IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DAVID HILL, 

 

 Petitioner, 

 CASE NO. 2:17-CV-00864 

 v. JUDGE GEORGE C. SMITH 

 Magistrate Judge Vascura 

CHARLOTTE JENKINS, WARDEN, 

 Respondent. 

OPINION AND ORDER 

 On October 10, 2017, the Magistrate Judge issued a Report and Recommendation

pursuant to Rule 4 of the Rules Governing Section 2254 Cases recommending that this action be 

DISMISSED as barred by the one-year statute of limitations provided for under 28 U.S.C. § 

2244(d). (Doc. 2.) Petitioner has filed an Objection to the Magistrate Judge’s Report and

Recommendation. (Doc. 3.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo

review. For the reasons that follow, Petitioner’s Objection (Doc. 3) is OVERRULED. The 

Report and Recommendation (Doc. 2) is ADOPTED and AFFIRMED. This action is hereby 

DISMISSED. 

 The Court DECLINES to issue a certificate of appealability. 

 Petitioner objects to the Magistrate Judge’s recommendation of dismissal of this action as 

time-barred. He complains that the Respondent has yet to respond to the merits of his claims. 

Petitioner argues that his attorney’s failure to file a timely appeal or failure to file a motion for a 

delayed appeal denied him the effective assistance of counsel and excuses his untimely filing. 

Petitioner additionally submits that this action is timely under the provision of 28 U.S.C. § 

2244(d)(1)(D), which provides that that statute of limitations does not begin to run until “the date 
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on which the factual predicate of the claim or claims presented could have been discovered 

through the exercise of due diligence.” According to Petitioner, the statute of limitations did not 

begin to run under the provision of § 2244(d)(1)(D), because his attorney provided him with 

incorrect information regarding the impact of State v. Foster, 109 Ohio St.3d 1 (Ohio 2006) 

(severing as unconstitutional fact-finding portions of Ohio’s sentencing statutes) on his sentence, 

and the statute of limitations therefore did not begin to run until December 2014, after he 

conducted legal research and discovered the factual predicate for his claim that the trial court had 

erred in imposing consecutive terms of incarceration. Petitioner contends that he would have 

timely appealed but for trial counsel’s inaccurate advice regarding the impact of Foster. 

Petitioner maintains that these circumstances warrant equitable tolling of the statute of 

limitations, because bad advice from counsel purportedly prevented him from filing a timely 

appeal. These arguments are not persuasive. 

Petitioner challenges his November 29, 2012, convictions in the Licking County Court of 

Common Pleas on two counts of rape and two counts of unlawful sexual conduct. He pleaded 

guilty pursuant to the terms of his negotiated a plea agreement whereby the State amended “the 

indictment from two counts of rape of a child under 13 which would carry a life sentence to two 

counts of rape by force which carried a maximum sentence of 11 years for each count.” State v. 

Hill, No. 15-CA-13, 2016 WL 1176036, at *1 (Ohio App. 5th Dist. March 17, 2016). The trial 

court imposed a sentence of twelve years imprisonment pursuant to the agreement of the parties. 

Id. “The 12 year sentence was reached by imposing a four year sentence on each rape count to 

run concurrent with each other. In addition, four years on each unlawful sexual conduct count 

consecutive to each other and consecutive to the rape count for a total sentence of 12 years.” Id. 

Petitioner did not file an appeal or otherwise challenge his sentence until approximately two 
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years later, when he filed a “Motion to Re-Sentence” arguing that the trial court lacked a basis 

for imposition of consecutive terms of incarceration. See id. 

 As discussed by the Magistrate Judge, applying the provision of § 2244(d)(1)(A), 

Petitioner’s conviction became final on December 30, 2012, when the time period expired to file 

a timely appeal. It expired one year later, in December 2013, long before Petitioner executed 

this habeas corpus petition, in September 2017. Moreover, the record does not reflect that 

application of the provision of § 2244(d)(1)(D) assists him. Petitioner “bears the burden of 

proving that he exercised due diligence, in order for the statute of limitations to begin running 

from the date he discovered the factual predicate of his claim” under § 2244(d)(1)(D). DiCenzi 

v. Rose, 452 F.3d 465, 471 (6th Cir. 2006). Petitioner has failed to meet this burden here. 

Despite his arguments to the contrary, the factual predicate for Petitioner’s claim was readily 

apparent in 2012, when the trial court imposed sentence, not two years later, after Petitioner had 

finished conducting his legal research. See Houston v. Coleman, No. 3:16-cv-3043, 2017 WL 

4174799, at * (N.D. Ohio Aug. 8, 2017) (“ ‘[N]ewly discovered law’ cannot restart the 

limitations period for a § 2254 petition; only new facts may do so.”) (citing Phillips v. United 

States, 734 F.3d 573, 580 (6th Cir. 2013)). 

§ 2244(d)(1)(D) is triggered by the inability to discover the factual 

predicate of a claim, rather than the inability to understand the 

legal issues that may be raised based on known facts. Cf. Tatum v.

Warden, Allen Corr. Inst., No. 1:07–cv–355, 2008 WL 1766790, at 

*1, *7 n. 5 (S.D.Ohio Apr.11, 2008) (Beckwith, J.; Black, M.J.) 

(and cases cited therein) (the § 2244(d)(1)(D) “inquiry turns on the 

discovery of the facts giving rise to the petitioner's claim, not the 

discovery of the legal basis or all evidence supporting the claim”) 

(internal citation and quotation omitted); see also Dixon v. Jeffreys,

No. 2:11–cv–86, 2011 WL 6009695, at *3 (S.D.Ohio Oct.5, 2011) 

(Deavers, M.J.) (Report & Recommendation) (quoting Reese v.

Timmerman—Cooper, No. 3:10–cv–218, 2010 WL 2998880, at *1 

(S.D.Ohio June 28, 2010) (Merz, M.J.) (Report &

Recommendation) (“Nothing in § 2244 suggests that the statute 
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begins to run when a petitioner finally understands the legal 

significance of facts relevant to his claim.”)), adopted, No. 2:11–

cv–86, 2011 WL 6019102 (S.D.Ohio Dec.1, 2011) (Graham, J.). 

Harris v. Warden, No. 1:12-cv-261, 2013 WL 492993, at *7 (S.D. Ohio Feb. 7, 2013). 

 Similarly, the record does not reflect that equitable tolling of the statute of limitations is 

warranted. The one-year statute of limitations is subject to equitable tolling where the litigant’s 

failure to meet the legally-mandated deadline unavoidably arose from circumstances beyond his 

control. See Hall v. Warden, Lebanon Correctional Inst., 662 F.3d 745, 749 (6th Cir. 2011) 

(citing Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)). Equitable tolling is granted 

sparingly. Robertson, 624 F.3d at 783. In order to demonstrate that he is entitled to equitable 

tolling of the statute of limitations, the Petitioner must establish that he has diligently pursued 

relief and that “some extraordinary circumstance stood in his way and prevented timely filing.” 

Holland v. Florida, 560 U.S. 631, 649 (2010) (citation omitted). The petitioner bears the burden 

of demonstrating that he is entitled to equitable tolling. Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 

2011). 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, 

642–13 (6th Cir. 2003). A prisoner's pro se incarcerated status, lack of knowledge regarding the 

law, and limited access to the prison's law library or to legal materials do not provide a sufficient 

justification to apply equitable tolling of the statute of limitations. Hall, 662 F.3d at 751 (citation 

omitted); see also Keeling v. Warden, Lebanon Correctional Inst., 673 F.3d 452, 464 (6th Cir. 

2012) (citations omitted). These are conditions typical for many prisoners and do not rise to the 
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level of exceptional circumstances. Groomes v. Parker, No. 3:07–cv–0124, 2008 WL 123935, at 

*5 (M.D.Tenn. Jan.9, 2008) (citing Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004)). 

Similarly, bad advice from a fellow inmate or other non-lawyers does not constitute grounds for 

equitable tolling of the statute of limitations. Allison v. Smith, No. 2:14–cv–10423, 2014 WL 

2217238, at *5 (E.D.Mich. May 29, 2014) (citing Smith v. Beightler, 49 F. App'x 579, 580–81 

(6th Cir. 2002); United States v. Cicero, 14 F.3d 199, 204–05 (D.C.Cir. 2000); Henderson v. 

Johnson, 1 F.Supp.2d 650, 655 (N.D.Tex.1998)). “Generally, a habeas petitioner's reliance on 

unreasonable or incorrect legal advice from his attorney is not a valid ground for equitable 

tolling of the statute of limitation.” Brown v. Bauman, No. 2:10–cv– 264, 2012 WL 1229397, at 

*9 (W.D.Mich. April 12, 2012) (citations omitted). “The fact that Petitioner may be ignorant of 

the law and instead chose to rely on counsel, in itself, does not provide a basis for equitable 

tolling. Neither a prisoner's pro se status nor his lack of knowledge of the law constitute[s] 

extraordinary circumstances justifying equitable tolling.” Taylor v. Palmer, No. 2:14–cv–14107, 

2014 WL 6669474, at *4 (E.D.Mich. Nov.11, 2014) (citing Rodriguez v. Elo, 195 F.Supp.2d 

934, 936 (E.D.Mich. 2002); Johnson v. United States, 544 U.S. 295, 311 (2005) (“[W]e have 

never accepted pro se representation alone or procedural ignorance as an excuse for prolonged 

inattention when a statute's clear policy calls for promptness”)). In Holland, 560 U.S. 631, the 

Supreme Court held that egregious misconduct by an attorney may constitute an extraordinary 

circumstance warranting equitable tolling of the statute of limitations, but noted that a “garden 

variety claim of excusable neglect,” such as a miscalculation that leads a lawyer to miss a filing 

deadline, would not justify the equitable tolling of the statute of limitations. Id. at 651-52 

(citations omitted). 
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 Petitioner has failed to establish either that he acted diligently in pursuing relief, or that 

some extraordinary circumstances prevented his timely filing. Petitioner does not allege any 

egregious misconduct on the part of defense counsel. Further, the Court does not require a 

response from the Respondent regarding the merits of Petitioner’s claims where the record 

reflects that the case is plainly barred from review as untimely. “A district court may dismiss a 

habeas petition sua sponte on limitations grounds when conducting an initial review under Rule 

4 of the Rules Governing § 2254 Cases.” Wogenstahl v. Charlotte, No. 1:17-cv-298, 2017 WL 

3053645, at *2 (S.D. Ohio July 19, 2017) (citing Day v. McDonough, 547 U.S. 198 (2006)). 

 Therefore, for the foregoing reasons and for the reasons discussed in the Magistrate 

Judge’s Report and Recommendation, Petitioner’s Objection (Doc. 3) is OVERRULED. The 

Report and Recommendation (Doc. 2) is ADOPTED and AFFIRMED. This action is hereby 

DISMISSED. 

 Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States 

District Courts, the Court now considers whether to issue a certificate of appealability. “In 

contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal 

court holds no automatic right to appeal from an adverse decision by a district court.” Jordan v.

Fisher, –––U.S. ––––. ––––, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1) (requiring a 

habeas petitioner to obtain a certificate of appealability in order to appeal.) 

When a claim has been denied on the merits, a certificate of appealability may issue only 

if the petitioner “has made a substantial showing of the denial of a constitutional right.” 28 

U.S.C. § 2253(c)(2). To make a substantial showing of the denial of a constitutional right, a 

petitioner must show “that reasonable jurists could debate whether (or, for that matter, agree that) 

the petition should have been resolved in a different manner or that the issues presented were 
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‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484 

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)). 

When a claim has been denied on procedural grounds, a certificate of appealability may 

issue if the petitioner establishes that jurists of reason would find it debatable whether the 

petition states a valid claim of the denial of a constitutional right, and that jurists of reason would 

find it debatable whether the district court was correct in its procedural ruling. Id. 

Upon review of the record, this Court is not persuaded that reasonable jurists would 

debate whether this Court was correct in its dismissal of the case as time-barred. Therefore, the 

Court DECLINES to issue a certificate of appealability. 

The Clerk is DIRECTED to enter FINAL JUDGMENT. 

 

 IT IS SO ORDERED.

 

 s/ George C. Smith__________________ 

 GEORGE C. SMITH, JUDGE 

 UNITED STATES DISTRICT COURT