Mason v. Warden North Central Correctional Institution

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVID MASON,
Petitioner,
vs.
WARDEN, NORTH CENTRAL
CORRECTIONAL INSTITUTION,
Respondent.
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Case No. 2:24-cv-1304
District Judge Sarah D. Morrison
Magistrate Judge Stephanie K. Bowman
REPORT AND RECOMMENDATION
Petitioner has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. (Doc. 2). This matter is before the Court on the petition, respondent’s return of writ (Doc.
9) and petitioner’s traverse (Doc. 11). For the reasons stated below, it is recommended that the
petition be denied.
I. 	PROCEDURAL HISTORY
State Trial Proceedings
On September 4, 2009, the Franklin County, Ohio, grand jury returned a six-count
indictment charging petitioner with two counts of rape, one count of sexual battery, and three
counts of gross sexual imposition. (Doc. 8, Ex. 1). Petitioner entered a not-guilty plea. (Doc. 8,
Ex. 2).
On March 4, 2010, following a jury trial, petitioner was found guilty of one count of rape,
one count of sexual battery, and two counts of gross sexual imposition. (Doc. 8, Ex. 3). The
State dismissed the remaining counts charged in the indictment. (See Doc. 8, Ex. 5 at PageID
74). On March 15, 2010, petitioner was sentenced to serve a total aggregate prison sentence of
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fifteen years to life. (Id. at PageID 75).
Direct Appeal
On April 13, 2010, the State filed a motion for leave to appeal and a notice of appeal to
the Ohio Court of Appeals. (Doc. 8, Ex. 6, 7). The State raised the following single assignment
of error:
The trial court abused its discretion when it did not require the defendant [to]
prove all the elements of clergy privilege prior to excluding evidence.
(Doc. 8, Ex. 10 at PageID 112).
Petitioner, through counsel, also filed an appeal. (Doc. 8, Ex. 8). In his appellate brief,
petitioner raised the following three assignments of error:
I. 	THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE
PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND
ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION BY
FINDING HIM GUILTY OF RAPE, SEXUAL BATTERY AND GROSS
SEXUAL 	IMPOSITION 	AS 	THOSE 	VERDICTS 	WERE 	NOT
SUPPORTED 	BY 	SUFFICIENT 	EVIDENCE 	AND 	WERE 	ALSO
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. (T. 60-85;
R. 84).
II. 	THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO
TERMS 	OF 	IMPRISONMENT 	FOR 	BOTH 	RAPE 	AND 	GROSS
SEXUAL IMPOSITION AS IN THE INSTANT CASE GROSS SEXUAL
IMPOSITION IS A LESSER INCLUDED OFFENSE OF RAPE. (T. 234;
R. 84).
III. 	THE 	TRIAL 	COURT 	ERRED 	BY 	IMPOSING 	CONSECUTIVE
SENTENCES 	WITHOUT 	MAKING 	THE 	REQUISITE 	FACTUAL
FINDINGS: THEREBY DEPRIVING APPELLANT OF DUE PROCESS
OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE
SECTION SIXTEEN OF THE OHIO CONSTITUTION. (T. 234; R. 84).
(Doc. 8, Ex. 11 at PageID 128). On June 30, 2011, the Ohio Court of Appeals overruled
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petitioner’s assignments of error and denied the State’s request for leave to appeal. (Doc. 8, Ex.
14, 15).
Petitioner did not seek further review in the Ohio Supreme Court.
New Trial Motion
On August 12, 2014, several years later, petitioner filed a motion for leave to file a
motion for a new trial. (Doc. 8, Ex. 16). 1 Petitioner based his motion on the following:
IRREGULARITY IN PROCEEDINGS, ORDER, OR RULING OF THE COURT
Because 	the 	trial 	court 	permitted, 	the 	admission 	into 	evidence 	testimonial
statements 	contained 	within 	Complainant’s 	medical 	records, 	it 	denied 	the
Defendant a fair trial, as those statements were inadmissible pursuant to the
Confrontation Clause of the Sixth Amendment. Constitution of the United States,
Article, Section 10, Ohio Constitution.
MISCONDUCT OF PROSECUTION, SURPRISE
The prosecution committed misconduct and violated Defendant’s rights to due
process and a fair trial when, before trial it had, knowledge of a more precise date
with respect to the alleged incident-involving complainant, but failed to disclose
that information to Defendant.
IRREGULARITY IN PROCEEDINGS, DEPRIVATION OF A FAIR TRIAL
Trial counsel’s performance was deficient. In addition, trial counsel’s conduct fell
below an objective standard of reasonableness and the errors were serious enough
to create a reasonable possibility that, but for the errors, the result of the trial would
have been different.
(Doc. 8, Ex. 16 at PageID 209-14). On May 28, 2015, the trial court denied the motion, finding
it untimely and that petitioner failed to demonstrate he was prevented from filing a timely
motion. (Doc. 8, Ex. 21).
Petitioner appealed the trial court’s decision, raising the following two assignments of
1 Petitioner also filed a complaint for a writ of mandamus on May 11, 2015, which was denied by the Ohio Supreme
Court as moot on July 22, 2015. (Doc. 8, Ex. 19, 22).
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error:
1. 	IN DENYING APPELLANT’S MOTION FOR LEAVE TO FILE FOR A NEW
TRIAL, THE TRIAL COURT ABUSED ITS DISCRETION.
2. 	THE TRIAL COURT’S DECISION DENYING APPELANT’S MOTION IS
UNREASONABLE, AND ALSO, CONTRARY TO CRIMINAL RULE 33.
(Doc. 8, Ex. 24 at PageID 248). On October 13, 2015, the Ohio Court of Appeals overruled
petitioner’s assignments of error and affirmed the judgment of the trial court. (Doc. 8, Ex. 28).
Petitioner filed an application for reconsideration and en banc consideration, which was denied
by the Ohio appeals court on January 21, 2016. (Doc. 8, Ex. 31, 36).
Motion for Final Appealable Order
On May 6, 2019, more than three years later, petitioner filed a motion for a final
appealable order in the trial court. (Doc. 8, Ex. 38). Petitioner argued he was not properly
advised of post-release control and, on this basis, that his sentencing entry was not a final
appealable order. (Id. at PageID 358-61). On July 18, 2019, the trial court denied the motion
finding that the original judgment entry was a final appealable order. (Doc. 8, Ex. 41).
Petitioner appealed the decision to the Ohio Court of Appeals. (Doc. 8, Ex. 42). In his
merit brief, petitioner raised the following three assignments of error:
1. 	Trial Court Erred as a Matter of Fact when it denied appellant’s motion due to a
non-existent May 5, 2010, Entry.
2. 	Trial Court Erred as a matter of law when it determined that appellant had a final
appealable order in direct contravention of the improperly imposed post-release
control sanction.
3. 	Trial 	Court 	Abused 	its 	Discretion 	when 	It 	Erroneously 	Determined 	That
Appellant’s Judgment Entry Was A Final Appealable Order.
(Doc. 8, Ex. 43). On December 10, 2019, the Ohio Court of Appeals overruled petitioner’s
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assignments of error and affirmed the decision of the trial court. (Doc. 8, Ex. 45).
Petitioner filed an appeal to the Ohio Supreme Court, raising the following single
proposition of law:
A trial court and/or reviewing court must order resentencing on a postrelease
control error even if neither party has moved for resentencing pursuant to State v.
Boswell.
(Doc. 8, Ex. 46, 47). On March 3, 2020, the Ohio Supreme Court declined jurisdiction over the
appeal. (Doc. 8, Ex. 49).
Motions to Correct Void Sentence
Meanwhile, on February 18, 2020, petitioner filed a motion to correct partially void
sentence, which was denied by the trial court on February 4, 2021. (Doc. 8, Ex. 50, 52).
Petitioner unsuccessfully appealed from the trial court decision to the Ohio Court of Appeals and
Ohio Supreme Court. (See Doc. 8, Ex. 54, 57, 59, 61). On appeal, petitioner raised the
following two assignments of error:
1. 	TRIAL COURT ERRED WHEN IT DENIED PLAINTIFF’S MOTION TO
CORRECT PARTIALLY VOID SENTENCE.
Issues presented for review: Does the trial court err when it denies plaintiff’s motion
to correct partially void sentence based upon State v. Harper, 160 Ohio St.3d 480,
2020-Ohio2913, 159 N.E.3d 248 – which is distinguishable from Appellant’s case.
2. 	TRIAL 	COURT’S 	DECISION 	VIOLATED 	THE 	CONSTITUTIONAL
PROTECTIONS AGAINST EX POST FACTO LAWS AND RULES.
Issues presented for review: Does the trial court’s application of State v. Harper
violate the Constitutional protections against ex post facto laws or rules?
(Doc. 8, Ex. 54 at PageID 491). 	On January 18, 2022, the Ohio Court of Appeals overruled
petitioner’s assignments of error and affirmed the judgment of the trial court. (Doc. 8, Ex. 57).
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Petitioner appealed the decision to the Ohio Supreme Court. 	In his memorandum in
support of jurisdiction, he raised the following to propositions of law:
1. 	APPELLATE COURT ABUSES ITS DISCRETION WHEN IT PERMITS A
TRIAL 	COURT’S 	DECISION 	TO 	VIOLATE 	THE 	CONSTITUTIONAL
PROTECTIONS AGAINST EX POST FACTO LAWS AND RULES.
2. 	THE APPELLATE COURT ABUSED ITS DISCRETION WHEN IT VIOLATED
STARE DECISIS.
(Doc. 8, Ex. 59 at PageID 535). The Ohio Supreme Court declined jurisdiction over petitioner’s
appeal on April 12, 2022. (Doc. 8, Ex. 61).
On May 24, 2022, petitioner filed a motion to correct void judgment in the trial court.
(Doc. 8, Ex. 62). On October 21, 2022, the trial court denied the motion. (Doc. 8, Ex. 66).
Petitioner filed a motion for leave to file a delayed appeal to the Ohio Court of Appeals, which
denied the motion on December 28, 2022. (Doc. 8, Ex. 70). Petitioner appealed to the Ohio
Supreme Court, which declined jurisdiction over the appeal on March 14, 2023. (Doc. 8, Ex.
74).
Federal Habeas Corpus
On March 6, 2024, petitioner filed the instant federal habeas corpus action. 2 	(Doc. 1).
Petitioner raises the following two grounds for relief in the petition:
GROUND ONE: Ohio courts violated petitioner’s constitutional due process right
to be free of ex post facto laws.
2 The petition was filed with the Court on March 21, 2024. (See Doc. 2). Petitioner avers, however, that he placed
the petition in the prison mailing system for delivery to the Court on March 6, 2024. (See Doc. 2 at PageID 16).
Because under Houston v. Lack, 487 U.S. 266 (1988), the filing date of a federal habeas corpus petition submitted by
a pro se prisoner is the date on which the prisoner provides his papers to prison authorities for mailing, see In re Sims,
111 F.3d 45, 47 (6th Cir. 1997), it is presumed that the petition was “filed” on March 6, 2024.
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Supporting Facts: Supreme Court of Ohio issued a decision that changed its legal
definition of void versus voidable and retroactively applied to all void judgments
and convictions.
GROUND TWO: Petitioner was denied his constitutional due process rights when
appellate court violated stare decisis.
Supporting Facts: Trial court violated Ali v. State 104 Ohio St. 3d 328, 2004-Ohio-
6592 and thus violated petitioner’s due process rights. Trial court also violated its
well-settled precedent of State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942
N.E. 2d 332.
(Doc. 1 at PageID 6, 8).
Respondent has filed a return of writ in opposition to the petition, to which petitioner has
replied. (Doc. 9, 11). According to respondent, petitioner’s grounds for relief are time-barred,
procedurally defaulted, non-cognizable, and/or without merit.
II. ANALYSIS.
Petitioner raises two grounds for relief in the petition. Both stem from his contention that
the trial court failed to properly advise him of post release control. Specifically, petitioner
argues that although the March 10, 2010 Judgment Entry stated that he was advised of post-
release control, the trial court did not actually advise him of post-release control or the
consequences of violating its conditions during the sentencing hearing, as required by Ohio law.
Petitioner raised this claim in his May 6, 2019 motion for a final appealable order (See Doc. 8,
Ex. 43 at PageID 390) and February 18, 2020 motion to correct partially void sentence (see Doc.
8, Ex. 50 at PageID 459-60). Following the denial of his motion to correct his sentence,
petitioner appealed the trial court’s judgment to the Ohio Court of Appeals and Ohio Supreme
Court.
As he does in Ground One of the instant petition, petitioner argued on appeal that the trial
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court violated his right against ex post facto laws in denying him a limited resentencing hearing.
The Ohio Court of Appeals summarized the background to petitioner’s claim and overruled the
assignment of error, as follows:
{¶ 3} On February 18, 2020, D.M. filed a “Motion to Correct Partially Void
Sentence” in the common pleas court, arguing that he was entitled to resentencing
pursuant to State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-
2671. He observed that even though his rape sentence had a life tail (and thus he
would be placed on parole prior to any release), postrelease control was still
statutorily required to be imposed as part of his original sentence and had not been
so imposed by the sentencing court. On its initial review of his motion, the state
admitted that the sentencing court had erred and stated it would acquiesce to a new
sentencing hearing to correct this error.
{¶ 4} But on May 14, 2020, the Supreme Court of Ohio issued its decision in State
v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, overruled its prior caselaw
regarding voidness of sentences for lack of post release control, and held that
“sentencing errors in the imposition of postrelease control render the sentence
voidable, not void, and the sentence may be set aside if successfully challenged on
direct appeal.” 	Id. at ¶ 42. 	Following the release of Harper, the state filed a
supplemental response arguing that it controlled D.M.’s case, and that therefore his
motion to correct partially void sentence should be denied. 	The trial court
subsequently denied his motion based on Harper. 	D.M. now asserts two
assignments of error with the trial court’s judgment, both of which challenge the
trial court’s reliance on Harper to deny his motion.
{¶ 5} In his first assignment of error, D.M. argues that Harper is distinguishable
from his case, in that “Harper involved a situation where the trial court improperly
imposed something it was allowed to—postrelease control—whereas, here, the
court completely failed to impose something it was statutorily required to impose.”
(Emphasis sic.) (Appellant’s Brief at 6-7.) He argues that the complete failure to
impose postrelease control is not governed either by Harper or by the Supreme
Court’s subsequent decision in State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-
4784. Henderson specifically held:
A judgment or sentence is void only if it is rendered by a court that lacks
subject-matter jurisdiction over the case or personal jurisdiction over the
defendant. 	If the court has jurisdiction over the case and the person, any
sentence based on an error in the court’s exercise of that jurisdiction is
voidable. 	Neither the state nor the defendant can challenge the voidable
sentence through a postconviction motion.
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Id. at ¶43.
{¶ 6} In Henderson, the Supreme Court clarified the reach of its decision in Harper
and reversed a trial court’s post-sentencing addition of a life tail to a sentence,
where a life tail was statutorily required but had not been originally imposed. In so
holding, the court concluded that “sentences based on an error, including sentences
in which a trial court fails to impose a statutorily mandated term, are voidable if
the court imposing the sentence has jurisdiction over the case and the defendant.”
(Emphasis added.) Id. at ¶ 1. D.M.’s argument under his first assignment of error
is that Harper is distinguishable from his case because it involved an error in the
imposition of a term of postrelease control rather than the complete failure to
impose postrelease control. But the rule of Henderson resolves any confusion on
this point—pursuant to Henderson, even a trial court’s “fail[ure] to impose a
statutorily mandated term” is merely voidable and must be challenged on direct
appeal so long as the trial court had jurisdiction to issue the underlying judgment.
When taken together, Harper and Henderson dispose of D.M.’s argument. Id. See
also State v. Jennings, 10th Dist. No. 18AP-139, 2020-Ohio-5154 ¶ 8 (Citing
Harper and Henderson and holding that “[b]ecause the trial court had subject-
matter jurisdiction in the case and personal jurisdiction over Jennings, any
sentencing error committed by the trial court relating to the imposition of a post-
release control sanction would have made the judgment voidable, not void.”).
{¶ 7} In his second assignment of error, D.M. argues that under Ali v. State, 104
Ohio St.3d 328, 2004-Ohio-6592, ¶ 6, a “new judicial ruling may not be applied
retroactively to a conviction that has become final, i.e., where the accused has
exhausted all of his appellate remedies.” He argues that for this reason, the court
improperly applied Harper and Henderson to deny his motion (as his conviction
was already final), and contends that the trial court’s ruling violated the retroactive
laws provision of the state constitution the principles animating the Ex Post Facto
Clause of the United States Constitution. See Ohio Constitution, Article II, Section
28, and Bouie v. Columbia, 378 U.S. 347, 354 (1964) (addressing prohibition of ex
post facto application of judicial decisions under Fourteenth Amendment Due
Process Clause).
{¶ 8} But D.M. has misunderstood how intervening judicial decisions usually
function. 	“The general rule is that a decision of a court of supreme jurisdiction
overruling a former decision is retrospective in its operation, and the effect is not
that the former was bad law, but that it never was the law.” Peerless Elec. Co. v.
Bowers, 164 Ohio St.209, 210 (1955). We note that the sentence the state sought
to have declared void in Henderson became final before D.M.’s own sentence did-
if D.M.’s retroactivity argument were correct, Henderson would have been decided
differently. Moreover, D.M.’s argument that his sentence is void rests on Carnail,
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which was not decided until three months after he was sentenced. 	Compare
Carnail, 2010-Ohio-2671 (decided June 16, 2010) with State v. D.M., Franklin C.P.
No. 09CR-5355, (March 15, 2010) (Jgmt. Entry of Sentencing.). Accordingly, for
D.M.’s argument to prevail this court must conclude that Carnail applies
retrospectively but that Harper and Henderson do not. Even if we were to ignore
the plain fact that Harper and Henderson have overruled Carnail in all but name,
we cannot adopt such a tortured understanding of jurisprudence and precedent.
{¶9} D.M.’s reliance on Ali, 2004-Ohio-6592, is equally unpersuasive. In Ali, the
criminal defendant attempted to use an intervening Supreme Court decision issued
after his conviction became final to reopen and vacate his sentencing. Ali at ¶ 3-5.
D.M.’s motion is directly analogous-it attempts to use an intervening Supreme
Court decision to obtain a resentencing on an already final conviction. And as the
Supreme Court concluded in Ali, he “has no legal right to the application of [the
intervening decision] to his case.” Id. at ¶ 7.
{¶10} In short, we conclude that the trial court did not err in denying D.M.’s motion
based on State v. Harper.
(Doc. 8, Ex. 57 at PageID 521-24).
Petitioner also raised Ground Two of the instant petition on further appeal to the Ohio
Supreme Court. Petitioner argued that the Ohio Court of Appeals’ decision applying State v.
Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, also “violated stare decisis.” (See Doc. 8, Ex. 59
at PageID 545-46). As noted above, the Ohio Supreme Court declined jurisdiction over the
appeal on April 12, 2022.
Petitioner is not entitled to federal habeas relief on his grounds for relief. As an initial
matter, this Court has jurisdiction to review petitioner’s claim only to the extent that petitioner
challenges his confinement based on an alleged violation of the Constitution, laws or treaties of
the United States, and not “on the basis of a perceived error of state law.” 28 U.S.C. § 2254(a);
Pulley v. Harris, 465 U.S. 37, 41 (1984); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010)
(quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)) (“it is not the province of a federal court
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to reexamine state-court determinations on state-law questions”). Because habeas review is
limited to claims implicating federal concerns, this Court lacks jurisdiction to consider any claim
that the state courts improperly applied Ohio law failing to properly notify petitioner of post-
release control or denying him a resentencing hearing.3 	See Howard v. White, 76 F. App’x 52,
53 (6th Cir. 2003) (finding a challenge to state court’s interpretation and application of its
sentencing laws and guidelines to be a matter of state law not cognizable in a federal habeas
corpus proceeding). See also Jones v. Warden, No. 1:12-cv-170, 2013 WL 1324406, at *1
(Barrett, J.; Bowman, M.J.) (S.D. Ohio Feb. 2, 2013) (Report and Recommendation) (finding
claim that the state trial court failed to conduct a de novo resentencing hearing properly
informing the petition of post-release control raised issues of state law not cognizable on federal
habeas corpus), adopted, 2013 WL 1315963 (S.D. Ohio Mar. 28, 2013); Crosby v. Bradshaw,
No. 1:12-cv-762, 2012 WL 7990244, at *11 (N.D. Ohio Nov. 30, 2012) (Report and
3 With regard to the merits of petitioner’s claims, the Ohio Court of Appeals have rejected similar claims. See State
v. Matland, No. 20 MA 0108, 2022 WL 14206274, at *1-3 (Ohio 7th Dist. Oct. 20, 2022) (rejecting claim that Harper
was improperly applied retroactively), Ohio v. Gaskins, 199 N.E.3d 174 (Ohio 12th Dist. Oct. 17, 2022) (holding that
Harper applies retroactively). See also Patterson v. May, No. 3:22-cv-1116, 2024 WL 2750475, at *8 n.7 (N.D. Ohio
Mar. 21, 2024) (Report and Recommendation) (noting that the Ex Post Facto clause does not apply to judicial decision
making and that the Ohio courts have ruled that Harper applies retroactively), adopted 2024 WL 2748476 (N.D. Ohio
May 29, 2024).
In this federal habeas proceeding, the Court must defer to and is abound by the state court’s rulings on state-law issues.
See, e.g., Bennett v. Warden, Lebanon Corr. Inst., 782 F. Supp.2d 466, 478 (S.D. Ohio 2011) (and cases cited therein)
(“[B]ecause the state courts are final authority on state-law issues, the federal habeas court must defer to and
is bound by the state court’s rulings on such matters.”); Meyers v. Ohio, No. 1:14cv1505, 2016 WL 922633, at *7
(N.D. Ohio Jan. 21, 2016) (Report & Recommendation) (citing Olsen v. McFaul, 843 F.2d 918, 929 (6th Cir. 1988))
(“federal habeas courts are bound by decisions of intermediate state courts on questions of state law unless convinced
that the state’s highest court would decide the issue differently”), adopted, 2016 WL 916602 (N.D. Ohio Mar. 9,
2016).
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Recommendation) (finding that allegations of a violation of Ohio law in informing the petitioner
of post-release control raised issues of state law not cognizable on habeas review), adopted, 2013
WL 1773820 (N.D. Ohio Apr. 25, 2013). 	Cf. Bennett v. Turner, No. 1:12cv489, 2013 WL
557013, at *3 (N.D. Ohio Jan. 23, 2013) (Report & Recommendation) (rejecting the habeas
petitioner’s attempt to cast his claim of sentencing error under Ohio law “in constitutional terms
by stating his ‘sentence was not given according to due process and equal
protection’”), adopted, 2013 WL 518704 (N.D. Ohio Feb. 12, 2013).
Furthermore, to the extent that petitioner contends that the Ohio courts wrongly decided
or committed error in his post-conviction proceedings his claims fail to give rise to a cognizable
constitutional claim subject to review in this federal habeas proceeding. The Sixth Circuit has
held that alleged errors in post-conviction and collateral proceedings are non-cognizable in
federal habeas corpus. See Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007); Kirby v. Dutton,
794 F.2d 245, 247-48 (6th Cir. 1986).4 Rather, a petitioner’s claim “must directly dispute the
fact or duration of the confinement.” Kirby, 794 F.2d at 248 (citing Preiser v. Rodriguez, 411
4 The Sixth Circuit explained in Cress:
A due process claim related to collateral post-conviction proceedings, even if resolved in a petitioner’s favor,
would not “result [in] . . . release or a reduction in . . . time to be served or in any other way affect his detention
because we would not be reviewing any matter directly pertaining to his detention.” Kirby, 794 F.2d at 247.
“Though the ultimate goal in” a case alleging post-conviction error “is release from confinement, the result
of habeas review of the specific issue[] . . . is not in any way related to the confinement.” Id. at 248.
Accordingly, we have held repeatedly that “the scope of the writ [does not] reach this second tier of
complaints about deficiencies in state post-conviction proceedings,” noting that “the writ is not the proper
means” to challenge “collateral matters” as opposed to “the underlying state conviction giving rise to the
prisoner’s incarceration.” Id. at 248, 247; see also Alley v. Bell, 307 F.3d 380, 387 (6th Cir. 2002) (“error
committed during state post-conviction proceedings can not [sic] provide a basis for federal habeas relief”
(citing Kirby, 794 F.2d at 247)); Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001) (“habeas corpus cannot
be used to mount challenges to a state’s scheme of post-conviction relief”).
484 F.3d at 853 (alterations in original).
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U.S. 475, 500 (1973)). A ground for relief that challenges the correctness of a state judicial
proceeding and does not dispute the detention itself is not cognizable. See id. at 247-48.
Because petitioner’s grounds for relief assert errors in the state courts’ denial of his post-
conviction motion and appeals, and do not dispute the fact or duration of his confinement, he
fails to raise a cognizable claim on federal habeas corpus review. Cress, 484 F.3d at 853; Kirby,
794 F.2d at 247-48. Cf. Downtin v. Palmer, No. 09-11387, 2009 WL 1393401, at *2 (E.D. Mich.
May 18, 2009) (“Petitioner’s . . . contention that the . . . courts wrongfully denied him post-
conviction relief on his ex post facto claims is not cognizable.”).
In any event, any cognizable claim raised by petitioner 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 pursuant to the judgment of
a state court 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). Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled during the
pendency of a properly filed application for state post-conviction relief or other collateral review.
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There is no evidence in the record in this case to suggest that the provisions set forth in
§§ 2244(d)(1)(B) or (C) apply to petitioner’s grounds for relief. Petitioner has not alleged that a
State created impediment prevented him from filing the instant petition or that his claims are
governed by a newly recognized constitutional right made retroactively applicable to his case.
Under § 2244(d)(1)(A), petitioner’s conviction became final on August 15, 2011, when
the 45-day period expired for filing an appeal to the Ohio Supreme Court from the Ohio Court of
Appeals’ June 30, 2011 direct appeal decision. See Ohio Sup. Ct. Prac. R. 7.01(A)(1)(a)(1). See
also Gonzalez v. Thaler, 565 U.S. 134, 149-52 (2012). However, petitioner contends that the
Ohio courts violated his rights in ruling on his February 18, 2020 motion to correct partially void
sentence and January 18, 2022 appeal.5 Assuming that § 2244(d)(1)(D) applies to petitioner’s
grounds for relief, the limitations period began on January 18, 2022—the date on which the Ohio
Court of Appeals affirmed the judgment of the trial court and allegedly violated petitioner’s
rights (see Doc. 8, Ex. 57)—and expired one year later on January 18, 2023, absent the
application of statutory or equitable tolling principles.
During the one-year limitations period, petitioner was entitled to tolling of the statute
under 28 U.S.C. § 2244(d)(2) based on any pending “properly filed” applications for state post-
conviction relief or other collateral review. See 28 U.S.C. § 2244(d)(2); see also Holland v.
Florida, 560 U.S. 631, 635 (2010); Allen v. Siebert, 552 U.S. 3, 4 (2007) (per curiam); Vroman
v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003). “The tolling provision does not, however,
5 See Doc. 11 at PageID 715, 275 (arguing that “a violation of the Constitutional due process protections against ex
post facto laws have occurred in this case when the trial court applied Harper and Henderson retroactively” and the
“appellate court has violated the doctrine of stare decisis when it retroactively applied a newly determined law and
case authority”). See also Doc. 2 at PageID 21, 27.
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‘revive’ the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock
that has not yet fully run.” Vroman, 346 F.3d at 602 (quoting Rashid v. Khulmann, 991 F. Supp.
254, 259 (S.D.N.Y. 1998)). Once the limitations period is expired, state collateral review
proceedings can no longer serve to avoid the statute-of-limitations bar. Id.
In this case, the limitations period remained tolled while petitioner appealed to the Ohio
Supreme Court from the Court of Appeals’ January 18, 2022 decision. See Carey v. Saffold, 536
U.S. 214, 220 (2002) (holding that statutory tolling continues “until the application has achieved
final resolution through the State’s post-conviction procedures”). On April 12, 2022, the Ohio
Supreme Court declined jurisdiction (see Doc. 8, Ex. 61), and the limitations period ran 42 days
until petitioner filed his May 24, 2022 motion to correct void judgment in the trial court.6 (Doc.
8, Ex. 62). Petitioner appealed from the denial of this motion and the limitations period was
again tolled until the Ohio Supreme Court declined jurisdiction on March 14, 2023. (Doc. 8, Ex.
74). The limitations period then ran the remaining 323 days and expired on January 31, 2024.
Because petitioner did not file his federal habeas corpus petition until March 6, 2024, the petition
is time-barred unless equitable tolling applies.
The AEDPA’s statute of limitations is subject to equitable tolling, see Holland, 560 U.S.
at 645, “when a litigant’s failure to meet a legally-mandated deadline unavoidably arose from
circumstances beyond the litigant’s control.” Hall v. Warden, Lebanon Corr. Inst., 662 F.3d
745, 749 (6th Cir. 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)).
Equitable tolling is granted “sparingly.” Id. (quoting Robertson, 624 F.3d at 784). A habeas
6 The tolling period under § 2244(d)(2) does not include the ninety days in which petitioner could have sought
certiorari review in the United States Supreme Court. See Lawrence v. Florida, 549 U.S. 327, 333-34 (2007).
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petitioner is entitled to equitable tolling only if he establishes that (1) “he has been pursuing his
rights diligently;” and (2) “some extraordinary circumstance stood in his way and prevented
timely filing.” Id. (quoting Holland, 560 U.S. at 649 (internal quotations omitted)); see also
Pace, 544 U.S. at 418. Although the Sixth Circuit previously utilized a five-factor approach in
determining whether a habeas petitioner is entitled to equitable tolling, Holland’s two-part test
has replaced the five-factor inquiry as the “governing framework” to apply. Hall, 662 F.3d at
750 (citing Robinson v. Easterling, 424 F. App’x 439, 442 n.1 (6th Cir. 2011)). “With Holland
now on the books, the ‘extraordinary circumstances’ test, which requires both reasonable
diligence and an extraordinary circumstance, has become the law of this circuit.” Id.; see also
Patterson v. Lafler, 455 F. App’x 606, 609 n.1 (6th Cir. 2012).
Petitioner has not argued, much less demonstrated, that he is entitled to equitable tolling
in this case. First, petitioner has not shown that he has been diligent in pursuing his rights. The
Sixth Circuit has indicated that the relevant inquiry in determining whether equitable tolling
applies is whether petitioner was diligent in pursuing federal habeas relief. In this case,
petitioner waited 778 days—from January 18, 2022 to March 6, 2024—to file his habeas petition
after he became aware of the factual predicate underlying his claims. Accordingly, petitioner has
not demonstrated that he was diligent in pursuing his federal rights. Vroman v. Brigano, 346
F.3d 598, 605 (6th Cir. 2003) (finding that petitioner’s decision to proceed solely in state court
“rather than filing his federal habeas petition and protecting his federal constitutional rights,
demonstrates a lack of diligence”). Second, petitioner has not argued much less demonstrated
that he was prevented by some extraordinary circumstance from seeking relief in a timely
manner.
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Finally, petitioner has neither argued nor otherwise demonstrated that the procedural bar
to review should be excused based on a colorable showing of actual innocence. “To invoke the
miscarriage of justice exception to AEDPA’s statute of limitations, . . . a petitioner ‘must show
that it is more likely than not that no reasonable juror would have convicted him in the light of . .
. new evidence.’” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup v. Delo, 513
U.S. 298, 327 (1995)). No such showing has been made in this case.
Accordingly, in sum, the undersigned concludes that the instant federal habeas corpus
petition should be denied because it raises non-cognizable grounds for relief and/or is barred
from review by the one-year statute of limitations governing habeas corpus actions brought
pursuant to 28 U.S.C. § 2254.
IT IS THEREFORE RECOMMENDED THAT:
1. The petition (Doc. 2) be DENIED with prejudice.
2. A certificate of appealability should not issue with respect to any of the claims for
relief alleged in the petition, which this Court has concluded are barred from review on a
procedural ground, because under the first prong of the applicable two-part standard enunciated
in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), “jurists of reason” would not find it
debatable whether the Court is correct in its procedural ruling.7
3. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting
this Report and Recommendation would not be taken in “good faith,” and therefore DENY
7 Because the first prong of the Slack test has not been met, the Court need not address the second prong of Slack as
to whether “jurists of reason” would find it debatable whether petitioner has stated a viable constitutional claim in
his time-barred grounds for relief. See Slack, 529 U.S. at 484.
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petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R.
App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. 	This period may be extended further by the Court on
timely motion for an extension. 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. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
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