Dixon v. Warden, Chillicothe Correctional Institution
REPORT AND RECOMMENDATIONS Dixons Second Amended Petition is barred from the statute of limitations and should therefore be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it is also recommended that Pet itioner be denied a certificate of appealability and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 8/12/2022. Signed by Magistrate Judge Michael R. Merz on 7/29/2022. (kpf)(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
WESTERN DIVISION AT DAYTON
BRANDON R. DIXON,
- vs -
Case No. 3:22-cv-070
District Judge Michael J. Newman
Magistrate Judge Michael R. Merz
WARDEN, Chillicothe Correctional
DECISION AND ORDER
This habeas corpus case, brought pro se by Petitioner Brandon Dixon, is before the Court
on Dixon’s filing of his Second Amended Petition (ECF No. 16). Upon initial review under
Rule 4 of the Rules Governing § 2254 Petitions, the undersigned found Dixon had not stated a
claim for relief cognizable in habeas corpus and ordered him
to file, not later than August 1, 2022, a definite statement of the
constitutional claims he is making, following the form suggested by
the standard form for habeas petitions. That is, he shall separately
number the claims he is making and accompany each such claim
with a statement of facts in support. For example, the definite
statement might say: “ Ground One: Petitioner was denied his
Fourteenth Amendment right to due process as recognized in Brady
v. Maryland, 373 U.S. 83 (1963), when the State failed to produce
the following exculpatory evidence: . . .” or “Ground Two:
Petitioner was denied his Sixth Amendment right to the effective
assistance of counsel when his trial attorney . . ..”
(ECF No. 15, PageID 351.)
Upon review under Rule 4 of the Rules Governing § 2254 Cases, the Magistrate Judge
finds Dixon’s Second Amended Petition is untimely.
Dixon was convicted in the Clark County Court of Common Pleas on one count of
felonious assault and one count of operating a motor vehicle under the influence of alcohol at the
felony four level on June 18, 2015, and sentenced to 10.5 years imprisonment(Petition, ECF No.
16, PageID 353). The conviction and sentence were affirmed by the Ohio Second District Court
of Appeals on May 6, 2016. Id. Dixon did not appeal to the Supreme Court of Ohio. Id. at PageID
On February 21, 2017, Dixon moved to withdraw his guilty plea on grounds of ineffective
assistance of trial counsel and manifest injustice. Id. at PageID 355. The Common Pleas Court
denied relief and Dixon appealed. The Second District affirmed and the Supreme Court of Ohio
declined jurisdiction on July 23, 2019. Id. at PageID 356-57.
Dixon pleads the following grounds for relief:
Ground One: Dixon's Constitutional Right to counsel was violated,
when trial counsel Jay Adams acted as an adversary to Dixon by
aiding prosecution in obtaining Dixon's conviction rather than
acting as an advocate.
Ground Two: Prosecutor committed misconduct resulting in
violation of Petitioner's right to Due Process, by both violating
Petitioner's right to Speedy Trial and prosecuting without sufficient
Ground Three: Trial court erroneously imposed harshest sentence
possible based upon assumption of falsehood being a fact.
Ground Four: The trial court erred by denying Dixon's motion to
withdraw his guilty plea.
(ECF No. 16).
The standard form Petition in habeas corpus asks the petitioner to explain why his or her
petition is timely filed. With respect to all four of his grounds for relief, Dixon responds:
The one year period of limitation in this case runs from the date on
which the factual predicate could have been discovered through the
exercise of due diligence, which in Petitioner's case is October 9,
2021, leaving a little over two months from this filing to. still be
With respect to all grounds for relief, he claims the statute did not begin to run until “the
date on which the factual predicate could have been discovered through the exercise of due
diligence, which in Petitioner's case is October 9, 2021, leaving a little over two months from this
filing to still be timely filed.” Id. at PageID 364.
Dixon’s claim is completely opaque to the Court. He gives no clue as to what he discovered
on October 9, 2021, or why it is significant to this case. On its face, the claim is without merit.
The factual predicate for Ground One – ineffective assistance of counsel by Jay Adams – would
have been complete on the date of sentencing in June 2015. What happened after that on October
9, 2021, to extend the start date of the statute to October 9, 2021? Dixon makes no legal or factual
argument for the later date.
28 U.S.C. § 2244(d) provides:
(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
(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 postconviction 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.
Dixon is evidently relying on the language in § 2254(d)(2)(D), but he gives the Court no
facts on which to base a finding under that section. In the absence of any proof by Dixon of finding
any legally significant fact on October 9, 2021, that date is legally insignificant to the case.
The statute of limitations is an affirmative defense which is forfeited if not pleaded as
required by Fed. R. Civ. P. 8(c). A district court may dismiss a habeas petition sua sponte on
limitations grounds when conducting an initial review under Rule 4 of the Rules Governing § 2254
Cases. Day v. McDonough, 547 U.S. 198 (2006)(upholding sua sponte raising of defense even
after answer which did not raise it); Scott v. Collins, 286 F.3d 923 (6th Cir. 2002). However, before
doing so it must give the Petitioner notice and an opportunity to respond. Shelton v. United States,
800 F.3d 292 (6th Cir. 2015). Dixon will have an opportunity to respond if he files objections to
Dixon’s Second Amended Petition is barred from the statute of limitations and should
therefore be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal.
July 29, 2022.
s/ Michael R. Merz
United States Magistrate Judge
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