Justice v. DeMartino

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
WILLIAM JUSTICE, II,
Petitioner,
vs.
WARDEN, LONDON CORRECTIONAL
INSTITUTION,
Respondent.
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Case No. 3:24-cv-298
District Judge Michael J. Newman
Magistrate Judge Kimberly A. Jolson
ORDER and REPORT AND RECOMMENDATION
Petitioner William Justice II, a state prisoner proceeding without the assistance of counsel,
filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1-1, refiled as Doc. 8).
This matter is before the Court to consider the Petition, the Return of Writ (Doc. 18), Petitioner’s
Traverse (Doc. 19), and the limited state court record (Doc. 17). 	This matter is also before the
Court to consider several pending motions. (Docs. 23, 27, 29, 37, 38, 43, 45, 47-52, and 54–55).
For the reasons that follow, the Court GRANTS Justice’s motions to supplement the
record. 	(Docs. 43, 45, and 48). 	Respondent’s motion to strike, (Doc. 23), is DENIED, and
Justice’s objection to Respondent’s motion to strike, (Doc. 29), is OVERRULED as moot.
Justice’s motions for leave to file and/or motions to strike (Docs. 37, 38, 49, 50, 51, 52, 54 and 55)
are DENIED as repetitive and outside of the Court’s briefing schedule.
Because the petition is time-barred, the Undersigned RECOMMENDS this action be
DISMISSED with prejudice. The Undersigned also RECOMMENDS that Justice’s emergency
motion to grant interim release (Doc. 27) and his emergency motion for expedited ruling and
immediate release (Doc. 47) be DENIED.
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I. 	PROCEDURAL HISTORY
Because Justice failed to file a timely appeal or a state post-conviction action, the state
court record is sparse, and Ohio’s Third District Court of Appeals never summarized the facts of
this case. The available record reflects that on March 10, 2022, a Shelby County, Ohio, grand jury
indicted Justice on one count of rape of a child, one count of kidnapping, and twenty-six counts of
pandering obscenity involving a minor. (Doc. 17, at PageID 2211–19). On June 17, 2022, Justice,
who was represented by counsel, entered into a negotiated guilty plea to five counts of pandering
obscenity involving a minor as felonies of the second degree (Counts III through VII). 	(Id. at
PageID 2224–32). The plea agreement contained a joint sentencing recommendation of twenty-
five years. (Id.) The trial court accepted the plea and the State dismissed the remaining counts.
(Id. at PageID 2233–34). On July 11, 2022, the trial court held a sentencing hearing. The court
deviated from the joint sentencing recommendation and sentenced Justice to a minimum of thirty
(30) years to a maximum of thirty-three (33) years in prison. (Id. at PageID 2235–39). The court’s
Judgement Entry of Sentencing was journalized on July 12, 2022. (Id.)
Justice did not file a timely notice of appeal and the time to do so expired on August 11,
2022. On October 20, 2022, more than three months after his sentencing, Justice filed a pro se
motion for leave to file a delayed appeal and a notice of appeal. 	(Id. at PageID 2241–52). 	In
support of his motion for leave, Justice submitted an unsigned affidavit stating he was unable to
perfect a timely appeal due to lingering COVID-19 restrictions, because he was unaware of his
appellate rights, and because he needed additional time to prepare the paperwork. (Id. at PageID
2250–54). 	On December 13, 2022, the Court of Appeals denied his motion for leave. 	(Id. at
PageID 2272–73). Petitioner did not seek review by the Ohio Supreme Court.
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On April 5, 2023, May 19, 2023, and June 22, 2023, Justice made additional, procedurally
deficient attempts to file an appeal. (Id. at PageID 2274–75, 2287–92, 2310–23). On each of those
occasions, he filed a notice of appeal but failed to file a motion for leave to file a delayed appeal
as required by Ohio App. R. 5(A). The Third District Court of Appeals dismissed each attempt
for lack of jurisdiction. (Id. at PageID 2285–86, 2308–09, 2339–40).
Justice did not file a petition for post-conviction relief in the trial court. Instead, on March
18, 2024, Justice filed a pro se complaint for habeas corpus relief in the Ohio Supreme Court. (Id.
at PageID 2341–87). On April 30, 2024, the Ohio Supreme Court dismissed the case sua sponte.
(Id. at PageID 2405–10).
II. 	FEDERAL HABEAS PROCEEDINGS
On November 19, 2024, Justice filed the instant habeas petition (Doc. 1-1), which is dated
November 15, 2024, and includes approximately 1000 additional pages of supporting materials.
(Docs. 1-2 through 1-65). The Petition was refiled as Doc. 8 after this Court issued an Order for
Answer. 	He raises four grounds for relief: (1) ineffective assistance of counsel (ground one);
prosecutorial misconduct (ground two); judicial bias (ground three); and improper evidence
(ground four). (Doc. 8, PageID 1095–1100).
Respondent filed the state court record and a Return of Writ. 	(Docs. 17, 18). 	In it,
Respondent argues the petition is barred by the AEDPA statute of limitations, and alternatively,
the claims are procedurally defaulted and unexhausted. (Doc. 18, at PageID 2445, 2455). Justice
filed a Traverse and appears to concede that his petition is untimely. He argues the Court should
still consider his claims because equitable tolling applies and he is actually innocent of the crimes
to which he pled guilty. (Doc. 19).
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For the following reasons, the Undersigned RECOMMENDS the Petition (Doc. 8) be
DISMISSED as time-barred. Given this finding, the Undersigned does not address the merits of
his claims.
III. 	THE PETITION IS TIME-BARRED
Under 28 U.S.C. § 2244(d)(1), as amended by § 101 of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, a person in custody
under a state court judgment must file an application for a writ of habeas corpus within one year
from the latest of:
(A) 	the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) 	the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) 	the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral
review; or
(D) 	the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). Nothing in the record suggests that § 2244(d)(1)(B) and (C) apply to this
case, and Petitioner would have known the facts underlying each claim in his Petition before his
conviction became final or by the end of the time for direct review. 28 U.S.C. § 2244(d)(1)(D).
Consequently, his federal habeas Petition is governed by the one-year statute of limitations set
forth in 28 U.S.C. § 2244(d)(1)(A).
Applied here, Justice’s conviction became final on August 11, 2022, when the thirty-day
period for seeking direct review of his sentence expired. 	See 28 U.S.C. § 2244(d)(1)(A); Ohio
App. R. 4(A)(1) and R. 14(A). The clock for filing his federal habeas petition began to run and
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expired one year later. Because he waited more than two years, until November 19, 2024, to file
his petition, it is untimely.
A. 	Statutory Tolling
Under 	28 	U.S.C. 	§ 	2244(d)(2), 	the 	statute 	of 	limitations 	is 	tolled 	under 	certain
circumstances, including during the pendency of a “properly filed” application for state post-
conviction relief or other collateral review. See Board v. Bradshaw, 805 F.3d 769, 771 (6th Cir.
2015). “An application is ‘properly filed’ when its delivery and acceptance are in compliance with
the applicable laws and rules governing filings.” Board, 805 F.3d at 772 (quoting Artuz v. Bennett,
531 U.S. 4, 8 (2000)).
In Ohio, if a defendant misses his 30-day window to file a direct appeal, see Ohio App. R.
4(A)(1), he may file a motion for leave to file a delayed appeal pursuant to Ohio App. R. 5(A).
“Although a motion for leave to file a delayed appeal under Rule 5(A) requests an extension of
time in which to file a direct appeal, it is considered part of the collateral review process for
purposes of tolling AEDPA’s statute of limitations.” Board, 805 F.3d at 771–72. A properly filed
motion for a delayed appeal tolls the one-year statute of limitations for filing a habeas petition but
does not restart it. See id. at 772.
In this case, not all of Justice’s state court filings constitute “properly filed” applications
for post-conviction relief or other collateral review. As Respondent points out, Justice made four
attempts to file a delayed direct appeal, but only his first attempt complied with Ohio R. App.
5(A)’s mandatory motion requirement. (Doc. 18, at PageID 2447). Under that rule, “[a] motion
for leave to appeal shall be filed with the court of appeals and shall set forth the reasons for the
failure of the appellant to perfect an appeal as of right.” Ohio R. App. 5(A)(2). See also Board,
805 F.3d at 775 (“To obtain relief under Rule 5(A), a movant must include in the motion an
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explanation of the cause for the delay and the length of the delay” and “[o]nce the movant has
provided these explanations, the conditions to filing the Rule 5(A) motion have been satisfied”).
The motion for leave is a requirement.
Here, on October 20, 2022, Justice filed a Rule 5(A) motion for leave to file a delayed
appeal. (Doc. 17, at PageID 2247). On December 13, 2022, the Third District Court of Appeals
denied his motion for leave, finding “the motion does not set forth sufficient reason for Appellant’s
failure [to] file a timely notice of appeal from the July 12, 2022 judgment entry of sentencing.”
(Id. at PageID 2272). Justice is entitled to ninety-nine (99) days of tolling from October 20, 2022,
through January 27, 2023, when the time to file an appeal of the Court of Appeals’ decision
expired. See Ohio S. Ct. Prac. R. 7.01(A)(1)(a)(i). But he is not entitled to additional tolling in
connection with the three additional notices of appeal that he filed after his first motion for leave
was denied. These filings were dismissed by the Court of Appeals for lack of jurisdiction and did
not comply with Rule 5(A)’s motion requirement. 	See Gibson v. Warden, No. 1:10-cv-8, 2011
WL 1429099, at *9 (S.D. Ohio Feb. 23, 2011), report and recommendation adopted, 2011 WL
3861687 (S.D. Ohio Aug. 31, 2011) (finding late notice of appeal was not “properly filed” for
statutory tolling purposes where petitioner did not include the required motion for leave to file
setting forth the reasons why a timely appeal was not perfected and noting petitioner “failed to
comply with conditions for filing under the controlling state court rule”).
Justice’s state habeas petition also did not toll AEDPA’s statute of limitations. Ohio law
only permits the filing of a state habeas petition to challenge the subject-matter jurisdiction of the
trial court. 	Ohio Rev. Code § 2725.05. 	“[T]he filing of an Ohio habeas petition for any other
purpose would not be a ‘properly filed’ state post-conviction application as would toll the federal
habeas time limitations period.” Washington v. Kelly, No. No. 1:05-cv-577, 2007 WL 1592088,
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at *12 (N.D. Ohio May 31, 2007) (citing Williams v. Brigano, 238 F.3d 426 at *2 (6th Cir. 2000)
(unpublished table decision)). 	See also Robinson v. Henderson, No. 3:23-cv-89, 2024 WL
4856061, *9 (N.D. Ohio Nov. 21, 2024) (state habeas petition that did not challenge trial court’s
jurisdiction was not properly filed under Ohio law and did not toll AEDPA’s statute of limitations);
Harris v. Warden, No. 1:16-cv-795, 2017 WL 3588943, *9 (S.D. Ohio June 12, 2017) (state habeas
petition did not toll § 2244(d)’s limitations period where petitioner attempted to challenge “the
sentence that was imposed by the trial court, the sufficiency of the evidence supporting his
convictions, and the prosecutor’s conduct” rather than the trial court’s jurisdiction).
In sum, the clock for filing Justice’s habeas petition began running on August 11, 2022,
when his conviction became final. 	At most he is entitled to 99 days of statutory tolling in
connection with his motion to file a delayed appeal, but he waited more than two years to file this
habeas action. The petition is untimely.
B. 	Equitable Tolling
Although the Petition is untimely, AEDPA’s statute of limitations period is not a
jurisdictional bar and is subject to equitable tolling under certain circumstances. 	Holland v.
Florida, 560 U.S. 631 (2010). Equitable tolling “allows courts to toll a statute of limitations when
a litigant’s failure to meet a legally-mandated deadline unavoidably arose from circumstances
beyond that litigant’s control.” Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010) (internal
citation omitted). See also Hall v. Warden, 662 F.3d 745, 749 (6th Cir. 2011). But the equitable
tolling doctrine should be granted “sparingly,” Robertson, 624 F.3d at 784, and only where a
petitioner has diligently pursued relief and extraordinary circumstances prevented his timely filing.
See Holland, 560 U.S. at 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Moreover,
“although ‘the party asserting statute of limitations as an affirmative defense has the burden of
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demonstrating that the statute has run,’ the petitioner bears the ultimate burden of persuading the
court that he or she is entitled to equitable tolling.” Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011)
(quoting Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002)).
Justice argues he was unable to file a timely habeas petition within the statute of limitations
period for several reasons. (Doc. 8, at PageID 1103; Doc. 19, at PageID 2467). He alleges his
trial counsel failed to inform him of critical deadlines and his right to appeal, resulting in
procedural delays and untimely filings. (Doc. 19, at PageID 2467). And due to his pro se status,
his attempts to file an appeal were dismissed for procedural technicalities. 	He also argues that
judicial bias and prosecutorial misconduct obstructed his ability to pursue post-conviction relief.
(Doc. 8, at PageID 1104). Justice states: “I acted diligently with what I had. But I was up against
a sealed courtroom, a missing record, a case with no transcript, and an attorney who had one foot
in the prosecutor’s office and no interest in defending me.” (Doc. 19, at PageID 2468–69).
No equitable tolling principles or exceptions save the Petition. First, it is not apparent from
the record that Justice diligently pursued federal habeas corpus relief. 	Second, Justice has not
demonstrated that an extraordinary circumstance prevented him from filing his habeas petition in
a timely manner. 	Although Justice blames his trial counsel for failing to advise him regarding
state appellate deadlines and procedure, this has little bearing on his ability to file a timely habeas
petition in this Court. See, e.g., Cooke v. Vantell, No. 3:24-cv-01502, 2025 WL 2607821, at *2
(M.D. Tenn. Sept. 9, 2025) (finding that “trial counsel’s ‘alleged failure to advise Petitioner that
he was responsible for filing a notice of post-conviction relief in the state court does not constitute
an extraordinary circumstance that stood in the way of Petitioner filing a timely § 2254 habeas
petition and does not warrant equitable tolling.”) (quoting Wiechens v. Ryan, No. CV 13-0900-
PHX-JAT, 2013 WL 6533138, at *5 (D. Ariz. Dec. 13, 2013)). 	Likewise, Justice’s decision to
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forego state post-conviction relief due to perceived futility based on judicial bias or prosecutorial
misconduct does not excuse his failure to file a timely habeas petition. See, e.g., Cooper v. Black,
No. 	5:24-cv-25-BYP, 	2024 	WL 	5452642, 	*13 	(N.D. 	Ohio 	June 	4, 	2024), 	report 	and
recommendation adopted, 2025 WL 572875 (N.D. Ohio Feb. 21, 2025) (no equitable tolling where
petitioner failed to show “and it is not otherwise apparent, how the trial judge’s alleged bias
prevented him from timely filing his petition in this Court”).
To the extent Justice cites his pro se status as a reason he could not comply with the statute
of limitations, the Sixth Circuit has consistently held that “a petitioner’s pro se status, lack of legal
knowledge, or lack of access to legal materials are not sufficient to warrant equitable tolling.”
Cunningham v. Warden, 2:24-cv-291, 2025 WL 562876, at *7 (S.D. Ohio Feb. 20, 2025) (citing
Hall, 662 F.3d at 750-51 (rejecting petitioner’s equitable tolling argument based on his pro se
status, limited access to law-library and lack of access to the trial transcript)). See also Rose v.
Dole, 945 F.2d 1331, 1335 (6th Cir. 1991) (finding “ignorance of the law alone is not sufficient to
warrant equitable tolling”); Wilkes v. Watson, No. 5:23-cv-01773, 2025 WL 1222674, at *7 (N.D.
Ohio Apr. 28, 2025), report and recommendation adopted, 2025 WL 2802402 (N.D. Ohio Oct. 2,
2025) (noting that “ignorance of AEDPA’s limitation period” and “ignorance or confusion about
state appellate deadlines” does not warrant equitable tolling) (internal citations omitted).
Simply put, Justice has not satisfied his burden to establish that the statute of limitations
should be equitably tolled.
C. 	Actual Innocence Exception
In addition to equitable tolling, “[a] habeas petitioner is entitled to an equitable exception
to AEDPA’s one-year statute of limitations if he makes a credible showing of actual innocence.”
Davis v. Bradshaw, 900 F.3d 315, 326 (6th Cir. 2018) (citing McQuiggin v. Perkins, 569 U.S. 383,
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392 (2013)); Souter v. jones, 395 F.3d 577, 599 (6th Cir. 2005). This type of actual-innocence
claim “does not by itself provide a basis for relief . . . but is instead a gateway through which a
habeas petitioner must pass to have his otherwise barred constitutional claim considered on the
merits.” Schlup v. Delo, 513 U.S. 298, 315 (1995). Like equitable tolling, this exception is applied
sparingly, and a petitioner bears the burden of demonstrating entitlement to the exception. 	See
Davis, 900 F.3d at 326; Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011). 	The standard is
“demanding” and “permits review only in the ‘extraordinary’ case.” House v. Bell, 547 U.S. 518,
538 (2006) (citing Schlup, 513 U.S. at 327); see also McQuiggin, 569 U.S. at 385.
In order to grant a gateway-based claim of actual innocence, a court must be persuaded that
“in light of the new evidence, no juror, acting reasonably, would have voted to find [petitioner]
guilty beyond a reasonable doubt.” McQuiggin, 569 U.S. at 385 (citing Schlup, 513 U.S. at 329).
In this context, “actual innocence means factual innocence, not mere legal insufficiency.” Bousley
v. United States, 523 U.S. 614, 623 (1998). 	This means a petitioner must “do more than only
undermine the state’s case.” 	Hubbard v. Rewerts, 98 F.4th 736, 748 (6th Cir. 2024). 	See also
Guadarrama v. United States, No. 16-6218, 2017 WL 3391683, at *3 (6th Cir. Feb. 13, 2017)
(finding no new evidence where petitioner argued only that the evidence presented at trial was
insufficient to convict). In the extraordinary case, a petitioner may make a sufficient showing with
new reliable evidence that can “supply any alibi, point to any alternative perpetrator, or otherwise
render the State’s theory of the case impossible.” 	Houston v. Davis, No. 24-3280, 2025 WL
590895, at *3 (6th Cir. Feb. 24, 2025).
In Connolly v. Howes, 304 F. App’x 412, 417 (6th Cir. 2008), the Sixth Circuit indicated
in an unpublished decision that a petitioner can claim actual innocence even after entering a plea.
But some district courts have noted that “the cases the Sixth Circuit relied upon for that proposition
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concerned procedural default, not the AEDPA limitations period.” Nolan v. Mazza, No. 24-61-
DCR-CJS, 2024 WL 5131833, *5 (E.D. Ky. Nov. 26, 2024) (citing Shofner v. Green, No. 0:20-
cv-23-KKC-HAI, 2020 WL 8475034 (E.D. Ky. Apr. 16, 2020)). 	This has resulted in some
inconsistency among the district courts in the Sixth Circuit as to whether a petitioner who entered
into a plea agreement may argue actual innocence to overcome an untimely habeas petition. See,
e.g., Camelin v. Warden, No. 2:21-cv-4070, 2022 WL 683454, *8 (S.D. Ohio Mar. 8, 2022)
(considering actual innocence argument but noting that a petitioner must also demonstrate actual
innocence of any charges the government dismissed as a result of the plea); Robinson v. Sheldon,
No. 3:14-cv-0201, 2015 WL 7428632, *5 (N.D. Oh. Oct. 20, 2015) (“[A] petitioner may claim
actual innocence for purposes of equitable tolling, even if his conviction was the result of a plea.”).
But see Cooke v. Vantell, No. 3:24-cv-01502, 2025 WL 2607821, at *2 (M.D. Tenn. Sept. 9, 2025)
(“[A] guilty plea dispels any notion that Petitioner is eligible to assert a viable claim of actual
innocence as a gateway for allowing consideration of otherwise time-barred claims.”) (internal
citation omitted); Whelan v. Krow, No. 0:25-cv-46-DLB-HAI, 2025 WL 1509002, *3 (E.D. Ky.
May 8, 2025) (noting that “some courts in this Circuit have held that Souter’s actual-innocence
exception does not apply when the petitioner pleaded guilty” and remarking that “[t]his approach
makes sense”) (citing cases); Cain v. Bonn, No. 24-cv-11811, 2025 WL 1019753 (E.D. Mich. Apr.
4, 2025) (noting that “any actual innocence exception to AEDPA’s statute of limitation is
particularly inapplicable, because Cain pled no-contest to the[] charges.”).
To be sure, demonstrating a petitioner’s actual innocence is exceedingly difficult when that
petitioner has pleaded guilty and prevented the State from developing a factual record. It is even
harder where the petitioner, like Justice here, never moved to withdraw his plea in the state courts
and never attempted to develop or present new evidence in a state post-conviction proceeding. But
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even assuming Justice can claim actual innocence after entering into a counseled and negotiated
plea agreement, he fails to produce the kind of “new reliable evidence” required for an actual
innocence claim.
Before turning to Justice’s arguments regarding his actual innocence, the Court must
address his attempts to supplement the record.
1. 	Motions to supplement the record and file additional replies
Justice asks the Court to supplement the record and/or consider three categories of
information in support of his claim of actual innocence. First, he seeks leave to supplement the
record with email correspondence between his sister, Diana Hensley, acting on his behalf, and the
Ohio Bureau of Criminal Investigation (BCI). (Docs. 43, 45). This correspondence consists of a
request by Hensley for BCI to produce forensic records central to the claims in this habeas action
(Doc. 43-1), and a response by the Ohio Attorney General’s Office that BCI does not have records
responsive to that request. 	(Doc. 45-2). 	Justice claims the correspondence demonstrates
“Respondent’s ongoing failure to disclose public forensic material that is relevant and favorable
to his claims . . . .” (Doc. 43, at PageID 2805).
Next, Justice moves to supplement the record with evidence and argument pertaining to his
arrest and extradition, including a Pennsylvania police report. (Doc. 48). He asserts this evidence
demonstrates fabricated arrest records, employer-assisted ambush in connection with his unlawful
arrest, illegal seizure of his digital property, evidence tampering, improper extradition, a coerced
plea, and fruit of the poisonous tree violations. (Doc. 48 at PageID 2872).
Finally, on April 30, 2025, Diana Hensley filed her own affidavit and supplemental
affidavit in this case. (See Doc. 20, Affidavit of Diana Hensley in Support of Traverse; Doc. 20-
1, Supplemental Affidavit of Diana Hensley in Support of Traverse). Respondent filed a motion
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to strike the affidavits on the basis that Hensley is not a party to this case and is not permitted, as
a non-lawyer, to represent Justice in this matter. (Doc. 23). Respondent also argues the Hensley
affidavits constitute evidence outside of the state court record and are barred by Cullen v.
Pinholster, 563 U.S. 170, 181-82 (2011). Petitioner filed an “objection” to Respondent’s motion
to strike, arguing Hensley’s affidavits are necessary to resolve his claims of actual innocence and
should be considered by the Court. (Doc. 29).
The Court may consider evidence outside of the state court record in order to assess
whether equitable tolling or a gateway claim of actual innocence permits consideration of an
otherwise time barred petition. See, e.g., Sapp v. Jenkins, No. 2:17cv1069, 2023 WL 1793533, at
*5 (S.D. Ohio Feb. 7, 2023). Therefore, the Court GRANTS Justice’s motion to supplement the
record with the email correspondence pertaining to his request for BCI forensic records (Doc. 43)
and his motion to file a sur-reply regarding his notice that there are no BCI records (Doc. 45). The
Court also GRANTS Justice’s motions for leave to supplement the record with the documentation
surrounding his arrest. (Doc. 48).
However, the Undersigned admonishes Justice that the Affidavit of Diana Hensley, (Doc.
20), and Supplemental Affidavit, (Doc. 20-1), are improper. Hensely is not a party to this action
and as a non-lawyer, she may not file documents on his behalf. However, in this instance only and
in the interests of justice, the Undersigned will consider the Affidavits as it is apparent Justice
intended them to be filed and considered by the Court in connection with his gateway claim of
actual innocence. Accordingly, the Undersigned DENIES Respondent’s motion to strike (Doc.
23) and OVERRULES Petitioner’s objection to Respondent’s motion to strike as moot. (Doc.
29).
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2. 	Analysis
While represented by counsel, Justice entered into a negotiated plea agreement whereby he
pleaded guilty to five counts of pandering obscenity involving a minor, and in exchange for his
plea, the State dismissed the most serious charges against him, including charges of rape of a child
and kidnapping. 	When Justice signed the Petition to Enter a Plea of Guilty (Felony) form, he
acknowledged that he was 42 years old and had obtained his GED, he was able to read and write,
he was represented by counsel, he received a true copy of the Indictment, he understood all the
facts and circumstances involved in the charges against him, he understood the underlying
agreement upon which the plea was based, his guilty plea was freely and voluntarily made, and
there was a factual basis for the plea of guilty. (Doc. 17, at PageID 2224).
Now, many years later, Justice argues he is actually innocent of the charges. He claims the
following:
Petitioner’s evidence – including suppressed medical records from multiple
physicians finding no harm to the alleged victim, photographic tattoo discrepancies,
MEID 	identification 	proving 	device 	misattribution, 	and 	video-documented
coercion during the plea – was never reviewed by any judge or jury. No trial was
ever held. 	No findings of fact were entered. 	The courtroom was sealed, and no
transcript was created. Therefore, the factual predicate of Petitioner’s claims has
never undergone adversarial testing, making the evidence not only “new” under
Schlup, but also “unreviewed” in any meaningful legal sense.
(Doc. 19, at PageID 2469–70).
As an initial matter, that fact that no trial was held and no transcripts were created is not
evidence of innocence. Justice made a choice to waive his right to a trial. By pleading guilty, he
got the benefit of having the most serious charges against him dismissed, and he waived his right
to subject any charges to “adversarial testing.” Likewise, a transcript was never created because
Justice failed to timely appeal his sentence or sufficiently demonstrate why leave should be granted
for a late appeal. His own actions resulted in his case being “unreviewed” by the state courts.
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Justice has filed over one thousand pages of documents with his petition, but most of that
documentation consists of repetitive and conclusory allegations about how his counsel and the trial
court failed him. He challenges counsel’s investigation and her lack of faith in him, he alleges the
PSI writer was biased, he blasts the trial court who deviated from the joint sentencing
recommendation, and he claims video evidence shows his plea was coerced because he was visibly
unsettled. He also claims his employer ambushed him and assisted law enforcement with his arrest
on a warrant. None of this establishes his actual, factual innocence of the crimes. Similarly, the
fact that he requested but did not receive records from BCI is not evidence of his innocence.
And, importantly, Justice may not meet his burden of establishing his actual innocence
merely by attacking the sufficiency of the State’s evidence. 	He claims “suppressed medical
records from multiple physicians” determined there was no harm to the two-year old child. Justice
does not provide any evidence to support this contention, but in any event, under Ohio law,
physical harm is not an element of the crime of pandering obscenity involving a minor, so any lack
of harm or injury does not establish his factual innocence of those charges. 	See ORC
§ 2907.321(A)(1). 	He argues he tried to tell his trial counsel about tattoo and hair color
discrepancies that suggest he was not the actual perpetrator of the rape and/or the alleged victim
was not the actual child depicted. 	Again, the state dismissed the rape charge and all of this
information was known to Justice when he decided to waive his right to a trial and plead guilty to
pandering.
Justice’s best argument is that other people may have had access to his devices or google
account. But this assertion is speculative and conclusory, and without more, does not satisfy the
demanding actual innocence standard. When Justice entered his plea, he had personal knowledge
that others may have had access to certain devices. He elected not to challenge the state’s case.
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At bottom, Justice fails to offer “new reliable evidence” that is “so strong that a court
cannot have confidence in the outcome of his guilty plea. See Connolly v. Howes, 304 F. App’x
412, 419 (6th Cir. 2008). Consequently, he fails to make a threshold showing that he has a credible
claim of actual innocence based on new reliable evidence. 	Id. at 417; Souter, 395 F.3d at 590.
The petition is time-barred and the Undersigned RECOMMENDS this action be DISMISSED.
The Undersigned further RECOMMENDS that Justice’s emergency motion to grant
interim release (Doc. 27) and his emergency motion for expedited ruling and immediate release
(Doc. 47) be DENIED.
IV. 	REMAINING PENDING MOTIONS
During the course of these proceedings, Justice has inundated this Court with various
Notices and Motions to strike or file additional replies which constitute attempts to repetitively
brief matters outside of the Court’s briefing schedule. 	For this reason, the Court DENIES the
following motions: Motion to file supplemental motion to strike Respondent’s improper filing
(Doc. 37); motion to strike (Doc. 38); motion for leave to file (Doc. 49); motion to Strike (Doc.
50); motion to file document under seal (Doc. 51); motion for leave to file (Doc. 52); motion for
leave to file (Doc. 54); and motion for leave to file (Doc. 55).
V. 	CONCLUSION
IT IS THEREFORE ORDERED THAT:
1. 	Justice’s motions to supplement the record, Docs. 43, 45, and 48, are GRANTED.
2. 	Respondent’s motion to strike, Doc. 23, is DENIED, and Justice’s objection to
Respondent’s motion to strike, Doc. 29, is OVERRULED as moot.
3. 	Docs. 37, 38, 49, 50, 51, 52, 54 and 55 are DENIED as repetitive and outside of the
Court’s briefing schedule.
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IT IS THEREFORE RECOMMENDED THAT:
Because the petition is time-barred, this action should be DISMISSED with prejudice.
Justice’s emergency motion to grant interim release (Doc. 27) and his emergency motion for
expedited ruling and immediate release (Doc. 47) should also be DENIED.
IT IS SO ORDERED AND RECOMMENDED.
Date: January 26, 2026 	/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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 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 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
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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.
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