Heid v. Warden, Ross Correctional Institution

Filing 15

REPORT AND RECOMMENDATIONS re 9 Respondent's Motion to Dismiss. IT IS RECOMMENDED THAT: (1) Respondent's motion to dismiss 9 be GRANTED, and petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 1 be DISMISSED with prejudice on the ground that it is time-barred; (2) a certificate of appealability should not issue with respect to any of the claims for relief alleged in the petition; (3) the Court certify that an appeal would not be taken in &qu ot;good faith," and therefore DENY Petitioner leave to appeal in forma pauperis upon a showing of financial necessity. Objections to R&R due by 6/5/2017. Signed by Magistrate Judge Stephanie K. Bowman on 5/22/2017. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
RAY SCOTT HEID,
Petitioner,

Case No. 1:16-cv-398
Black, J.
Bowman, M.J.

vs.
WARDEN, ROSS
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND
RECOMMENDATION

Petitioner, an inmate in state custody at the Ross Correctional Institution in Chillicothe,
Ohio, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc.
1). In the petition, petitioner challenges his conviction and sentence in Scioto County, Ohio, Court
of Common Pleas Case No. 08-CR-467. (Id.). This matter is before the Court on respondent’s
motion to dismiss (Doc. 9), which petitioner opposes. (See Doc. 13).1
I. PROCEDURAL HISTORY
A. State Court Proceedings
1. Trial Proceedings: May-June 3, 2008
On May 5, 2008, the Scioto County grand jury returned a five-count indictment in Case No.
08-CR-467, charging petitioner with aggravated murder in violation of Ohio Rev. Code §
2903.01(A) (Count 1); aggravated burglary in violation of Ohio Rev. Code § 2911.11(A)(1) (Count
2); aggravated robbery in violation of Ohio Rev. Code § 2911.01(A)(1) (Count 3); tampering with

1

Respondent has also separately filed 58 exhibits obtained from the underlying state-court record, as well as
the trial transcript, as support for the motion to dismiss. (See Doc. 8). In addition, petitioner has filed a motion for
discovery and for appointment of counsel. (See Doc. 14). In a separate order issued this date, petitioner’s nondispositive motion has been denied as moot.

1

evidence in violation of Ohio Rev. Code § 2921.12(A)(1) (Count 4); and theft of a motor vehicle in
violation of Ohio Rev. Code § 2913.02(A)(1) (Count 5). (Doc. 8, Ex. 1). A firearm specification
was attached to the charges set forth in Counts 1 through 3. (Id.).
On May 30, 2008, petitioner entered a guilty plea to a reduced charge in Count 1 of murder
in violation of Ohio Rev Code § 2903.02(A) with firearm specification. (See id., Ex. 2). On the
same date, the trial court sentenced petitioner to an agreed-to aggregate prison term of 18 years to
life, which consisted of consecutive terms of imprisonment of 15 years to life for the murder
offense and 3 years for the firearm specification. (Id., Exs. 4, 52 & Trial Tr. 1, at PAGEID#: 721).
In addition, the trial court ordered that the sentence run consecutively to a five-year prison term
imposed in another prior case—Scioto County Common Pleas Court Case No. 04-CR-853. (See
id. & Trial Tr. 9, at PAGEID#: 729).2 It appears from the docket record for Case No. 08-CR-467
that petitioner’s guilty plea and sentence were entered on the record on June 3, 2008. (See id., Ex.
52). Respondent states that petitioner did not pursue a timely appeal to the Ohio Court of Appeals
from the final judgment entry. (Doc. 9, p. 3, at PAGEID#: 734).
2. February 1, 2010 Motion To Withdraw Guilty Plea
On February 1, 2010, well over a year and half after the final judgment entry was issued in

2

It appears from the record that in the prior case, which involved arson charges, petitioner was granted
release on Community Control. (See Doc. 8, Trial Tr. 9, at PAGEID#: 729). At the hearing held on May 30, 2008 in
Case No. 08-CR-467, the trial court revoked the order of conditional release and re-imposed the original five-year
prison sentence before ordering that the sentence be served consecutively to the aggregate prison sentence in Case No.
08-CR-467. (Id.). In January 2016, petitioner filed a habeas corpus petition challenging his conviction and sentence in
Case No. 04-CR-853 with this Court. See Heid v. Warden, Ross Corr. Inst., No. 1:16-cv-234 (Black, J.; Litkovitz,
M.J.) (Doc. 1). On February 14, 2017, the District Court adopted the magistrate judge’s Report and Recommendation
to grant the respondent’s motion to dismiss the petition with prejudice on the ground that the petition was time-barred.
Id. (Docs. 21, 27-28). It appears from this Court’s docket record for Case No. 1:16-cv-234 that the matter is currently
pending on appeal before the United States Court of Appeals for the Sixth Circuit. See id. (Docs. 29-30).

2

Case No. 08-CR-467, petitioner filed a pro se motion to withdraw his guilty plea with the trial
court. (Doc. 8, Ex. 5). Petitioner claimed in that motion that his trial counsel was ineffective and
“misled” petitioner to enter a guilty plea to a charge that was “more severe” than it “should have
been” because the offense “was a crime of passion . . . committed in the heat of an emotionally
charged moment, with no opportunity to reflect on what [was] happening, and was done in the heat
of passion.” (Id., at PAGEID#: 54). On April 16, 2010, the trial court denied the motion without
opinion. (Id., Ex. 6). Petitioner next filed a motion requesting that the trial court issue findings of
fact and conclusions of law in support of its ruling denying his motion to withdraw guilty plea.
(Id., Ex. 7). On July 22, 2010, the trial court denied the motion on the ground that “findings of fact
and conclusions of law are not required in the defendant’s motion to withdraw a plea.” (Id., Ex. 8).
Respondent states that petitioner did not pursue an appeal in that matter. (Doc. 9, p. 3, at
PAGEID#: 734).
3. Motions for Transcripts/Records
Three months later, on October 21, 2010, petitioner filed a pro se motion requesting “all
Court Transcripts” in Case No. 08-CR-467. (Doc. 8, Ex. 9). On February 18, 2011, the trial court
denied the motion and informed petitioner that he could “request transcripts of his proceedings at
his own expense and should notify the court reporter should he still desire to receive a transcript.”
(Id., Ex. 10).
Approximately eighteen months later, petitioner submitted another request for transcripts
as an “indigent defendant” together with a financial affidavit dated July 10, 2013. (Id., Ex. 11). In
addition, petitioner filed motions on August 21, 2013 and May 13, 2014 requesting that records be
provided to him free of charge. (See id., Exs. 12-13). On June 23, 2014, the trial court denied
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those motions as “not well taken.” (Id., Ex. 14).
On July 22, 2014, petitioner filed another pro se motion “for court records without costs,”
arguing that the information was needed for purposes of pursuing a delayed appeal to the Ohio
Court of Appeals and state post-conviction relief. (Id., Ex. 15). The trial court denied that motion
on August 20, 2014. (Id., Ex. 16).
On August 28, 2014, petitioner filed yet another pro se motion requesting “court records
without costs.” (Id., Ex. 17). In that motion, petitioner reiterated that the information was needed
to prepare a delayed appeal to the Ohio Court of Appeals and further contended in a reply
memorandum that the requested documents were “all public record” and were required to be
provided pursuant to the Freedom of Information Act (FOIA) and Ohio Rev. Code § 149.43. (See
id. & Ex. 18). On October 6, 2014, the trial court summarily denied the motion. (Id., Ex. 19).
Petitioner appealed that ruling to the Ohio Court of Appeals, Fourth Appellate District, arguing
that the trial court abused its discretion and violated petitioner’s constitutional rights to due process
and equal protection by refusing to grant him access to the court records. (See id., Exs. 20-21). On
April 15, 2015, the Ohio Court of Appeals issued a decision rejecting petitioner’s claim of error
and affirming the trial court’s judgment. See State v. Heid, Nos. 14CA3668, 14CA3669, 2015 WL
1774336 (Ohio Ct. App. Apr. 15, 2015). Respondent states that petitioner did not pursue a further
appeal to the Ohio Supreme Court in that matter. (Doc. 9, p. 5, at PAGEID#: 736).
4. November 17, 2014 Motion for Delayed Appeal (Case No. 14CA3670)
On November 17, 2014, petitioner filed a pro se notice of appeal and motion for leave to
file a delayed appeal to the Ohio Court of Appeals, Fourth Appellate District, from the judgment of
conviction and sentence entered over six years earlier, on June 3, 2008. (Doc. 8, Exs. 24-25).
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Petitioner provided the following reasons for his delay in filing:
[T]he reasons for the delay are not because of [petitioner’s] own carelessness,
inattention, or willful disregard of the Court’s process, but that the hindrance is due
in part to the care and vigilance of counsel. . . . While being sentenced, Appellant
specifically asked counsel if I could appeal so another Court would give me a
chance to be heard . . . to which counsel replied that I had no right to appeal. . . .
Upon arrival at ODRC on June 8, 2008 AD, the reception prison to which I was
placed operated on a procedure that keeps inmates locked down for twenty-three
hours of the day. Therefore, while there for about six months, I had no access to the
legal library known to me. Furthermore, the legal clerks there would only speak
with inmates who had taken their cases to trial. . . . Upon arrival at my parent
institution, Ross Correctional Institution (“RCI”), I asked inmate legal clerks about
a right to appeal, and was re-informed that a guilty plea waives a right to appeal.
While trying to learn the steps to take in order to obtain an appeal[]able order, I was
in and out of the ‘hole.’ Being in the ‘hole’ was an impairment to learning the legal
steps to take, which also created a longer delay to what procedures to take. While
not in the ‘hole,’ the library schedule produces its own burdens, as the line can be
difficult to get on and those ahead of you can use up all their pass time without
having to return to the block until the library is closed. Some days the library would
just be cancelled. As we only have library eight times a month this is an
impediment.
(Id., Ex. 25, at PAGEID#: 159-60). Petitioner also contended that the delay was due in part to (1)
his lack of training in the law “with very little legal assistance to guide [him] through the process”;
and (2) his focus on obtaining relief in Case No. 04-CR-853, which caused him “to push this
litigation back as [he did] not have the financial abilities to attempt to adjudicate both cases at the
same time.” (Id., at PAGEID#: 164). Petitioner further asserted that he had a colorable claim to
raise on appeal because his trial counsel was ineffective and coerced him to plead guilty to murder
although he “did not intentionally or purposely cause the death of [his] uncle.” (See id., at
PAGEID#: 167-68).
On December 16, 2014, the Ohio Court of Appeals denied petitioner’s motion for leave to
file a delayed appeal on the ground that petitioner had “not presented an adequate explanation to
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justify granting him leave to file a delayed appeal over six years after his conviction and
sentencing.” (Id., Ex. 26).3
Petitioner timely appealed that decision to the Ohio Supreme Court. (See id., Ex. 31). In
his memorandum in support of jurisdiction, petitioner asserted as propositions of law that (1) he
was denied a speedy trial and the effective assistance of counsel when his attorney “misadvised
[him] of the affirmative defense of Voluntary Manslaughter” and coerced him to enter the guilty
plea; and (2) he was deprived of his rights under the First, Fifth and Fourteenth Amendments
because he was not treated fairly or equally when the “trial court deviated from the legal rule of
Sup.R.20” and provided him with counsel who was ineffective. (See id., Ex. 32). On May 20,
2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. (Id., Ex. 33).
5. November 17, 2014 Motion To Withdraw Guilty Plea
On November 17, 2014, the same date petitioner filed his motion for delayed appeal to the
Ohio Court of Appeals, petitioner filed a second pro se motion to withdraw his guilty plea with the
trial court. (Doc. 8, Ex. 34). Petitioner later filed an amendment to the motion and supporting
memoranda. (See id., Exs. 35, 37, 38). It appears from petitioner’s pleadings that he was
essentially asserting the same ineffective-assistance-of-counsel claim that he had raised in his prior
motion to withdraw his plea and motion for delayed appeal to the Ohio Court of Appeals. (See
id.). Respondent states that the “trial court did not rule on [this] motion.” (Doc. 9, p. 7, at
PAGEID#: 738). Both parties have averred that the trial court lacked jurisdiction to rule on the
3

It is noted that petitioner thereafter filed a motion for reconsideration, which the Ohio Court of Appeals
allowed him to amend. (See Doc. 8, Exs. 27, 29-30). On March 31, 2015, the Ohio Court of Appeals denied
petitioner’s application for reconsideration on the basis of both the merits of the underlying claim that petitioner was
seeking to raise on appeal and the inadequacy of his “litany of reasons” to “explain or justify” his over six-year delay
in filing. (See id., Ex. 30). It appears from the record presented that petitioner did not appeal that ruling to the Ohio
Supreme Court.

6

motion due to petitioner’ pending appeals in the Ohio Court of Appeals. (Id.; see also Doc. 13, at
PAGEID#: 767-68). “[U]nder Ohio law, when the trial court fails to rule on a motion, it must be
presumed that the motion was denied.” Edwards v. Warden, Ross Corr. Inst., No. 1:08cv850, 2009
WL 6600255, at *5 (S.D. Ohio Dec. 17, 2009) (Hogan, M.J.) (Report & Recommendation) (citing
State v. Olah, 767 N.E.2d 755, 760 n.2 (Ohio Ct. App. 2001)), adopted, 2010 WL 2519659 (S.D.
Ohio June 17, 2010) (Spiegel, J.); see also Peterson v. Warden, Pickaway Corr. Inst., No.
1:14cv604, 2015 WL 3970171, at *2 (S.D. Ohio June 30, 2015) (Bowman, M.J.) (Report &
Recommendation) (and cases cited therein), adopted, 2015 WL 3970266 (S.D. Ohio June 30,
2015) (Dlott, J.).4
6. March 13, 2015 Petition for Post-Conviction Relief
On March 13, 2015, petitioner filed a pro se petition for post-conviction relief pursuant to
Ohio Rev. Code § 2953.21 with the trial court based on the same allegations of ineffective
assistance by trial counsel in inducing his guilty plea. (Doc. 8, Ex. 40). In subsequent pleadings,
petitioner also contended, as he had in the delayed appeal proceedings, that he was deprived of
“adequate representation” at trial because of the court’s failure to abide by “Sup.R.20,” which was
enacted by the Ohio General Assembly “to govern Ohio’s Courts in capital cases.” (Id., Ex. 41, at
PAGEID#: 582). As supporting evidence, petitioner submitted his own affidavit and a letter dated
September 12, 2014 from “Thomas Starr” regarding conversations that Starr had with petitioner’s
trial counsel and the prosecutor during the plea negotiations. (See id., Ex. 40, at PAGEID#: 567-

4

It is further noted that in a decision issued on April 26, 2016 on appeal from the denial of petitioner’s
subsequent petition for post-conviction relief, the Ohio Court of Appeals stated that the November 2014 motion to
withdraw guilty plea was “unsuccessful.” See State v. Heid, No. 15CA3710, 2016 WL 1733427, at *1 (Ohio Ct. App.
Apr. 26, 2016).

7

72). Petitioner also submitted additional exhibits, including Detective Denver Triggs’
“Investigator Notes” dated December 23, 2007, detailing what was said during petitioner’s
videotaped interview at the police station a few days after the incident giving rise to the criminal
charges took place, as well as the evidence uncovered during the course of the investigation that
matched petitioner’s account of the events that had occurred. (See id., Ex. 42, at PAGEID#: 641).
On August 27, 2015, the trial court denied petitioner’s petition for post-conviction relief,
reasoning in relevant part as follows:
The Court finds the Defendant has not presented sufficient justification for filing his
motion outside the time permitted by law. The information in his statement to law
enforcement was available to Defendant so that he could file his petition timely
after his conviction.
Defendant’s claim also lacks merit. Defendant mistakenly called manslaughter an
affirmative defense. Manslaughter does not appear to be “an available course of
action” based upon Defendant’s statements to the officer. The actions of his
counsel described by Defendant are within the standards of legal competency.
Defendant attached Detective Denver Triggs[’] investigative notes to his reply
memorandum. Defendant’s statements to Triggs show that he committed the crime
purposely. Defendant cannot realistically claim “crime of passion” when he hid in
the woods and waited. Then he kicked in the trailer door and ran in with pistols out.
He then ran to the rear of the trailer, got into an altercation with the victim and shot
him multiple times.
(Id., Ex. 44).
Petitioner timely appealed the trial court’s ruling to the Ohio Court of Appeals, Fourth
Appellate District. (See id., Exs. 45-46).5 On April 26, 2016, the Ohio Court of Appeals affirmed
5

It is noted that on November 13, 2015, a couple of months after petitioner initiated the appeal, petitioner
filed a motion with the trial court renewing his request for the court record, which petitioner claimed was “necessary”
for the adjudication of the pending appeal. (See Doc. 8, Ex. 50). On March 25, 2016, the trial court denied the motion.
(See id., Ex. 52). Petitioner apparently filed a notice of appeal from that decision to the Ohio Court of Appeals, Fourth
Appellate District. However, the appeal had a number of deficiencies, which petitioner failed to correct in accordance
with orders issued by the appellate court. (See id., Ex. 51). Therefore, the Ohio Court of Appeals sua sponte

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the trial court’s denial of post-conviction relief without a hearing on the ground that the petition
was “untimely and was barred by res judicata.” State v. Heid, No. 15CA3710, 2016 WL 1733427,
at *4 (Ohio Ct. App. Apr. 26, 2016). In so ruling, the court reasoned as follows:
Heid claims that his petition was reviewable because he was unavoidably prevented
from the discovery of the unsworn letter purportedly sent to him by Tom Starr in
September 2014. We reject this argument. Nothing in the letter or in Heid’s
affidavit explains how he was unavoidably prevented from obtaining this
information from Starr until over six years after his conviction. Evidently, Starr is
Heid’s friend or acquaintance, but Heid provides no explanation why he waited so
long after his conviction to obtain what he considers to be critical evidence
supporting his claim that he was coerced into pleading guilty to murder. . . .
Likewise, res judicata bars Heid from raising his claim of ineffective assistance of
his trial counsel in his petition for post-conviction relief after he repeatedly raised
this claim in prior post-sentencing motions to withdraw his guilty plea. . . . Because
Heid raised his ineffective-assistance-of-counsel claim as early as his 2010 motion
to withdraw his guilty plea and in his subsequent 2014 motion to withdraw his
guilty plea, res judicata bars him from raising the same claim or any other claim he
could have raised in his first post-conviction proceeding.
Finally, on appeal Heid raises a claim that his due-process rights were violated
because the trial court failed to appoint him two trial counsel in accordance with
former Sup.R. 20, now Appt.Coun.R. 5.02. The trial court did not err by ignoring
this claim because Heid’s petition was untimely and he failed to raise it in his
petition. Instead he raised it in a subsequent memorandum in which he requested
that the trial court take judicial notice of the rule and the affidavits of three capital
defendants in which they stated that they were appointed two trial attorneys in their
capital cases. Moreover, res judicata barred Heid from raising this claim when he
could have raised it on appeal or in one of his many post-sentence motions. And
unlike the other defendants, who were charged with capital offenses including death
penalty specifications . . . entitling them to representation from at least two
attorneys . . ., Heid was not charged with any death-penalty specifications for his
aggravated-murder charge. Thus, he was not entitled to be represented by two
attorneys in his criminal proceeding.
Id. at *3-4 (Ohio case citations omitted).
Respondent states that petitioner did not pursue a further appeal to the Ohio Supreme
dismissed the appeal on July 15, 2016. (Id.).

9

Court. (Doc. 9, p. 10, at PAGEID#: 741). It appears from the record that petitioner attempted to
appeal the Ohio Court of Appeals’ ruling to the Ohio Supreme Court. (See Doc. 13, at PAGEID#:
770 ¶21). However, the appeal documents were returned to petitioner due to his failure to submit a
memorandum in support of jurisdiction as required by the Rules of Practice of the Supreme Court
of Ohio. (See id. & PAGEID#: 813). Petitioner states that he could not perfect a timely appeal to
the Ohio Supreme Court because he received the letter informing him that “he had until June 10,
2016 . . . to fix deficiencies” on June 6, 2016. (Id., at PAGEID#: 770 ¶21).
B. Federal Habeas Corpus Petition
Petitioner commenced the instant habeas corpus action on March 19, 2016. (See Doc. 1).6
In the petition, petitioner asserts three grounds for relief:
Ground One: Mr. Heid’s protected rights of due process and equal protection of
law were violated.
Supporting Facts: The court upon its own volition in cases that charge a defendant
with agg. Murder and one or more specifications of aggravated circumstances
appoints two attorneys for defense counsel. . . . Heid was officially indicted for
agg. Murder; firearm specification; burglary; agg. Robbery; tamp. with evidence;
and theft of a Motor Vehicle. Yet at no time was Heid afforded two defense
counsels to represent him as afforded others in similar circumstances. . . .
Ground Two: Mr. Heid was deprived of his constitutional right of the effective
assistance of counsel.
Supporting Facts: Counsel was an acting agent on behalf of the state who, on 530-08 AD, secured them a guilty plea. During the pendency of this case, counsel
provided no advice in support of any defense, nor did he disclose any evidence with
6

It is well-settled that the filing date of a federal habeas corpus petition submitted by a pro se prisoner is the
date on which the prisoner provides his papers to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266
(1988); see also Miller v. Collins, 305 F.3d 491, 497-98 (6th Cir. 2002); Goins v. Saunders, 206 F. App’x 497, 499 n.1
(6th Cir. 2006). Here, however, petitioner has averred in the petition that he placed the petition in the prison mailing
system on March 21, 2016, which is two days later than the date of filing reflected in this Court’s docket record. (See
Doc. 1, at PAGEID#: 11). Therefore, the actual filing date set forth in the docket report is deemed to be the date of
filing in this particular case.

10

Heid that supported Heid’s defense claim – manslaughter. Counsel manipulated
Heid’s understanding of the law by leading Heid to believe that “crime of passion”
does not exist and that Manslaughter was unavailable – leading Heid to believe
these were separate issues instead of clearing up the confusion by advising Heid that
“crime of passion” is Manslaughter and how that’s applicable or inapplicable
(simply explain the elements). Counsel, knowing that Heid heard his lover and
paramour engaged in sex, deliberately led Heid to believe his deceptive advice.
This deception affected Heid’s decision making capabilities in relation to plea or go
to trial.
Counsel’s misrepresentation quashed the available defense of Manslaughter, and on
5-29-08 AD at about 6 PM, presented an election which in[ci]ted fear and led Heid
to deduce an unreasonable decision. Counsel related to Heid two options: one a
choice that Heid will never see freedom and his family again; and the other an
opportunity to be free in 15-years. The pressure by counsel caused Heid to yield to
coercion. In Heid’s brow-beatened state of mind, he made one last-ditch effort to
re-affirm his defense and asked to call Tom Starr to speak about all of the options.
Counsel called Tom on his cell phone, persuaded Tom the 15-year deal was the best
option, and then permitted Heid to speak to Tom. These acts induced Heid to
plea[d] guilty.
During the morning hours of 5-30-08 AD Heid reluctantly pled guilty to what he
believed was a 15-year to life sentence. The court sentenced Heid to 22-years-tolife. During imposition of sentence, Counsel stated to Heid that he had no right to
appeal, it was not allowed.
Heid was not provided two attorneys for representation nor competent assistance of
counsel. This structural error affected the course of events and the outcome of the
case.
Ground Three: Mr. Heid’s guilty plea is unconstitutional and therefore invalid.
Supporting Facts: Heid was induced to commit an act of self-incrimination due to
counsel’s misrepresentation. This deprived Heid of a fair trial. This inducement
involved counsel persuading a third-party and then having that person unknowingly
aid counsel in inducing Heid to plea[d] guilty. Ultimately divesting Heid of due
course of law. This plea was compelled by counsel’s advice; advice that suppressed
an available course of defense. Had I had an accurate understanding of the relevant
law, I would not have pled guilty. Counsel uttered threats and presented an act of
estoppel by election that incited fear and anxiety and compelled the plea among the
options he developed for Heid to elect from.
(Id., at PAGEID#: 5-8).
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Respondent has filed a motion to dismiss the petition. (Doc. 9). Respondent contends that
the petition is subject to dismissal with prejudice because it is barred from review by the applicable
one-year statute of limitations governing federal habeas actions by state prisoners, which is set
forth in 28 U.S.C. § 2244(d). (See id.). Petitioner has filed a brief opposing the motion to dismiss.
(Doc. 13).
II. RESPONDENT’S MOTION TO DISMISS (DOC. 9) SHOULD BE GRANTED
BECAUSE THE PETITION IS TIME-BARRED
Under 28 U.S.C. § 2244(d)(1), as amended by § 101 of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, a person in custody
pursuant to the judgment of a state court must file an application for a writ of habeas corpus within
one year from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled during the
pendency of a properly filed application for state post-conviction relief or other collateral review.
The Court must first determine which limitations provision contained in 28 U.S.C. §
2244(d)(1) applies to petitioner’s grounds for habeas corpus relief. Respondent argues that
12

petitioner’s claims are governed by the one-year statute of limitations set forth in § 2244(d)(1)(A)
because the factual bases for those claims arose and were discoverable in the exercise of due
diligence before petitioner’s conviction became final in 2008. (See Doc. 9, p. 14, at PAGEID#:
745). In contrast, petitioner contends that § 2244(d)(1)(B) governs the case-at-hand and that the
statute of limitations did not begin to run until May 20, 2015, the date the Ohio Supreme Court
issued the final ruling in the delayed appeal proceedings, because his “State appointed attorney
impeded a timely appeal process” by erroneously advising him that he did not have a right to
appeal his conviction. (See Doc. 13, ¶¶24-26, at PAGEID#: 771). The undersigned is not
persuaded by petitioner’s argument.
As the Sixth Circuit recently pointed out, “Section 2244(d)(1)(B) requires a causal
relationship between the unconstitutional state action [i.e., ineffective assistance imputed to the
state] and [the petitioner’s] being prevented from filing the petition.” Webb v. United States,
App’x

F.

, No. 14-5380, 2017 WL 655774, at *5 (6th Cir. Feb. 17, 2017) (quoting Waldron v.

Jackson, 348 F. Supp.2d 877, 883 (N.D. Ohio 2004)). Petitioner is unable to show a causal
relationship that would connect his attorney’s alleged ineffectiveness in preventing him from filing
a timely appeal to the Ohio Court of Appeals with his ability to file a federal habeas petition in a
timely manner. See, e.g., Winkfield v. Bagley, 66 F. App’x 578, 582-83 (6th Cir. 2003) (in a case
where the petitioner claimed that he was prevented from filing a timely habeas petition because his
appellate counsel “actively misled him into believing [a new trial motion] and his direct appeal
were still pending,” the Sixth Circuit rejected the argument that § 2244(d)(1)(B) applied because
there was “[n]o connection” between counsel’s ineffective assistance regarding the state action and
the petitioner’s “ability to file a federal habeas petition”); Miller v. Cason, 49 F. App’x 495, 497
13

(6th Cir. 2002) (rejecting the petitioner’s argument that the State “impeded the filing of his federal
habeas petition by failing to give him notice of his appeal rights at sentencing” because the
petitioner failed to explain how the action, which “may have interfered with [his] direct appeal in
state court in the early 1990s, . . . prevented him from filing his federal habeas corpus petition until
2001”); see also Baker v. Wilson, No. 5:06cv1547, 2009 WL 313325, at *8 (N.D. Ohio Feb. 6,
2009) (citing Miller and numerous district court decisions) (in holding that “a state court’s failure
to advise a petitioner of his appellate rights at sentencing was not a state-created impediment that
prevented him from filing his federal habeas petition,” the district court pointed out that “[t]he
Sixth Circuit is joined by several other courts in finding that the state-created impediment must
prevent the petitioner from filing a federal habeas action, not just a direct appeal in state court”);
Neff v. Brunsman, No. 1:06cv135, 2007 WL 912122, at *4, 7-8 (S.D. Ohio Mar. 23, 2007)
(Spiegel, J.; Black, M.J.) (rejecting the argument that the failure to inform the petitioner of his right
to an appeal amounted to a “state-created impediment” triggering application of the statute of
limitations set forth in § 2244(d)(1)(B) because no “causal relationship” was established showing
that the allegedly unconstitutional state action prevented the petitioner from filing a timely federal
habeas petition). Cf. Webb, supra, 2017 WL 655774, at *3-5 (in a case involving the analogous
limitations provision for petitions filed pursuant to 28 U.S.C. § 2255, the Sixth Circuit relied in
part on Winkfield and Miller in rejecting the petitioner’s argument that he was prevented from
filing his § 2255 petition because his counsel “led him to believe that he could not appeal . . . and
did not consult with him about an appeal”). Therefore, contrary to petitioner’s contention, the
limitations provision set forth in § 2244(d)(1)(B) does not apply to the case-at-hand.
In addition, the undersigned rejects petitioner’s contention that the statute of limitations did
14

not begin to run until May 20, 2015, when the Ohio Supreme Court declined to accept jurisdiction
of petitioner’s appeal from the Ohio Court of Appeals’ denial of his motion for delayed appeal.
(See Doc. 8, Ex. 33). In his three grounds for relief, petitioner essentially claims that two attorneys
should have been appointed to represent him because the indictment involved an aggravated
murder charge and that his trial counsel was ineffective and his guilty plea entered on May 30,
2008 was invalid because he was improperly induced by his counsel to plead guilty to murder
instead of manslaughter. The factual bases for those claims arose and were discoverable in the
exercise of due diligence by the time petitioner’s conviction became final on July 3, 2008, when
the 30-day period expired for filing a timely appeal to the Ohio Court of Appeals from the June 3,
2008 final judgment entry of conviction and sentence. See Ohio R. App. P. 4(A). As a general
rule, the statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A) applies to such claims. Under
that provision, the statute of limitations would have begun to run two days later, on July 5, 2008,
after taking into account the July 4th holiday.7 Contrary to petitioner’s suggestion, petitioner’s
unsuccessful motion for leave to file a delayed appeal to the Ohio Court of Appeals, filed over six
years later on November 17, 2014, does not affect the finality determination under 28 U.S.C. §
2244(d)(1)(A), nor does it otherwise serve to restart the running of the statute-of-limitations clock.
See, e.g., Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 459-60 (6th Cir. 2012) (rejecting
the petitioner’s argument that his conviction did not become final under § 2244(d)(1)(A) until after

7

It is well-settled that the statute of limitations set forth in § 2244(d)(1)(A) commences running one day after
a petitioner’s conviction becomes final. See Fed. R. Civ. P. 6(a); Bronaugh v. Ohio, 235 F.3d 280, 285 (6th Cir. 2000).
Because petitioner’s conviction became final on July 3, 2008 and the following day was a holiday, the undersigned has
assumed that the statute would not have commenced running until the day after July 4, 2008.

15

his motion for delayed appeal was denied by the Ohio Supreme Court);8 Quillen v. Warden,
Marion Corr. Inst., No. 1:12cv160, 2013 WL 1315089, at *5 (S.D. Ohio Mar. 29, 2013) (Barrett,
J.) (and numerous cases cited therein) (holding the magistrate judge had “correctly found” that the
petitioner’s motions for delayed appeal to the Ohio Court of Appeals and Ohio Supreme Court “did
not restart the running of the statute of limitations under § 2244(d)(1)(A)”); Pierce v. Warden, Ross
Cnty. Corr. Inst., No. 3:10cv132, 2012 WL 5511220, at *13 (S.D. Ohio Nov. 14, 2012) (Report &
Recommendation) (citing Keeling in support of holding that because the Ohio Court of Appeals
“never re-opened” the petitioner’s “direct appeal—i.e., it denied his motion for delayed appeal,”
the proceedings held on the delayed appeal motion did not factor into the § 2244(d)(1)(A) finality
determination), adopted, 2013 WL 811568 (S.D. Ohio Mar. 5, 2013).9 Therefore, unless another
limitations provision may be invoked, the one-year statute of limitations set forth in §
2244(d)(1)(A), which began to run on July 5, 2008, governs petitioner’s grounds for relief.
As respondent has pointed out in the motion to dismiss (see Doc. 9, pp. 16-17, at
PAGEID#: 747-48), 28 U.S.C. § 2244(d)(1)(D) is the only remaining limitations provision that is
arguably applicable here. Under that provision, the statute of limitations does not commence to
8

In Keeling, 673 F.3d at 459, the Sixth Circuit recognized the Supreme Court’s “narrow” holding in Jimenez
v. Quarterman, 555 U.S. 113 (2009), that the granting of a delayed appeal within the one-year limitations period
renders a conviction non-final for statute of limitations purposes because the ruling restores the pendency of the direct
appeal. However, the Sixth Circuit went on to point out that the Supreme Court later made it clear in Gonzalez v.
Thaler, 565 U.S. 134 (2012), that in contrast to the unique circumstances presented in Jimenez, a judgment typically
becomes “final” under § 2244(d)(1)(A) when either (1) the Supreme Court affirms a conviction or denies a petition for
certiorari filed by a petitioner who pursues direct review “all the way up” to the Supreme Court, or (2) “[f]or all other
petitioners, . . . the time for pursuing direct review . . . in state court[] expires.” Keeling, 673 F.3d at 459-60 (quoting
Gonzalez, 565 U.S. at 150).
9

In addition, petitioner is unable to prevail on any claim that his post-conviction motions to withdraw his
guilty plea restarted the running of the statute-of-limitations clock. See Eberle v. Warden, Mansfield Corr. Inst., 532
F. App’x 605, 608-09 (6th Cir. 2013) (holding that a motion to withdraw a guilty plea in Ohio does not serve to restart
the AEDPA’s one-year statute of limitations or otherwise alter the date on which a conviction becomes final under §
2244(d)(1)(A)).

16

run until the “factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.” As discussed above, it appears from the record presented
that the factual predicate for petitioner’s three grounds for relief could have been discovered
through the exercise of due diligence before petitioner’s conviction became final. However,
because petitioner has suggested in Ground Two that his trial counsel was ineffective for advising
him that he had no right to appeal his conviction and sentence, an argument can be made that the
later limitations provision applies if petitioner exercised reasonable diligence in discovering the
factual basis for that claim.
The petitioner bears the burden of proving that he exercised due diligence for the purpose
of triggering § 2244(d)(1)(D)’s applicability. See DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir.
2006) (citing Lott v. Coyle, 261 F.3d 594, 605-06 (6th Cir. 2001)); see also Archey v. Warden
Madison Corr. Inst., No. 2:15cv2832, 2016 WL 7102980, at *3 (S.D. Ohio Dec. 6, 2016) (Report
& Recommendation), adopted, 2017 WL 39612 (S.D. Ohio Jan. 4, 2017). Petitioner has not met
his burden in this case. The record is devoid of any information as to when exactly petitioner
obtained knowledge of his right to an appeal or about any actions taken by petitioner during the
period following his sentencing on May 30, 2008 to discover that right.10 Petitioner waited over a
10

Although the record is devoid of any information as to the exact date petitioner allegedly learned that he
had a right to appeal his conviction and sentence, an argument can be made that petitioner may have known of that
right as early as October 2010 when he filed his first motion requesting that the trial transcript be provided to him.
(See Doc. 8, Ex. 9). Cf. Bandy v. Smith, No. 1:08cv2780, 2010 WL 300704, at *3 (N.D. Ohio Jan. 19, 2010) (in
holding that the petitioner was not entitled to equitable tolling of the statute of limitations based on his claim that he
was never instructed about his right of appeal, the court pointed out that, although it was unclear what petitioner was
seeking in an early-filed pro se motion requesting that the transcript be provided at the State’s expense, “it indicates
that he had some knowledge of his right [to] an appeal”). Indeed, petitioner has conceded in his memorandum in
opposition to the motion to dismiss that he “learned of a right to appeal” at some point before August 21, 2013, when
he filed a renewed request for transcripts and court records. (See Doc. 13, at PAGEID#: 765 ¶6). Although it is thus
clear that petitioner knew before August 21, 2013 that he had a right to appeal his conviction and sentence, he was not
diligent in pursuing that right as he waited until November 17, 2014, well over a year later, to file his motion for

17

year and a half after he was sentenced to even seek collateral-review relief in the state trial court by
way of a motion to withdraw his guilty plea. Moreover, it is clear from the present record that
petitioner took no action following the trial court’s denial of that motion on July 22, 2010 to pursue
an appeal from the court’s ruling, to seek a delayed appeal from the original judgment entry of
conviction and sentence, or to make any further application for post-conviction relief until over
four years thereafter, on November 17, 2014. (See Doc. 8, Exs. 8, 24, 34). In his motion filed on
November 17, 2014 seeking leave to file a delayed appeal to the Ohio Court of Appeals, petitioner
failed to provide any explanation as to why it took so many years for him to discover that his
counsel had misinformed him about his right of appeal. (See id., Ex. 25). Petitioner contended in
his motion for delayed appeal that his delay in filing was due to the fact that he had only limited
access to the prison library, that he lacked legal training or assistance, and that he was prevented
from filing a timelier motion because he was also trying at the same time to challenge his separate
arson convictions in Case No. 04-CR-853. (Id.). However, because petitioner waited over six
years after sentencing to seek appellate review of his conviction and sentence, those justifications
are simply insufficient to explain his lengthy delay in either learning about or pursuing such relief.
Cf. Archey, supra, 2016 WL 7102980, at *3 (and cases cited therein) (in finding the petitioner had
not established “that he acted diligently in learning of his right to appeal,” the court pointed out
that petitioner waited approximately six and one-half years from the date of sentencing to file a
motion for delayed appeal and failed “to explain what action he took, if any, to learn about his
right to appeal” and did not “identify any factor that would have prevented him from learning
about the right to appeal” at an earlier point in time); Williams v. Jenkins, No. 2:16cv666, 2016
delayed appeal with the Ohio Court of Appeals.

18

WL 3745765, at *4 (S.D. Ohio July 13, 2016) (Report & Recommendation) (and cases cited
therein) (finding that the petitioner “failed to establish he acted diligently” for purposes of
triggering § 2244(d)(1)(D)’s applicability because he “waited more than six years after sentencing
to file a collateral action in the state trial court,” did “not indicate that he took any action during
this time to learn about his right to appeal” or “any reason that would have prevented him from
earlier learning about the right to appeal,” and was not prevented by his “conditions of
confinement . . . from visiting the prison’s law library or learning about the right to appeal”),
adopted, 2016 WL 4394136 (S.D. Ohio Aug. 18, 2016). Cf. Bandy v. Smith, No. 1:08cv2780,
2010 WL 300704, at *3 (N.D. Ohio Jan. 19, 2010) (in a case where the petitioner “waited six years
after his time for direct appeal expired before filing his delayed appeal,” the court found that the
statute of limitations was not equitably tolled based on petitioner’s claim that he was never
instructed about his right to appeal because petitioner “failed to present any evidence that he
diligently pursued his rights”).
Therefore, the undersigned concludes that, as respondent has argued, petitioner’s claims are
governed by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A). As
discussed above, that statute commenced running on July 5, 2008 and expired one year later on
July 5, 2009 absent application of statutory and equitable tolling principles.
During the one-year limitations period that commenced on July 5, 2008, petitioner was
entitled to tolling of the statute under 28 U.S.C. § 2244(d)(2) based on any pending “properly
filed” applications for state post-conviction relief or other collateral review. See 28 U.S.C. §
2244(d)(2); see also Holland v. Florida, 560 U.S. 631, 635 (2010); Allen v. Siebert, 552 U.S. 3, 4
(2007) (per curiam); Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003). “The tolling provision
19

does not, however, ‘revive’ the limitations period (i.e., restart the clock at zero); it can only serve
to pause a clock that has not yet fully run.” Vroman, 346 F.3d at 602 (quoting Rashid v.
Khulmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998)). Once the limitations period is expired, state
collateral review proceedings can no longer serve to avoid the statute of limitations bar. Id.
In this case, petitioner did not take any action during the one-year period that ended on July
5, 2009 to challenge his conviction and sentence. Neither petitioner’s pleadings filed with the trial
court on February 1, 2010, November 17, 2014, and March 3, 2015 seeking state post-conviction
relief and the withdrawal of his guilty plea nor his November 17, 2014 motion for leave to file a
delayed appeal to the Ohio Court of Appeals from the original judgment of conviction and
sentence could serve to toll the already expired limitations period.11 Therefore, absent application
of equitable tolling principles, petitioner’s grounds for habeas relief are barred from review
because the statute of limitations ran its course on July 5, 2009, well over six and one-half years
before the instant action commenced on March 19, 2016.
The AEDPA’s statute of limitations is subject to equitable tolling, see Holland, 560 U.S. at
645, “when a litigant’s failure to meet a legally-mandated deadline unavoidably arose from
circumstances beyond the litigant’s control.” Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745,
749 (6th Cir. 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)). Equitable

11

As respondent has stated in the motion to dismiss (see Doc. 9, p. 15, at PAGEID#: 746), petitioner’s
numerous motions for court records and transcripts, which were also filed after the statute of limitations had run its
course, were not applications for state post-conviction relief or other collateral review. They thus could not have
served to toll the statute of limitations under 28 U.S.C. § 2244(d)(2) even if they had been filed while the statute was
still running. See Johnson v. Randle, 28 F. App’x 341, 343 (6th Cir. 2001); see also Heid v. Warden, Ross Corr. Inst.,
No. 1:16cv234, 2016 WL 8254930, at *2 n.5 (S.D. Ohio Nov. 21, 2016) (Litkovitz, M.J.) (Report & Recommendation)
(and cases cited therein), adopted, 2017 WL 590319 (S.D. Ohio Feb. 14, 2017) (Black, J.), appeal filed, No. 17-3295
(6th Cir. Mar. 27, 2017); Brown v. MaClaren, No. 2:15cv12074, 2016 WL 1242435, at *3 (E.D. Mich. Mar. 30, 2016)
(and cases cited therein), appeal filed, No. 16-1599 (6th Cir. May 10, 2016).

20

tolling is granted “sparingly.” Id. (quoting Robertson, 624 F.3d at 784). A habeas petitioner is
entitled to equitable tolling only if he establishes that (1) “he has been pursuing his rights
diligently”; and (2) “some extraordinary circumstance stood in his way and prevented timely
filing.” Id. (quoting Holland, 560 U.S. at 649 (internal quotations omitted)); see also Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). Although the Sixth Circuit previously utilized a fivefactor approach in determining whether a habeas petitioner is entitled to equitable tolling,
Holland’s two-part test has replaced the five-factor inquiry as the “governing framework” to apply.
Hall, 662 F.3d at 750 (citing Robinson v. Easterling, 424 F. App’x 439, 442 n.1 (6th Cir. 2011)).
“With Holland now on the books, the ‘extraordinary circumstances’ test, which requires both
reasonable diligence and an extraordinary circumstance, has become the law of this circuit.” Id.;
see also Patterson v. Lafler, 455 F. App’x 606, 609 n.1 (6th Cir. 2012).
Petitioner has not demonstrated that he is entitled to equitable tolling of the statute of
limitations in this case. In his memorandum in opposition to the motion to dismiss, petitioner has
presented the following arguments for equitable tolling of the limitations period until May 20,
2015, “the date [his] delayed appeal was denied by the Ohio Supreme Court”:
1) counsel induced P[etitioner] into inaction. . . .
2) the discovery of a Constitutional right to appeal. . . .
3) the State’s previous correspondence that conditioned P[etitioner] into believing
possession of facts were necessary before acquiring relief in their courts and
thus prompted reasonable attempts to obtain such before proceeding with
litigation. . . .
4) P[etitioner’s] belief that the claims relative to case no. 1:16-cv-234 were to be
fairly presented to the state courts before raising the present issues to those
courts for relief. . .; and
21

5) P[etitioner’s] belief that the one year statute of limitations did not begin to run
until the Ohio Supreme Court denied his appeal. . . .
(Doc. 13, at PAGEID#: 773 ¶31).
As discussed above, petitioner has not demonstrated that he has been diligent about
pursuing his rights to the extent he contends that his trial counsel misled him into believing he had
no right to appeal his conviction and sentence in this case. As noted above, see supra pp. 17-18
n.10, even assuming petitioner was misinformed by his counsel about the right to appeal, he has
conceded that he learned about that right at some point before August 21, 2013. (See Doc. 13, at
PAGEID#: 765 ¶6). Despite that knowledge, petitioner did not file his motion for delayed appeal
with the Ohio Court of Appeals until well over a year later, on November 17, 2014. (See Doc. 8,
Exs. 24-25). The undersigned is not persuaded by petitioner’s next argument that he was misled
by “correspondence” with the State into believing that he could not go forward with any appeal or
other “litigation” without first obtaining “facts” contained in the trial record. That argument is
suspect because petitioner never raised it to the state courts as a justification for his delays in filing
his motion for delayed appeal to the Ohio Court of Appeals or his other belated post-conviction
motions that were filed with the trial court. (See id., Exs. 5, 25, 34, 40). In any event, the
undersigned has reviewed the state-court record, including the specific references cited by
petitioner in support of that argument, and can find nothing even remotely suggesting that
petitioner was required to do anything before pursuing his right to an appeal or filing his
applications to withdraw his guilty plea and for post-conviction relief. To the extent that petitioner
has suggested in that argument and his remaining arguments that his delays in filing should be
excused given his lack of access to the state-court record, pro se status and lack of legal knowledge
22

or understanding of the requirements for pursuing relief in the state courts and federal habeas
court, it is well-settled in the Sixth Circuit that those arguments are not sufficient to warrant
equitable tolling of the limitations period. See, e.g., Hall, 662 F.3d at 750-51 (rejecting the
petitioner’s argument that he was entitled to equitable tolling because of his lack of access to the
trial transcript, as well as his pro se status and limited law-library access); Allen v. Yukins, 366
F.3d 396, 403 (6th Cir. 2004) (quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991) (“this
court has repeatedly held that ‘ignorance of the law alone is not sufficient to warrant equitable
tolling’”); Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (“an inmate’s lack of legal training,
his poor education, or even his illiteracy does not give a court reason to toll the statute of
limitations”); Lacking, supra, 2016 WL 4505765, at *4 (“A prisoner’s pro se incarcerated status,
lack of knowledge regarding the law, and limited access to the prison’s law library or to legal
materials do not provide a sufficient justification to apply equitable tolling of the statute of
limitations.”).
In sum, petitioner’s arguments are simply insufficient to explain why it took so many years
for him to take any action, either by way of a delayed appeal to the Ohio Court of Appeals or by
way of a post-conviction or collateral-review application to the trial court, to challenge his
conviction and sentence that were entered on the record on June 3, 2008. Cf. McIntosh v. Hudson,
632 F. Supp.2d 725, 735 (N.D. Ohio 2009) (in a case where the petitioner claimed he was not
advised of his right to appeal, the district court concluded that the petitioner had not demonstrated
diligence in pursuing his rights, which was required for equitable tolling of the limitations period
with respect to his conviction-based claims, because he “did not act to discover any appellate rights
for more than two-and-a-half years after his conviction” and “[a] person in [his] position exercising
23

due diligence would have acted much sooner, seeking out his rights and remedies”); see also
Lacking v. Jenkins, No. 2:15cv3069, 2016 WL 4505765, at *5-6 (S.D. Ohio Aug. 29, 2016)
(Report & Recommendation) (and cases cited therein) (involving a delay of more than two years in
filing a motion for delayed appeal after the imposition of sentence), adopted, 2016 WL 6125683
(S.D. Ohio Oct. 19, 2016), appeal filed, No. 16-4291 (6th Cir. Nov. 10, 2016); Bandy, supra, 2010
WL 300704, at *3 (involving a delay of six years in filing a motion for delayed appeal after the
imposition of sentence). Petitioner’s unsupported, conclusory contentions about being misled by
his trial counsel and the State do not warrant equitable tolling of a statute of limitations that
expired on July 5, 2009, over six and one-half years before he filed the instant federal habeas
action and over five years before he filed his motion for delayed appeal to the Ohio Court of
Appeals.
Finally, petitioner has not shown that the procedural bar to review should be excused based
on a colorable showing of actual innocence. “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 . . . new evidence.” McQuiggin v.
Perkins,

U.S. , 133 S.Ct. 1924, 1935 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 327

(1995)). In cases such as this involving a conviction upon entry of a guilty plea, “[t]he application
of Schlup . . . creates a host of analytical difficulties, given that there is no jury (or factfinder)
finding, the record is normally abbreviated, the state did not ‘present’ evidence in a fashion
designed to establish guilt beyond a reasonable doubt, and the petitioner typically has confirmed
his guilt through the solemnity of a plea colloquy.” See Eads v. Bottom, No. 6:13-CV-29, 2014
WL 2742581, at *5 (E.D. Ky. June 12, 2014) (and cases cited therein as recognizing those
24

problems). The Sixth Circuit has indicated that in such cases, the court may consider the “facts to
which [the petitioner] admitted” when he entered his guilty plea and “any other evidence of his
guilt that the Government has marshaled.” See Connolly v. Howes, 304 F. App’x 412, 418 (6th
Cir. 2008) (internal citation and quotation marks omitted). Cf. Bousley v. United States, 523 U.S.
614, 623-24 (1998) (on remanding a case to permit the petitioner to make a showing of actual
innocence for purposes of excusing a procedural bar to review of his guilty-plea conviction, the
Supreme Court stated that “the Government is not limited to the existing record to rebut any
showing that petitioner might make” and “should be permitted to present any admissible evidence
of petitioner’s guilt even if that evidence was not presented during petitioner’s plea colloquy”). In
addition, the petitioner must show not only that he is innocent of the guilty-plea charges, but that
he is also “actually innocent of the other charges the government chose to forego during the plea
bargaining process.” Howard v. United States Dep’t of Justice, 3 F. App’x 269, 270 (6th Cir.
2001) (citing Bousley, 523 U.S. at 624).
In this case, petitioner has not presented any new evidence to support an actual innocence
claim. Moreover, there is no evidence in the record that would suggest a credible claim of actual
innocence in the face of petitioner’s admission of guilt murder and firearm specification in
exchange for the reduction in the charge from aggravated murder and the dismissal of the
remaining four counts.12

12

Indeed, contrary to petitioner’s contention in Grounds Two and Three of the petition, there is
ample evidence in the record to support the inference that petitioner was guilty of murder as opposed to
manslaughter. Specifically, as the trial court pointed out in denying petitioner’s March 3, 2015 petition for
post-conviction relief (see Doc. 8, Ex. 44), Detective Denver Triggs’ “Investigator Notes,” which petitioner
submitted in support of his petition, reflect that petitioner admitted that “he hid in the woods and waited”
before he “kicked in the back door of the residence and ran in with . . . pistols out.” (See id., Ex. 42, at
PAGEID#: 641). Petitioner also told Triggs that he then ran to the rear of the trailer, “got into an altercation

25

Accordingly, in sum, the undersigned concludes that the instant petition for federal habeas
corpus relief is barred from review by the applicable one-year statute of limitations set forth in 28
U.S.C. § 2244(d)(1)(A). Petitioner’s conviction became “final” under § 2244(d)(1)(A) on July 5,
2008, when the time expired for filing a timely appeal from the trial court’s June 3, 2008 final
judgment entry of conviction and sentence. Petitioner has not demonstrated that equitable tolling
principles apply to extend the limitations period or otherwise avoid the statute-of-limitations bar to
review. Therefore, respondent’s motion to dismiss (Doc. 9) should be GRANTED, and
petitioner’s habeas petition (Doc. 1) be DISMISSED with prejudice.
IT IS THEREFORE RECOMMENDED THAT:
1. Respondent’s motion to dismiss (Doc. 9) be GRANTED, and petitioner’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DISMISSED with prejudice on the
ground that it is time-barred.
2. A certificate of appealability should not issue with respect to any of the claims for relief
alleged in the petition, which this Court has concluded are procedurally barred from review on
statute-of-limitations grounds, because under the first prong of the applicable two-part standard
enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), “jurists of reason” would not find it
debatable whether the Court is correct in its procedural ruling.13

with the victim,” and “fired one shot in the ceiling before firing the rest of the rounds into the [victim’s]
body.” (Id.).
13

Because the first prong of the Slack test has not been met, the Court need not address the second prong of
Slack as to whether “jurists of reason” would find it debatable whether petitioner has stated a viable constitutional
claim in his procedurally-barred grounds for relief. See Slack, 529 U.S. at 484. However, it is noted that even if
petitioner’s claims for relief are not time-barred, petitioner faces the additional procedural hurdle of having
procedurally defaulted his claims in the state courts. Moreover, it appears that petitioner has not stated a viable claim
for habeas relief in Ground One of the petition because, as a matter of state law decided by the Ohio Court of Appeals

26

3. With respect to any application by petitioner to proceed on appeal in forma pauperis, the
Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this
Report and Recommendation would not be taken in “good faith,” and therefore DENY petitioner
leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R. App. P.
24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

in this case, petitioner was not entitled to the appointment of two attorneys given that the charge for aggravated murder
did not involve a death-penalty specification. See State v. Heid, No. 15CA3710, 2016 WL 1733427, at *4 (Ohio Ct.
App. Apr. 26, 2016).

27

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
RAY SCOTT HEID,
Petitioner,

Case No. 1:16-cv-398
Black, J.
Bowman, M.J.

vs.
WARDEN, ROSS
CORRECTIONAL INSTITUTION,
Respondent.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the
recommended disposition, a party may serve and file specific written objections to the proposed
findings and recommendations. This period may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
cbc

28