Sapp v. Jenkins

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
WILLIAM K. SAPP,
Petitioner,
v. Case No. 2:17-cv-1069
Chief Judge Sarah D. Morrison
CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institute, Magistrate Judge Kimberly A.
Jolson
Respondent.
OPINION AND ORDER
Petitioner William Sapp, an inmate sentenced to death by the State of Ohio,
has pending before this Court a habeas corpus petition pursuant to 28 U.S.C. §
2254. This matter is before the Court on Sapp’s First Motion for Leave to File a
Second Amended Petition. (ECF No. 132). Also before the Court are Sapp’s
Memorandum in Support of his Motion for Equitable Tolling (ECF No. 140), the
Respondent-Warden’s Response in Opposition (ECF No. 141), and Sapp’s Reply
(ECF No. 148). For the reasons that follow, Sapp’s Motion for Leave (ECF No. 132)
is GRANTED in part and DENIED in part.
I. Background
Following conclusion of state postconviction appellate proceedings, Sapp’s
federal habeas counsel was appointed by Court order on February 5, 2018. (ECF No.
10). On October 31, 2018, Sapp filed his original habeas corpus petition, asserting
18 claims for relief (“Original Petition”). (ECF No. 27). Relevant to the pending
Motion for Leave, Claim 10 in the Original Petition alleged that Sapp’s trial counsel
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was ineffective during all phases of the trial. (ECF No. 27 at PageID# 9417-9426).
Respondent answered with a Return of Writ on May 22, 2019. (ECF No. 30).
Sapp’s counsel advised the Court during an August 27, 2019, telephone
conference that they received nearly 13,000 records from the Springfield Police
Department and intended to file a motion to amend the petition to add a never-
before-raised claim alleging that the prosecution failed to disclose material evidence
in violation of Brady v. Maryland, 373 U.S. 83 (1963). (ECF No. 34).
The Court learned how Sapp received the Springfield Police Department
records through a letter provided by Respondent. (ECF No. 59-1). On July 10, 2018,
a few months after habeas counsels’ appointment, the Ohio Public Defender made a
public records request on Sapp’s behalf to the Springfield Police Department
seeking all documents related to the investigation of the murders of Phree Morrow
and Martha Leach. (Id.). Sapp’s habeas counsel advised the Court of when they
received the records in a footnote in Sapp’s reply brief:
Sapp’s counsel received the Springfield Police Department’s file in
September 2018. Counsel began their arduous review of the police file
after reading the trial transcripts filed by the Warden on May 30, 2018,
the rest of the state court record filed by the Warden on August 31, 2018,
and then writing and filing Sapp’s initial habeas petition on October 31,
2018.
(ECF No. 148 at PageID# 32016, fn. 17). The phrasing of the footnote is somewhat
unclear, but it appears that Sapp’s counsel did not begin to review the Springfield
records received in September of 2018, until after they filed the Original Petition.
Based on Sapp’s counsels’ representation at the August 27, 2019, status
conference, the Court stayed all of the filing deadlines set forth in its scheduling
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order (ECF No. 8) and established a briefing schedule for the motions to amend the
petition and to stay these proceedings. (ECF No. 34).
It appears from the record that the Springfield Police Department provided
more than 12,000 pages of records (ECF No. 67, at PAGEID 25694), and Sapp’s
counsel completed review of those records on December 19, 2019 (ECF No. 36, at
PAGEID 9541). Following the expansion of the record with the police records, (ECF
Nos. 38 and 47), Sapp filed his motions to amend and for stay-and-abeyance on
February 25, 2020. Sapp’s proposed amendment (“First Amended Petition”) sought
to add Claim 19, alleging that the state violated Brady, and Claim 20, alleging that
trial counsel was ineffective at all stages of the proceedings based on information
gleaned from the Springfield Police Department records. (ECF No. 56-1 at 25603-
25612).
The Court identified troubling questions about whether Sapp was sufficiently
represented in connection with his pursuit of state postconviction relief but also
found that there was insufficient information to rule with confidence that Sapp’s
proposed amendments were timely. The Court accordingly denied Sapp’s motions to
amend and stay without prejudice to permit Sapp to more fully develop the record.
(ECF No. 68).
Sapp subsequently requested and received permission to issue a subpoena to
the Clark County Prosecutor’s Office. (ECF No. 72, 85). On August 12, 2021, the
Clark County Prosecutor’s Office produced 40,100 pages of documents. (ECF No.
98). On September 8, 2022, Sapp’s counsel deposed his postconviction counsel,
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David Graeff. (ECF No. 133-1).
On June 20, 2023, Sapp sought leave to file a second amendment to his
habeas petition. (“Second Amended Petition”). (ECF No. 132, 132-1). The Second
Amended Petition expanded upon the Brady and ineffective assistance of counsel
claims in the First Amended Petition: Claim 3 (ECF No. 132-1 at PageID# 31123-
31158), which alleges a Brady violation in connection with Morrow and Leach
murders, Claim Four (Id. at PageID# 31159-31167, which alleges a Brady violation
in connection with the Anderson murder, Claim 5, which alleges a Brady violation
in connection with the Pearson attempted murder (Id. at 31167-31172), and Claim
13 (Id. at PageID# 31200-31222), which alleges ineffective assistance of counsel at
all stages of the proceedings.
Following Sapp’s request for leave to file his Second Amended Petition, the
Court ordered him to brief whether the proposed amendments to the petition are
timely. (ECF No. 136). Sapp responded, arguing his amendments were entitled to
equitable tolling. (ECF No. 140). Respondent opposes the amendment and disagrees
that equitable tolling is appropriate. (ECF No. 141).
II. Analysis
A. 28 U.S.C. § 2244
The Antiterrorism and Effective Death Penalty Act of 1996 (PL 104–132,
April 24, 1996, 110 Stat 1214) (the “AEDPA”) adopted a statute of limitations for
habeas corpus cases running for 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;
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(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). The provisions in 28 U.S.C. § 2244(d)(1)(B)—(C) plainly do
not apply here.
Sapp has not overtly invoked Section (D). (ECF No. 140, 148). He makes an
argument that his Brady claim is not barred by the statute of limitations because
he had no duty to discover the documents that form the basis of his Brady claim.
(ECF No. 148 at PageID# 32008-32018). Sapp fails to cite § 2244(d)(1)(D), nor does
he argue that the factual predicate could not have been discovered earlier through
the exercise of due diligence. The Court will not presume that Sapp is invoking this
section of the statute without an overt argument or proof that establishes the
standard. Nowhere does Sapp argue that the statute of limitations should be
calculated as one year from the date he received the documents, nor does Sapp
provide the Court with the date that he received the documents.
The Supreme Court of Ohio affirmed Sapp’s conviction on direct appeal on
December 29, 2004. (ECF No. 19-15 at PageID# 5787). So, his conviction became
final on March 29, 2005, which was the deadline for him to seek review in the
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United States Supreme Court. Bronaugh v. Ohio, 235 F.3d 280, 283–85 (6th Cir.
2000).
However, the limitations period is tolled during the pendency of a “properly
filed application for State post-conviction or other collateral review.” 28 U.S.C. §
2244(d)(2). Sapp’s postconviction petition was filed on June 4, 2001 (ECF No. 19-16
at PageID# 6138-6171) and remained pending until the Ohio Supreme Court
declined jurisdiction over his appeal on November 1, 2017. (ECF No. 19-17 at
PageID# 6434). Thus, Sapp had one year, or until November 1, 2018, to file a
timely petition for federal habeas corpus relief.
Sapp’s Original Petition (ECF No. 27), filed on October 31, 2018, was
therefore timely. Explained below, any amendments filed after November 1, 2018
are only timely if they “relate back” to the timely Original Petition or qualify for
equitable tolling.
B. Relation Back
A motion to amend a habeas corpus petition is, per 28 U.S.C. § 2242, subject
to the same standards which apply generally to motions to amend under Fed. R.
Civ. P. 15(a). The general standard for considering a motion to amend under Fed.
R. Civ. P. 15(a) was enunciated by the United States Supreme Court in Foman v.
Davis, 371 U.S. 178 (1962):
If the underlying facts or circumstances relied upon by a plaintiff may
be a proper subject of relief, he ought to be afforded an opportunity to
test his claim on the merits. In equity the absence of any apparent or
declared reason--such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party
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by virtue of allowance of the amendment, futility of amendment, etc.--
the leave sought should, as the rules require, be “freely given.”
371 U.S. at 182; see also Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir. 1997) (citing
Foman standard). In considering whether to grant motions to amend under Fed. R.
Civ. P. 15, a court should consider whether the amendment would be futile, i.e., if it
could withstand a motion to dismiss under Rule 12(b)(6). Hoover v. Langston
Equip. Assocs., Inc., 958 F.2d 742, 745 (6th Cir. 1992); Commc’n. Commc'ns Sys.,
Inc. v. City of Danville, Ky., 880 F.2d 887, 895–96 (6th Cir. 1989); Martin v.
Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Roth Steel Prods. v.
Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983); Neighborhood Dev. Corp. v.
Advisory Council on Historic Pres., Dep't of Hous. & Urb. Dev., City of Louisville,
632 F.2d 21, 23 (6th Cir. 1980). Likewise, as noted above, a motion to amend may
be denied if it is brought after undue delay or with dilatory motive. Foman, 371
U.S. at 182; Prather v. Dayton Power & Light Co., 918 F.2d 1255, 1259 (6th Cir.
1990).
The Court previously determined that amendment was not precluded under
the standards established by Fed. R. Civ. P. 15(a) and the Foman decision. (ECF
No. 68, at PageID 25734-7, 25750). Nothing that has transpired in the interim
changes the Court’s conclusion. Thus, the Court rejects now, as it did then (ECF
No. 68 at PageID# 25734), Respondent’s rehashed arguments as to why amendment
should be denied under the Foman factors. (ECF No. 141, at PageID 31955-62). As
to the ultimate question of whether allowing amendment would be futile, i.e.,
whether the proposed claims could withstand a Fed. R. Civ. P. 12(b)6) motion to
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dismiss, the only component remaining to be determined is whether the proposed
claims would be timely.
A claim added by amendment “relates back” to the date of filing of the
complaint in a civil case and thereby avoids any statute of limitations bar if it “arose
out of the conduct, transaction, or occurrence set out—or attempted to be set out—in
the original pleading . . ..” Fed. R. Civ. P. 15(c)(1)(B). The Supreme Court has applied
the relation back doctrine narrowly in habeas corpus cases:
An amended habeas petition . . . does not relate back (and thereby
escape[s] AEDPA’s one-year time limit) when it asserts a new ground
for relief supported by facts that differ in both time and type from those
the original pleading set forth.
Mayle v. Felix, 545 U.S. 644, 650 (2005). An overly broad relation-back doctrine may
contravene Congress's intent in enacting AEDPA “to advance the finality of
criminal convictions.” See Mayle, 545 U.S. at 661. Thus, the ability to amend a
habeas petition is more restrictive than in other civil cases; it must specifically
relate back to the original petition to avoid imposition of AEDPA’s one-year
limitation. Id. at 664. “If claims asserted after the one-year period could be revived
simply because they relate to the same trial, conviction, or sentence as a timely filed
claim, AEDPA’s limitation period would have slim significance.” Id. at 662. To
relate back, the amended claims must “share a ‘common core of operative facts’”
with the original claims. Cowan v. Stovall, 645 F.3d 815, 815, 818 (6th Cir. 2011)
(quoting Mayle, 545 U.S. at 664). So, any “new” facts generally may differ only in
specificity (not in kind) from those originally alleged. Id. at 819.
Comparing the claims asserted in the timely Original Petition to the claims
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asserted in the proposed Second Amended Petition, which is the subject of the
Motion for Leave and has been filed after the statute of limitations expired, there is
a section of a single proposed amendment that fits the definition and “relates back.”
Claim 10 (III) in the timely Original Petition (ECF No. 27 at PageID# 9420-
9422) alleges that Sapp’s trial counsel failed to use available evidence to adequately
develop a defense at trial that Sapp was not “in control” during the murders of
Leach and Morrow. This allegation specifically names the involvement of John
Balser, David Marciszewski, Jamie Turner, Wanda Marciszewski, and Christopher
Bibbs. Claim 13 (V)(A)(i) through (v) in the proposed Second Amendment Petition
(ECF No. 132-1 at PageID# 31209-31216) similarly alleges that Sapp’s trial counsel
were ineffective for failing to adequately use information inconsistent with the
prosecution’s theory of the case on the Leach and Morrow murders. Claim
13(V)(A)(i) through (v) names the same individuals as Claim 10(III) in the Original
Petition but includes reference to the documents that habeas counsel received from
the Springfield Police Department and Clark County Prosecutor’s Office.
The allegations in proposed amended Claim 13 (V)(A)(i) through (v) differ in
specificity but not in kind from Original Claim 10(III) in that these allegations
specifically reference documents that trial counsel allegedly should have used to
challenge the state’s theory that Sapp was in control of the murders of Leach and
Morrow. Thus, Claim 13 (V)(A)(i) through (v) relates back to the Original Petition
and is a timely amendment. Sapp’s request to amend his Original Petition with the
allegations contained in Claim 13(V)(A)(i) through (v) (ECF No. 132-1 at PageID#
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31209-31216) is GRANTED.
The remaining proposed amendments bear no such relationship to the
allegations in the Original Petition. There is no mention in the Original Petition
that trial counsel’s performance was ineffective with respect to the individuals
listed in proposed Claim 13(V)(A)(vi) in the Second Amended Petition. (ECF No.
132-1 at PageID# 31216-31217). The Original Petition contains no allegation that
the prosecution suppressed documents, which disqualifies proposed Claims 3, 4 and
5 in the Second Amended Petition from relating back. (Id. at 31123-31172). The
Original Petition also makes no allegation that trial counsel was ineffective in
failing to use available information to develop a defense to the Anderson murder or
the Pearson attempted murder, which is found in proposed amended Claim 13
(V)(B) and (C). (ECF No. 132-1 at PageID# 31217-31220).
Accordingly, these proposed amendments do not relate back and will only be
permitted if eligible for equitable tolling.
C. Equitable Tolling
Section 2244(d)'s statute of limitations is “subject to equitable tolling in
appropriate cases.” Holland v. Fla., 560 U.S. 631, 645 (2010). A habeas petitioner is
entitled to equitable tolling “only if he shows ‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way'
and prevented timely filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005). A petitioner must show a causal link between the extraordinary
circumstance and the untimely filing. See Hall v. Warden, Lebanon Corr. Inst., 662
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F.3d 745, 750 (6th Cir. 2011) (“[A] habeas petitioner must demonstrate both that he
has been diligent in pursuing his rights and that an extraordinary circumstance
caused his untimely filing.”); see also Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011).
The diligence required for equitable tolling purposes is “reasonable diligence,”
not “maximum feasible diligence.” Holland, 560 U.S. at 653 (citations omitted);
Robinson v. Easterling, 424 F. App’x 439, 443 (6th Cir. 2011); Avery v. Warden,
Marion Corr. Inst., No. 2:18-CV-387, 2019 WL 1409562, at *9 (S.D. Ohio Mar. 28,
2019), report and recommendation adopted, No. 2:18-CV-387, 2019 WL 2950054
(S.D. Ohio July 9, 2019); see also Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011)
(“To determine if a petitioner has been diligent in pursuing his petition, courts
consider the petitioner’s overall level of care and caution in light of his or her
particular circumstances.”); Ramos-Martinez v. United States, 638 F.3d 315, 324
(1st Cir. 2011) (citation omitted) (diligence requirement for equitable tolling “does
not demand a showing that the petitioner left no stone unturned.”).
To demonstrate “extraordinary circumstance” for equitable tolling purposes,
Petitioner must show that what prevented him from timely filing was both
extraordinary and beyond his control. Menominee Indian Tribe of Wisconsin v.
United States, 577 U.S. 250 (2016); Avery, 2019 WL 1409562, at *12. Attorney error
can warrant equitable tolling, but only if it is “‘far more’” serious than “‘a garden
variety claim of excusable neglect.’” Giles v. Beckstrom, 826 F.3d 321, 325 (6th Cir.
2016) (quoting Holland, 560 U.S. at 651–52).
The burden is on the habeas petitioner to show that he is entitled to equitable
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tolling. Pace, 544 U.S. at 418. The doctrine of equitable tolling is used sparingly. See
Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010). Nevertheless, equitable
tolling is a matter of equity and, though “courts of equity ‘must be governed by rules
and precedents.’” Holland, 560 U.S. at 649 at 649 (quoting Lonchar v. Thomas, 517
U.S. 314, 323 (1996) (1996)), the “exercise of a court’s equity powers ... must be
made on a case-by-case basis.” Id. at 649-50 (quoting Baggett v. Bullitt, 377 U.S.
360, 375 (1964) (1964)).
Sapp argues that he is entitled to equitable tolling, focusing his argument on
the acts and omissions of his postconviction counsel, David Graeff. (ECF No. 140).
Sapp contends that Graeff was ineffective because he did not understand
postconviction law and particularly the concept of res judicata (id. at PageID#
31886-31887), failed to read the entire trial transcript (id. at PageID# 31890-
31893), failed to adequately investigate and conduct discovery (id. at PageID#
31893-31895), provided Sapp with no meaningful representation from August 5,
2002, to June 22, 2015 (id. at PageID# 31904-31904), “doomed” Sapp’s
postconviction petition (id. at PageID# 31898-31904) and failed to file an application
to reopen his direct appeal (id. at PageID# 31908-31909). Sapp further argues that
the diligence requirement is met because Sapp was unable to assist Graeff with the
postconviction process on account of his mental illness. (Id. at PageID# 31895-
31898).
Respondent disagrees that Sapp is entitled to equitable tolling. (ECF No.
141). Respondent argues that the record belies the factual basis of Sapp’s proposed
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Brady claim because it shows that the relevant documents were not suppressed. (Id.
at PageID# 31927-31955). Respondent argues that the proposed amendments are
also futile because the claims are procedurally defaulted. (Id. at 31955-31966).
Respondent also argues that Sapp cannot meet the requirements for equitable
tolling because he failed to exercise diligence and has not established extraordinary
circumstances. (Id. at PageID# 31963-31970). Respondent contends that either
Sapp or his counsel should have requested the documents earlier, Sapp’s
postconviction counsel performed effectively, and there is no evidence of Sapp’s
mental status for the relevant time period. (Id.).
In reply, Sapp disputes Respondent’s argument that his trial and
postconviction counsel had access to the entirety of the Springfield Police
Department records. He contends that the record establishes that counsel only had
access to the documents required to be produced by the prosecution under Ohio
Crimnal Rule 16— the co-defendants’ statements. (ECF No. 148 at PageID# 31986-
31987, 31991-32008). Sapp also argues that his Brady claims are not barred by the
statute of limitations because he had no duty to seek out favorable information and
are not procedurally defaulted based on the Ohio Supreme Court decision, State v.
Bethel, 167 Ohio St. 3d 362 (2022). Finally, Sapp reiterates that he is entitled to
equitable tolling based on abandonment of postconviction counsel and his mental
illness. (Id. at PageID# 32019-32033).
Sapp focuses his efforts on events that occurred before the filing of his
Original Petition. But the time that needs to be equitably tolled is the period after
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November 1, 2018— the date the statute of limitations expired. Sapp makes many
arguments about why his postconviction counsel failed him. Perhaps postconviction
counsel’s failures explain why the proposed amendments do not appear in his
postconviction petition. But postconviction counsel’s failures do not explain why
habeas counsel did not include the proposed amendments in the timely Original
Petition. When habeas counsel was appointed to represent Sapp, there was
approximately nine months before the statute of limitations expired.
Sapp has not shown a causal link between the acts and omissions of his
postconviction counsel and his inability to include the proposed amendments in his
timely Original Petition. Indeed, the limitations period was statutorily tolled by
virtue of the pending postconviction petition the entire time that David Graeff
represented Sapp. Sapp’s file would have been in better shape if Graeff had
included the proposed amendments in the postconviction petition, but the Court
cannot conclude that Graeff’s omissions caused habeas counsel’s inability to timely
file the proposed amendments.
Sapp’s counsel stated that they received the Springfield Police Department
records approximately two months before the statute of limitations expired. (ECF
No. 148 at PageID# 32016 fn. 17). Counsel have not provided any explanation for
why they could not timely satisfy Rule 2(c) of the Rules Governing Habeas Corpus
Cases by “specify[ing] all the grounds for relief available to [him]” and “stat[ing] the
facts supporting each ground.” See Mayle v. Felix, 545 U.S. 644, 649 (2005). This is
especially true since habeas counsel included a claim in the Original Petition that
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postconviction counsel was ineffective, citing to the paucity of the claims in the
postconviction petition, all of which were barred by res judicata. (ECF No. 27 at
PageID# 9430-9435). What’s more, it appears from the information provided to the
Court that counsel did not even begin to review the Springfield Police Department
records until after the Original Petition was filed.
With none of the classic claims involving evidence outside the record that are
usually included in a postconviction petition, a trove of documents from Springfield
Police Department, and an impending statute of limitations, an urgency to make
out claims to at least satisfy Rule 2(c) would have been paramount. Sapp has
provided the Court with no evidence of an “extraordinary circumstance” that
prevented him from doing so.
The Court is sympathetic to the circumstances under which Sapp’s counsel
assumed the file and its complexity. However, Sapp has not provided the Court with
any authority for the proposition that the size of the document production by the
Springfield Police Department qualifies as an “extraordinary circumstance.” The
jurisprudence on this issue in fact cuts in the opposite direction. See, e.g., Huber v.
Young, No. 3:14-CV-03007-RAL, 2015 WL 300425, at *3 (D.S.D. Jan. 22, 2015) (“The
size of the trial record and the steps Huber had to take in order to gain access to it,
collectively, do not rise to extraordinary circumstances required for equitable
tolling. Congress is presumed to have considered the difficulties regularly faced by
petitioners for post-conviction relief, and those regular difficulties do not entitle a
petitioner to equitable tolling.”); Daly v. Knipp, No. C 12-0091 PJH, 2013 WL
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2456576, at *5 (N.D. Cal. June 6, 2013), aff'd, 585 F. App’x 647 (9th Cir. 2014)
(“Voluminous records of state court proceedings are a common circumstance facing
many federal habeas petitioners and do not present extraordinary circumstances
that warrant equitable tolling.”); Ashley v. Young, No. 5:14-CV-05080-JLV, 2015 WL
13894907, at *6 (D.S.D. Feb. 13, 2015), report and recommendation adopted as
modified sub nom. FRANK J. ASHLEY, Petitioner, v. WARDEN DARIN YOUNG,
THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA,
Respondents., No. CIV. 14-5080-JLV, 2015 WL 13894908 (D.S.D. Dec. 18, 2015)
(finding that the petitioner’s “need to review a voluminous trial record that resulted
in his 135-year sentence to prepare his state habeas filings does not constitute an
extraordinary circumstance”).
Sapp has failed to provide sufficient facts or authority to support a conclusion
that “extraordinary circumstances” prevented the timely filing of the proposed
amendments that do not relate back to the Original Petition. Accordingly, those
claims do not qualify for equitable tolling, are untimely, and Sapp’s request to
include them in his Second Amended Petition is DENIED.
The Court’s concern expressed in ECF No. 68 about the events that
transpired during Sapp’s postconviction proceedings persist. Notwithstanding the
Court’s conclusion that proposed amended Claim 13(V)(A)(i) through (v) relates
back to the original petition and is timely, Respondent has argued that it is
procedurally defaulted. (ECF No. 141 at PageID# 31955-31966). Because the Court
declines to issue piecemeal rulings on the substance of Sapp’s claims, the Court
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directs the parties to address the issue of procedural default in their Return of Writ
and Traverse according to a scheduling order forthcoming from the Magistrate
Judge.
Accordingly,
1. IT IS ORDERED that Sapp’s Motion for Leave to file Second Amended
Petition (ECF No. 132) is GRANTED in part and DENIED in part.
Sapp may amend his petition to assert the claim labeled as 13(V)(A)(i)
through (v), found at ECF No. 132-1 at PageID# 31209-31216. The Court
finds that all other proposed amendments in ECF No. 132-1 are untimely.
2. IT IS FURTHER ORDERED, that within thirty (30) days of the date of
this Order, Sapp is to submit a revised Second Amended Complaint
consistent with this Order. A revised Second Amended Complaint
compliant with this Order will not require a request for leave.
3. IT IS FURTHER ORDERED, that the matter is referred back to the
Magistrate Judge to issue a scheduling order for deadlines on the Return
of Writ and Traverse.
/s/ Sarah D. Morrison____________________
SARAH D. MORRISON
CHIEF UNITED STATES DISTRICT JUDGE
Case: 2:17-cv-01069-SDM-KAJ Doc #: 153 Filed: 02/02/26 Page: 17 of 17 PAGEID #: <pageID>