Kevin Michael Thornton v. JAY FORSHEY, Warden

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0514n.06
No. 21-3012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KEVIN MICHAEL THORNTON,
Petitioner-Appellant,
v.
JAY FORSHEY, Warden,
Respondent-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO
BEFORE: ROGERS, GRIFFIN, and THAPAR, Circuit Judges.
GRIFFIN, Circuit Judge.
Brandishing a gun, a man robbed a metro-Cincinnati cash store in 2007. The store’s
employee not only identified petitioner Kevin Thornton as the robber but also confirmed that items
recovered by police at his apartment were those worn by the man who pointed a gun at her. Other
evidence indicated Thornton’s involvement as well—he told his mother the police thought he was
the robber, he told a friend he was the robber, and he changed his alibi in the face of contradictory
facts.
After an Ohio jury convicted Thornton of aggravated robbery and kidnapping, Thornton
obtained “new” evidence he contends demonstrates his actual innocence: the absence of his DNA
on zip ties used during the robbery, and an expert’s analysis of surveillance photos that showed,
in the expert’s opinion, the robber was shorter than Thornton. The district court concluded that he
filed an untimely petition for a writ of habeas corpus, and that because he did not show “that it is

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more likely than not that no reasonable juror would have convicted him in the light of the new
evidence,” Thornton could not utilize the so-called “actual innocence gateway” to excuse his
petition’s tardiness. Schlup v. Delo, 513 U.S. 298, 327 (1995). We agree and affirm.
I.
The facts as recited by the Ohio Court of Appeals are presumed correct on habeas review
pursuant to 28 U.S.C. § 2254(e)(1), and are as follows:
On September 11, 2007, at approximately 1:15 p.m., a man wearing sunglasses, a
pair of thin cotton or wool gloves, and a hat entered the Cash Express on Main
Street in the city of Milford, Clermont County, Ohio. The man walked up to the
counter and asked store employee Leslie Fahey what he needed to do to obtain a
loan. When Fahey walked around the counter to give him a brochure, the man
pointed a handgun at her stomach and demanded money. When Fahey asked if he
was serious, the man racked the slide on his handgun, thereby chambering a round
in the weapon, and repeated his demand. Fahey handed over the contents of her
cash drawer. The man then ordered Fahey to lie down on the floor, bound her hands
and feet with zip ties, and told her not to scream or he would come back. After
hearing nothing but silence, Fahey freed her hands, cut the zip tie on her feet and
sent out an alarm using her computer.
Even though the surveillance photographs of the robbery taken by the store’s
security camera did not show the robber’s face, three Milford police officers
believed that, given the perpetrator’s height and posture, the robber was Thornton.
When the police showed Fahey a photo lineup that did not include Thornton, but
contained the photo of a known shoplifter, she did not identify any of the men in
the lineup as being the robber. However, when the police showed Fahey a second
photo lineup that contained Thornton’s photograph, she identified Thornton as the
man who robbed her.
Thus, on the evening of September 11, 2007, police executed search warrants upon
Thornton’s apartment, the apartment of his girlfriend, and his mother’s motor
vehicle. When Sergeant Donald Mills of the Milford Police Department read
Thornton the search warrant, Sergeant Mills did not mention that the warrant related
to a robbery. However, Thornton explained to his mother, “They think I robbed
the Cash Express. I think it’s funny.” Furthermore, Thornton initially stated that
he was home with his mother “all day” but, when it was revealed that his mother
had not been home all day, Thornton stated that he had slept all day. Thornton
further explained that he knew about the Cash Express robbery because a neighbor
told him he looked like the robber.

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From Thornton’s apartment the police seized a black “Cincinnati Reds” t-shirt that
was found lying on a table and appeared to have been recently worn. The police
also seized a pair of sunglasses found lying underneath the “Cincinnati Reds” t-
shirt. When later shown to Fahey, she identified the t-shirt and the pair of
sunglasses as the items worn by the perpetrator during the robbery. However, the
police did not find zip ties, a gun, money, or a black baseball cap in any of the
locations searched.
State v. Thornton, 2013 WL 2636129, at *1 (Ohio Ct. App. June 10, 2013) (alterations omitted).
Moreover, “a friend of Thornton’s testified that Thornton confessed to the crime.” Id. at *9. Based
on these and other facts, an Ohio jury convicted Thornton of aggravated robbery and kidnapping
with firearm specifications in 2008, and he was sentenced to (and did) serve twelve years in
prison.1 Id. at *2.
In state collateral proceedings, Thornton presented two pieces of evidence not admitted at
trial that he claimed entitled him to post-conviction relief. Id. at *2–10. First, he obtained DNA
testing on the zip ties used to bind the victim’s hands and feet. Id. at *2. The testing “revealed a
single male DNA profile that did not match that of Thornton,” and a subsequent review confirmed
the testing “was performed correctly” and that there was no “possibility of accidental
contamination” by “the law enforcement officers who worked the crime scene.” Id. Second,
Thornton had a photogrammetric expert—one who uses “triangulation [to] measure[] an object in
a space where a photograph was taken”—analyze the surveillance photos of the robbery. Id. at *3.
That expert, Philip F. Locke, Jr., concluded that “the perpetrator in the surveillance photos . . . was
approximately 5’11” tall with an accuracy rate of plus or minus three-fourths of an inch. Thus,
the perpetrator could be no more than 6 feet tall. [Because] the parties stipulated at the 2008 trial
that Thornton is 6’3” tall, Locke determined that it is clear to a reasonable degree of scientific
1Thornton remains on supervised release, which means he is still “in custody” for purposes
of § 2254. See Nian v. Warden, N. Cent. Corr. Inst., 994 F.3d 746, 751 (6th Cir. 2021).

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certainty that the perpetrator could not possibly be Kevin Thornton.” Id. (internal quotation marks
omitted). The Ohio state courts denied him relief. See id. at *4–10.
Thornton then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. It raised
two grounds for relief: (1) his trial counsel was ineffective by failing to pursue DNA testing of
the zip ties or photogrammetric analysis; and (2) he was actually innocent. Because he had
previously filed another habeas petition, the district court transferred the petition to this court for
authorization as a second or successive petition under § 2244, see In re Sims, 111 F.3d 45, 47 (6th
Cir. 1997) (per curiam), which we subsequently granted, In re Thornton, No. 17-3282 (6th Cir.
Nov. 17, 2017) (order). With proceedings reopened, the district court dismissed Thornton’s
petition as both untimely and unmeritorious. But it granted Thornton a certificate of appealability
on two issues: “whether Petitioner’s actual innocence claim excuses his failure to timely file the
petition,” and if so, “whether the petition states a valid claim of ineffective assistance of counsel.”2
II.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides a one-year
statute of limitation for any “application for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). The district court concluded that this
one-year bar commenced at the latest on March 27, 2012 (the date of the DNA report), and that
Thornton’s July 8, 2014, petition was therefore untimely under § 2244(d)(1)(D). That holding is
not before us. What is disputed is whether the district court correctly concluded that Thornton
failed to muster evidence to excuse AEDPA’s procedural bar by way of the actual-innocence
2It declined, however, to issue a certificate of appealability regarding its other holdings:
(1) that the petition was untimely; (2) that equitable tolling did not apply to his untimely petition;
and (3) that his standalone actual-innocence claim was not cognizable. Thornton did not move
here to expand the certificate of appealability to address these issues.

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gateway, a decision we review de novo. See Davis v. Bradshaw, 900 F.3d 315, 327 n.7 (6th Cir.
2018).
A.
The actual-innocence gateway is a procedure habeas petitioners must satisfy to have an
“otherwise barred constitutional claim considered on the merits,” Schlup, 513 U.S. at 315 (citation
omitted), including one barred by the expiration of the statute of limitations, McQuiggin v. Perkins,
569 U.S. 383, 386 (2013). It “is grounded in the equitable discretion of habeas courts to see that
federal constitutional errors do not result in the incarceration of innocent persons.” Id. at 392
(internal quotation marks omitted). The gateway is not a mechanism that independently provides
relief—that depends instead on the validity of the underlying constitutional claim, like, as here, a
claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).
Schlup, 513 U.S. at 315. To pass through the gateway, a petitioner must produce “new evidence”
that establishes “a constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Id. at 327 (citation omitted and emphasis added).
We first require that a state prisoner “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.” Id. at 324. Upon such a
showing, a reviewing habeas court must then “consider all the evidence, old and new,
incriminating and exculpatory, without regard to whether it would necessarily be admitted under
rules of admissibility that would govern at trial.” House v. Bell, 547 U.S. 518, 538 (2006) (internal
quotation marks omitted). In so considering, “the federal court [must] assess how reasonable
jurors would react to the overall, newly supplemental record,” which if the “new evidence so

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requires, . . . may include consideration of the credibility of the witnesses presented at trial.” Id.
at 538–39 (internal quotation marks omitted).
“Based on this total record, the court must make a probabilistic determination about what
reasonable, properly instructed jurors would do.” Id. at 538 (internal quotation marks omitted).
Only if the petitioner shows “that it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence,” Schlup, 513 U.S. at 327, may a court permit his
underlying constitutional claim to pass through the gateway and review it on the merits. This
probability standard is “less strict” than the familiar sufficiency-of-the-evidence standard set forth
in Jackson v. Virginia, 443 U.S. 307 (1979), and “does not require absolute certainty about the
petitioner’s guilt or innocence,” Cleveland v. Bradshaw, 693 F.3d 626, 633 (6th Cir. 2012)
(citation omitted). But it also “does not merely require a showing that a reasonable doubt exists
in the light of the new evidence.” Schlup, 513 U.S. at 329. The barrier to relief is significant: the
petitioner must show that “no reasonable juror would have found the defendant guilty.” Id. Both
the Supreme Court and this circuit have emphasized this gateway is to be applied only in the
“extraordinary case” because “a substantial claim that constitutional error has caused the
conviction of an innocent person is extremely rare.” Id. at 321, 324; McQuiggin, 569 U.S. at 386
(“We caution, however, that tenable actual-innocence gateway pleas are rare.”); Davis, 900 F.3d
at 326 (“But this innocence gateway is a narrow one.”).
B.
We begin with the significant evidence of Thornton’s guilt presented to the jury. Consider
the testimony of Leslie Fahey, the store’s teller. She expressly picked Thornton out of a photo
lineup as the robber (and did so after being presented with a photo array that did not include

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Thornton). Thornton, 2013 WL 2636129, at *1.3 And she identified a pair of sunglasses and a
black Cincinnati Reds t-shirt recovered from Thornton’s apartment as “items worn by the
perpetrator during the robbery.” Id. Take too Thornton’s own words. On the day of the robbery,
he spontaneously offered to his mother that police suspected his involvement—commenting that
“[t]hey think I robbed the Cash Express. I think it’s funny.”—before police mentioned the robbery.
Id. He confessed to a friend that he was the robber. Id. at *9. And he changed his “I was with my
mother” alibi once it was known he was not. Id. at *1. With this backdrop, we cannot agree with
Thornton that “it is more likely than not that no reasonable juror would have convicted him in the
light of the new evidence.”4 Schlup, 513 U.S. at 327.
Although the DNA testing presents a version of the facts that would support Thornton’s
claim of innocence given the lack of his DNA on the zip ties, a reasonable juror could conclude
that fact did not absolve Thornton. The robber wore gloves and the DNA “could just as easily
have come from a factory-worker who manufactured the zip ties or a store clerk who stacked the
zip ties on the shelf or sold the zip ties.” Thornton, 2013 WL 2636129, at *9. The mere possibility
that the robber’s DNA could have nonetheless transferred to the zip ties during the commission of
the crime is too speculative to reason otherwise.
The second piece of new evidence weighs more in Thornton’s favor. Locke’s
photogrammetric analysis and resulting conclusion that the robber was no taller than six feet
certainly helps the six-foot three-inch Thornton; indeed, it bolsters the argument Thornton’s
3Three police officers also identified Thornton after reviewing the store’s surveillance
photographs. Id.
4The warden does not dispute, and we assume for the sake of this appeal, that the offered
DNA evidence and expert-witness report qualifies as new reliable evidence under Schlup. 513
U.S. at 324.

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counsel made at trial during closing argument when reviewing the same surveillance photos and
Fahey’s testimony. See id. at *5. But however supportive, a reasonable juror could reject Locke’s
analysis of the grainy surveillance photos considering Fahey’s identification of both Thornton and
the effects gathered from his apartment and Thornton’s inculpating statements—evidence that was
in no way impacted by Locke’s analysis.
Nor do we find occasion to reevaluate whether Fahey credibly identified Thornton in the
first instance or the circumstances of Thornton’s confession, as Thornton insists we should. In his
habeas petition, Thornton did not take issue with the state court’s factual determinations—that
Fahey accurately identified Thornton and that it was a “friend” who identified Thornton—under
§ 2254(d)(2)’s unreasonable-determination-of-the-facts prong. Yes, the Supreme Court has stated
that “[i]f new evidence so requires,” evaluating a petitioner’s actual-innocence gateway claim
“may include consideration of ‘the credibility of the witnesses presented at trial.’” House,
547 U.S. at 538–39 (quoting Schlup, 513 U.S. at 330). But that is not a requirement and certainly
does not merit any application here, for neither the DNA nor the photogrammetric evidence have
any bearing on those witnesses’ ability or motive to identify Thornton.
Because it is probable that a reasonable juror would still have convicted Thornton despite
the new evidence, Thornton did not establish that this is the “extraordinary case” meriting passing
through the actual-innocence gateway. Schlup, 513 U.S. at 321. The district court therefore
correctly dismissed his petition as procedurally barred.
III.
For these reasons, we affirm the judgment of the district court.

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