IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

William Bleigh, : 

 Petitioner, : Civil Action 2:11-cv-628

 v. : Judge George C. Smith

Timothy Brunsman, Warden, : Magistrate Judge Kemp

Lebanon Correctional

Institution, :

 

 Respondent. :

OPINION AND ORDER

This matter is before the Court on Petitioner William

Bleigh’s objections to a Report and Recommendation issued by the

Magistrate Judge on February 29, 2012. The Court, having

reviewed the record de novo, finds for the reasons set out below

that the objections to the Report and Recommendation are without

merit. Mr. Bleigh’s objections (Doc. 19) are OVERRULED and the

Report and Recommendation (Doc. 15) is ADOPTED. Petitioner’s

Petition for Writ of Habeas Corpus is DISMISSED.

I. PROCEDURAL BACKGROUND

On February 29, 2012, the Magistrate Judge recommended

denying Mr. Bleigh’s petition for a writ of habeas corpus

pursuant to 28 U.S.C. §2254, including his request for

appointment of an expert. That recommendation was based on the

fact that Mr. Bleigh (who was convicted of various sexuallyoriented offenses and given a lengthy prison term) filed an

1

Case: 2:11-cv-00628-GCS-TPK Doc #: 23 Filed: 09/17/12 Page: 1 of 11 PAGEID #: <pageID>
untimely appeal of his conviction with the Ohio Supreme Court,

and that court refused to consider the merits of any of his

claims because of the late filing. The Report and Recommendation

concluded that Mr. Bleigh had, for that reason, procedurally

defaulted all of his claims. 

II. LEGAL STANDARD

When objections are received to a Magistrate Judge’s Report

and Recommendation on a dispositive matter, the assigned District

Judge “must determine de novo any part of the magistrate judge’s

disposition that has been properly objected to.” Fed. R. Civ. P.

72(b). After review, the District Judge “may accept, reject, or

modify the recommended disposition; receive further evidence; or

return the matter to the magistrate judge with instructions.” 

Id.; see also 28 U.S.C. §636(b)(1)(B). General objections are

insufficient to preserve any issues for review; “[a] general

objection to the entirety of the magistrate's report has the same

effects as would a failure to object.” Howard v. Secretary of

Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991). 

III. DISCUSSION

The Court reviews de novo the Magistrate Judge’s recommended

conclusion that Mr. Bleigh’s petition for habeas corpus be

dismissed on procedural default grounds. 

The Magistrate Judge applied this Circuit’s four-part

analysis to determine whether Mr. Bleigh's failure to observe a

state procedural rule – namely the rule governing the timely

-2-

Case: 2:11-cv-00628-GCS-TPK Doc #: 23 Filed: 09/17/12 Page: 2 of 11 PAGEID #: <pageID>
filing of an appeal to the Ohio Supreme Court – led to a

procedural default. See Maupin v. Smith, 785 F.2d 135, 138 (6th

Cir. 1986). Mr. Bleigh’s objections to this analysis are

directed to the third and fourth prongs of the Maupin test. 

The third prong of the Maupin test requires a federal court

to determine whether the state enforced a procedural rule and

whether “the state judgment rests on a state-law ground that is

both independent of the merits of the federal claim and an

adequate basis for the state court's decision." Stone v. Moore,

644 F.3d 342, 345 (6th Cir. 2011) (internal quotations and

citations omitted). Mr. Bleigh argues that the Report and

Recommendation erred in determining that Rule of Practice of the

Ohio Supreme Court II, Section 2(A)(1) & (A)(4), which requires a

criminal defendant to file an appeal to that court within 45 days

of the state appellate court decision, constituted an independent

and adequate state-law ground for denying his claims. In

particular, he reasserts his argument that in order to be an

adequate ground, the rule of practice at issue must be applied in

the “vast majority of cases” pursuant to Dugger v. Adams, 489

U.S. 401, 410 n.6 (1989). 

As the Magistrate Judge explained, Dugger does not set forth

a requirement that procedural rules must be applied in the vast

majority of cases in order to be adequate procedural grounds. To

the extent that Dugger could be read to suggest such a

requirement, the Supreme Court’s recent decision in Walker v.

-3-

Case: 2:11-cv-00628-GCS-TPK Doc #: 23 Filed: 09/17/12 Page: 3 of 11 PAGEID #: <pageID>
Martin, confirms that there is no requirement that procedural

rules be applied in the vast majority of cases in order to be

adequate procedural grounds. 131 S. Ct. 1120, 1128-29, 1131

(2011) (considering an empirical analysis demonstrating that the

procedural rule at issue was not applied in the vast majority of

instances and holding that the timeliness bar was an adequate

ground in that it was "firmly established and regularly

followed") (citations omitted). Because there is no requirement

that procedural rules be applied in the vast majority of cases,

Mr. Bleigh’s evidence about how often the Ohio Supreme Court

actually applies the 45-day rule for appeals is not relevant. 

Mr. Bleigh also argues that the Magistrate Judge relied too

heavily on Walker and ignored Deitz v. Money, 391 F.3d 804 (6th

Cir. 2004) and Hutchinson v. Bell, 303 F.3d 720 (6th Cir. 2002). 

Because Walker is binding precedent, it must be followed and the

Magistrate Judge did not err in doing so. Mr. Bleigh cited to

Deitz v. Money and Hutchinson v. Bell for the proposition that

discretionary rules like the one involved here are not firmly

established and regularly followed, but that proposition is no

longer good law after the Supreme Court’s decisions in Beard v.

Kindler, 130 S. Ct. 612, 615 (2009) and Walker. See Stone v.

Moore, 644 F.3d 342, 348 (6th Cir. 2011) (noting that Deitz v.

Money was abrogated by Beard and Walker and explaining: “Beard

and Walker, when read together, permit a state procedural rule to

serve as an adequate state ground for preventing review of a

-4-

Case: 2:11-cv-00628-GCS-TPK Doc #: 23 Filed: 09/17/12 Page: 4 of 11 PAGEID #: <pageID>
habeas petition even if the state procedural rule accords courts

broad discretion.”). 

Mr. Bleigh also objects to the Report and Recommendation’s

analysis under the fourth prong of the procedural default

analysis. The fourth prong asks whether there was cause for

petitioner not to follow the procedural rule and actual prejudice

caused by the alleged constitutional error. Maupin v. Smith, 785

F.2d 135, 138 (6th Cir. 1986). Mr. Bleigh argues that there was

cause for his delay in appealing to the Ohio Supreme Court (1)

because the clerk of court for the trial court and his counsel

both failed to inform him that there had been a ruling in his

case and (2) because his counsel failed to inform him that he was

responsible for filing any appeal of that ruling pro se. The

Magistrate Judge recommended holding that regardless of whether

Mr. Bleigh could demonstrate cause for his failure to follow the

procedural rule, he had not demonstrated actual prejudice. The

Magistrate Judge’s recommendation was based primarily on his

determination that Mr. Bleigh would have known of the outcome of

his appeal by, at the latest, his re-sentencing following that

appeal. In light of the importance of that determination, this

Court issued an Order dated July 12, 2012, ordering Respondent to

brief the question of when Mr. Bleigh learned of the outcome of

his direct appeal and providing that Mr. Bleigh could file a

reply brief. Both parties filed supplemental briefs, and

Respondent filed a copy of the transcript of Mr. Bleigh’s re-

-5-

Case: 2:11-cv-00628-GCS-TPK Doc #: 23 Filed: 09/17/12 Page: 5 of 11 PAGEID #: <pageID>
sentencing. 

Mr. Bleigh’s direct appeal was decided on March 22, 2010. 

All of his assignments of error in that appeal, except one, which

was directed to his sentence, were overruled, and the case was

remanded to the trial court so that it could merge certain counts

for sentencing purposes. He was re-sentenced on April 23, 2010

and the entry of re-sentencing was journalized on May 10, 2010. 

In the transcript of the re-sentencing, the court notes that “Mr.

Bleigh [was] in open court accompanied by his counsel William

Cramer.” (Tr., Doc. # 21-1, at 3:4-5.) The court further

summarizes the procedural history as follows: “The matter is

before the court for resentencing. The defendant was found

guilty by a jury back on January 9, 2009, he was sentenced on

March 13, 2009; the court of appeals remanded the matter back for

resentencing because the court had determined that certain

offenses were of allied offenses of similar import, therefore

they should merge. The court ordered a concurrent sentence in

those cases. The court of appeals says however there should be

no sentence in those cases.” (Id. at 3:7-16.) The court then

proceeded to re-sentence Mr. Bleigh in accordance with the ruling

by the court of appeals. The court also provided Mr. Bleigh with

an opportunity to speak and asked him if he understood certain

aspects of his sentence. (Id. at 10:19-13:3.) 

The transcript demonstrates that the court did, in fact,

inform Mr. Bleigh that the court of appeals had ruled and

-6-

Case: 2:11-cv-00628-GCS-TPK Doc #: 23 Filed: 09/17/12 Page: 6 of 11 PAGEID #: <pageID>
remanded his case to the trial court for re-sentencing. In his

reply brief, Mr. Bleigh essentially argues that he did not

understand that the appeal had been resolved, or at least he did

not understand that he had to take any action as a result of that

resolution. (Petitioner’s Mem., Doc. # 22, at 1-2.) While it

may be true that Mr. Bleigh did not understand the import of what

the court told him, the cause and prejudice analysis considers

objective factors that impeded compliance with the procedural

rule at issue and not subjective factors. See, e.g., Murray v.

Carrier, 477 U.S. 478, 488 (1986) (in order to demonstrate cause

for procedural default there must ordinarily be “some objective

factor external to the defense”) cited in Bonilla v. Hurley, 370

F.3d 494, 498 (6th Cir. 2004). Mr. Bleigh’s understanding or

lack of understanding of the law and procedural requirements does

not establish cause to excuse a procedural default. See, e.g.,

Bonilla, 370 F.3d at 498 (ignorance of the law and procedural

requirements is insufficient to establish cause to excuse

procedural default). 

Therefore, as the Report and Recommendation noted, when

determining the actual cause of a petitioner’s failure to follow

a procedural rule, the Sixth Circuit applies “a rebuttable

presumption that if the period of time between when the defendant

learned of the decision and when he or she attempted to appeal

the decision is greater than the period allotted by state law for

the timely filing of an appeal – here, forty-five days - the

-7-

Case: 2:11-cv-00628-GCS-TPK Doc #: 23 Filed: 09/17/12 Page: 7 of 11 PAGEID #: <pageID>
defendant fails to demonstrate that he or she ‘would have timely

appealed’ the decision but for the counsel’s deficient failure to

notify the defendant of the decision.” Smith v. Ohio Department

of Rehabilitation & Correction, 463 F.3d 426, 432-35 (6th Cir.

2006). Mr. Bleigh did not file his motion for delayed appeal

until more than ten months after his re-sentencing. (Pet.’s

Objs. at 4.) Accordingly, even if counsel and the clerk of court

failed to inform him that there had been a ruling in his case,

such failure was not prejudicial because it did not “actually

cause the forfeiture of the [petitioner's] appeal." Smith, 463

F.3d at 435 (internal citations and quotations omitted). 

Mr. Bleigh’s second argument is that his appellate counsel

was constitutionally ineffective by not informing Mr. Bleigh that

he was responsible for filing any appeal of his re-sentencing pro

se. This argument also fails. A petitioner cannot claim

constitutionally ineffective assistance of counsel in a

proceeding for which he or she has no right to counsel. Coleman

v. Thompson, 501 U.S. 722, 757 (1991). Mr. Bleigh had no

constitutional right to counsel for any appeal except for his

first direct appeal. Coleman v. Thompson, 501 U.S. 722, 752-53

(1991); see also Thompson v. Warden, Ross Corr. Inst.,

2:10-CV-00040, 2012 WL 1564356, *4 (S.D. Ohio May 3, 2012)

(“There is no constitutional right to counsel in a direct appeal

to the Ohio Supreme Court.”) (citations omitted); Wilson v.

Hurley, 382 F. App'x 471, 478 (6th Cir. 2010) (there is no

-8-

Case: 2:11-cv-00628-GCS-TPK Doc #: 23 Filed: 09/17/12 Page: 8 of 11 PAGEID #: <pageID>
constitutional right to counsel in pursuing a Rule 26(B)

application). Whether counsel informed Mr. Bleigh that he was

responsible for filing any subsequent appeals is a question that

relates to proceedings for which he had no Sixth Amendment right

to an attorney. See, e.g., Wilson v. Hurley, 382 F. App'x. 471,

478-79 (6th Cir. 2010) (distinguishing Smith and holding that

unlike informing petitioner of the outcome of the first appeal,

informing petitioner of the time requirements for filing an

application for reopening the appeal “does not relate to the

continuation of the direct appeal [but rather] to an independent,

collateral proceeding.“) (citation omitted). Accordingly, any

such failure cannot constitute “cause” sufficient to excuse a

procedural default. 

Mr. Bleigh also contends that his procedural default should

be excused because he is actually innocent. “The United States

Supreme Court has held that a claim of actual innocence can be

raised ‘to avoid a procedural bar to the consideration of the

merits of [the petitioner's] constitutional claims.’” Souter v.

Jones, 395 F.3d 577, 588 (6th Cir. 2005) (quoting Schlup v. Delo,

513 U.S. 298, 326-27 (1995)). In order to raise such a claim of

actual innocence, the petitioner must present “‘new facts

rais[ing] sufficient doubt about [the petitioner’s] guilt to

undermine confidence in the result of the trial.’” Id. at 590

(quoting Schlup, 513 U.S. at 317). Mr. Bleigh has presented no

such new facts and cannot demonstrate actual innocence for

-9-

Case: 2:11-cv-00628-GCS-TPK Doc #: 23 Filed: 09/17/12 Page: 9 of 11 PAGEID #: <pageID>
purposes of excusing his procedural default. Instead, Mr. Bleigh

has requested the appointment of an expert analyst in order to

obtain new facts and the appointment of counsel to assist in the

collection and presentation of the expert’s findings. 

Mr. Bleigh requests appointment of an expert to analyze the

photographs at issue in the case to determine whether the male

genitals in those pictures belong to Mr. Bleigh. Mr. Bleigh also

seeks appointment of counsel. The Court reviews those requests

de novo. “Habeas petitioners have no right to automatic

discovery.” Stanford v. Parker, 266 F.3d 442, 460 (6th Cir.

2001). Rule 6(a) of the Rules Governing § 2254 Cases provides:

“A judge may, for good cause, authorize a party to conduct

discovery under the Federal Rules of Civil Procedure and may

limit the extent of discovery. If necessary for effective

discovery, the judge must appoint an attorney for a petitioner

who qualifies to have counsel appointed under 18 U.S.C. § 3006A.” 

“The burden of demonstrating the materiality of information

requested is on the moving party.” Stanford, 266 F.3d at 460. A

district court may permit discovery if the “petitioner presents

specific allegations showing reason to believe that the facts, if

fully developed, may lead the district court to believe that

federal habeas relief is appropriate.” Johnson v. Mitchell, 585

F.3d 923, 934 (6th Cir. 2009) (citations and internal quotations

omitted). 

In this case, Mr. Bleigh argues that “[t]he jury, in essense

-10-

Case: 2:11-cv-00628-GCS-TPK Doc #: 23 Filed: 09/17/12 Page: 10 of 11 PAGEID #: <pageID>
[sic], convicted this Petitioner on only the word of the alleged

victim that the genitals in the photographs were his. The only

support of this assertion is from the Detective in the case who

literally testified as an expert witness in genitalia

identification, that the genitals in the photographs were in fact

those of the Petitioner.” (Pet.’s Objs. at 8.) In discussing

the Detective’s inspection of genitals, Mr. Bleigh says “any such

onspection [sic] is just junnk [sic] science with no basis in

fact as no such science exists.” (Id.) Upon considering Mr.

Bleigh’s arguments and in light of the totality of the evidence

presented at trial (see State v. Bleigh, Fifth Dist. No.

09-CAA-03-0031, 2010 Ohio 1182, 2010 WL 1076253, at ¶¶ 2-38 (Ohio

Ct. App. May 22, 2010)), this Court does not find good cause to

authorize the appointment of an expert of the type described by

Mr. Bleigh. This Court also does not find good cause to appoint

counsel to assist Mr. Bleigh with this habeas case. 

IV. DISPOSITION

Upon de novo review in accordance with the provisions of 28

U.S.C. §636(b)(1)(B), the Court OVERRULES Petitioner’s objections

(Doc. 19) and ADOPTS the Report and Recommendation (Doc. 15). 

Petitioner’s Petition for Writ of Habeas Corpus is DISMISSED. 

IT IS SO ORDERED.

/s/ George C. Smith 

George C. Smith

United States District Judge

-11-

Case: 2:11-cv-00628-GCS-TPK Doc #: 23 Filed: 09/17/12 Page: 11 of 11 PAGEID #: <pageID>