Patterson v. Warden, London Correctional Institution

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARK ALAN PATTERSON
Petitioner, 	: 	Case No. 3:25-cv-254
- vs - 	District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
WARDEN, London Correctional
Institution,
:
Respondent.
DECISION AND ORDER
This is a habeas corpus case brought pro se by Petitioner Mark Alan Patterson pursuant to
28 U.S.C. § 2254 to obtain relief from his conviction for rape in the Greene County Court of
Common Pleas. The case is before the Court on Petitioner’s Objections (“Objections,” ECF No.
10) to the Magistrate Judge’s Report and Recommendations (“Report, ECF No. 9) recommending
dismissal with prejudice.
As required by 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the Court has reviewed the
Report de novo with particular attention to those portions objected to by Petitioner. Having done
so, the Court finds the objections are without merit and they are OVERRULED for the reasons set
forth below.
The Magistrate Judge found that the Petition was barred by the relevant one-year statute of
limitations enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-
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132, 110 Stat. 1214)(the "AEDPA") and codified at 28 U.S.C. §2244(d) because the Petition was
filed more than one year after Patterson’s conviction became final on direct appeal.
Petitioner objects that he is instead entitled to the triggering date of his discovery of the
factual predicate of his claim which he states is the date of enactment of the Ohio Constitutional
Amendment adopted as Issue 1 by Ohio voters effective December 7, 2023. For the reasons given
in the Report, even if Issue 1 changed the law in the way Petitioner asserts, it would count as a
change in the law and not a new factual predicate. Petitioner’s citation of circuit court authority
from other circuits is unpersuasive and he cites no Sixth Circuit authority supporting his position.
Petitioner also asserts that he satisfies the actual innocence exception to the statute of
limitations recognized by the Supreme Court in McQuiggin v. Perkins, 569 U.S. 383 (2013). As
the Report concluded
reliance on actual innocence requires a petitioner to produce and file
new evidence which persuades the District Court that no reasonable
juror, considering all the evidence, would be persuaded beyond a
reasonable doubt to vote to convict. Schlup v. Delo, 513 U.S. 298,
319 (1995); Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). "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." Id. at
590, citing Schlup, 513 U.S. at 324. Patterson has submitted no new
evidence at all and of course no evidence was presented at trial
because Patterson admitted the facts alleged in the Information.
(ECF No. 9, PageID 480-81).
Petitioner does not claim to have submitted any new evidence of the sort required by
Schlup. 	Instead, he objects to the Report’s insistence that the new evidence must be of factual
innocence as compared with legal innocence, relying on Leah M. Litman, Legal Innocence and
Federal Habeas, 104 VIRGINIA L AW REVIEW 417 (2018). 	But a law professor, however
persuasive, cannot overrule the Supreme Court of the United States which has held that "actual
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innocence means factual innocence, not mere legal insufficiency." Bousley v. United States, 523
U.S. 614, 623 (1998).
Petitioner also claims he is entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) by
virtue of the declaratory judgment actions he filed. To have that effect, a “collateral challenge” to
a conviction must be “properly filed.” Artuz v. Bennett, 531 U.S. 4 (2000). The Report noted that
the Ohio courts had found a declaratory judgment action cannot in Ohio be used to challenge a
criminal conviction (ECF No. 9, PageID 476, citing State v. Patterson (Ohio App. 2d Dist. Sept.
20, 2024, copy at ECF No. 4, Ex. 21)). Petitioner objects that this is in error because the Second
District had held a declaratory judgment complaint cannot be properly re-construed as a petition
for post-conviction relief. That is an accurate reading of the Second District’s opinion, but it does
not help Petitioner’s case because the Second District also held a declaratory judgment action
cannot be filed in a criminal case. Therefore it is not a properly filed collateral challenge to the
conviction and has no applicability to § 2244(d)(2).
Conclusion
Having reviewed the Report de novo in light of the Objections, the Court concludes the
Objections are not well taken and they are overruled . 	The Report is ADOPTED and the Clerk
will enter judgment dismissing the Petition with prejudice. Because reasonable jurists would not
disagree with this conclusion, Petitioner is DENIED a certificate of appealability and the Court
certifies to the Sixth Circuit that any appeal would be objectively frivolous and should not be
permitted to proceed in forma pauperis.
IT IS SO ORDERED.
November 10, 2025. 	s/Thomas M. Rose
Thomas M. Rose
United States District Judge
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