IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Chad E. West,

Petitioner

 v.

Rob Jeffreys, Warden,

Respondent

:

:

:

:

:

Civil Action 2:10-cv-01177

Judge Frost

Magistrate Judge Abel

ORDER

Petitioner Chad E. West, a State prisoner, brings this action under 28 U.S.C. §2254

alleging that he is in custody in violation of the Constitution of the United States. This

matter is before the Court on Magistrate Judge Abel’s August 9, 2011 Report and

Recommendation that the petition for writ of habeas corpus under 28 U.S.C. §2254 be

denied because it is barred by the one year statute of limitations for federal habeas

corpus actions (doc. 15). On October 21, 2011, petitioner West filed objections to the

Report and Recommendation (doc. 19). 

A Franklin County Common Pleas Court jury found West found guilty of raping

and kidnaping 13 year old James Conley and burglary. Petitioner argues that the

Magistrate Judge erred in finding that his fourteen grounds for relief are barred by the

statute of limitations. Petitioner's grounds for relief are set out at pages 6-10 of the

August 9, 2011 Report and Recommendation (doc. 15, PAGEID ## 875-79). The

evidence at trial is summarized at pages 10-18 of the Report and Recommendation (Id.,

PAGEID ## 879-87.) The Magistrate Judge's decision West failed to file his petition

Case: 2:10-cv-01177-GLF-MRA Doc #: 20 Filed: 11/07/11 Page: 1 of 4 PAGEID #: <pageID>
within the one-year limitations period set forth in § 2244(d)(1)(D) is set out at pages 24-

30 of the Report and Recommendation (Id., PAGEID ## 893-931.). 

Specifically, the Magistrate Judge found:

The pertinent dates are as follows:

January 24,

2003

Petitioner is resentenced following his appeal.

February

24, 2003

The statute of limitations begins to run, which is 30 days

after West’s resentencing excluding the day that begins

the period.

July 9,

2003

Petitioner files his first motion for new trial.

May 10,

2005

The state Court of Appeals affirms trial court’s denial of

new trial motion; no appeal is made.

December

15, 2008

Petitioner files second motion for a new trial.

January 27,

2010 

The Ohio Supreme Court denies leave to appeal the denial

of the second motion for a new trial. 

West concedes that equitable tolling does not apply to his petition. The

issue to be resolved is whether 28 U.S.C. § 2244(d)(1)(D) applies to

plaintiff’s second motion for new trial. If 28 U.S.C. § 2244(d)(1)(D) is not

applicable, then the statute of limitations expired December 26, 2005.1

Section 2244(d)(1)(D) states:

A 1-year period of limitation shall apply to an application for

a writ of habeas corpus by a person in custody pursuant to

1

The appropriate date to use to start the limitations period is the date

West’s judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).

West did not appeal his resentencing, and the statute of limitations began

30 days later, not counting the day of the event, on February 24, 2003.

From the expiration of the time for West to seek an appeal to the state

Court of Appeals (February 24, 2003) to the date of the filing of his first

motion for new trial (July 9, 2003) 135 days passed. The statute of

limitations expired 230 days after the state Court of Appeals denied

West’s first motion for a new trial on December 26, 2005. 

Case: 2:10-cv-01177-GLF-MRA Doc #: 20 Filed: 11/07/11 Page: 2 of 4 PAGEID #: <pageID>
the judgment of a State court. The limitation period shall run

from the latest of--

(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)(D).

. . .

Despite petitioner’s reliance on 28 U.S.C. § 2244(d)(1)(D), his

petition was not timely filed with this Court. First, petitioner has offered

no evidence about the discovery his counsel obtained from the prosecutor.

The prosecutor did provide discovery to the defense. (Tr. 215-16, doc. 10,

PAGEID # 770-71.) Without knowing what that discovery was, there is no

way of determining whether the evidence offered by petitioner was not

available to him at trial. Petitioner did not state with specificity when he

obtained the documents listed above. Second, without knowing what

information the defense had at trial, it is not possible to know what further

evidence could have been obtained by the defense with due diligence.

Consequently, as the Ohio Court of Appeals held, petitioner has failed to

demonstrate the factual predicate for relying on § 2244(d)(1)(D).

Additionally, petitioner has failed to demonstrate that he acted

promptly to bring his claims based on new evidence to the Ohio courts

and this court. The documents petitioner relies on were apparently

provided to petitioner by the Ohio Innocence Project in July 2008. See doc.

10-4 at 70. Petitioner did not file his second motion for new trial until

December 15, 2008, 167 days after receiving the documents. The Ohio

Supreme Court rejected petitioner’s appeal on January 27, 2010, and

petitioner waited an additional 336 days before filing his petition with this

Court. Although his mother’s letter was dated November 20, 2008,

nothing prevented West from obtaining this information earlier. 

Finally, none of the evidence petitioner relies on, even if

unavailable to him at trial and even if he promptly pursued his claims

based on that evidence when it was discovered by him, demonstrates that

he was denied a fair trial. At the end of the day, the trial came down to

who the jury believed, James Conley or Chad West. None of the allegedly

withheld evidence undermined Conley’s credibility or bolstered West’s.

The issue was not whether Conley was raped but whether West was the

perpetrator. Whether the rapist used a condom, what bed the rape

occurred on, whether the motel room was dusted for fingerprints,

whether there was feces on the victim’s body, whether his father met the

police in the parking lot or a block away, and whether there ever was a

tennis court at the Knight’s Inn are all irrelevant to the issue of whether

West raped James Conley.

Case: 2:10-cv-01177-GLF-MRA Doc #: 20 Filed: 11/07/11 Page: 3 of 4 PAGEID #: <pageID>
(Id., pages 24-25 and 28-30, PAGEID ## 894-95 and 897-99.)

Petitioner argues that there was good cause for his delay in filing his second

motion for a new trial because he relied on documents first provided him by the Ohio

Innocence Project and he did not want to act on his own until after the Ohio Innocence

Project decided whether to represent him. First, that argument fails to address the issue

of whether those documents were truly new evidence unknown to the defense at trial.

At the Report and Recommendation points out, Petitioner has offer no evidence about

what information his counsel had available to him during trial. Second, the Ohio

Innocence Project never agreed to represent West. It is his claim, and he was responsible

for promptly presenting it to the Ohio courts. He failed to do so.

Petitioner also objects to the Magistrate Judge’s findings that at the end of the

day this was a jury credibility issue and none of the allegedly newly discovered

evidence demonstrate that he was denied a fair trial. Having reviewed the record, the

Court determines that the Magistrate Judge did not err in making that finding. 

Upon de novo review as required by 28 U.S.C. §636(b)(1)(B), the Court ADOPTS

the Report and Recommendation. 

The petition for writ of habeas corpus is DENIED. This action is hereby

DISMISSED. The Clerk of Court is DIRECTED to enter JUDGMENT for respondent.

 /s/ Gregory L. Frost 

Gregory L. Frost

United States District Judge 

Case: 2:10-cv-01177-GLF-MRA Doc #: 20 Filed: 11/07/11 Page: 4 of 4 PAGEID #: <pageID>