Pulley v. Warden, Madison Correctional Institution

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CHARLES FRANCIS PULLEY, III,
Petitioner, 	: 	Case No. 3:25-cv-00144
- vs - 	District Judge Walter H. Rice
Magistrate Judge Michael R. Merz
WARDEN,
Madison Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case was brought pro se by Petitioner Charles Francis Pulley, III, to
obtain relief from his convictions in the Montgomery County, Ohio, Court of Common Pleas for
murder, felonious assault, involuntary manslaughter, and endangering children. (Verdict, State
Court Record, ECF No. 7, Exhibit 20).
Should the Stay of Proceedings be Extended?
After Respondent filed the State Court Record and Return of Writ (ECF No. 7), Petitioner’s
Reply was due on October 5, 2025 (See Order for Answer, ECF No. 4). However, on October 7,
2025, District Judge Rice sustained Petitioner’s Motion to Stay and extend the time to file a Reply
pending the outcome of state court litigation on Petitioner’s motion for a new trial.
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On February 5, 2026, the Magistrate Judge reference in the case was transferred to the
undersigned (ECF No. 13). At the time of transfer, there were two pending motions to extend the
stay, both of which were unsigned although signature of all filings is required by Fed.R.Civ.P. 11.
Because Judge Rice had written no opinion on the stay when it was initially granted, the
undersigned believed it should, before it was extended, be analyzed under Rhines v. Weber, 544
U.S. 269 (2005), which is the source of district courts’ authority to stay habeas cases pending state
court litigation. 	To that end the undersigned entered an Order to Show Cause, extending
Petitioner’s Reply date to March 2, 2026, and requiring him to show cause by that date why the
stay should be further extended.
Petitioner has not responded, either by showing cause for a stay or by filing a reply. His
initial Motion for Stay merely indicated he had filed a motion for leave to file a delayed motion
for new trial, but did not attach a copy of that motion. Review of the docket of the Common Pleas
Court shows Judge E. Gerald Parker denied the motion on January 10, 2026, and Petitioner has
appealed.
In recognizing a district court’s authority to stay a habeas case, the Supreme Court wrote
in Rhines:
[S]tay 	and 	abeyance 	should 	be 	available 	only 	in 	limited
circumstances. 	Because 	granting 	a 	stay 	effectively 	excuses 	a
petitioner's failure to present his claims first to the state courts, stay
and abeyance is only appropriate when the district court determines
there was good cause for the petitioner's failure to exhaust his claims
first in state court. Moreover, even if a petitioner had good cause for
that failure, the district court would abuse its discretion if it were to
grant him a stay when his unexhausted claims are plainly meritless.
Cf. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts of the
State"). . . .
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On the other hand, it likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition if the
petitioner had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.
Id. at 277-278.
At this point in time, Petitioner has not shown any entitlement to a further stay, which is
hereby DENIED.
The Case is Ripe for Decision of the Statute of Limitations Defense
In the absence of a stay, the case is ripe for decision of Respondent’s limitations defense
on the Petition, the State Court Record and the Return of Writ.
Litigation History
On February 4, 2021, the Montgomery County Grand Jury indicted Pulley on one count of
murder as a proximate result of felonious assault, in violation of Ohio Revised Code §
2903.11(A)(1)/2903.02(B), one count of felonious assault in violation of Ohio Revised Code §
2903.11(A)(1), one count of murder as a proximate result of endangering children in violation of
Ohio Revised Code § 2919.22(B)(1)/2903.02(B), one count of endangering children in violation
of Ohio Revised Code § 2919.22(B)(1), one count of involuntary manslaughter as the proximate
result of endangering children in violation of Ohio Revised Code § 2903.04(A)), and one count of
endangering children (parent – serious harm) in violation of Ohio Revised Code § 2919.22(A),
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(Count Six). (Indictment, State Court Record 7, Ex. 1). At a jury trial at which Pulley represented
himself, a jury found him guilty on all counts (Verdict, State Court Record, ECF No. 7, Ex. 20).
The trial court sentenced Pulley to imprisonment for eighteen years to life. Id. at Ex. 21.
Pulley appealed through counsel to the Ohio Second District Court of Appeals which
affirmed. 	State v. Pulley, 2023-Ohio-3277 (Ohio App. 2nd Dist. Sept. 15, 2023). 	The Ohio
Supreme Court denied leave to file a delayed appeal and declined to provide further review. State
v. Pulley, 173 Ohio St.3d 1475 (April 30, 2024). Pulley deposited his Petition in the prison mail
system on April 28, 2025, effectively filing it here. Houston v. Lack, 487 U.S. 266 (1988). He
pleads the following nine grounds for relief:
Ground One: The trial court denied petitioner’s constitutional right
to present a defense by excluding relevant evidence.
Supporting Facts: The trial court excluded statements by Makenah
Grabans relevant to the origin of A.G. 's injuries and her own
veracity. The trial court abused its discretion when it excluded text
messages from Makenah Grabans to Petitioner. The statements
contained in the messages provided an alternate theory of the
offense, namely that Grabans was the source of some of the injuries
to A.G., and were proper impeachment evidence. The messages not
only give a timeline as to when the injuries occurred but the source
of said injuries. Messages like "i literally cry all the-time be I'm so
tired of having a baby." 8/3/2020 4;55;27 PM, "imma f***ing throw
her against the f***ing wall if she doesn't shut the f** it."," I feel
like i’m a horrible mommy and the [A.G.] deserves someone
better.*** someone that wouldn't hurt her be they were angry."
8/15/2020 1;58;19 AM, "i'm the worst mommy ever. I couldn't
figure out how to fix her straps in her purple car seat the other day.
So, I just tried to make them work, & then when I got her out when
I got home, I felt her little head hit the handle." 8/19/2020 11 ;43.46
PM (Exhibit E). The importance of this evidence is clear given the
state argued that Petitioner caused the bruises to A.G. on August
19th 2020. Upon Cross- examination, Grabans attempted to deny or
explain away certain statements to petitioner regarding injuries to
A.G. while in her care:
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Q Do you remember telling Chuck that you really thought she just
hit her head on the car seat?
A I probably did say that.
Q So it wasn't his suggestion. That's something that you had
mentioned to him?
A He suggested it on the phone while we were talking on the phone.
(TP) vol. III, p. 448
Q Have you ever accidentally hurt your daughter?
A No.
Q Do you remember telling Chuck that you did?
A No. Id., p. 449.
The quoted text messages sent on 8/19/2020 and 8/15/2020 were
extrinsic evidence of a prior inconsistent statement that Grabans
denied or attempted to explain on cross examination. Detective
Lawson testified that there was no evidence that Makenah Grabans
was responsible for any of the injuries to A.G (TP), Vol III, p. 563,
11. 15-19. The quoted text messages directly contradict Lawson[‘]s
testimony and were therefore an appropriate avenue of inquiry in
cross-examination. The text messages from Grabans to petitioner
were capable of authentication by Detective Lawson. The above
messages are only a few of the many messages that were relevant,
fell under an exception to the hearsay rule, and/or were admissible
as prior inconsistent statements. Grabans testimony was significant
in establishing the time of injury for the state's theory of the offense.
Her messages, both as substantive evidence and for impeachment,
were critical defense evidence. Also included within the messages
between the petitioner and Makenah Grabans was a statement from
Petitioner stating "I'll take the blame for you" 8/20/2020 11 :05 PM
(Exhibit E), which could have been used to contradict the audio and
video confession, and statement he made to police at the time of his
interrogation which the State relied so heavily upon to form a
timeline for the injuries. Through out the petitioners entire court
proceedings, multiple request for discovery were made. The state
claimed to have turned over the documents containing the messages
listed above to petitioners retained counsel more than a year before
trial which is simply not true. The state turned over a flash drive
containing various items including cell phone examinations and cell
phone pies/texts (from the mothers phone), none of which contained
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the exculplatory [sic] evidence disclosed to petitioner during the
May 16th court hearing. The petitioner not only relied on his
retained attorney but relied on the prosecution to provide him with
the messages being that he had no access to his phone. The State
failed to turn over the exculplatory eveidence [sic] he needed for his
defense and the petitioners then retained counsel failed to request it
forcing the petitioner to act prose and make multiple discovery
request in attempts to obtain it. The state turned over multiple copys
[sic of what they deemed full discovery, it wasn't until after the
petitioner went through the discovery provided on February 15th
2022 that he realized that not only his phone, confiscated by the
investigating detective, but the messages within were not included.
The petitioner believed that not only the state but his then standby
counsel had not provided him with all the discovery, being that his
phone was not included within. On May 9th, 2022, the petitioner
made a specific request for his phone that contained the messages,
the state noted that it intended not to introduce the phone as evidence
Pre-Trial Tr. 2 at 15-16. It wasn't until May 16th, 2022, that the
petitioner received five-thousand pages worth of messages extracted
from his phone that was in the custody of the police department that
conducted the investigation Id at 536-537. With the sheer volume of
the new discovery that was untimely disclosed to the petitioner, six
days before trial is absolutely not enough :tme to sift through, locate
any and all exculpatory evidence then set up a proper defense. The
Petitioners then stand by counsel was also provided with a full copy
of any and all discovery including the messages he received on May
16th and asserted that he was ready for trial if the petitioner decided
to let him take over. The messages are material to the petitioners
innocence or guilt, in a way that they provide an alternative theory
as to who caused the injuries to A.G, and could have been used to
impeach star witnesses presented by the state. The state was well
aware of these messages months before trial and had a duty to tum
them over upon discovery of the materiality of said messages
regardless if the petitioner made a vauge [sic], specific, or no request
at all. Even if the police department that held the phone failed to tum
it over to the state, they still have a duty to disclose evidence that
extends to information in possession of the law enforcement agency
investigating the offense. Had the state turned over the messages in
a timely manner the petitioner could have then provided the
messages to his then trial counsel before trial commensed [sic]. The
petitioners actions were purely to protect his due process rights and
any procedural default was not a cause of the petitioners "strategic",
"tactical", oi- "sandbagging" choices. The petitioner acted diligently
in trying to secure the messages in time for their affective use at trial
but due to the prosecutors actions he was denied his righ[t] to a fair
trial.
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Ground Two: The trial court violated petitioner’s due process in
violation of his rights by denying his motion for funds to obtain a
false confessions expert at state expense.
Supporting 	Facts: 	Petitioner 	moved 	for 	appointment 	of 	a
confessions expert to investigate Petitioner's interrogation and
reenactments. Therein Petitioner's counsel represented to the court
that in their professional opinion, the aid of a confessions expert was
necessary to adequately represent the Petitioner. The trial court
denied 	the 	motion, 	finding 	Petitioner 	"failed 	to 	make 	a
particularized showing required in order to be entitled to an expert
pointed [sic] by the court. Petitioner's recorded interview and the
video of the reenactments was played for the jury. Likewise,
Petitioner's written statement was read to the jury. There were
multiple messages from the evidence excluded that would have
shown 	multiple 	contradictions 	in 	the 	statement 	and 	recorded
interview giyen by the petitioner. The messages also show a
reasonable probability for the petitioner making a false confession.
Messages from Makenah Grabans to petitioner could have easily
been used to make a particularized showing for an expert, messages
such as "im scared" "im going to jail" and a statement made by the
petitioner stating "ill take the blame for you" (Exhibit E) would have
been crucial in proving a motive for the petitioner making a false
comnfession [sic]. Given the Petitioner's statement were a major part
of 	a 	largely 	circumstantial 	case, 	Petitioner 	demonstrated 	a
"reasonable probability" that 	the requested confessions expert
"would aid in his defense".
Ground Three: The trial court erred in overruling the petitioner’s
motion to suppress.
Supporting Facts: Petitioner's motion to suppress argued that his
statements were involuntary and his waiver of Miranda rights was
not knowing, intelligent, and voluntary. Petitioner was induced by
law enforcement to provide some explanation for the injuries
sustained by A.G., in order to potentially aid in the medical
treatment to save her life. Petitioner was a young man, barely over
eighteen years of age, wholly inexperienced with law enforcement,
who was emotionally distraught. Law enforcement deliberately used
appeals to provide help for A.G. in order to take advantage of
Petitioner's emotional state. Petitioner had been in contact with
Makenah Grabans before the detectives arrived at his house in which
Grabans stated multiple times that she was "scared" and that she was
"going to jail". Included in the conversation between the two is a
statement from petitioner that reads "ill take the blame for you"
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which any reasonable person could had inferred was true being that
he understood that the mother knew more about the injuries and who
had caused them than he did. During the interrogation it is clear that
the petitioner is distressed. It was also clear that petitioner knew
little about the injuries being that he fabricated multiple stories as to
how the injuries were caused when trying to explain them during the
interview. The petitioner was deeply attached to A.G. and the
mother at the time and out of deep concern for A.G. and profound
love for the mother the petitioner made-up storys and admitted guilt
to the injuries of A.G. The trial courts finding that the Petitioner's
statements were voluntary, and its decision overruling the motion to
suppress, were in error.
Ground Four: Petitioner’s convictions are not supported by the
sufficient evidence to prove guilt beyond a reasonable doubt and are
against the manifest weight of evidence.
Supporting Facts: The state failed to meet its burden of producing
sufficient evidence to establish the elements of the charged offense
beyond a reasonable doubt. Castiglione-Richmond testified that the
injuries were numerous, whereas Thackeray was ultimately unable
to opine on the number of injuries occurring on August 20th, 2020.
Second, the experts could not identify the mechanism of the injury.
Castiglione-Richmond could not identify the mechanism of the
injury beyond terming it blunt force trauma. Thackeray opined that
the injuries which A.G. displayed were consistent with child abuse,
but also consistent with a "severe highly traumatic accident". Lastly,
Castiglione-Richmond testified that Petitioners explanation of an
accident, where he was spinning with the child and accidentally hit
the childs head on a door frame, could have cause the injuries to
A.G. The testimony of the States' experts revealed a number of
contradictions regarding the number of injuries to A.G. and the
causation thereof. The state relies heabily [sic] upon the statement
made by petitioner to establish a timeframe and source of injuries to
A.G on August 19th 2020 and August 20th 2020. The evidence that
was 	exclude 	from 	trial 	argued 	in 	Ground 	One 	provided 	an
alternative theory as to who caused the injuries to A.G. and that the
petitioner was simply taking the blame for the mother. There were
also statements made by the step father of Makenah Grabans that
contradicts the petitioners claim that he injured A.G. on the night of
August 19th 2020.When the evidence and all the reasonable
inferences are weighed, and witness credibility is considered, it
should be determined that the trier of fact clearly lost its way and
created a manifest miscarriage of justice. Petitioners conviction
must be reversed and Petitioner discharged.
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Ground Five: The trial court erred in charging the jury with a
definition of recklessly which was an incorrect statement of law.
Supporting Facts: The trial court Instructed the jury with a prior,
incorrect definition of recklessly. The Jury was instructed in such a
manner as to find the element of “recklessly” on the basis of a lower
standard than required by law. Therefore the likelihood of the
instructions potentially affecting the outcome of the trial rises above
the threshold of a reasonable probability. Moreover the resulting
prejudice is clear: a conviction in the absence of all necessary
elements. Due to the incorrect definition of recklessly provided to
the jury, the jury instructions contained a definition of both “risk”
and “substantial risk”. The inclusion of the lesser standard was
unnecessary and confusing. Its presence in the jury instructions calls
into question the jurys finding of serious physical harm on the
felonious assault count and therefore the entire verdict. Petitioners
convictions 	on 	all 	counts 	must 	be 	reversed 	and 	this 	matter
remanded.
Ground Six: The trial court erred by convicting petitioner of allied
offenses of similar import.
Supporting Facts: The state acknowledged that Counts 1 through
5 merged but argued that Count 6 did not due to a separate animus.
The court found a separate animus for Count 6 based upon bruises
A.G. 	exhibited 	on 	the 	night 	of 	August 	19, 	2020. 	However,
Petitioners conviction on Count 6, Endangering children, required a
finding of serious physical harm. There was no evidence in the
record of serious physical harm occurring on August 19, 2020. The
record demonstrates that Petitioner convictions on Count 1 and 6
had to have been based on the events of August 20th, 2020. The
offenses were therefore committed by the same conduct, with the
same animus, resulting in the same harm. The convictions are allied
offenses of similar import and should have merged for purposes of
sentencing. Petitioners convictions should therefore be reversed and
the matter remanded.
Ground Seven: The trial court erred in finding the petitioner made
a knowing, intelligent, and voluntary waiver of his right to the
assistance of counsel.
Supporting Facts: The colloquy between the trial court and
appellant throughout the hearing on the matter of self-representation
were not sufficient to find a knowing, intelligent, and voluntary
waiver of appellants right to counsel. Even if the waiver was
voluntary, the lack of understanding, the absence of any meaningful
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responses to questions, and the irrational content of the written and
oral motions, demonstrates a lack of competence to waive counsel.
The court itself questioned whether the waiver was knowing and
intelligent, 	and 	scheduled 	repeated 	hearings 	as 	a 	result. 	The
colloquy with the trial court demonstrated that Petitioner lacked the
competence to make a knowing and intelligent waiver. The trial
courts findings otherwise was in error.
Ground Eight: Petitioner was prejudiced by the denial of his right
to effective assistance of counsel, in violation of his rights under the
Sixth 	and 	Fourteenth 	Amendments 	to 	the 	United 	States
Constitution.
Supporting Facts: The performance of Petitioners trial counsel was
deficient in at least four respects. First, trial counsel failed to argue
for examination of the text messages individually, resulting in the
erroneous exclusion thereof, as argued in Ground One. Second, trial
counsel failed to subpoena Makenah Grabans to be recalled or to
call another witness who could have laid foundation for the text
messages. Third, petitioners counsel should have been aware of the
contents being that the phone data had been provided in digital form
and the messages in paper form as part of discovery. Even though
the petitioner was pro se at the time he received the messages, a copy
was also forwarded to the petitioners then standby counsel. Lastly,
counsel failed to object to the incorrect statement of law in the jury
instructions, as discussed in ground 5, which resulted in a lesser
burden on the state and confusing the jury instructions. The above
deficiencies in the performance of Petitioners trial counsel resilt4ed
in the representation falling below and objective standard of
reasonableness and prejudice to petitioner. First, the text messages
provided an alternate theory of the source of injuries to A.G., as well
as ideal tools of impeachment. Second, the failure to object standard
of reasonableness, and the deficient performance of petitioner’s trial
counsel prejudiced him. Petitioner’s conviction must therefore be
reversed.
Ground Nine: The cumulative effect of the errors set forth herein
deprived petitioner of his constitutional right to a fair trial.
Supporting Facts: The cumulative effects of the errors set forth
above deprive the Petitioner of his right to a fair trial. The
cumulative effect of the errors excluding competent, relevant
evidence at trial resulted in a denial of petitioners right to a fair trial.
Petitioners conviction should be reversed and this matter remanded.
(Petition, ECF No. 1).
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Respondent asserts merit review of these claims is barred by the statute of limitations
enacted by Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat.
1214)(the "AEDPA"). That statute 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
(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 post-
conviction 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.
Item 18 of the standard form for § 2254 petitions instructs the petitioner: “If your judgment
of conviction became final over one year ago, you must explain why the one-year statute of
limitations as contained in 28 U.S.C. § 2244(d) does not bar your petition.” Although he copied
this language from the standard form, Petitioner made no response to the question (Petition, ECF
No. 1, PageID 20). Thus he made no claim of late discovery of the factual predicate or applicability
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of a newly-recognized constitutional right or any State impediment to filing. 	The statute then
began to run on the date the conviction became final on direct review, which was October 30,
2023, the last day on which Pulley could have filed a timely appeal from the Second District’s
affirmance (Opinion, State Court Record, ECF No. 7, Ex. 26). That statute then ran for 125 days
until it was tolled under 28 U.S.C. § 2244(d)(2) by Petitioner’s Motion for Leave to File a Delayed
Appeal on March 4, 2024. Id. at Ex. 27. It continued to be tolled until the Ohio Supreme Court
denied that Motion on April 30, 2024. Id. at Ex. 28. 	Pulley filed his Petition 363 days later on
April 28, 2024.
Pulley apparently calculated his statutory expiration date based on a belief that his
collateral attack re-started the statute, but it does not. 	A properly filed collateral attack on a
judgment tolls the statute of limitations, but does not re-start it. Payton v. Brigano, 256 F.3d 405,
408 (6th Cir. 2001); Searcy v. Carter, 246 F.3d 515 (6th Cir. 2001).
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 objectively
frivolous and should not be permitted to proceed in forma pauperis.
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March 11, 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. 
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