Bates v. Warden Chillicothe Correctional Institution

Filing 30

ORDER granting 8 Motion to Dismiss; denying 16 Motion for Hearing; granting in part and denying in part 17 Motion to Expand the Record; denying as moot 18 Motion for Leave to Proceed in forma pauperis; granting in part and denying in part 23 Motion to Expand the Record. Signed by Judge Algenon L. Marbley on 9/10/2015. This action is DISMISSED. (cw)(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
BRYAN W. BATES,
CASE NO. 2:14-CV-01325
JUDGE ALGENON L. MARBLEY
Magistrate Judge Elizabeth P. Deavers

Petitioner,
v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION

OPINION AND ORDER
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. This matter is before the Court on the Petition as amended (ECF Nos. 1,4,
5), Respondent’s Motion to Dismiss, Supplemental Memoranda in support and Response to
Petitioner’s Amendment to Habeas Petition (ECF Nos. 8-13, 21, 26) Petitioner’s Reply (ECF No.
22), and the exhibits of the parties. For the reasons that follow, Respondent’s Motion to Dismiss
is GRANTED. This action is hereby DISMISSED.
Petitioner’s Motion for Evidentiary Hearing (ECF No. 16) is DENIED.
Petitioner’s Motion(s) to Expand the Record (ECF Nos. 17, 23) are GRANTED in part
and DENIED in part.
Petitioner’s Motion for leave to file In Forma Pauperis for the purpose of issuing
subpoenas and obtaining documents for an evidentiary hearing (ECF No. 18) is DENIED as
moot.
I.
This case involves Petitioner’s March 27, 2008 convictions after a jury trial in the
Guernsey County Court of Common Pleas on twelve counts of pandering sexually oriented
matter involving a child and thirty counts of illegal use of a minor in nudity oriented material.
1 

The trial court imposed an aggregate term of thirteen years incarceration. On January 22, 2009,
the Ohio Fifth District Court of Appeals affirmed Petitioner’s convictions. State v. Bates, 2009
WL 154555 (Ohio App. 5th Dist. Jan. 22, 2009). On June 17, 2009, the Ohio Supreme Court
dismissed the appeal. State v. Bates, 122 Ohio St.3d 1410 (2009).
On May 12, 2010, Petitioner filed his first federal habeas corpus petition in this Court.
Bates v. Knab, Case No. 2:10-cv-420. On August 17, 2011, the Court entered judgment
dismissing the case without prejudice as unexhausted. Id. Petitioner subsequently pursued
various collateral proceedings in the state courts.
On April 26, 2011, Petitioner filed an application to reopen the appeal pursuant to Ohio
Appellate Rule 26(B). (ECF No. 8-2, PageID# 644.) On June 15, 2011, the appellate court
denied the application as untimely. PageID# 668. On October 5, 2011, the Ohio Supreme Court
dismissed the appeal as not involving any substantial constitutional question. PageID# 695. The
Ohio Fifth District Court of Appeals further summarized the procedural history of this case as
follows:
On April 26, 2011, appellant filed a motion to correct his sentence
pursuant to Crim. R. 32(C). By judgment entry filed May 23,
2011, the trial court amended the April 18, 2008 judgment entry of
sentence to specify that appellant was convicted by a jury of his
peers.
On June 1, 2011, appellant filed a motion to correct amended
judgment entry to comport with Crim. R. 32(C). On August 4,
2011, the trial court ordered appellant to submit a proposed draft of
the entry of clarification regarding Crim. R. 32(C).
On August 8, 2011, appellant filed a motion to correct sentence,
arguing allied offenses of similar import. By entry filed August 12,
2011, the trial court denied the motion, noting the issue should
have been raised on direct appeal.
On August 22, 2011, appellant filed a proposed draft of the entry
for clarification regarding Crim. R. 32(C) as directed by the trial
2 

court. On August 26, 2011, the trial court filed a judgment entry of
sentence pursuant to Civ. R. 60(A), again sentencing appellant to
an aggregate term of thirteen years in prison.
On August 29, 2011, appellant filed a motion for reconsideration
on the allied offenses issue. By entry filed October 19, 2011, the
trial court denied the motion.
On November 21, 2011, appellant filed a request for hearing to
correct sentence pursuant to R.C. 2929.14 and 2929.41 and State v.
Foster, 109 Ohio St.3d 1, 2006–Ohio–856. By entry filed January
24, 2012, the trial court denied the request.
Appellant filed three appeals, Case No. 11 CA000016 on the trial
court’s May 23, 2011 order amending the sentencing entry, Case
No. 11 CA000026 on the trial court’s August 12, 2011 entry
denying appellant’s motion to correct sentence regarding allied
offenses, and Case No. 11 CA000033 on the trial court’s August
26, 2011 judgment entry on sentencing. Because the arguments in
each case are basically identical, we will address them collectively.
This matter is now before this court for consideration. Assignments
of error in Case No. 11 CA000016 are as follows:
“THE TRIAL COURT ERRED AS A MATTER OF LAW IN
OVERRULING DEFENDANT’S MOTION TO SUPPRESS
WHERE THE TRIAL COURT USED FACTS OUTSIDE THE
FOUR CORNERS OF THE AFFIDAVIT TO ESTABLISH
PROBABLE CAUSE, WHERE THE AFFIDAVIT UPON
WHICH THE SEARCH WARRANT WAS BASED DID NOT
ESTABLISH PROBABLE CAUSE, CONTAINED FALSE,
MISLEADING AND STALE INFORMATION.”
“THE DEFENDANT’S RIGHT TO DUE PROCESS OF LAW
WAS VIOLATED BECAUSE THE CONVICTIONS WERE
BASED ON INSUFFICIENT EVIDENCE.”
“THE DEFENDANT’S CONVICTION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
“THE TRIAL COURT ERRED AS A MATTER OF LAW,
WHEREAS THE COURT DID NOT DETERMINE SPOUSAL
COMPETENCY PRIOR TO THE DEFENDANT’S WIFE
TESTIFYING.”

3 

“THE TRIAL COURT ERRED AS A MATTER OF LAW AND
ABUSED ITS DISCRETION IN ALLOWING THE STATE’S
WITNESS TO TESTIFY ‘WITHIN A REASONABLE DEGREE
OF SCIENTIFIC CERTAINTY’ WITHOUT BEING PROPERLY
CERTIFIED AS AN EXPERT IN A SCIENTIFIC FIELD OF
STUDY AND WITHOUT INSTRUCTION TO THE JURY
REGARDING SCIENTIFIC TEST RESULYS [sic].”
“THE TRIAL COURT ERRED AS A MATTER OF LAW AND
AN ABUSE OF DISCRETION BY ALLOWING HEARSAY
TESTIMONY FROM FEDERAL AGENT’S (SIC) THAT
VIOLATED APPELLANT’S CONFRONTATION CLAUSE
RIGHTS GUARANTEED BY THE SIXTH AMENDMENT OF
THE CONSTITUTION.”
“THE TRIAL COURT ERRED AS A MATTER OF LAW,
WHEREAS APPELLANT’S SENTENCE WAS CONTRARY TO
LAW.”
“THE APPELLANT WAS DENIED HIS CONSTITUTIONAL
RIGHT GUARANTEED BY THE SIXTH AMENDMENT OF
THE CONSTITUTION WHEREAS, THE STATE FAILED TO
PROVIDE THE DEFENDANT WITH A WRITTEN REPORT
SUMMARIZING THE EXPERT WITNESS’S TESTIMONY,
FINDINGS, ANALYSIS, CONCLUSIONS, OR OPINION
PURSUANT TO CRIMINAL RULE 16(K).”
Assignments of error in Case No. 11 CA000026 are as follows:
“THE TRIAL COURT ERRED AS A MATTER OF LAW
WHEREAS, APPELLANT’S SENTENCE WAS CONTRARY
TO LAW BECAUSE THE TRIAL COURT FAILED TO APPLY
ALL OHIO REVISED CODE STATUTORILY MANDATED
SENTENCING PROVISIONS TO THE APPELLANT’S
FORTY–TWO COUNT CONVICTION.”
“THE TRIAL COURT ERRED AS A MATTER OF LAW
WHEREAS,
APPELLANT’S
CONVICTIONS
FOR
PANDERING SEXUALLY ORIENTED MATTER INVOLVING
A MINOR AND ILLEGAL USE OF A MINOR IN NUDITY
ORIENTED MATERIAL OR PERFORMANCE ARE ALLIED
OFFENSE OF SIMILAR IMPORT.”
“THE TRIAL COURT ABUSED IT’S (SIC) DISCRETION,
COMMITTED
PLAIN
ERROR
AND
VIOLATED
APPELLANT’S RIGHT TO DUE PROCESS UNDER THE 14TH
4 

AMENDMENT OF THE U.S. CONSTITUTION, AND SEC. 16,
ART. I OF THE OHIO CONSTITUTION, WHEN AT THE
SENTENCING IT FAILED TO APPLY ALL OHIO REVISED
CODE
STATUTORILY
MANDATED
SENTENCING
PROVISIONS, SPECIFICALLY WHETHER APPELLANT’S
CONVICTIONS WERE ALLIED OFFENSES OF SIMILAR
IMPORT UNDER R.C. 2941.25.”
Assignments of error in Case No. 11 CA000033 are as follows:
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
OVERRULING DEFENDANT’S MOTION TO SUPPRESS
WHERE THE TRIAL COURT USED FACTS OUTSIDE THE
FOUR CORNERS OF THE AFFIDAVIT TO ESTABLISH
PROBABLE CAUSE, WHERE THE AFFIDAVIT UPON
WHICH THE SEARCH WARRANT WAS BASED DID NOT
ESTABLISH PROBABLE CAUSE, CONTAINED FALSE,
MISLEADING AND STALE INFORMATION.”
THE DEFENDANT’S RIGHT TO DUE PROCESS OF LAW
WAS VIOLATED BECAUSE THE CONVICTIONS WERE
BASED ON INSUFFICIENT EVIDENCE .”
“THE DEFENDANT’S CONVICTION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
“THE TRIAL COURT ERRED AS A MATTER OF LAW,
WHEREAS THE COURT DID NOT DETERMINE SPOUSAL
COMPETENCY PRIOR TO THE DEFENDANT’S WIFE
TESTIFYING.”
“THE TRIAL COURT ERRD AS A MATTER OF LAW AND
ABUSED ITS DISCRETION IN ALLOWING THE STATE’S
WITNESS TO TESTIFY ‘WITHIN A REASONABLE DEGREE
OF SCIENTIFIC CERTAINTY’ WITHOUT BEING PROPERLY
CERTIFIED AS AN EXPERT IN A SCIENTIFIC FIELD OF
STUDY AND WITHOUT INSTRUCTION TO THE JURY
REGARDING SCIENTIFIC TEST RESULTS.”
“THE TRIAL COURT ERRED AS A MATTER OF LAW AND
AN ABUSE OF DISCRETION BY ALLOWING HEARSAY
TESTIMONY FROM FEDERAL AGENT’S (SIC) THAT
VIOLATED APPELLANT’S CONFRONTATION CLAUSE
RIGHTS GUARANTEED BY THE SIXTH AMENDMENT OF
THE CONSTITUTION.”

5 

“THE TRIAL COURT ERRED AS A MATTER OF LAW,
WHEREAS
THE
APPELLANT’S
SENTENCE
WAS
CONTRARY TO LAW.”
“THE APPELLANT WAS DENIED CONSTITUTIONAL
RIGHT GUARANTEED BY THE SIXTH AMENDMENT OF
THE CONSTITUTION WHEREAS, THE STATE FAILED TO
PROVIDE THE DEFENDANT WITH THE RESULTS OF THE
FORENSIC EXAMINATION AND SCIENTIFIC TEST
PERFORMED BY AGENT BRYANT PURSUANT TO
CRIMINAL RULE 16.”
State v. Bates, Nos. 11CA000016, 11CA000026, 11CA000033, 2012 WL 912928, at *1-3 (Ohio
App. 5th Dist. March 5, 2012). On March 5, 2012, the state appellate court rejected on the
merits Petitioner’s claim that his sentence violated State v. Foster, 109 Ohio St.3d 1 (Ohio 2006),
also holding that “the May 23, 2011 judgment entry and the August 26, 2011 judgment entry of
sentence complies with Crim. R. 32(C) and State v. Baker, 119 Ohio St.3d 197, 2008–Ohio–
3330.” Id. at *5. The appellate court declined to address the merits of Petitioner’s remaining
claims as barred under Ohio’s doctrine of res judicata. Id. at *3. On July 5, 2012, the Ohio
Supreme Court denied the appeal. State v. Bates, 132 Ohio St.3d 1463 (Ohio 2012).
While the three appeals were pending. . . appellant filed a motion
for reconsideration and to correct the sentence in the trial court,
which the court overruled. The court also overruled a later motion
to correct the sentence. Appellant filed a notice of appeal on
February 23, 2012, taken from the court’s overruling of his most
recent motion to correct the sentence.
On February 29, 2012, appellant filed a petition to vacate or set
aside the judgment or conviction or sentence. On March 5, 2012,
we filed our opinion in Bates II. The trial court overruled the
petition to vacate or set aside the judgment of conviction or
sentence on March 14, 2012. In April 2012, appellant filed a
notice of appeal from that decision, which was originally assigned
the case number 12–CA–10, but which we subsequently
consolidated with case number 12–CA–06.

6 

State v. Bates, No. 2012-CA-06, 2012-CA-10, 2012 WL 4358265, at *1-2 (Ohio App. 5th Dist.
Sept. 24, 2012). On September 24, 2012, the appellate court affirmed the judgment of the trial
court. Id. Petitioner did not pursue an appeal with the Ohio Supreme Court.
In April of 2012, appellant filed a motion to vacate and correct his
sentence based upon the Ohio Supreme Court’s decision in State v.
Williams, 129 Ohio St.3d 344, 952 N.E.2d 1108 (2011), which
held that defendants whose crimes were committed prior to the
AWA’s enactment should have been classified according to the
statutory scheme in place at the time they committed their crimes,
even if they were sentenced after the enactment of the AWA. The
State of Ohio agreed with appellant that the AWA, as codified in
R.C. 2950, was improperly applied to appellant when he was
sentenced and that appellant should be classified pursuant to the
version of R .C. 2950 in effect at the time appellant committed the
offenses, also known as Megan’s Law. Appellant filed a second
motion to vacate and correct his sentence on May 1, 2012.
The trial court initially set appellant’s motions for hearing on
October 1, 2012. On August 23, 2012, the trial court granted
appellant’s motion for standby counsel. On August 27, 2012,
appellant filed a motion for court appointed forensic expert for the
sex offender classification hearing, stating this expert would
provide a meaningful review and comprehensive analysis of the
alleged computer evidence in question. Appellant also filed a
motion for court appointed psychologist to assist in determining
the recidivism factors in his case. Further, appellant filed
subpoenas for multiple individuals who testified during his original
trial to appear for the sex offender classification hearing. Based on
the pendency of the Bates III appeal, the trial court continued the
hearing scheduled for October 1, 2012.
On December 7, 2012, the trial court scheduled a hearing for sex
offender classification on March 1, 2013. Appellant again
subpoenaed multiple individuals, including those who testified at
his original trial. On January, 4, 2013, the trial court issued an
entry denying appellant’s motion for forensic expert and courtappointed psychologist. In a January 7, 2013 motion, appellant
requested the trial court allow him to view his pre-sentence
investigation documents and victim impact statements so that he
could make arguments regarding the statutory factors listed in R.C.
2950.09(B)(2). The trial court denied appellant’s motion to view
the documents. Appellee filed a motion to quash subpoenas on
January 31, 2013, stating they did not oppose appellant being
7 

classified as a sexually oriented offender and thus no evidence
need be presented pursuant to R.C. 2950.09(B), dealing with
evidence required to classify an individual as a sexual predator.
The trial court granted appellee’s motion to quash on February 1,
2013.
The trial court held a classification hearing on March 1, 2013. The
trial court found that appellant’s convictions were pursuant to R.C.
2907.322(A)(1) and that in applying R.C. 2950.01(D)(1)(b)(i),
“there would be * * * a duty to register once a year for ten years.”
The trial court reiterated his decision in granting appellee’s motion
to quash subpoenas because appellee agreed appellant would be
classified under the lowest permissible classification under
Megan’s Law and that the hearing was limited to a sexual offender
classification hearing, not a resentencing hearing. The trial court
then stated it was required to make a finding of whether there is or
is not clear and convincing evidence to establish that appellant is a
sexual predator. The trial court stated as follows, “And the
proposed finding of the Court would be there is not clear and
convincing evidence to establish the defendant is a sexual predator,
as there would be no factors before the Court.” After asking
appellant if he objected to that proposed finding, appellant stated,
“No, Your Honor.” The trial court explained the registration
requirements to appellant and asked appellant if he needed further
explanation of the registration requirements. Appellant stated he
did not need further explanation of the registration requirements.
The trial court then reviewed with appellant the penalties for
failing to register.
On March 1, 2013, the trial court issued a judgment entry and
notice of duties to register as sexually oriented offender. The
judgment entry detailed the registration requirements after
appellant’s release from prison, stated the length of appellant’s
registration requirement, and included the penalties for failure to
register. The judgment entry states that “the Court has specifically
informed the Defendant of his duties pursuant to O.R.C. Section
2950.04 as set forth above, and the Defendant has indicated to the
Court an understanding of those duties.” Appellant signed the
judgment entry on March 1, 2013 under the “Acknowledgment”
section stating that “I hereby acknowledge that the above
requirements as set forth by the Ohio Revised Code Chapter 2950
have been explained to me, and I understand these requirements.”
Also on March 1, 2013, the trial court issued a judgment entry
following a sexual predator hearing finding that appellant is found
not to be a sexual predator for the purposes of sex offender
registration. The trial court did not make findings of fact in this
8 

judgment entry. Appellant appeals the trial court’s March 1, 2013
judgment entries and assigns the following errors:
“I. THE TRIAL COURT ERRED AS A MATTER OF LAW
WHEREAS THE TRIAL COURT REVISIT[ED] ITS OWN
FINAL ORDER FAILING TO VACATE THE APPELLANT’S
SENTENCE THAT VIOLATE[S] SECTION 28, ARTICLE II OF
THE OHIO CONSTITUTION.
“II. THE TRIAL COURT ERRED AS A MATTER OF LAW
WHEREAS THE COURT ABUSED ITS DISCRETION BY
FAILING TO CORRECTLY APPLY THE STATUTORILY
MANDATED TERM R.C. 2950 AS WRITTEN AND
INTENDED BY THE GENERAL ASSEMBLY.
“III. THE TRIAL COURT ERRED AS A MATTER OF LAW
WHEREAS
THE
APPELLANT’S
JUDGMENT
OF
CONVICTION PURSUANT TO CRIM.R. 32(C) IS INVALID.
“IV. THE TRIAL COURT ERRED AS A MATTER OF LAW
WHEREAS [THE COURT] FAILED TO ADVISE THE
APPELLANT OF HIS RIGHT TO APPEAL.
“V. APPELLANT’S SENTENCE IS CONTRARY TO LAW.
“VI. THE TRIAL COURT ERRED AS A MATTER OF LAW
WHEREAS THE COURT DENIED THE APPELLANT’S
MOTION FOR DISCOVERY.”
State v. Bates, No. 13 CA 9, 2013 WL 5786040, at *1-3 (Ohio App. 5th Dist. Oct. 24, 2013). On
October 24, 2013, the appellate court affirmed the judgment of the trial court. Id. On March 12,
2014, the Ohio Supreme Court dismissed the appeal. State v. Bates, 138 Ohio St.3d 1436 (Ohio
2012).1
On August 21, 2014, Petitioner executed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He asserts that he was convicted in violation of the Fourth
Amendment (claim one); that the evidence is constitutionally insufficient to sustain his

1

 Petitioner also filed several motions for a new trial. The trial court denied all of Petitioner’s
motions for a new trial. (ECF No. 10-1, PageID# 1361, 1365.)   

9 

convictions (claim two);2 that the trial court improperly admitted expert testimony, scientific
evidence, hearsay testimony, and failed to properly instruct the jury (claims three through six);
that he was denied the effective assistance of counsel (claim seven); denied a fair trial due to
prosecutorial misconduct and a “broken chain of custody” (Petition, ECF No. 1, PageID#
14)(claims eight and nine); that the state appellate court improperly refused to address his claims
as barred under Ohio’s doctrine of res judicata (claim ten); he was convicted in violation of the
Double Jeopardy Clause (claim eleven); the trial court improperly imposed consecutive
sentences upon consideration of a victim impact statement (claim twelve); and that he is being
confined on an illegal sentence (claim thirteen).
It is the position of the Respondent that Petitioner’s claims are barred by the one-year
statute of limitations under 28 U.S.C. § 2254 or otherwise fail to provide a basis for relief.
II.
A. Motions for Expansion of the Record
As a preliminary matter, the Court addresses Petitioner’s Motions for Expansion of the
Record. Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts
provides that the court “may direct the parties to expand the record by submitting additional
materials relating to the petition.” Expansion of the record “‘is not mandatory . . . and is left to
the discretion of the trial judge.’” Beuke v. Houk, 537 F.3d 618, 654 (6th Cir. 2008) (quoting
Ford v. Seabold, 841 F.2d 677, 691 (6th Cir. 1988)).
Petitioner requests the Court to order the Respondent to provide transcripts of the motion
to suppress, trial, and sentencing hearing; the search warrant; “ICE Report No. 6 and Report No.
3”; Petitioner’s discovery request; “Yahoo Management Tool”; “Suddenlink Records”; 2004

2

 Petitioner also asserts that he is innocent of the charges against him. This claim is addressed

infra.
10 

court records; “Chat”; “Mid West Data Report”; yahoo tutorials; affidavits attached to his
petitions for post conviction relief; the Bill of Particulars; his recorded statement to police and
the expert witness’ forensic report; other exhibits he has attached to the Petition, including the
Affidavit of Kay Davis; the victim impact statement; and “any and all scientific test results”
known to Respondent to support testimony of the prosecution’s expert witness. Request to
Expand the Record (ECF No. 17, PageID# 2361.) Petitioner additionally requests the Court to
expand the record to include correspondence to the attorney who represented him in his prior
federal habeas corpus proceedings and the traverse in that case. Additional Motion to Expand
Record (ECF No. 23.)
Petitioner has attached many of these documents to his Petition and its amendments. To
the extent that Petitioner seeks to expand the record to include these documents for consideration
by the Court, Petitioner’s Motion(s) to Expand the Record (ECF Nos. 17, 23), are GRANTED.
To the extent he requests any material not already a part of the record in this case, Petitioner’s
motion is DENIED. Any such documents will not assist the Court in determining whether relief
is warranted.
B. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a oneyear 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;
11 

(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.
(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).
All of Petitioner’s claims, with the exception of claims ten and thirteen, plainly relate to
his initial judgment entry of conviction and sentence.

Petitioner’s judgment of conviction

became final under 28 U.S.C. § 2244(d)(1)(A) on September 14, 2009, ninety days after the Ohio
Supreme Court’s June 17, 2009, dismissal of his direct appeal, when the time period expired to
file a petition for a writ of certiorari with the United States Supreme Court. See Linscott v. Rose,
436 F.3d 587, 591 (6th Cir. 2006) (“[S]tatute of limitations does not begin to run until the time
for filing a petition for a writ of certiorari for direct review in the United States Supreme Court
has expired.”) (citing Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000) (internal citation
omitted.) The statute of limitations began to run on the following day, and expired one year
later, on September 15, 2010. Petitioner waited approximately four years later, until August 21,
2014, to file the instant habeas corpus petition. The time period during which his prior federal
habeas corpus petition remained pending did not toll the running of the statute of limitations. 28

12 

U.S.C. § 2244(d)(2). Further, none of Petitioner’s subsequent state court filings tolled the
running of the statute of limitations, as he filed all such actions after the statute of limitations had
already expired. “‘The tolling provision does not . . . ‘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. Once the
limitations period is expired, collateral petitions can no longer serve to avoid a statute of
limitations.’”

Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (quoting Rashid v.

Khulmann, 991 F.Supp. 254, 259 (S.D. N.Y. 1998)).
Petitioner argues that his judgment of conviction did not become a final judgment under
Ohio law until proceedings concluded challenging the trial court’s August 26, 2011, corrected
entry of sentence, or the March 1, 2013, judgment entry finding Petitioner to be a sexually
oriented offender. (ECF No. 22, PageID# 2479-2482.) However, the state appellate court
rejected Petitioner’s argument that the corrected judgment entries constituted final judgments of
conviction:
Appellant argues the trial court omitted the phrase nunc pro tunc
when correcting the 2008 sentence on August 26, 2011. He asserts
this gives rise to a new right of appeal, noting that the judgment
contains language stating it is a final appealable order.
A trial court has specific limited jurisdiction to enter a corrected
entry, but not to enter a new sentencing entry unless directed to do
so after appeal. The trial court’s judgment entry must either be
treated as a nunc pro tunc entry or a complete nullity because the
court lacked jurisdiction to enter a new judgment.
In State v. Lester, 130 Ohio St.3d 303, 2011–Ohio–5204, 958
N.E.2d 142, the Ohio Supreme Court held a nunc pro tunc
judgment entry issued for the sole purpose of complying with the
rule governing contents of a judgment of conviction by correcting
a clerical omission in a final judgment entry is not a new final
order from which a new appeal may be taken. Lester held when
the substantive provisions of the governing Rule are contained in
judgment of conviction, the trial court’s omission of how the
defendant’s conviction was effected, i.e., the “manner of
13 

conviction,” does not prevent the judgment of conviction from
being an order that is final and subject to appeal. Syllabi by the
court, paragraphs 1, 2, and 3. The Supreme Court explained the
absence of the language required by Crim. R. 32(C) indicating how
the conviction was effected does not deprive the appellant of any
opportunity to appeal the conviction or sentence. Id., at paragraph
17.
Appellant has not been deprived of the opportunity to appeal his
conviction and sentence, as evidenced by the fact these are his fifth
and sixth appeals to this court.
We find despite the language in the entry that it constitutes a final
appealable order, the sentencing entry to correct the sentence to
reflect the requirements of Crim. R. 32(C) does not constitute a
new final appealable order.
State v. Bates, 2012 WL 4358265, at *5-6. Similarly, the appellate court rejected Petitioner’s
claims with respect to the trial court’s order regarding his sexual offender classification:
Appellant argues that the trial court’s order setting a sexual
offender classification hearing vacated appellant’s entire sentence
because the trial court utilized the word “resentencing” in its initial
entry setting the hearing and thus the trial court erred when it did
not conduct a de novo sentencing hearing and instead conducted
only a reclassification hearing. Appellant also contends that the
trial court was required to conduct a de novo sentencing hearing
rather than simply a classification hearing. We disagree.
If there is an error in classification, only the portion of the
defendant’s sentence classifying him incorrectly under the sex
offender classification system is void. State v. Hurst, 5th Dist. No.
12–CA–20, 2012–Ohio–6075. If an appeals court determines a
defendant has been improperly classified, the remedy for this
improper classification is to remand the matter to the trial court for
classification proceedings in accordance with the law in effect at
the time the offenses were committed. State v. Dillon, 5th Dist.
No. CT11–0062, 2012, 2012–Ohio–773. The sex offender
classification proceedings under Megan’s Law were determined by
the Ohio Supreme Court to be civil in nature and are separate and
distinct from an offender’s underlying criminal conviction and
sentence. State v. Wood, 5th Dist. No. 09–CA–205, 2010–Ohio–
2759, citing State v. Cook, 83 Ohio St.3d 404, 1998–Ohio–291,
700 N.E.2d 570 (1998); and State v. Williams, 88 Ohio St.3d 513,
527, 728 N.E.2d 342 (2000). Accordingly, the trial court in this
14 

case did not err as a matter of law in failing to conduct a de novo
sentencing hearing due to the incorrect classification. In this case,
due to the Ohio Supreme Court’s ruling in State v. Williams, 129
Ohio St.3d 344, 952 N.E .2d 1108 (2011), appellant was
incorrectly classified under the AWA. The trial court thus properly
conducted a classification hearing in accordance with Former R.C.
2950, Megan’s Law, in effect at the time the offenses were
committed.
The trial court utilized the term “resentencing” in its August 10,
2012 judgment entry setting for hearing appellant’s “motion to
resentence him according to the statutorily mandated sentencing
scheme in place at the time his crimes were allegedly committed.”
Due to the pendency of the Bates III appeal, the original date set
for the hearing was continued. On December 7, 2012, the trial
court again set the classification hearing and specifically stated that
appellant’s entire sentence is not void pursuant to , 132 Ohio St.3d
318, 972 N.E.2d 509, 2012–Ohio–1908 (2012). We find the use of
the word “resentencing” in the trial court’s initial entry setting
hearing does not vacate appellant’s entire sentence, See State v.
Bates, 5th Dist. Nos.2012–CA–06, 2012–CA–10, 2012–Ohio–
4360, and the trial court properly granted appellant’s request by
reclassifying him according to the statutorily mandated sentencing
scheme (i.e. Megan’s Law) in place at the time his crimes were
committed. The trial court did not err in failing to vacate
appellant’s entire sentence.
Appellant’s first assignment of error is overruled.
State v. Bates, 2013 WL 5786040, at *3-4. Thus, neither the trial court’s correction of a clerical
error nor Petitioner’s classification as a sexually oriented offender constituted new judgments
that re-started the running of the statute of limitations with regard to Petitioner’s claims on his
underlying convictions.3 See Bachman v. Bagley, 487 F.3d 979, 982 (6th Cir. 2007) (designation
as a sexual predator does not re-start the running of the statute of limitations period with respect
to challenges to the underlying conviction). Courts have distinguished Bachman where a state

3

 This Court defers to a state court’s interpretation of its own laws. See Estelle v. McGuire, 502

U.S. 62, 67–68 (1991) (“it is not the province of a federal court to reexamine state-court
determinations on state-law questions”); Troiano v. Warden, Ross Correctional Inst., No. 2:12cv-940, 2015 WL 196405, at *9-10 (citations omitted).  
15 

court “threw out” the initial judgment entry and remanded the case for re-sentencing. See
Rashad v. Lafler, 675 F.3d 564, 568 (6th Cir. 2012) (citing Burton v. Stewart, 549 U.S. 147
(2007) (per curiam) (where a state court vacates a Petitioner’s sentence and remands the case for
re-sentencing, the judgment of conviction does not become final until imposition of the new
sentence). This case, however, is distinguishable from those cases because the state courts did
not vacate Petitioner’s sentence or remand the case for re-sentencing. See King v. Bunting, No.
1:13CV250, 2014 WL 2864422, at *9 (N.D. Ohio June 24, 2014)(“Restarting the AEDPA statute
of limitations after a resentencing to correct technical sentencing errors. . . would undermine the
provisions of the AEDPA and resurrect claims that could have been raised years earlier”) (citing
Eberle v. Warden, 532 F. App’x 605, 610 (6th Cir. 2013) (not every modification that can be
made to a sentence automatically re-starts the limitations period); Mackey v. Warden, Lebannon
Corr. Inst., 525 F. App’x 357, 361 (6th Cir. 2013) (“Nothing in the federal habeas statute
requires that a judgment be valid under state law”) (citing Frazier v. Moore, 252 F. App’x 1 (6th
Cir. 2007)). Thus, the corrected sentencing entries did not delay the start date of the running of
the statute of limitations.
Further, the record fails to reflect that equitable tolling of the statute of limitations is
appropriate. In order to establish entitlement to equitable tolling, Petitioner must establish that
(1) he has been pursuing his rights diligently and (2) some extraordinary circumstance stood in
his way and prevented him from filing in a timely fashion. Hall v. Warden, Lebannon Corr.
Inst., 662 F.3d 745, 749 (6th Cir. 2011). The United States Supreme Court established this twopart “extraordinary circumstance” test in Holland v. Florida, 560 U .S.641, 649 (2010) (citing
Pace, 544 U.S. at 418)). Petitioner bears the burden of demonstrating that he is entitled to
equitable tolling. Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011).

16 

Petitioner argues that the Court should equitably toll the running of the statute of
limitations because he timely filed his first federal habeas corpus petition. He contends that his
attorney representing him in those proceedings waited eleven months before filing the habeas
corpus petition and forged Petitioner’s signature. (ECF No. 22, PageID# 2482-83.) Petitioner
has attached various exhibits in support. (ECF 22, PageID# 2497-2512.) Petitioner contends
that the Court should have stayed proceedings in that case in order to permit him to exhaust state
court remedies. PageID# 2483. Petitioner maintains that he has acted diligently in pursuing
relief. PageID# 2484-85.
The timeliness of Petitioner’s prior federal habeas corpus petition and the actions of his
attorney representing him in that matter are not now at issue before this Court. Likewise, not
now at issue is whether Petitioner should have previously been granted a stay.4 Moreover, the
Court is not persuaded that Petitioner has acted diligently in pursuing relief.

Petitioner’s

conviction became final in September 2009. He waited until August 2014 to file this habeas
corpus petition. Nothing prevented him from timely seeking relief.
Petitioner claims he is innocent of the charges against him. Actual innocence may justify
the equitable tolling of the statute of limitations. Souter v. Jones, 395 F.3d 577 (6th Cir. 2005):
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.

4

 The Magistrate Judge determined that a stay was not warranted. Bates v. Warden, Chillicothe
Corr. Inst., Case No. 2:10-cv-420 (ECF No. 13.) Petitioner did not object to the
recommendations of the Magistrate Judge.     

17 

To establish actual innocence, “a petitioner must show that it is
more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.” Id. at 327, 513 U.S.
298, 115 S.Ct. 851, 130 L.Ed.2d 808. The Court has noted that
“actual innocence means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118
S.Ct. 1604, 140 L.Ed.2d 828 (1998). “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). “To 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 new evidence.’” McQuiggin v.
Perkins, -- U.S. --, --, 133 S.Ct. 1924, 1935 (2013) (quoting Schlup, 513 U.S. at 332, 327).
In support of his claim of actual innocence, Petitioner argues that the evidence is
constitutionally insufficient to sustain his convictions. He refers to a Midwest Data report dated
February 2008 (ECF 1-11, PageID# 132), facts “missed at trial” (ECF No. 22, PageID#2487).
He claims that prosecution witnesses lied. PageID# 2487-89. Petitioner also has submitted
various affidavits in support of his claim that he is actually innocent.
Petitioner has submitted the Affidavit of Joshua Bates. (ECF No. 1-19, PageID# 210.)
Joshua is Petitioner’s son. Joshua indicates that between June 1, 2007, and April 1, 2008, he
resided at Jaquelyn Drive in Byesville, Ohio. He used his father’s computer, as did every
member of the family. According to Joshua, [the victim] told him that she testified against
Petitioner because police threatened her. Petitioner also has attached the Affidavit of Madison
Bates, (ECF No. 1-18, PageID# 208), and Affidavit of Morgan Miller, his daughters. Madison

18 

and Miller indicate that they used Petitioner’s computer, as did all family members. Miller also
indicates that [the victim] told her she had been threatened by police. Petitioner has attached the
Affidavit of Jessica Bates. (ECF No. 1-20, PageID# 211.) Jessica is Petitioner’s daughter-inlaw. She indicates that she resided at Jaquelyn Drive in Byesville, Ohio, from June 1, 2007 to
April 1, 2008, and that other family members had use of Petitioner’s computer. [The victim] told
Jessica that police threatened her. Id. Petitioner has attached the Affidavit of Kay Davis RN,
CCRN, CHFN. (ECF No. 1-21, PageID# 212). Davis indicates in relevant part that she is “not
aware of any scientific test used by the medical field that can be performed on a digital or printed
image that would determine the age of the person portrayed in the image” and that the medical
field uses the “Tanner method” to determine the growth and development of a child under which
a photograph must exhibit certain indicators and needs to be of high resolution and size. Id.
Petitioner also has attached various exhibits that were available or presented at the time of trial.
Petitioner’s claim that the evidence is constitutionally insufficient to sustain his
conviction does not amount to a claim of actual innocence. The United States Supreme Court
has held that a free standing claim of actual innocence fails to present an issue appropriate for
federal habeas corpus relief. Herrera v. Collins, 506 U.S. 390, 400 (1993); see also House v.
Bell, 547 U.S. 518, 555 (2006)(declining to resolve whether a free standing actual innocence
claim may bar a defendant’s execution); Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007).
Further, Petitioner has failed to establish a claim of actual innocence. The evidence he refers to
in support of his claim is not new evidence that was unavailable or not already presented at the
time of trial. Review of the record reveals that Petitioner cannot establish a convincing claim of
actual innocence. Thus, Petitioner has failed to establish he is entitled to equitable tolling on this
basis.

19 

C. Claims Ten and Thirteen
Assuming that the statute of limitations does not bar consideration of claims ten and
thirteen, these claims nonetheless fail to provide a basis for relief.
In claim ten, Petitioner asserts that the trial court’s April 2008 sentencing entry was
invalid and the corrected August 26, 2011 sentencing entry gave him the right to a new appeal.
Petition (ECF No. 1, PageID# 74-75.) In claim thirteen, Petitioner again asserts that his sentence
is void. (ECF No. 5.) These claims present issues regarding the State’s interpretation of its own
law. A federal court may review a state prisoner’s habeas petition only on the ground that the
challenged confinement violates the Constitution, laws or treaties of the United States, and not
“on the basis of a perceived error of state law.” 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S.
37, 41 (1984); Estelle v. McGuire, 502 U.S. at 67–68 (1991). Therefore, a federal habeas court
can only consider whether the alleged error violated a federal constitutional right. These claims
fail to raise issues of federal constitutional magnitude.
Claims ten and thirteen fail to provide a basis for relief.
III.
For the foregoing reasons, Petitioner’s Motion for Evidentiary Hearing (ECF No. 16) is
DENIED. Petitioner’s Motion(s) to Expand the Record (ECF Nos. 17, 23) are GRANTED in
part and DENIED in part. Petitioner’s Motion for leave to file In Forma Pauperis for the
purpose of issuing subpoenas and obtaining documents for an evidentiary hearing (ECF No. 18)

20 

is DENIED, as moot.

This action is hereby DISMISSED. The Clerk is DIRECTED to

terminate this action.
IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge

DATED: September 10, 2015

21