Harper v. Warden Belmont Correctional Institution

Filing 36

REPORT AND RECOMMENDATION: the Magistrate Judge RECOMMENDS that 14 Motion forSummary Judgment be DENIED, and that this action be DISMISSED. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 6/23/2015. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HENRY N. HARPER,

CASE NO. 2:14-CV-01220
JUDGE GREGORY L. FROST
MAGISTRATE JUDGE KEMP

Petitioner,
v.
WARDEN, BELMONT CORRECTIONAL
INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. §2254. This matter is before the Court on the Petition (Doc. 3),
Petitioner’s Motion for Summary Judgment (Doc. 14), Respondent’s Response in
Opposition (Doc. 21), Petitioner’s Reply (Doc. 23), the Return of Writ (Doc. 20),
Petitioner’s Traverse (Doc. 29), and the exhibits of the parties.
For the reasons that follow, the Magistrate Judge RECOMMENDS that
Petitioner’s Motion for Summary Judgment be DENIED and that this action be
DISMISSED.
I. FACTS AND PROCEDURAL HISTORY
The Ohio Fifth District Court of Appeals, in a superseding opinion filed on
October 2, 2013, summarized the facts and procedural history of the case as follows:
On May 7, 2010 appellant was employed by Little Bear
Construction which is owned by David Ratliff, it was Friday
and a pay day. There was a disagreement at work and

appellant left the work sight and went to the home of Mr.
Ratliff. Appellant was anxious, excited, and argumentative.
After leaving Mr. Ratliff's residence, appellant arrived at the
residence of a friend, Charles Dalton, at approximately 5:30
p.m. At the Dalton residence, appellant was observed to be
agitated and in possession of a black handgun.
At approximately 7:30 p.m. appellant's wife, Tina Harper,
arrived home from running errands to find her husband
drinking and upset. Appellant said to his wife, “Bitch, you're
going to take me down there,” meaning to Mr. Ratliff's
residence. (T. at 287). Appellant was knocking things off the
kitchen counter, breaking things, and would not calm down.
Appellant knocked a frying pan off the stove and ordered
Mrs. Harper to drive him to Mr. Ratliff's home. Appellant
stated that he was going to “teach him a lesson.” (T. at 288).
Mrs. Harper drove appellant and they stopped at different
places including a service station and a friend's home.
Mrs. Harper was scared and afraid of appellant. (T. at
287–288.) Appellant threatened his wife during the incident,
showing her the butt of his gun while she was driving and
waving the gun around next to her. Appellant gave his wife
directions to the Ratliff home, telling her that if she pulled
over or made a scene he would beat her head in with the
gun. Appellant told his wife that he was going to “shoot up”
Mr. Ratliff's truck, and when they arrived at the residence,
appellant put his arm out the window and Mrs. Harper
heard several gunshots.
After this incident, appellant came into contact with a friend
Robert Webb, to whom he relayed the information that he
had “just shot at some people.” (T. at 271).
At 10:27 p.m. on May 7, 2010, the Guernsey County Sheriff's
Office received a call regarding shots being fired at the
residence of David Ratliff. Upon arrival at the scene, the
deputies discovered several spent Winchester 9 mm casings
along the roadway in front of the residence. Mr. Ratliff
informed the deputies that earlier that day he had a
disagreement with appellant regarding some occurrences on
a job site.

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At approximately 11:30 p.m. on the same night, the deputies
were en route to the Sheriff's Office when they received
another call regarding a man with a pistol. Upon learning
that the subject of the call was appellant, the deputies went
to appellant's home. Appellant was not at the residence, but
his wife arrived shortly after the deputies, driving a silver
S–10 pickup truck. At the time of her arrival at the residence,
Mrs. Harper told the deputies that she did not know the
current whereabouts of appellant.
Mrs. Harper permitted the deputies to search the residence.
During that search, the deputies discovered a partial box of
Winchester 9 mm bullets and empty gun boxes. Also on the
property, the deputies located a minivan behind a building.
The hood of the van was warm as if the van had been
recently driven. Mrs. Harper eventually admitted she had
driven appellant to the residence of a Mr. Dalton.
Upon arriving at Mr. Dalton's residence, the deputies patted
appellant down for weapons. At the Sheriff's Office,
appellant submitted to a gunshot residue swab. Appellant
was asleep in the holding cell and his right arm was resting
underneath his body. When the deputy asked appellant for
his left hand in order to conduct the gunshot residue test
appellant raise his left arm straight up in the air allowing the
deputy to conduct the test. When the deputy asked for his
right hand, appellant did not answer or otherwise comply
with the request. Appellant tested positive for gunshot
residue.
Testimony was introduced at trial that appellant owned a
gun and that he had it with him that night. In addition
appellant acknowledged that he had been convicted of a
felony about twenty-five (25) years before the night in
question. Further it was acknowledged that there was no
record that was attached or a part of the original case to
indicate that appellant had expunged or sealed that record.
However, appellant testified that he had purchased guns
legally since his previous felony and had gone through
records checks for those purchases. He had further passed
records checks for federal employment and other jobs that
he had held. Finally, appellant testified that he had asked his

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attorney to file and seal his record and that he thought that
had been done some years before the incidents which
occurred May 7, 2010 and which resulted in these charges
being filed.
On May 25, 2010, appellant was indicted by the Guernsey
County Grand Jury for the following:
Having Weapons While Under Disability in violation of R.C.
2923.13, with a Firearm Specification, a felony of the third
degree;
Tampering With Evidence in violation of R.C. 2921.12(A)(1),
a felony of the third degree.
Discharge of Firearm on or Near Prohibited Premises in
violation of R.C. 2923.162, a misdemeanor of the first degree;
and
Kidnapping in violation of R.C. 2905.01(A)(1) and (2), with a
Firearm Specification, a felony of the first degree.
On October 15, 2010, the jury returned the following
verdicts:
GUILTY of Having Weapons While Under Disability in
violation of R.C. 2923.13;
NOT GUILTY of Tampering With Evidence in violation of
R.C. 2921.12(A)(1), a felony of the third degree;
GUILTY of Discharge of Firearm on or Near Prohibited
Premises in violation of R.C. 2923.162, a misdemeanor of the
first degree; and
GUILTY of Kidnapping, a felony of the second degree.
On November 3, 2010, appellant was sentenced to three
years imprisonment for Count 1, six months imprisonment
for Count 3, two years imprisonment for Count 4, and three
years imprisonment for the Firearm Specification to Count 4.
The three year mandatory sentence for the Firearm
Specification was ordered to be served first with all

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remaining prison terms to be served consecutively, for a
total of eight years imprisonment.
Appellant has timely appealed raising three assignments of
error: FN1
FN1. Appellant, pro se, attempted to file documents with the
Clerk of Courts in this case. He did not request and was not
granted leave to file a pro se brief. This brief was filed after
the State had filed its brief. Appellant's pro se brief does not
show a proper Proof of Service as mandated by App. R. 13.
Accordingly, the State had no opportunity to reply to
appellant's pro se brief. Additionally, Ohio law prohibits a
defendant and his appointed counsel from acting as “cocounsel” See, State v. Martin, 103 Ohio St.3d 385, 816 N.E.2d
227, 2004–Ohio–5471. Accordingly, we will not address
appellant's pro se arguments in the disposition of this
appeal.
“I. THE DECISION WAS AGAINST THE SUFFICIENCY
AND MANIFEST WEIGHT OF THE EVIDENCE.
“II. THE TRIAL COURT COMMITTED ERROR BY
IMPROPERLY CHARGING THE JURY.
“III. APPELLANT WAS DENIED HIS RIGHT BECAUSE OF
INEFFECTIVE ASSISTANCE OF COUNSEL.”
State v. Harper, 2013 WL 5536938, at *1-3 (Guernsey Co. App. Oct. 2, 2013). Prior to the
issuance of the superseding opinion, which was issued only to correct non-substantive
errors, on September 9, 2011, the state appellate court dismissed the appeal. State v.
Harper, 2011 WL 4011642 (Guernsey Co. App. Sept. 9, 2011).1 On February 1, 2012, the
Ohio Supreme Court declined review. State v. Harper, 131 Ohio St.3d 1438 (Feb. 1, 2012).

On October 2, 2013, the state appellate court issued an Opinion Nunc Pro Tunc to correct scrivener’s
errors that did not change the substance of the decision. See Doc. 20-1, PageID# 805. Petitioner filed a
“Motion to Object”, PageID# 827, and appeal in the Ohio Supreme Court. PageID# 830-33. On February
19, 2014, the Ohio Supreme Court declined to accept jurisdiction of the appeal. PageID# 892.

1

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On November 7, 2011, Petitioner filed an application to reopen the appeal
pursuant to Ohio Appellate Rule 26(B). Doc. 20-1, PageID# 767. On November 28,
2011, the appellate court denied the Rule 26(B) application. Id., PageID# 788. On
December 20, 2011, Petitioner filed a motion to object to the denial and a motion to
amend. Id., PageID# 795, 798. On January 9, 2012, the appellate court denied the
motions. Id., PageID# 804. Detailing other procedural developments, the Fifth District
Court of Appeals recited that:
On November 22, 2011, Petitioner filed a Motion for
Sentence Reduction in the trial court. The trial court denied
the Motion for Sentence Reduction on January 10, 2012.
On January 19, 2012, appellant filed a Petition for
Post–Conviction Relief. Appellant alleged that the trial court
had erred in failing to inform his wife, Tina Harper, that she
did not have to testify against appellant, that his trial
counsel, Lindsey Donehue, was ineffective in failing to object
when appellant's wife was called as a witness against him,
and that his property had been illegally searched without a
search warrant. Appellant also alleged that his conviction for
having weapons while under disability was based on
perjured testimony from Detective Sam Williams, that
Williams altered appellant's Miranda rights form, that his
convictions for kidnapping and having weapons while
under disability were against the manifest weight and
sufficiency of the evidence, and that his trial counsel was
ineffective in failing to obtain any evidence on appellant's
behalf or to subpoena witnesses. The trial court denied
appellant's petition pursuant on January 25, 2012, finding
that the petition was not timely filed.
Appellant appealed from the trial court's January 10, 2012
Judgment Entry, raising the following assignments of error:
“I. HAVING WEAPONS WHILE UNDER DISABILITY:
IMPROPER DEGREE OF FELONY.

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“II. PERJURY OHIO REVISED CODE 2921.11 EVIDNCE
[SIC] RULE 602: DETECTIVE SAM WILLAIMS [SIC]
COMMITTED PERJURY AT TRIAL UNDER OATH WHEN
HE TESTIFIED THAT HE HAD A COPY OF A
COMPUTERIZED CRIMINAL HISTORY ON THRE [SIC]
APPELLANT HENRY N. HARPER SHOWING A 1985
FELONY CONVICTION ALSO VIOLATING EVIDENCE
RULE 602.
“III. CONSECUTIVE SENTENCING OHIO REVISED CODE
2929 .41 WAS IMPROPER DUE TO THE FACT OF
JUDICIAL FACT–FINDING MUST OCCUR BEFORE
CONSECUTIVE SENTENCES MAY BE IMPOSED UNDER
O.R.C. 2929.14(E)(4).
“IV. KIDNAPPING OHIO REVISED CODE 295.01 NO
ELEMENTS OF THE CRIME OF KIDNAPPING WERE
PROVEN AT TRIAL. THERE IS NO KIDNAPPING VICTIM.
“V. GUN SPECIFICATIO [SIC] OHIO REVISED CODE
2941.145 GUN SPECIFICATION OF O.R.C. IS IMPROPER
AND CONTRARY TO LAW. NONE OF THE ELEMENTS
FOR A GUN SPEC. O.R.C. 2941.145 WERE PROVEN AT
THE TRIAL.”
Appellant also appealed from the trial court's January 25,
2012 Judgment Entry, raising the following assignments of
error on appeal:
“I. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL:
LINDSEY K. DONEHUE.
“II. INCORRECT CHARGE OF DEGREE OF FELONY:
PERJURY O.R.C. 2921.11.
“III. UNITED STATES CONSTITUTIONAL
VIOLATION AMENDMENT FOUR.

RIGHTS

“IV. UNITED STATES CONSTITUTIONAL RIGHT
VIOLATION AMENDMENT SIX: [SIC] FIVE, FOURTEEN.
“V. NO EVIDENCE TO SUPPORT THE ELEMENT OF
EITHER CRIME WERE PROVEN.”

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The two cases were assigned Case Nos.2012 CA 000003 and
2012 CA 000008.
Subsequently, via an Opinion filed on July 30, 2012 in State v.
Harper, 5th Dist. Nos. 12CA000003, 12CA000008,
2012–Ohio–3541, this Court affirmed the judgment of the
trial court in both cases on the basis of res judicata.
On March 14, 2012, while the above cases were pending,
appellant filed a Second Petition for Post–Conviction Relief.
Appellant alleged that police had committed an illegal
search and seizure of his home, that his wife, who testified
against him, was threatened with criminal charges and was
lied to by and illegally detained by police, that Detective
Sam Williams tampered with evidence, including appellant's
Miranda rights form, and that Williams' trial testimony was
inconsistent. Appellant also alleged that there was
insufficient evidence supporting the kidnapping charge
against him and that his conviction was against the manifest
weight of the evidence, and that his trial counsel was
ineffective. Appellant also alleged that his bail was excessive
and that there was insufficient evidence supporting his
conviction for having weapons while under disability.
Pursuant to a Judgment Entry filed on May 17, 2012, the trial
court denied appellant's petition, finding that it was not
timely filed and that appellant either raised, or could have
raised, the same issues in his direct appeal.
Appellant appealed from the trial court's May 17, 2012
Judgment Entry denying his Second Petition for
Post–Conviction Relief, raising the following assignments of
error:
“I. THE COURT FAILS TO ACKNOWLEDGE FACTUAL
FACTS TO SUPPORT THE COURT'S STATEMENTS.
“II. THE COURT FAILS TO ACKNOWLEDGE THE LEGAL
DOCUMENTS
PROVIDED
WITH
THE
POST–CONVICTION RELIEF.

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“III. THE TRIAL COURT FAILS TO ACKNOWLEDGE THE
SEVERAL FALSE, INCORRECT, STATEMENTS IN THE
STATE OF OHIO'S APPELLEE BRIEF.
“IV. THE TRIAL COURT ERRERED [SIC] IN THE MOTION
TO ACQUITTAL (29)(A).
“V. THE TRIAL COUNSEL WAS INEFFECTIVE BY NOT
ASKING FOR MOTION FOR ACQUITTAL PROPERLY
AND VIOLATIONS OF UNITED STATES
CONSTITUTIONAL RIGHT AMEND. SIX.”
This Court affirmed the judgment of the trial court on
November 5, 2012, finding that the second petition for
postconviction relief was untimely, and all issues raised
therein were res judicata.
On September 21, 2012, during the pendency of his appeal
from the judgment denying his second petition for
postconviction relief, appellant filed a petition to vacate or
set aside his judgment of conviction and sentence. The trial
court denied this petition on September 24, 2012. Appellant
appeals, assigning the following errors:
“I. THE SENTENCE IS A VOID SENTENCE AND
UNCONSTITUTIONAL SENTENCE AS PURSUANT TO
OHIO REVISED CODE 2905.01 KIDNAPPING (A)(1)(2)(A)
NO PERSON, BY FORCE, THREAT, OR DECPTION [SIC],
OR IN THE CASE OF A VICTIM UNDER THE AGE OF
THIRTEEN OR MENTALLY INCOMPETENT, BY ANY
MEANS SHALL REMOVE ANOTHER FROM THE PLACE
WHERE THE OTHER PERSON IS FOUND OR RESTRAIN
THE LIBERTY OF THE OTHER PERSON FOR ANY OF
THE FOLLOWING PURPOSES; (1) TO HOLD FOR
RANSOM, OR AS A SHEILD [SIC] OR HOSTAGE; (2) TO
FACILITATE THE COMMISSION OF ANY FELONY OR
FLIGHT THEREAFTER; SEE AFFIDAVIT FROM TINA
HARPER NEITHER ELEMENT OF THE CRIME OF
KIDNAPPING WHERE [SIC] PROVEN AT TRIUAL [SIC].
“II. THE SENTENCE IS A VOID SENTENCE AND
UNCONSTITUTIONAL SENTENCE AS PURSUANT TO
OHIO REVISED CODE 2941.145; SPECIFICATION

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CONSERNING [SIC] USE OF A FIREARM TO FACILITATE
OFFENSE: THERE IS NO PROOF OR EVIDENCE
SUPPORTING THE USE OR FACILITATION OF A
FIREARM TO COMMIT THE OFFENSE OF KIDNAPPING.
“III. THE SENTENCE IS A VOID SENTENCE AND
UNCONSTITUTIONAL SENTENCE AS PURSUANT TO
OHIO REVISED CODE 2923.13 HAVING WEAPONS
WHILE UNDER DISABILITY: BALDWINS OHIO
PRACTRICE [SIC] KATZ & GANNILLEI OHIO CRIMINAL
LAWS AND RULES: ELEMENTS OF THE OFFENSE:
PENALTY 5TH DEGREE FELONY THERE WHERE [SIC]
NO ELEMENTS TO PROVE THAT THE HAVING
WEAPONS WHILE UNDER DISABILITY WAS A THIRD
DEGREE FELONY.”
State v. Harper, 2013 WL 1858606, at *1-3 (Guernsey Co. App. April 26, 2013). On April
26, 2013, the appellate court affirmed the judgment of the trial court. Id.
On September 12, 2014, Petitioner filed a motion for judicial release.

On

September 30, 2014, the trial court denied the motion. Doc. 20, PageID# 1527.
That is not the complete procedural history, however. “On March 22, 2013,
Harper filed a motion in the trial court for ‘Grand Jury Transcripts pursuant to Ohio
Revised Code 2941.26 Variance.’ By Judgment Entry filed April 17, 2013, the trial court
denied the motion finding Harper did not demonstrate a particularized need.” State v.
Harper, 2013 WL 4822875, at *2 (Guernsey Co. App. Sept. 9, 2013). On September 9,
2013, the appellate court affirmed the judgment of the trial court. Id. On February 19,
2014, the Ohio Supreme Court dismissed the appeal. State v. Harper, 138 Ohio St.3d
1414 (Feb. 19, 2014).
According to the record, on August 10, 2014, Petitioner gave his §2254 petition to
prison officials for mailing. Doc. 3, PageID# 265. That is its effective filing date. In the

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petition, Petitioner asserts that the evidence is constitutionally insufficient to sustain his
convictions and that his convictions are against the manifest weight of the evidence
(claim one); that he was denied a fair trial due to improper jury instructions (claim two);
that he was denied the effective assistance of counsel (claim three); and that he was
convicted in violation of the Fourth Amendment (claim four). It is the position of the
Respondent that this action must be dismissed as barred by the one-year statute of
limitations found in 28 U.S.C. §2244(d), and, alternatively, that Petitioner’s claims fail to
warrant relief.
II. STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a
one-year statute of limitations on the filing of habeas corpus petitions. 28 U.S.C.
§2244(d) provides as follows:
(d) (1) A 1–year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run 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

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(D)the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection.
28 U.S.C. §2244(d)(emphasis added).
It is the position of the Respondent that Petitioner’s judgment of conviction
became final on May 1, 2012, ninety days after the Ohio Supreme Court’s February 1,
2012, dismissal of the appeal, when the time period expired to file a petition for a writ of
certiorari to the United States Supreme Court. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th
Cir. 2000)(statute of limitations begins to run when the time period expires to file a
petition for a writ of certiorari).

Respondent maintains that the statute of limitations

began to run on the following day, and expired one year later, on May 2, 2013.
Respondent also argues that none of Petitioner’s collateral or post conviction filings in
the state courts tolled the running of the statute of limitations under 28 U.S.C.
§2244(d)(2).
Because Petitioner filed a number of attacks on his conviction other than direct
appeal, the question of whether any of them tolled the running of the statute of
limitations - and, if they did, for how long - deserves close scrutiny. The Court will
consider the effect which each of them had on the running of the statute.

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On November 22, 2011, Petitioner filed a motion for reduction of sentence. On
January 10, 2012, the trial court denied the motion. On January 19, 2012, Petitioner filed
a petition for post conviction relief. On January 25, 2012, the trial court denied the
petition as untimely. Petitioner’s appeals from these two orders were consolidated, and
the Ohio Fifth District Court of Appeals dismissed both of them on the basis of res
judicata in an opinion and order filed on June 30, 2012. State v. Harper, 2012 WL 3158785,
at *2-3. The Ohio Supreme Court issued its order declining to review that decision on
November 28, 2012. State v. Harper, 133 Ohio St.3d 1492 (Nov. 28, 2012). Both of these
actions were pending, therefore, from November 22, 2011, until November 28, 2012,
when the Ohio Supreme Court dismissed the appeal. Additionally, on September 21,
2012, during the pendency of the appeal on his second post-conviction petition,2
Petitioner filed yet a third petition for post-conviction relief. On April 26, 2013, the
Ohio Fifth District Court of Appeals dismissed the appeal from the denial of that
petition on the basis of res judicata. State v. Harper, 2013 WL 1858606, at *3-4. A
threshold question to be answered, therefore, is whether any of these three filings tolled
the running of the statute of limitations.

2

Petitioner filed a second post-conviction petition on March 14, 2012. The appellate court dismissed that

action as untimely. State v. Harper, 2012 WL 5438980, at *4. Consequently, the filing of that petition did
not toll the running of the statute of limitations. See Curry v. Warden, Ohio State Penitentiary, No. 2011 WL
335665, at *5 (S.D. Ohio Jan. 4, 2011)(citing Artuz v. Bennett, 531 U.S. 4, 8 (2000); Allen v. Siebert, 552 U.S. 3,
5 (2007); Pace v. DiGuglielmo, 544 U.S. 408 (2005)); Vroman v. Brigano, 346 F.3d 598, 603 (6th Cir. 2003)).

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In Artuz v. Bennett, 531 U.S. 4 (2000), the United States Supreme Court
interpreted the “properly filed” language in AEDPA's tolling provision, holding as
follows:
An application is “filed,” as that term is commonly
understood, when it is delivered to, and accepted by, the
appropriate court officer for placement into the official
record. See, e.g., United States v. Lombardo, 241 U.S. 73, 76, 36
S.Ct. 508, 60 L.Ed. 897 (1916) (“A paper is filed when it is
delivered to the proper official and by him received and
filed”); Black's Law Dictionary 642 (7th ed.1999) (defining
“file” as “[t]o deliver a legal document to the court clerk or
record custodian for placement into the official record”).
And an application is “properly filed” when its delivery and
acceptance are in compliance with the applicable laws and
rules governing filings. These usually prescribe, for example,
the form of the document, the time limits upon its delivery,
the court and office in which it must be lodged, and the
requisite filing fee.... But in common usage, the question
whether an application has been “properly filed” is quite
separate from the question whether the claims contained in
the application are meritorious and free of procedural bar.
Id. at 8 (footnote and citation omitted). Artuz rejected the state's argument that an
application for state post-conviction or other collateral relief is not “properly filed” for
purposes of §2244(d)(2) unless it complies with all mandatory state-law procedural
requirements that would bar review on the merits. Id. at 7. A post-conviction petition
dismissed by the state courts as untimely, however, is not “properly filed” under
§2244(d)(2) and does not toll the running of the statute of limitations. Pace v.
DiGuglielmo, 544 U.S. 408, 417 (2005); see also Gorman v. Brunsman, 2006 WL 1645066, at
*7 (S.D. Ohio June 7, 2006) (citing Vroman v. Brigano, 346 F.3d 598, 603 (6th Cir.2003);
Israfil v. Russell, 276 F.3d 768, 771–72 (6th Cir. 2001)). On the other hand, a post-

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conviction petition denied as barred under Ohio's doctrine res judicata may toll the
running of the statute of limitations. See Liles v. Jeffries, 2008 WL 4812212, at *3 (N.D.
Ohio Oct. 30, 2008) (the denial of a motion on the basis of res judicata has no bearing on
whether the document is properly filed) (citing Lucas v. Carter, 46 F.Supp.2d 709, 712
(N.D. Ohio 2009)). As that Court also said,
Res judicata has no bearing on whether the document was
“properly filed”. Lilies v. Jeffries, No. 3:06–CV–1917, 2008 WL
4812122, at *3 (N.D.Ohio Oct.30, 2008). The United States
Supreme Court has found that an application may be
properly filed to toll the habeas limitation period even if it
contains procedurally barred claims. Swingle v. Money, 215
F.Supp.2nd 919, 922 (N.D.Ohio Aug.12, 2002) (citing Artuz,
513 U.S. at 8–9).
Smith v. Smith, 2011 WL 3204584, at *5 (N.D. Ohio June 27, 2011). A motion to suspend
or modify sentence may toll the running of the statute of limitations. Id.; but see Fleming
v. Lazaroff, 2006 WL 1804545, at *4 (S.D. Ohio June 28, 2006)(motions for judicial release
do not toll the running of the statute of limitations).
The best case which Petitioner can make on the statute of limitations issue is that
his motion for reduction of sentence and petitions for post-conviction relief tolled the
running of the statute of limitations from the date of their filing - which was before the
statute began to run under Respondent’s calculation - until June 10, 2013, a date fortyfive days after the appellate court’s April 26, 2013, decision affirming the denial of the
petition for post conviction relief, when the time period expired to file an appeal to the
Ohio Supreme Court. See Campbell v. Warden, 2009 WL 6594326, at *6 n.4 (S.D. Ohio July

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14, 2009).3 Under this scenario, the statute of limitations began to run on the following
day, and expired one year later, on June 11, 2014. However, the petition filed in this
case was still untimely because Petitioner did not submit it to prison officials for
mailing until August 10, 2014.
Still, Petitioner asserts that he timely filed this action because the Ohio Supreme
Court did not dismiss his appeal regarding a request for grand jury transcripts until
February 19, 2014. Doc. 29, PageID# 2308. Additionally, Petitioner contends that his
October 15, 2013, objection to the appellate court’s Opinion Nunc Pro Tunc to correct
scrivener’s errors tolled the running of the statute of limitations. Id., PageID# 2308-09.
This Court is not persuaded by either of these arguments.

3

The Court in Campbell noted:

[A]lthough petitioner did not timely appeal the state appellate court's [] decision
affirming the denial of post-conviction relief, the 45–day period in which petitioner
could have sought leave to appeal to the Supreme Court of Ohio is included in the
tolling calculation. See, e.g., Martin v. Wilson, 110 Fed.Appx. 488, 490 (6th Cir.
Aug.11, 2004) (not published in Federal Reporter) (citing Carey v. Saffold, 536 U.S.
214, 219–20, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002)) (state post-conviction petition
was “still ‘pending’ for purposes of § 2244(d)(2)” during the 30–day period in which
the petitioner could have timely appealed the trial court's denial of post-conviction
relief); Gravitt v. Tyszkiewicz, 35 Fed.Appx. 116, 118 (6th Cir. Jan.24, 2002) (not
published in Federal Reporter) (citing Gibson v. Klinger, 232 F.3d 799, 804 (10th
Cir.2000)) (“Regardless of whether a petitioner actually appeals the denial of a postconviction application, the limitations period is tolled during the period in which
the petitioner could have sought an appeal under state law.”); cf. Workman v.
Wolfenbarger, Civ. No. 2:08–14101, 2009 WL 236115, at *3 & n. 3 (E.D.Mich. Jan.29,
2009) (unpublished) (taking into account for tolling purposes the period of time in
which the petitioner could have sought leave to appeal a state post-conviction
ruling, although noting an “apparent conflict” in the Sixth Circuit regarding
Michigan's allowance of a one-year period in which to file a delayed application for
leave to appeal). But cf. Lawrence v. Florida, 549 U.S. 327, 330–36, 127 S.Ct. 1079, 166
L.Ed.2d 924 (2007) (tolling under 28 U.S.C. § 2244(d)(2) does not take into account
the period of time in which petitioner sought or could have sought federal certiorari
review).
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In affirming the trial court’s denial of the request for grand jury transcripts, the
state appellate court indicated as follows:
Harper made his request for grand jury transcripts nearly
three years after the jury returned their verdicts of guilty.
Ohio courts, including this court, have held that where
“there was no pending matter within the jurisdiction of the
trial court involving defendant's criminal case that would
necessitate further discovery,” a trial court lacks authority to
grant a defendant's motion for production of grand jury
testimony. State v. Russell, 10th Dist. Franklin App. No.
05AP–1325, 2006–Ohio–5945, ¶ 10, citing State v. Short, 8th
Dist. Cuyahoga App. No. 83492, 2004–Ohio–2695, ¶ 7 (“With
no pending motions that would necessitate further
discovery, the judge lacked the jurisdiction to review the
particularized need for an in camera inspection”); State v.
Bridgewater, 10th Dist. Franklin App. No. 12AP–428,
2021–Ohio–6167, ¶ 9; See also State v. Herring, 5th Dist. Stark
App. No.1996 CA 00385, 1997 WL 219249 (Mar. 17, 1997)
(court “unaware of any procedural or substantive rule of law
which authorizes the court to, in essence, order postconviction discovery absent the filing of a post-conviction
relief petition supported by appropriate affidavits”).
Furthermore, “[t]here is no provision for conducting
discovery in the post-conviction process.” State ex Rel. Love v.
Cuyahoga County Prosecutor's Office, 86 Ohio St.3d 279, 281,
1999–Ohio–314, 718 N.E.2d 426(1999).
State v. Harper, 2013 WL 4822875, at *3. Thus, the appellate court noted that there is no
provision in Ohio law for consideration of a request for grand jury transcripts made
years after the guilty verdict. Under these circumstances, the Court concludes that the
motion was not “properly filed” so as to toll the running of the statute of limitations
under §2244(d)(2).

See Atkinson v. Warden, Chillicothe Correctional Inst., 2015 WL

3743016, at *4 (S.D. Ohio June 15, 2015)(motion for reconsideration does not toll the

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running of the statute of limitations where state appellate court indicated that there was
“no authority” for the filing of such a motion at the trial court level in a criminal case.)
Even if the motion for grand jury transcripts had been “properly filed,” however,
it would not have tolled the running of the statute of limitations.
“Not every filing by a criminal defendant meant to advance
his challenge to a judgment of conviction amounts to an
application for ... collateral review of the judgment or claim.”
Witkowski v. Vasbinder, No. 04-CV-74232-DT, 2006 WL
618891, at *4 (E.D.Mich. Mar.9, 2006) (unpublished) (quoting
Rodriguez v. Spencer, 412 F.3d 29, 36 (1st Cir.2005), cert.
denied, --- U.S. ----, 126 S.Ct. 1151, 163 L.Ed.2d 1007 (2006)).
As a general rule, a “filing that purports to be an application
for State post-conviction or other collateral review with
respect to a pertinent judgment or claim must set forth the
grounds on which it is based, must state the relief desired,
and must collaterally attack the relevant conviction or
sentence.” Id. (citing Sibley v. Culliver, 377 F.3d 1196, 1200
(11th Cir.2004), in turn citing Voravongsa v. Wall, 349 F.3d 1, 6
(1st Cir.2003), cert. denied, 541 U.S. 963, 124 S.Ct. 1724, 158
L.Ed.2d 407 (2004)) (emphasis added). In other words, the
application must seek “review” of the “judgment pursuant
to which [the petitioner] is incarcerated” to trigger the
applicability of § 2244(d)(2)'s tolling provision. Id.; see also
Moore v. Cain, 298 F.3d 361, 366-67 (5th Cir.2002), cert. denied,
537 U.S. 1236, 123 S.Ct. 1360, 155 L.Ed.2d 202 (2003); Branham
v. Ignacio, 83 Fed.Appx. 208, 209 (9th Cir. Dec.11, 2003) (not
published in Federal Reporter), cert. denied, 541 U.S. 1077,
124 S.Ct. 2423, 158 L.Ed.2d 990 (2004); Johnson v. Lewis, 310
F.Supp.2d 1121, 1125 (C.D.Cal.2004).
. . . [C]ourts have refused to extend the tolling provision set
forth in 28 U.S.C. § 2244(d)(2) to mandamus petitions
seeking to have a state court take action on a matter, Moore,
298 F.3d at 366-67; Webb v. Cason, No. 02-CV-72788-DT, 2003
WL 21355910, at *4 (E.D.Mich. May 30, 2003) (unpublished),
aff'd, 115 Fed.Appx. 313 (6th Cir. Dec.17, 2004) (not
published in Federal Reporter), cert. denied, --- U.S. ----, 125
S.Ct. 2919, 162 L.Ed.2d 305 (2005); petitions for executive
clemency under state law, Malcolm v. Payne, 281 F.3d 951 (9th

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Cir.2002); motions for evidentiary materials and transcripts
filed with the court, Lloyd v. VanNatta, 296 F.3d 630 (7th
Cir.2002), cert. denied, 537 U.S. 1121, 123 S.Ct. 856, 154
L.Ed.2d 802 (2003); Hodge v. Greiner, 269 F.3d 104, 107 (2nd
Cir.2001); motions for appointment of counsel, Voravongsa,
349 F.3d at 6-7; and motions to correct the record, Witkowski,
supra, 2006 WL 618891, at *4.
Fleming v. Lazaroff, 2006 WL 1804546, at *3-4 (S.D. Ohio June 28, 2006)(motions for
judicial release do not toll the running of the statute of limitations). The Court is not
persuaded that either Petitioner’s request for grand jury transcripts or his challenge to
the appellate court’s Opinion Nunc Pro Tunc to correct scrivener’s errors involved
collateral review of his underlying judgment or sentence that tolls the running of the
statute of limitations under 28 U.S.C. §2244(d)(2).
Petitioner nonetheless asserts that equitable tolling of the statute of limitations is
appropriate. Traverse, Doc. 29, PageID2309-10.

A petitioner is entitled to equitable

tolling only if he shows “(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way” and prevented timely filing.
Holland v. Florida, 560 U.S. 631, 650 (2010)(citing Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). “[P]etitioner bears the ... burden of persuading the court that he or she is
entitled to equitable tolling.”

Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002).

Equitable tolling should be used sparingly. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir.
2002); Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000)
(citations omitted). “Typically, equitable tolling applies only when a litigant's failure to
meet a legally-mandated deadline unavoidably arose from circumstances beyond that
litigant's control.” Id. at 560–61. The Supreme Court has allowed equitable tolling where

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a claimant actively pursued judicial remedies by filing a timely, but defective pleading,
or where he was induced or tricked by his opponent's misconduct into allowing the
filing deadline to pass. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990). Where
the claimant failed to exercise due diligence in preserving his legal rights, courts are
much less forgiving. Id.; Jurado v. Burt, 337 F.3d 638, 642–43 (6th Cir. 2003). 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. Hall v. Warden, Lebanon Correctional Inst.,
662 F.3d 745, 751 (6th Cir. 2011) (citation omitted). These conditions are typical of most
habeas corpus petitioners and do not constitute an extraordinary circumstance beyond
the Petitioner's control. Lowe v. State, 2013 WL 950940, at *7 (S.D.Ohio March 12, 2013)
(citing Allen v. Yukins, 366 F.3d 396, 403 (6th Cir.2004)).
The one-year statute of limitations may also be subject to equitable tolling upon a
“credible showing of actual innocence.” Souter v. James, 395 F.3d 577, 602 (6th Cir. 2005).
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, 2012 WL 487991 (N.D. Ohio Feb. 14,
2012) (citing Souter, 395 F.3d at 590). Actual innocence means factual innocence, not
mere legal sufficiency. See Bousely v. United States, 523 U.S. 614, 623 (1998). Equitable
tolling is required upon a showing of actual innocence because the refusal to consider
even an untimely habeas petition would cause a fundamental miscarriage of justice. See

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Patterson v. Lafler, 2012 WL 48186, at *3 (6th Cir. Jan. 9, 2012). The Petitioner must
overcome a high hurdle in order to establish his actual innocence, and the record fails to
reflect he has done so here.
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.” Schlup, 513 U.S. at 316, 115 S.Ct. 851,
130 L.Ed.2d 808. Thus, the threshold inquiry is whether
“new 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.
Id. at 589–90 (footnote omitted). A petitioner who asserts a convincing claim of actual
innocence need not establish that he was diligent in pursuing this claim. McQuiggin v.
Perkins, –– U.S. ––, 133 S.Ct. 1924, 1932–33 (2013). Unexplained delay, however, still
undermines the petitioner’s credibility. The Supreme Court has emphasized that “[t]o
invoke the miscarriage of justice exception to AEDPA’s statute of limitations, we repeat,
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.’” Id. at 1935 (quoting Schlup, 513
U.S. at 332, 327).

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The record fails to reflect that any extraordinary circumstance prevented
Petitioner from timely filing his federal habeas corpus petition. The Ohio Supreme
Court dismissed Petitioner’s appeal in February 2012. Since that time, Petitioner has
engaged in repetitive and futile filings in the state courts, demonstrating that he had the
ability to file a petition in this Court had he chosen to do so. He has not shown any
circumstances which prevented him from filing a federal habeas corpus petition.
Further, Petitioner has failed to provide credible evidence of actual innocence. Thus,
Petitioner has failed to establish he is entitled to equitable tolling on the ground that he
is actually innocent. For all of these reasons, it is apparent that the petition was not filed
within the time allowed under the AEDPA.
III. RECOMMENDED DISPOSITION
Therefore, the Magistrate Judge RECOMMENDS that Petitioner’s Motion for
Summary Judgment, Doc. 14, be DENIED, and that this action be DISMISSED.
IV. PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within
fourteen days of the date of this Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s). A judge of this Court shall make
a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made. Upon proper objections, a judge of this
Court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made herein, may receive further evidence or may recommit this
matter to the magistrate judge with instructions. 28 U.S.C. 636(B)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a waiver of the right to appeal
the decision of the District Court adopting the Report and Recommendation. See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any
adverse decision, they may submit arguments in any objections filed, regarding
whether a certificate of appealability should issue.

/s/ Terence P. Kemp
United States Magistrate Judge

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