IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DONALD BILLINGSLEY, 

 CASE NO. 2:17-CV-00951 

 Petitioner, JUDGE JAMES L. GRAHAM 

 Magistrate Judge Chelsey M. Vascura 

 v. 

JOHN HAVILAND, WARDEN, 

 Respondent. 

ORDER and 

REPORT AND RECOMMENDATION 

 Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254. 

Preliminarily, Petitioner has submitted his Affidavit of indigence and requests to proceed 

in forma pauperis. Upon consideration, the Court finds that Petitioner’s motion is meritorious, 

and it is therefore GRANTED. 

IT IS ORDERED THAT the Petitioner be allowed to prosecute this action without 

prepayment of fees or costs and that judicial officers who render services in this action shall do 

so as if the costs had been prepaid. 

This matter is also before the Court on its own motion to consider the sufficiency of the 

petition pursuant to 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 provided for under 28 

U.S.C. § 2244(d). 
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Facts and Procedural History 

 Petitioner challenges his December 22, 1992 convictions pursuant to his guilty plea in the 

Franklin County Court of Common Pleas on one count of attempted rape and one count of 

burglary. The trial court imposed an aggregate term of eight-to-fifteen years, with such sentence 

to be concurrently with his sentence in another criminal case. Petitioner did not file an appeal or 

pursue other state collateral relief. 

 On October 19, 2017, Petitioner executed this pro se § 2254 Petition. He asserts that he 

is being unconstitutionally required to register as a sex offender, as the trial court never advised 

him that he would be required to register as a sex offender and did not include this requirement 

in his Entry of sentence. Petitioner also claims that he was not competent to enter the guilty plea. 

He maintains that he has been subjected to successive illegal sentences and is the victim of a 

manifest miscarriage of justice. Petitioner further asserts that his sentence violates the Double 

Jeopardy Clause and the Ex Post Facto Clause. He seeks an evidentiary hearing and the 

appointment of counsel. 

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). The statute 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; 
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(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 

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. 

Where, as here, a prisoner’s conviction became final prior to the effective date of the 

AEDPA, he has one year from the effective date of the Act, or until April 24, 1997, within which 

to file the habeas corpus petition. See Banks v. Ohio, 238 F.Supp.2d 955, 956 (S.D. Ohio Oct. 

31, 2002); Goodballet v. Mack, 266 F.Supp.2d 702, 705 (N.D. Ohio March 14, 2003) (citing 

Searcy v. Carter, 246 F.3d 515, 517 (6th Cir. 2001)); Isham v. Randle, 226 F.3d 691, 693 (6th 

Cir. 2000). Petitioner waited more than twenty years and six months later to file this habeas 

corpus petition. Further, the record fails to reflect that equitable tolling of the statute of 

limitations is appropriate. See Holland v. Florida, 560 U.S. 631, 650 (2010) (A petitioner is 

entitled to equitable tolling only if he shows “1) that he has been pursuing his rights diligently, 

and 2) that some extraordinary circumstances stood in his way” and prevented timely filing 

(citing Pace, 544 U.S. at 418)). 

Recommended Disposition 

It is therefore RECOMMENDED that this action be DISMISSED as barred by the oneyear statute of limitations. 
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Procedure on Objections 

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

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). 

The parties are specifically 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). 

The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 

 /s/ Chelsey M. Vascura___ 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE