Titus v. Warden, Southern Ohio Correctional Facility

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TIMOTHY TITUS,
Petitioner,
vs.
WARDEN, SOUTHERN OHIO
CORRECTIONAL FACILITY,
Respondent.
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Case No. 2:24-cv-3689
District Judge Sarah D. Morrison
Magistrate Judge Kimberly A. Jolson
REPORT AND RECOMMENDATION
Petitioner, a state prisoner proceeding without the assistance of counsel, has filed a Petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the
Petition and Return of Writ, to which Petitioner did not reply. (See Doc. 1, 8). 	For the following
reasons, the Undersigned RECOMMENDS that the Petition be denied.
I. 	PROCEDURAL HISTORY
State Trial Proceedings
On September 17, 2020, the Pickaway County, Ohio, grand jury returned a seven-count
indictment charging Petitioner with five counts of assault and two counts of felonious assault.
(Doc. 7, Ex. 1).
After initially entering a not guilty plea, Petitioner withdrew his plea and pled guilty to five
counts of assault. (Doc. 7, Ex. 2, 3). On January 22, 2021, the trial court accepted Petitioner’s
guilty plea and sentenced Petitioner to total aggregate prison sentence of fifty-seven months in the
Ohio Department of Rehabilitation and Correction. (Doc. 7, Ex. 4). On February 1, 2021, the trial
court issued a nunc pro tunc sentencing entry, specifying that Petitioner was to begin serving his
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sentence upon completion of his then current sentence with the Department of Youth Services.
(Doc. 7, Ex. 5 at PageID 63).
Petitioner did not appeal from his conviction and sentence.
Judicial Release Motions
On December 20, 2022, Petitioner, through counsel, filed a motion for judicial release in
the trial court. 	(Doc. 7, Ex. 6). 	By Order issued on March 28, 2023, the trial court denied
Petitioner’s motion with prejudice. (Doc. 7, Ex. 8).
On December 18, 2023, Petitioner filed a pro se motion for judicial release. (Doc. 7, Ex.
9). The trial court denied the motion on March 18, 2024. (Doc. 7, Ex. 11).
Federal Habeas Corpus
On July 8, 2024, Petitioner filed the instant federal habeas corpus action.1 (See Doc. 1 at
PageID 15). Petitioner raises the following four grounds for relief in the petition:
GROUND ONE: MR. TITUS DIAGNOSED MENTAL ILLNESS
Supporting Facts: Mr. Titus has a history of childhood trauma that has been left
untreated. He never learned the basic skills that he needed to function in society as
an adult. Mr. Titus was moved from Foster home to Foster home, 10 in total and
this had a damaging impact on him. He has never been able to obtain a job or even
obtain a Driver’s License. Mr. Titus had diagnosed Bipolar Disorder, PTSD and
ADHD. He has feelings of hopelessness, shame and abandonment and needs help
working though these emotions. Mr. Titus had to use a scribe in school because his
brain was working at a rapid fire pace and he could not get what he thought on
paper.
GROUND TWO: DIMINISHED CAPACITY
1 The Petition was filed with the Court on July 12, 2024. (See Doc. 1). Petitioner avers, however, that he placed the
Petition in the prison mailing system for delivery to the Court on July 8, 2024. (See Doc. 1 at PageID 15). 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 July 8, 2024.
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Supporting Facts: Diminished Capacity was a mitigating factor because Mr. Titus
acted under seriously reduced mental capacity also known as diminished capacity.
The diminished capacity was a core component of the crime, which rendered the
defendant unable to achieve the mental state required to commit the crime in
question.
GROUND THREE: REHABILITATION
Supporting Facts: Mr. Titus has completed and earned his GED, Victim
Awareness, Anger Management, Free As An Eagle, Drug Awareness, AA/NA
meetings and is focusing on job experience for when he is released. 	He attends
group therapy every other week and attends CBT classes. 	He has recently been
moved from 4B to 4AT, but due to it being an unsafe environment, he had to return
to 4B and the next step is a level 3 which will get him transferred to a better facility.
Mr. Titus has not received a ticket or write up in 8 months.
GROUND FOUR: THIS WAS A RESULT OF AN UNTREATED MENTAL
MANIC EPISODE
Supporting Facts: Mr. Titus has been diagnosed with Bipolar Disorder, PTSD and
ADHD. During this instant offense he suffered a Manic Episode. All of the instant
cases occurred within days of each other due to this mental health emergency. All
of Mr. Titus’ criminal history is a result of his untreated mental illness that has went
untreated. Mr. Titus needs long term impatient mental health and substance abuse
treatment, not prison.
(Doc. 1 at PageID 5–10).
Respondent has filed a Return of Writ in opposition to the Petition. Petitioner did not file
a reply. 	According to Respondent, Petitioner’s grounds for relief are time-barred, procedurally
defaulted, and non-cognizable. (See generally Doc. 8).
II. 	DISCUSSION
In Ground One of the Petition, Petitioner indicates that he has a history of childhood trauma
and mental health issues. Petitioner raised this claim in his December 18, 2023, motion for judicial
release, where he argued “[a]ll of Mr. Titus’ criminal activity is due to his mental illness.” (See
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Doc. 7, Ex. 9 at PageID 86). In Ground Two, Petitioner claims that his alleged diminished capacity
“rendered the defendant unable to achieve the mental state required to commit the crime in
question.” (Doc. 1 at PageID 7). In Ground Four, Petitioner similarly claims that his offense was
committed during a manic episode and was the result of untreated mental illness. (Id. at PageID
10). The Undersigned understands Grounds One, Two, and Four of the Petition to challenge, at
least in part, Petitioner’s underlying conviction and sentence based on his mental health or
capacity. 	Ground Three, by contrast, does not challenge Petitioner’s underlying conviction and
sentence. 	Instead, it appears that Petitioner contends that his rehabilitation, job experience, and
behavior justify judicial release.
For the reasons below, to the extent that Petitioner challenges his conviction and sentence
in Grounds One, Two, and Four, his claims are time-barred. 	To the extent that he otherwise
contends that he should have been granted judicial release, as in Ground Three, Petitioner’s claims
are not cognizable in federal habeas corpus.
A. 	Grounds One, Two, and Four are 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;
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(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.
Nothing in the record suggests that the provisions set forth in §§ 2244(d)(1)(B) through
(D) apply to Grounds One, Two and Four of the Petition. Petitioner has not alleged that the State
created an impediment preventing him from filing the instant Petition or that his claims are
governed by a newly recognized constitutional right made retroactively applicable to his case. See
28 U.S.C. §§ 2244(d)(1)(B), (C). Petitioner also would have known the facts underlying Grounds
One, Two, and Four before his convictions became final or by the end of direct review. 28 U.S.C.
§ 2244(d)(1)(D). 	Consequently, his grounds for relief challenging his convictions and sentence
are governed by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A), which
began to run when Petitioner’s convictions became final “by the conclusion of direct review or the
expiration for the time for seeking such review.”
Under § 2244(d)(1)(A), Petitioner’s convictions became final on February 22, 2021, upon
expiration of the 30-day period for filing an appeal as of right from the trial January 22, 2021, final
judgment entry. See Ohio R. App. P. 4(A). The statute commenced running on February 23, 2021,
the day after Petitioner’s conviction became final, see Fed. R. Civ. P. 6(a); Bronaugh v. Ohio, 235
F.3d 280, 285 (6th Cir. 2000), and expired one year later on February 23, 2022, absent the
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application of statutory or equitable tolling principles.2
No statutory tolling applies under Section 2244(d)(2) to extend the limitations period in
this case. 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, ‘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.
Petitioner is not entitled to statutory tolling based on his December 20, 2022, or December
18, 2023, motions for judicial release because the limitations period had already expired on
February 23, 2022. See id. In any event, because Petitioner’s judicial release motions did not seek
review of his conviction and sentence, they would not serve to toll the limitations period in this
case. See Imburgia v. Bradshaw, No. 1:09-cv-2009, 2010 WL 1628054, at *5 (N.D. Ohio Apr.
22, 2010) (“A motion for judicial release is not a collateral attack on the underlying conviction or
2 As noted above, the trial court issued a nunc pro tunc judgment entry on February 1, 2021, specifying that Petitioner
would begin to serve his sentence upon completion of his then current sentence with the Department of Youth Services.
(See Doc. 7, Ex. 5 at PageID 63). Even assuming, without deciding, that the February 1, 2021 nunc pro tunc sentence
was a “worse-than-before” sentence that operated to reset the statute of limitations, for the reasons stated below,
Petitioner still filed too late. See Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016). See also Freeman v. Wainwright,
959 F.3d 226, 229-30 (6th Cir. 2016) (“[I]n Crangle v. Kelly, we extended [the principle that a full resentencing is a
new judgment that resets the limitations period] to some limited resentencings, holding that a new, worse-than-before
sentence amounts to a new judgment.”) (internal quotation marks and citation omitted). In that case, Petitioner’s
convictions and sentence became final on March 3, 2021 (thirty days after the nunc pro tunc entry) and expired on
March 4, 2022.
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sentence, and thus does not toll the AEDPA statute of limitations.”). See also Rains v. Warden,
No. 1:16-cv-180, 2016 WL 6136993, at *6, n.8 (S.D. Ohio Oct. 20, 2016) (same) (collecting cases)
(Report and Recommendation), adopted 2016 WL 6804950 (S.D. Ohio Nov. 16, 2016). 	The
Petition is time-barred unless Petitioner is entitled to equitable tolling.
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 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. 	Although Petitioner indicates that he has suffered from mental health issues in his
grounds for relief, he has not demonstrated that his mental health prevented him from timely filing
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his Petition. See Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011) (holding that mental incompetence
or incapacity, which prevents the timely filing of a habeas petition, is an extraordinary
circumstance 	that 	may 	equitably 	toll 	the 	one-year 	limitations 	period). 	To
obtain equitable tolling on that basis, the petitioner must demonstrate that (1) he suffers a mental
incompetence or incapacity, and (2) his mental incompetence or incapacity caused his failure to
comply with the statute of limitations. 	Id. 	“[A] blanket assertion of mental incompetence is
insufficient to toll the statute of limitations. Rather, a causal link between the mental condition
and untimely filing is required.” Id. (citing McSwain v. Davis, 287 F. App’x 450, 456 (6th Cir.
2008)). Petitioner has made no showing that his mental health prevented him from filing a timely
habeas petition. The record before the Court otherwise fails to disclose a medical condition that
prevented him from doing so or that any such impairment persisted from February 22, 2021, until
February 22, 2022, when the limitations period expired, much less until July 8, 2024, when he
filed his Petition.
In sum, Petitioner waited 1,232 days—from February 22, 2021, to July 8, 2024—to file his
habeas Petition after his convictions and sentence became final. 	Because Petitioner has not
demonstrated that an extraordinary circumstance prevented him from filing timely or that he has
diligently pursued his federal rights, Petitioner has failed to demonstrate that he is entitled to
equitable tolling.
Finally, Petitioner has not 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.’”
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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.
Petitioner is not entitled to federal habeas relief based on Grounds One, Two, or Four of
the Petition.
B. 	Ground Three is not cognizable.
In Ground Three of the Petition, Petitioner asserts that he has completed multiple
rehabilitative programs, earned his GED, and exhibited good behavior while imprisoned. 	He
raised these factors in support of his state-court motion seeking judicial release under Ohio Rev.
Code § 2929.20. (See Doc. 7, Ex. 6 at PageID 65). To the extent that Petitioner—in Ground Three
or his other grounds for relief—contends that the Ohio trial court erred or otherwise wrongly
denied him judicial release, he fails to offer a cognizable claim in this federal habeas corpus
proceeding.
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
to reexamine state-court determinations on state-law questions”). 	Because habeas review is
limited to claims implicating federal concerns, the Court lacks jurisdiction to consider any claim
that the trial court erred under Ohio Rev. Code § 2929.20 in denying his judicial release motion.
To the extent that Petitioner otherwise challenges the denial of his motion for judicial
release, Petitioner’s claims of error in the post-conviction proceedings fail to give rise to a
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cognizable constitutional claim subject to review in this federal habeas proceeding. 	Greer v.
Mitchell, 264 F.3d 663, 681 (6th Cir. 2001) (“[H]abeas corpus is not the proper means by which
prisoners should challenge errors or deficiencies in state postconviction proceedings[.]”) (citing
Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir. 1986)). See also Harney v. Warden, Case No. 1:22-
cv-537, 2023 WL 5310114, at *6 (S.D. Ohio Aug. 17, 2023) (“Challenges to the denial of a motion
for judicial release are not cognizable on federal habeas review because there is no federal
constitutional right to early judicial release.”) (Report and Recommendation), adopted 2023 WL
8936275 (S.D. Ohio Dec. 27, 2023) (quoting McQuistan v. Sheldon, No. 1:20-cv-656, 2023 WL
2634128, at *25 (N.D. Ohio Feb. 10, 2023); Merriweather v. Brunsman, Case No. 1:02-cv-369,
2006 WL 1698825, at *17 n.9 (S.D. Ohio Feb. 28, 2006) (finding that a claim challenging the
denial of a motion for judicial release “fails to state a cognizable constitutional claim that may be
redressed in this federal habeas corpus proceeding”). Thus, to the extent that Petitioner challenges
the application of state law or alleged errors in the post-conviction proceedings he fails to state a
cognizable claim for federal habeas relief.
In sum, the Undersigned concludes that Petitioner’s challenges to his convictions and
sentence in Grounds One, Two, and Four are time-barred. To the extent that Petitioner otherwise
contends that he should have been granted judicial release, as in Ground Three, his claims are not
cognizable in federal habeas corpus.
IT IS THEREFORE RECOMMENDED THAT:
1. The Petition (Doc. 1) 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
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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.3 A certificate of appealability should also not issue
with respect to the claims alleged in the Petition, which have been found to be non-cognizable on
federal habeas corpus, because Petitioner has not stated a “viable claim of the denial of a
constitutional right,” nor are the issues presented “adequate to deserve encouragement to proceed
further.” See Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle, 463 U.S.
880, 893 & n.4 (1983)). See also 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
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
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
3 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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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).
Date: 	January 8, 2026 	/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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