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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISON 

CHAD MEISENHELDER, 

 CASE NO. 2:13-CV-00005 

 Petitioner, JUDGE GRAHAM 

 MAGISTRATEJUDGE KEMP 

 v. 

WARDEN, LONDON CORRECTIONAL 

 INSTITUTION, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant 

to 28 U.S.C. §2254. This matter is before the Court pursuant to the Court’s own motion to 

consider the sufficiency of the petition under Rule 4 of the Rules Governing Section 2254 Cases 

in the United States District Courts. For the reasons that follow, the Magistrate Judge 

RECOMMENDS that this action be DISMISSED as barred by the one-year statute of 

limitations under 28 U.S.C. §2244(d). 

FACTS and PROCEDURAL HISTORY 

The Ohio Fifth District Court of Appeals summarized the facts and procedural history of 

this case as follows: 

On the evening of February 3, 2001, Robert Wilcox, Cheryl 

Paxson and brothers Stephen Francis, Jr. and Derek Francis went 

out to celebrate Derek Francis's twenty-first birthday. Also out on 

the same evening were appellant, Chad Meisenhelder, his brotherin-laws, Glendl Newlon and Stephen Riffle, and his co-defendant, 

Brian Eakin. In the early morning hours of February 4, 2001, the 

two groups encountered each other. A fight ensued between 

appellant, Mr. Eakin, Mr. Wilcox and the Francis brothers. As a 

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result, Mr. Wilcox died and the Francis brothers sustained injuries. 

Consequently, on February 15, 2001, the Licking County Grand 

Jury indicted appellant on one count of murder in violation of R.C. 

2903.02(B) and two counts of attempted felonious assault in 

violation of R.C. 2903.11(A)(1) and R.C. 2923.02(A). On the 

morning of trial, appellant requested a continuance in order to 

investigate a lead. The trial court denied the motion. A jury trial 

commenced on May 29, 2001. The jury found appellant guilty as 

charged. By judgment entry filed June 14, 2001, the trial court 

sentenced appellant to fifteen years on the murder count and four 

years on each of the attempted felonious assault counts, to be 

served consecutively. 

State v. Meisenhelder, No. 01CA00068, 2002 WL 472311, at *1 (Ohio App. 5th Dist. March 18, 

2002). Petitioner filed a timely appeal. On March 18, 2002, the appellate court denied his 

appeal. Id. Petitioner did not timely appeal to the Ohio Supreme Court. On April 23, 2003, the 

Ohio Supreme Court denied his motion for a delayed appeal. State v. Meisenhelder, 98 Ohio 

St.3d 1536 (2003). 

 On July 14, 2011, Petitioner filed an untimely petition for post conviction relief. See 

State v. Meisenhelder, No. 11CA0092, 2012 WL 2393772 (Ohio App. 5th Dist. June 22, 2011). 

In a judgment entry filed August 18, 2011, the trial court denied the petition. On June 22, 2012, 

the appellate court affirmed the trial court’s dismissal of Petitioner’s untimely post conviction 

petition. Id. On November 7, 2012, the Ohio Supreme Court dismissed Petitioner’s subsequent 

appeal. State v. Meisenhelder, 133 Ohio St.3d 1464 (2012). 

 On January 4, 2013, Petitioner filed the instant pro se petition for a writ of habeas corpus 

pursuant to 28 U.S.C. §2254. He raises the following sole ground for habeas corpus relief: 

Petitioner was deprived of the effective assistance of counsel 

guaranteed by the Sixth and Fourteenth Amendments by counsel’s 

failure to research, prepare and investigate for trial. 

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The primary evidence against Petitioner at trial was the 

testimony of eyewitness Glendell Newlon whose 

identification of Petitioner as the person who had struck the 

blow that knocked the victim down and resulted in the 

death, was the evidence relied upon by the jury. This 

witness contacted Petitioner in April, 2011 unsolicited, to 

state that he has vision issues and had prescription 

eyeglasses at the time of the incident, which he was not 

wearing, and which made him uncertain as to his 

identification. The witness notes that neither the state nor 

the defense asked him of any degree of certainty or whether 

he needed glasses or any vision-related issues. Counsel 

never investigated the witness or asked him any questions 

about his vision; this the only eyewitness. 

STATUTE OF LIMITATIONS 

 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which became 

effective on April 24, 1996, imposes a one-year statute of limitations on the filing of habeas 

corpus petitions. 28 U.S.C. §2244(d) provides: 

(d) (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. 

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(2) The time during which a properly filed application for State 

postconviction 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. 

 Here, Petitioner’s judgment of conviction became final on May 2, 2002, forty-five days after 

the State appellate court’s March 18, 2002, dismissal of his direct appeal, when the time period 

expired to file a timely appeal to the Ohio Supreme Court. Ohio Supreme Court Rule of Practice 

2.2(A)(1)(a); Marcum v. Lazaroff, 301 F.3d 480, 481 (6th Cir.2002); Searcy v. Carter, 246 F.3d 

515, 518–19 (6th Cir.2001). The statute of limitations expired one year later on May 2, 2003. 

Petitioner waited approximately ten years later, until January 2, 2013, to execute the instant 

habeas corpus petition. Petitioner's July 14, 2011, untimely petition for post conviction relief did 

not toll the running of the statute of limitations, because Petitioner filed his post conviction 

petition long after the statute of limitations had already expired. See Vroman v. Brigano, 346 

F.3d 598, 602 (6th Cir.2003) (The tolling provision of §2244(d) (2) “does not ... ‘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”). Additionally, the state appellate court denied Petitioner's post conviction petition 

as untimely. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (untimely post conviction 

petition is not properly filed so as to toll the running of the statute of limitations under 28 U.S.C. 

§ 2244(d)(2)). 

 Petitioner nonetheless contends that equitable tolling of the statute of limitations is 

appropriate, because he is actually innocent and did not learn or obtain evidence of his actual 

innocence until April 2011, shortly after which time he pursued post conviction relief in the state 

trial court. Alternatively, the Court presumes Petitioner contends that this action may be timely 

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under 28 U.S.C. §2244(d)(1)(D), on the basis that Petitioner contends he did not learn of the 

factual predicate for his claim until April 2011. Neither of these arguments are persuasive. 

 The state appellate court rejected Petitioner’s contention that his untimely post conviction 

should be addressed on the merits because it was based on “newly discovered” evidence in 

relevant part as follows: 

At the trial in this matter, Glendell Newlon, appellant's brother-inlaw, testified that he observed appellant land a “forceful” hit to 

Wilcox's face, causing Wilcox to fall with his head “wobbling” and 

to strike his head on the pavement. Trial Transcript at 244–245. 

Appellant, in his Petition for Post Conviction Releif, argued that 

there was newly discovered evidence that Newlon was not wearing 

his prescription glasses at the time of the fight. Attached to 

appellant's petition was Newlon's affidavit. Newlon, in his April 

15, 2011, affidavit, stated, in relevant part, as follows: 

“I had previously given testimony in the criminal case of State of 

Ohio v. Chad Meisenhelder, Case Number 01 CR–0058, but I was 

not asked for all of the facts that I knew and I was not given 

permission to speak freely, and had I been given permission to do 

so, I would have testified to the following: 

“At trial when I was testifying and during my testimony, Chad's 

defense lawyer and neither the Prosecutor for the State asked me if 

I was 100% sure whether it was Chad Meisenhelder or not 

assaulted Bobby Wilcox the night of February 04th 2001. I wear 

eye glasses for helping me see, and I that didn't have them on the 

night of February 04th, 2001. I wear eye glasses for helping me 

see, and I didn't have them on the night of the assaults against 

Bobby Wilcox. Had I been asked how sure I was that it was Chad 

that assaulted Bobby Wilcox, I would have said ‘Not 100% sure 

that it was Chad was assaulted Bobby Wilcox.’ 

“I was never questioned by either party at trial as to my eyesight 

and whether or not I had my eye glasses on or not. Had I been 

asked whether or not I wear eyeglasses, I would have said ‘yes.’ 

Had I been asked whether or not I was wearing my eyeglasses the 

night of 02–04–2001 at the time of the assault on Bobby Wilcox, I 

would have said ‘No.’ ” 

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According to appellant, “[t]his was enough to warrant a hearing on 

this issue, to determine whether counsel was ineffective for not 

developing and building this testimony about the lack of eye 

glasses, and that Newlon was not 100% sure that it was [appellant] 

that hit Wilcox in the face.” 

Appellant, in support of his contention that such evidence was 

newly discovered, attached the affidavit of Rachel Newlon. 

Newlon, in her affidavit, stated that appellant had asked her to 

interview Glendell Newlon, that Newlon told her that he did not 

want to talk about the case, and that it was not until March of 2011 

that Newlon finally agreed to answer some questions. We question 

whether such evidence was truly “newly discovered since” 

Glendell was appellant's brother-in-law and was with appellant just 

prior to the attack. Appellant clearly would have known if Newlon 

wore glasses and if he was wearing them on the night in question. 

However, assuming, arguendo, that this was newly discovered 

evidence, we find that appellant has failed to demonstrate that, but 

for the constitutional error at trial, no reasonable fact finder would 

have found him guilty. We note that Glendell Newlon testified at 

trial that “[t]he way the lighting was, I really couldn't tell colors 

because of the shadow ... It was like silhouette, but I could see the 

three standing there.” By so testifying, Newlon put his 

identification at issue of appellant as the one who hit Wilcox at 

issue before the jury. Moreover, as noted by appellee, appellant's 

liability was as a principal offender or as an accomplice with his 

co-defendant, Brian Eakin. The testimony established that Wilcox 

and the Francis brothers were out celebrating Derek Francis's 

twenty-first birthday. Trial Transcript at 141, 213. The three were 

walking down the street when appellant and Eakin came upon 

them. Trial Transcript at 149, 151, 240–242, 315. There is no 

dispute that Eakin bet appellant one dollar to beat up the three. 

Trial Transcript at 240–241, 315–317. Appellant admitted this to 

the police. Trial Transcript at 376. Appellant claimed he only 

watched as Eakin punched Wilcox and repeatedly kicked him in 

the head. Trial Transcript at 377. At the scene, Cheryl Paxson told 

the police that appellant did attack Wilcox. Trial Transcript at 110–

111. Paxson testified that she heard Mr. Eakin and appellant say 

something to the effect “let's do this.” Trial Transcript at 159. 

Moreover, at trial, Stephen Riffle, appellant's brother-in-law, 

testified that Eakin bet appellant a dollar if appellant would jump 

the three boys. Riffle testified that appellant asked Eakin “where's 

the dollar”, that Eakin then pulled the dollar out and that appellant 

then took the dollar, took off running and jumped on the three 

guys. Trial Transcript at 317. 

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Based on the foregoing, we concur with appellee that the jury 

could have convicted appellant “based upon his participation in the 

‘bet’ that led to the fatal assault, even if the fatal blow was inflicted 

by his co-defendant, Brian Eakin.” 

We find, therefore, that the trial court did not err in denying 

appellant's untimely petition without a hearing. 

Appellant's sole assignment of error is, therefore, overruled. 

State v. Meisenhelder, 2012 WL 2393772, at *2-3. 

“[T]he time commences under §2244(d)(1)(D) when the factual predicate for a habeas 

petitioner's claim could have been discovered through the exercise of due diligence, not when it 

was actually discovered by a given petitioner.” Webb v. Wolfenbarger, No. 2:08-12692, 2009 

WL 369482, at *3 (E.D. Mich. Feb. 11, 2009)(citing Redmond v. Jackson, 295 F. Supp 2d 767, 

771 (E.D.Mich.2003). Additionally, the time period under §2244(d)(1) (D) begins to run when a 

habeas petitioner knows, or through due diligence, could have discovered, the important facts for 

his claims, not when the petitioner recognizes the facts' legal significance. Id. Here, for the 

reasons discussed by the state appellate court, this Court is not persuaded that Petitioner was 

unable to discover, through exercise of due diligence, the factual predicate for his claim. 

“[P]etitioner bears the ... burden of persuading the court that he or she is entitled to 

equitable tolling.” Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). Equitable tolling should 

be used sparingly. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002); Graham–Humphreys v. 

Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000) (citations omitted). 

“Typically, equitable tolling applies only when a litigant's failure to meet a legally-mandated 

deadline unavoidably arose from circumstances beyond that litigant's control.” Id. at 560–61. 

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The Supreme Court has allowed equitable tolling where a claimant actively pursued judicial 

remedies by filing a timely, but defective pleading, or where he was induced or tricked by his 

opponent's misconduct into allowing the filing deadline to pass. Irwin v. Dep't of Veterans 

Affairs, 498 U.S. 89, 96 (1990). Where the claimant failed to exercise due diligence in preserving 

his legal rights, courts are much less forgiving. Id.; Jurado v. Burt, 337 F.3d 638, 642–43 (6th 

Cir. 2003). 

Petitioner filed this habeas corpus petition approximately ten years after the statute of 

limitations had expired. Further, as previously discussed, this Court is not persuaded that 

Petitioner exercised due diligence in learning the factual predicate for his claim. 

WHEREUPON, the Magistrate Judge RECOMMENDS that this action be dismissed as 

barred by the one-year statute of limitations under 28 U.S.C. §2244(d). 

PROCEDURE ON OBJECTIONS 

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A judge of this Court shall make a de novo 

determination of those portions of the report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 

636(b)(1). 

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The parties specifically are advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

         /s/ Terence P. Kemp 

United States Magistrate Judge 

 

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