state
appellate court and Ohio Supreme Court denied his motion for a delayed appeal,
and that he did not make a knowing, intelligent, or voluntary plea because he
pleaded guilty without the assistance of an interpreter. He also alleges that he
was denied the effective assistance of trial counsel because his attorney failed to
obtain an interpreter, failed to explain the ramifications of his guilty plea, failed to
contact defense witnesses or present a defense, failed to file a timely appeal,
and failed to provide Petitioner with a copy of the case file. The Magistrate
Judge recommended dismissal of these claims as time-barred and procedurally
defaulted.

Petitioner objects to the Magistrate Judge’s recommendation of dismissal
of this action and raises all of the same arguments he previously presented. He
also asserts that he is actually innocent, and that his transfer between prison
facilities impeded his timely filing. He requests expansion of the record with a
copy of the transcript of his guilty plea hearing.

However, as discussed by the Magistrate Judge, the record indicates that
Petitioner failed to act diligently in pursuing relief. He waited more than seven
months after the trial court imposed the sentence to file a motion for a delayed
appeal. He waited more than one year after the appellate court’s June 28, 2016,
denial of his motion for a delayed appeal to file a motion for delayed appeal with
the Ohio Supreme Court. Further, construing the statute of limitations in the light

Case No. 2:17-cv-1129 Page 2 of 7


most favorable to the Petitioner, it began to run, at the latest, on June 28, 2016,
when the appellate court denied his motion for a delayed appeal. See DiCenzi v.
Rose, 452 F.3d 465, 469 (6th Cir. 2006). Petitioner nonetheless waited well over
a year, until November 20, 2017, to execute this Petition, but offers no evidence
to explain that delay. Moreover, Petitioner has procedurally defaulted the claims
he now presents for relief by failing to timely appeal, and by failing to file a timely
appeal to the Ohio Supreme Court. He has failed to establish cause for this
procedural default.

Likewise, Plaintiffs assertion of actual innocence fails to provide him relief.
Actual innocence can be a basis for equitable tolling of the statute of limitations
when a petitioner “can present new evidence which undermines this court’s
confidence in the outcome of the trial.” Craig v. White, 227 F. App’x 480, 481
(6th Cir. 2007) (citing Souter v. Jones, 395 F.3d 577, 600 (6th Cir. 2005);
Knickerbocker v. Wolfenbarger, 212 F. App’x 426, 431-32 (6th Cir. 2007); Stoker
v. Watson, 184 F. App’x 496, 497 (6th Cir. 2006); Bolton v. Berghuis, 164 F.
App’x 543, 549-50 (6th Cir. 2006)). Accordingly, “a petitioner whose claim is
otherwise time-barred may have the claim heard on the merits if he can
demonstrate through new, reliable evidence not available at trial, that it is more
likely than not that no reasonable juror would have found him guilty beyond a
reasonable doubt.” Yates v. Kelly, No. 1:11-cv-1271, 2012 WL 487991, at *1
(N.D. Ohio Feb. 14, 2012) (citing Souter, 395 F.3d at 590). “Where the

defendant pleaded guilty (as in the instant case), and therefore did not have the

Case No. 2:17-cv-1129 Page 3 of 7