Long v. Warden, Pickaway Correctional Institution

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JOHN WILLIAM LONG,
Petitioner, 	: 	Case No. 1:23-cv-00714
- vs - 	District Judge Matthew W. McFarland
Magistrate Judge Michael R. Merz
WARDEN, Pickaway Correctional
Institution,
:
Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This is a habeas corpus case, filed pro se by Petitioner John William Long pursuant to 28
U.S.C. § 2254, to obtain relief from his conviction for murder in the Hamilton County Court of
Common Pleas, is before the Court on the Petitioner’s Objections (ECF No. 45) to the Magistrate
Judge’s Report and Recommendations on the merits (the “Report” ECF No. 43). District Judge
McFarland has recommitted the case to the undersigned for reconsideration in light of the
Objections (ECF No. 53).
Litigation History
The Report details the history of this litigation from Long’s indictment on April 14, 2004,
on one count of murder, through his filing of the instant Petition on October 9, 2023.1 Long has
1 The Petition was not docketed until November 1, 2023, but Long is entitled to a filing date of the day when he placed
the Petition in the prison mailing system. See Richard v. Ray, 290 F.3d 810, 812-13 (6th Cir. 2002) (per curiam)
(extending Houston v. Lack, 487 U.S. 266 (1988)).
Case: 1:23-cv-00714-MWM-MRM Doc #: 54 Filed: 03/09/26 Page: 1 of 7 PAGEID #: <pageID>

2
not objected to that summary of the history, so it is not repeated here. Because Long had previously
sought habeas relief from this conviction in Case No. 1:06-cv-787, the undersigned transferred the
case to the Sixth Circuit under 28 U.S.C. § 2244. 	That court decided Long did not need its
permission to proceed and remanded (ECF No. 8). The undersigned then ordered Respondent to
answer and the State raised the statute of limitations defense in its Return (ECF No. 21). Petitioner
responded in his Reply (ECF No. 25).
Statute of Limitations
The Report recommends dismissal of the Petition with prejudice as barred by the statute
of limitations, 28 U.S.C. § 2244(b)(Report, ECF No. 43, PageID 3233).
The Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat.
1214)(the "AEDPA") adopted for the first time a statute of limitations for habeas corpus petitions
which is now codified at 28 U.S.C. § 2244(d) which 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
Case: 1:23-cv-00714-MWM-MRM Doc #: 54 Filed: 03/09/26 Page: 2 of 7 PAGEID #: <pageID>

3
(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.
Petitioner claims the statute should be calculated under the benefit of § 2244(d)(1)(D). He
argued in his Reply:
Respondent has asserted incorrectly that Long's petition is time
bared [sic] under the provisions of 28 USC 2244(d)(l)(D). When the
appellate court reversed and remanded the trial court[‘]s denial of
Long's Crim.R.33(B) motion for leave to file a new trial motion
based on newly discovered evidence, the appellate court found that,
(1) "The record on appeal shows that, despite his diligent efforts
thereafter to gain access to those records, Long did not receive his
case file until May 2019 and (2) "the common pleas court's decision
denying Long's motion for leave was not supported by the record.
To the contrary, the record provides clear and convincing proof that
Long had been "unavoidably prevented" from timely discovering
and presenting in a new-trial motion the evidence upon which his
new trial motion depended, and that under the circumstances, a 90-
day delay in filing the motion after that evidence was discovered as
understandable and not unreasonable." (Emphasis added) State
v. Long, 2021 Ohio 2835, (Doc.20:PAGEID#1387-96).
For the purposes of 2244(d)(l)(D) the appellate court determined
May 14, 2019 as the date that the factual predicate of Long's claims
were discovered, therefore the AEDPA clock begun to run on that
date and stopped on the date Long's properly filed Crim.R.33(B)
Motion for Leave to File a New Trial Motion which was August 9,
2019. (Doc.20:PAGEID#l407) This period totaled (86) days, but the
court of appeals cited (90) days so for the sake of uniformity, Long's
concedes the (90) days. See (Doc. 20- l:PAGEID#1401- l407) The
clock was tolled until Long had exhausted his state court remedies,
which was April 24, 2024, the date the Ohio Supreme Court
declined to accept jurisdiction of Long's case. (Doc. 20-1 :PAGEID#
1812) The time from April 24, 2024 until November 1, 2024 is 191)
days plus the (90) days the appellate court calculated (191 + 90 =
281), well within the 2244(d)(l)(D) statute of limitations, therefore
Long's petition is timely.
Case: 1:23-cv-00714-MWM-MRM Doc #: 54 Filed: 03/09/26 Page: 3 of 7 PAGEID #: <pageID>

4
(Reply, ECF No. 25, PageID 2915-16).
The Report concluded Long had conflated a question of state law (when he had discovered
the evidence on which he relied in his delayed motion for a new trial) with a question of federal
law (when he discovered the factual predicate of his claims made in this case). The undersigned
wrote:
The First District thus decided a question of Ohio law: had Long
shown by clear and convincing evidence that he was unavoidably
prevented from filing his motion for new trial within 120 days of
verdict? The First District did not decide the federal law question
presented by Long’s reliance on § 2244(d)(1)(D): whether the
factual predicate of the claim or claims presented could have been
discovered sooner through the exercise of due diligence. Nor did the
First District have occasion to decide the federal law question. The
question before that court was not whether Long’s filing satisfied
the federal statute of limitations, but rather whether Long’s filing of
the newly discovered evidence on which he relied in seeking a new
trial had been “unavoidably prevented.” 	Since the Ohio Supreme
Court did not interpret the Ohio Public Records Act so as to allow
Long to discover the “newly discovered evidence” until it decided
Caster in 2016, obviously it could not have been done within 120
days of the verdict which was handed down before sentencing in
September, 2004.
Respondent 	argues 	that, 	regardless 	of 	when 	he 	obtained 	the
evidence relied on in his new trial motion, Long knew the factual
predicates of his claims long before he obtained his case file in
May, 2019 (Amended Return, ECF No. 28, PageID 3026-28). That
is, in documents prepared and filed by Long well before he obtained
his case file, he adverted to the existence of documents which would
establish his claims – Brady/Napue violations and ineffective
assistance of trial counsel -- even though he had not yet been able to
obtain copies of those documents.
(Report, ECF No. 43, PageID 3231). 	Respondent had cited many instances from the record
proving Long had known of the factual predicate of his claims years before he was able to obtain
the evidence. On that basis, the Report the statute of limitations had run many years before Long
filed here.
Case: 1:23-cv-00714-MWM-MRM Doc #: 54 Filed: 03/09/26 Page: 4 of 7 PAGEID #: <pageID>

5
In his Objections, Long continues to insist that the statute began to run on May 14, 2019
when he obtained his “case file.” (Objections, ECF No. 45, PageID 3256). Under his calculation,
it was then tolled under 28 U.S.C. § 2244(d)(2) from the time he filed his Delayed Motion for New
Trial until the Ohio Supreme Court declined to review denial of that motion on April 11, 2023.
Under that calculation, his filing here on October 9, 2023, would be timely, as the Report
concluded.
However, Long does not respond at all to the distinction between discovering evidence and
discovering the factual predicate of his claims relied on in the Report or the Report’s conclusion
that he learned the “factual predicate” of his claims years before he could obtain the new evidence.
He offers no authority at all for the proposition that discovery of the needed evidence is the same
as discovering the factual predicate.
Having reconsidered the issue as required by the Recommittal Order, the Magistrate Judge
adheres to his prior conclusion that the Petition is time barred.
The Merits
The Petition pleads two grounds for relief: prosecutorial misconduct in failing to reveal
exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 (1963), and suborning perjury
as prohibited by Napue v. Illinois, 360 U.S. 264, 269 (1959) (Ground One) and ineffective
assistance of trial counsel for failing to investigate and present certain witnesses (Ground Two).
The First District Court of Appeals considered these two claims on the merits on appeal
from denial of the Delayed Motion for New Trial. 	Applying correct Supreme Court precedent,
that court found the claims to be without merit. State v. Long, 2023-Ohio-132 (Ohio App. 1st Dist.
Case: 1:23-cv-00714-MWM-MRM Doc #: 54 Filed: 03/09/26 Page: 5 of 7 PAGEID #: <pageID>

6
Jan. 18, 2023). The Report concluded this decision was entitled to deference under 28 U.S.C. §
2254(d)(1) and (d)(2) because it was not an objectively unreasonable application of those
precedents or determination of the crucial facts (ECF No. 43, PageID 3233-45). As the Report
notes, the First District found “the only question at trial was the identity of the murderer and
compelling physical evidence – the victim’s blood on his shorts left at the scene and a bus ticket
in his name in those shorts – places Long at the scene at the time of the murder” (Report, ECF No.
43 at PageID 3241), quoting Long, supra, ¶ 16.
Long spends the bulk of his Objections arguing the merits of his claims , devoting less than
one page out of fifteen to the statute of limitations issue. To explore in depth the materiality of the
documents not produced before May 2019 and the likely impact of unknown testimony by uncalled
witnesses on the prejudice prong of Strickland will require a substantial investment of scarce
judicial resources at a juncture when this Magistrate Judge believes it is unwarranted. Petitioner
has not rebutted the statute of limitations defense. 	If the Court accepts the undersigned’s
recommendation on that issue, the case will have been decided without that investment.
Accordingly, the alternative merits recommendation in the Report is WITHDRAWN. If
the District Judge rejects the limitations recommendation and recommits the case, the undersigned
will, of course, invest the time needed for an in-depth analysis on the merits.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition be dismissed with prejudice as barred by the statute of limitations. 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
Case: 1:23-cv-00714-MWM-MRM Doc #: 54 Filed: 03/09/26 Page: 6 of 7 PAGEID #: <pageID>

7
objectively frivolous and should not be permitted to proceed in forma pauperis.
March 9, 2026.
s/ Michael R. Merz
United States Magistrate Judge
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. 
Case: 1:23-cv-00714-MWM-MRM Doc #: 54 Filed: 03/09/26 Page: 7 of 7 PAGEID #: <pageID>