IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BRYAN BATES, 

CASE NO. 2:17-CV-00973

Petitioner, CHIEF JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Kimberly A. Jolson

v. 

CHARLOTTE JENKINS, WARDEN, 

CHILLICOTHE CORRECTIONAL INSTITUTION, 

Respondent.

REPORT AND RECOMMENDATION

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

U.S.C. § 2254. This matter is 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 TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as 

successive. 

I. BACKGROUND

Petitioner challenges his April 2008 convictions after a jury trial in the Guernsey County 

Court of Common Pleas. The Ohio Fifth District Court of Appeals summarized the facts and 

procedural history of this case as follows: 

On June 29, 2007, appellant was indicted on twelve counts of 

pandering sexually oriented material involving a minor in violation 

of R.C. 2907.322(A)(1) and thirty counts of illegal use of a minor 

in nudity oriented material or performance in violation of R.C. 

2907.323(A)(3). The charges arose after an international 

investigation involving the United States and Canada into child 

pornography on the Internet.
2

A jury found appellant guilty as charged and, by judgment entry of 

sentence filed April 18, 2008, the trial court sentenced appellant to 

an aggregate term of thirteen years in prison and classified him as a 

Tier II sex offender pursuant to R.C. 2950, also known as the 

Adam Walsh Act (“AWA”).

Appellant filed a direct appeal of his convictions. In his direct 

appeal, appellant challenged the denial of his motion to suppress 

testimony of appellee’s expert in computer forensics and raised the 

issues of ineffective assistance of counsel, manifest weight, and 

sufficiency of the evidence. This Court affirmed appellant’s 

convictions in State v. Bates, 5th Dist. No. 08CA15, 2009–Ohio–

275 (Bates I).

Appellant next appealed the trial court’s decisions regarding a 

motion to correct sentence, motion to correct amended judgment 

entry, a second motion to correct sentence, a motion for 

reconsideration of an allied offense issue, and motion for hearing 

to correct the sentence. We addressed his arguments collectively in 

State v. Bates, 5th Dist. Nos. 11–CA–000016, 11–CA000026, and 

11–CA–000033, 2012–Ohio–1080 (Bates II). In Bates II, this 

Court affirmed all of the trial court’s judgments and noted that 

some of the errors appellant raised were res judicata because 

appellant could have raised the arguments in his direct appeal. 

However, we addressed appellant’s assignments of error regarding 

his sentence, finding that the judgment entries complied with 

Criminal Rule 32(C) and State v. Baker, 119 Ohio St.3d 197, 893 

N.E.2d 163 (2008).

While Bates II was pending, appellant filed a motion for 

reconsideration and to correct sentence, another motion to correct 

sentence, and a petition to vacate or set aside the judgment or 

conviction or sentence. 

In State v. Bates, 5th Dist. Nos.2012–CA–06, 2012–CA–10, 2012–

Ohio–4360 (Bates III), we affirmed the trial court’s rulings and 

found appellant’s petition for post-conviction relief was not filed 

within the statutory time limitation and contained no showing the 

exception to the time limitation applied.

In April of 2012, appellant filed a motion to vacate and correct his 

sentence based upon the Ohio Supreme Court’s decision in State v. 

Williams, 129 Ohio St.3d 344, 952 N.E.2d 1108 (2011), which 

held that defendants whose crimes were committed prior to the 

AWA’s enactment should have been classified according to the 

statutory scheme in place at the time they committed their crimes, 
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even if they were sentenced after the enactment of the AWA. The 

State of Ohio agreed with appellant that the AWA, as codified in 

R.C. 2950, was improperly applied to appellant when he was 

sentenced and that appellant should be classified pursuant to the 

version of R.C. 2950 in effect at the time appellant committed the 

offenses, also known as Megan’s Law. Appellant filed a second 

motion to vacate and correct his sentence on May 1, 2012.

The trial court initially set appellant’s motions for hearing on 

October 1, 2012. On August 23, 2012, the trial court granted 

appellant’s motion for standby counsel. On August 27, 2012, 

appellant filed a motion for court appointed forensic expert for the 

sex offender classification hearing, stating this expert would 

provide a meaningful review and comprehensive analysis of the 

alleged computer evidence in question. Appellant also filed a 

motion for court appointed psychologist to assist in determining 

the recidivism factors in his case. Further, appellant filed 

subpoenas for multiple individuals who testified during his original 

trial to appear for the sex offender classification hearing. 

Based on the pendency of the Bates III appeal, the trial court 

continued the hearing scheduled for October 1, 2012.

A number of motions filed by appellant and appellee culminated in 

a sexual-offender classification hearing on March 1, 2013, 

resulting in two judgment entries: 1) a judgment entry finding 

appellant to be a sexually-oriented offender, notifying him of his 

duty to register and detailing registration requirements upon 

release from prison, stating the length of appellant’s registration 

requirement and including penalties for failure to register; and 2) a 

judgment entry stating the trial court found appellant not to be a 

sexual predator for the purposes of sex offender registration. 

Appellant appealed those judgment entries in State v. Bates, 5th 

Dist. Guernsey No. 13–CA–9, 2013–Ohio–4768, appeal not 

allowed, 138 Ohio St.3d 1436, 2014–Ohio–889, 4 N.E.3d 1052 

[Bates IV]. We affirmed the judgments of the trial court, finding: 

use of the word “resentencing” in the initial entry setting hearing 

did not vacate appellant’s entire sentence; the trial court properly 

granted appellant’s request by reclassifying him according to the 

statutorily-mandated sentencing scheme (i.e. Megan’s Law) in 

place at the time his crimes were committed; the trial court did not 

err in failing to permit appellant to call witnesses at the 

classification hearing; the judgment entry of March 1, 2013

properly contained the notice requirements set forth in former R.C. 

2950.03(B)(1); and appellant’s remaining assignments of error 

were barred by res judicata. See, Bates IV, supra.
4

On May 12, 2016, appellant filed a motion to correct judgment 

entry of sentence which the trial court granted in part and denied in 

part by judgment entry dated June 29, 2016.

Appellant now appeals from the trial court’s judgment entry of 

June 29, 2016 and raises two assignments of error:

ASSIGNMENTS OF ERROR

“I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND 

ABUSED ITS DISCRETION WHEREAS, THE COURT 

AMENDED AND INCORPORATED TWO JUDGMENT

ENTRIES WITH A VOID JUDGMENT.”

“II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY 

AMENDING A JUDGMENT ENTRY OF SENTENCE.” 

State v. Bates, No. 16CA13, 2017 WL 831310, at *1–2 (Ohio Ct. App. Jan. 30, 2017). On 

January 30, 2017, the appellate court overruled Petitioner’s two assignments of error and 

affirmed the judgment of the trial court. Id. On July 5, 2017, the Ohio Supreme Court declined 

to accept jurisdiction of the appeal. State v. Bates, 149 Ohio St.3d 1465 (Ohio 2017). 

On November 3, 2017, Petitioner filed this pro se petition for a writ of habeas corpus 

pursuant to 28 U.S.C. § 2254. He asserts that he was denied due process and the right to appeal 

from the trial court’s June 26, 2016 re-sentencing entry (claim one); that his convictions violate 

the Fourth Amendment because the search warrant contained false information not supported by 

oath or affirmation (claim two); that the evidence is constitutionally insufficient to sustain his 

convictions (claim three); that the trial court’s failure to perform its required duty to determine if 

scientific evidence was based on a sound theory or scientific methodology severely prejudiced 

him (claim four); that he was convicted in violation of the Fifth and Fourteenth Amendments 

when the State presented scientific evidence without disclosing the methodology and test 

theories (claim five); that the trial court failed to properly instruct the jury on the required 
5

lewdness standard of O.R.C. § 2907.323(A)(3) (claim six); that he was denied the effective 

assistance of trial counsel (claim seven); that he was convicted in violation of the Double 

Jeopardy Clause, due to multiple convictions for the same conduct (claim eight); and that the 

trial court unconstitutionally considered a victim impact statement to support imposition of 

consecutive terms of incarceration (claim nine).

II. DISCUSSION

Notably, this is not Petitioner’s first federal habeas corpus petition. On August 17, 2011, 

this Court dismissed his first § 2254 petition without prejudice as unexhausted. Bates v. Knab, 

No. 2:10-cv-420. On August 21, 2014, Petitioner filed a second § 2254 petition. The Court 

dismissed that action as barred by 28 U.S.C. § 2244(d)’s one-year statute of limitations. Bates v. 

Warden, Chillicothe Corr. Inst., No. 2:14-cv-1325. Petitioner sought further review, but the

United States Court of Appeals for the Sixth Circuit denied his application for a certificate of 

appealability. On October 3, 2016, the United States Supreme Court denied the petition for a 

writ of certiorari. “[W]hen [a] prior petition is dismissed on the ground that it is barred by the 

statute of limitations, the dismissal is an adjudication of the merits, and petitioner must obtain 

prior authorization from the court of appeals entitling him to file a subsequent petition for habeas 

corpus relief.” Grant v. Warden, Belmont Corr. Inst., No. 1:14-cv-878, 2017 WL 3503728, at *5 

(S.D. Ohio July 24, 2017) (citing McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009); Murray 

v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005)); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003); 

Staffney v. Booker, No. 2:09cv14553, 2009 WL 4506425, at *1 (E.D. Mich. Nov. 25, 2009)

(footnote omitted).

Although this is not his first petition, Petitioner contends that the trial court’s June 29, 

2016, issuance of a corrected judgment entry of sentence constitutes a new sentence. Petitioner 
6

thus argues that he may properly challenge his conviction without first obtaining authorization 

for the filing of a successive petition pursuant from the Sixth Circuit Court of Appeals. Petition

(Doc. 1-1, PageID# 6.) The undersigned disagrees.

Before a second or successive petition for a writ of habeas corpus can be filed in a district 

court, a petitioner must ask the appropriate circuit court of appeals to authorize the district 

court’s consideration of the application. 28 U.S.C. § 2244(b)(3)(A). If a district court in the 

Sixth Circuit determines that a petition is a second or successive petition, see In re Smith, 690 

F.3d 809 (6th Cir. 2012), the district court must transfer the petition to the United States Court of 

Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th Cir. 

1997). The Sixth Circuit, in turn, will authorize the filing of a second petition only if the 

petitioner establishes either that the claim sought to be asserted relies on a new rule of 

constitutional law made retroactive by the United States Supreme Court to cases on collateral 

review; or if the factual predicate for the claim could not have been discovered previously 

through the exercise of diligence, and these facts, if proven, would establish by clear and 

convincing evidence that, but for the constitutional error, no reasonable fact finder would have 

found the applicant guilty. Id.

However, in certain “limited circumstances, a § 2254 petition is not considered ‘second 

or successive’ within the meaning of § 2244(b) even though the petitioner filed a previous 

habeas application.” Storey v. Vasbinder, 657 F.3d 372, 376 (6th Cir. 2011).

For example, a habeas petition is not considered “second or successive” under 

§ 2244(b) when the claim has been raised in a prior petition, but dismissed as 

unripe, although other claims in the initial petition were decided on the merits. 

Stewart v. Martinez-Villareal, 523 U.S. 637, 643–46, 118 S.Ct. 1618, 140 L.Ed.2d 

849 (1998). Even if the claim was not presented in an earlier petition, a 

subsequent petition raising the claim does not constitute a “successive” petition 

for purposes of § 2244(b) if the claim would have been dismissed as unripe in the 

initial petition. Panetti, 551 U.S. at 945, 127 S.Ct. 2842. Nor do the successive 
7

petition restrictions apply if the first petition was dismissed for lack of exhaustion. 

Slack, 529 U.S. at 478, 487, 120 S.Ct. 1595. The restrictions also do not apply if 

an intervening state court judgment (such as a resentencing) occurred after the 

first habeas petition was decided. Magwood, 561 U.S. at 335, 339, 130 S.Ct. 

2788; King v. Morgan, 807 F.3d 154, 157 (6th Cir. 2015). 

In re Campbell, No. 17-3855, -- F.3d --, 2017 WL 4800122, at *1 (6th Cir. Oct. 25, 2017). 

As discussed, the Supreme Court has held that a habeas corpus petition is not successive 

where it is filed after the trial court conducts a re-sentencing hearing that results in the issuance 

of a new judgment. Magwood, 561 U.S. at 331–39 (2010). In Magwood, the petitioner had 

originally filed a § 2254 petition challenging his 1981 death sentence. “[T]he District Court 

upheld Magwood’s conviction but vacated his sentence and conditionally granted the writ based 

on the trial court’s failure to find statutory mitigating circumstances relating to Magwood’s 

mental state.” Id. at 326 (footnote omitted). The state trial court thereafter held a new 

sentencing hearing, again imposing death sentence. Id. Magwood filed a second petition under 

28 U.S.C. § 2254, in which he alleged that he had not received fair notice that he could be 

sentenced to death and that he had been denied the effective assistance of counsel during the resentencing hearing. Id. at 328. Noting that the later sentencing hearing had resulted in a new 

judgment, the Supreme Court held that Magwood’s second habeas corpus petition did not 

constitute a successive petition. Id. at 331.

Similarly, in In re Stansell, 828 F.3d 412 (6th Cir. 2016), the Sixth Circuit held that, even 

where a sentence has been vacated only partially (because it did not include a term of postrelease control) and the state trial court re-sentenced the Petitioner for the limited purpose of 

imposing that term, that action resulted in a new or intervening judgment that permitted Stansell

to raise challenges to his original conviction and his original sentence to a term of incarceration, 

as well as to his new term of post-release control. Id. at 416. “Final judgment in a criminal case 
8

means sentence. The sentence is the judgment.” Id. (quoting Berman v. United States, 302 U.S. 

211, 212 (1937); Burton v. Stewart, 549 U.S. 147, 156 (2007)). The Court noted that 

[b]efore his resentencing, the judgment that kept Stansell “in 

custody” was a term of imprisonment ranging from twenty years to 

life. After his resentencing, the judgment that kept Stansell “in 

custody” was a term of imprisonment ranging from twenty years to 

life plus five years of post-release control. See Jones, 371 U.S. at 

238–43, 83 S.Ct. 373. Because a new custodial sentence means a 

new judgment for purposes of § 2254, Stansell’s partial 

resentencing restarted the second or successive count.

Id. at 416-17. “When a court alters a sentence to include post-release control, it substantially and

substantively changes the terms under which an individual is held ‘in custody.’ 28 U.S.C. 

§ 2254(a), (b)(1). That means it has created a new judgment for purposes of the second or 

successive assessment.” Id. at 417. Under such circumstances, a petitioner’s numerically second 

petition does not constitute a successive petition within the meaning of 28 U.S.C. § 2244(b).

However, the Sixth Circuit clarified that, for example, the issuance of a nunc pro tunc

entry to correct clerical errors that result in a discrepancy between the court’s oral 

pronouncements and its paper records does not constitute a new judgment for purposes of this 

determination. “To hold otherwise would turn those requirements into a game of ‘I Spy,’ where 

the petitioner best able to catch the court’s technical errors will earn himself a free pass (maybe 

many free passes) into federal court.” Id. at 420 (citing Marmolejos v. United States, 789 F.3d 

66, 70–72 (2d Cir. 2015); May v. Kansas, 562 F. App’x 644, 645–46 (10th Cir. 2014) (per 

curiam); United States v. Cano, 558 F. App’x 936, 941 n. 6 (11th Cir. 2014) (per curiam)).

The Sixth Circuit further limited its holding in In re Stansell and cautioned:

[W]e do not imply that any change to a petitioner’s sentence 

reopens the door to successive habeas filings; we hold only that a 

partial resentencing that results in the imposition of post-release 

control is the type of change that creates a new judgment for 

purposes of the second or successive bar. That is because this type 
9

of change alters the sentence “pursuant to” which the petitioner is 

“in custody.” 28 U.S.C. § 2254(a), (b)(1); see Magwood, 561 U.S. 

at 332, 130 S.Ct. 2788. We need not decide what happens if a state 

court alters the non-custodial aspects of the petitioner’s sentence 

(by vacating a restitution obligation or imposing a fine, for 

example); or if it vacates the sentence on one of the petitioner’s 

counts but continues to hold him in custody under the sentence 

imposed on another; or if, assuming that the same second or 

successive rules apply in the federal context, a court grants a 

motion to reduce an applicant’s sentence due to a guidelines 

amendment or substantial assistance. Compare Kramer v. United

States, 797 F.3d 493, 501–02 (7th Cir. 2015) (vacating conviction 

on one count of a multi-count indictment does not reset § 2255’s 

second or successive count with respect to the other convictions 

and sentences), and In re Lampton, 667 F.3d 585, 588–90 (5th Cir. 

2012) (same), with Wentzell v. Neven, 674 F.3d 1124, 1127–28 

(9th Cir. 2012) (reaching the opposite result in a § 2254 case), and 

Johnson v. United States, 623 F.3d 41, 44–46 (2d Cir. 2010) 

(same, in the § 2255 context); see also 18 U.S.C. § 3582(b), (c) 

(permitting courts to “modify a term of imprisonment” in certain 

circumstances, including guidelines amendments and substantial 

assistance motions, but noting that the original “judgment of 

conviction ... constitutes a final judgment for all other purposes”); 

Fed. R. Crim. P. 35(b); United States v. Jones, 796 F.3d 483, 485–

87 (5th Cir. 2015); White v. United States, 745 F.3d 834, 836–37 

(7th Cir. 2014); cf. Patterson v. Sec’y, Fla. Dep’t of Corr., 812 

F.3d 885, 887–92 (11th Cir. 2016) (§ 2254 habeas application was 

not second or successive where state court had vacated a portion of 

the petitioner’s sentence but left the term of imprisonment intact); 

Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1278–81 

(11th Cir. 2014) (per curiam) (§ 2254 habeas application was not 

second or successive where state court had reduced the mandatory 

minimum prison term for petitioner’s offense but had maintained 

the same overall term of imprisonment).

Id. at 419–20.

Here, the state appellate court made clear that the trial court issued the June 29, 2016 

judgment entry in order to correct a clerical error, and it did not constitute a new judgment of 

sentence: 

Appellant argues the trial court erred in issuing the judgment entry 

of June 29, 2016 which corrects a clerical error, therefore voiding 

his entire sentence. We disagree.
10

In its entry of June 29, 2016, the trial court affirmed appellant’s 

motion to correct sentence in part and overruled it in part. The 

relevant portion of the entry states:

* * * *.

The Court finds that the fourth paragraph of the first page of the 

Judgment Entry of Sentence [Pursuant to Civil Rule 60(A) ] filed 

August 26, 2011 should be, and hereby is, AMENDED as follows:

1) In accord with sex offender hearing held pursuant to “Megan’s 

Law,” the Court found Defendant to be a “Sexually–Oriented 

Offender” and notified him of his duties to report once each year 

for a period of 10 years.

2) The Court hereby incorporates herein by reference the 

“Judgment Entry Following Sexual Predator Hearing” and 

“Judgment Entry and Notice of Duties To Register As an Offender 

of Sexually–Oriented Offense”—both filed March 1, 2013.

* * * *.

(Emphasis and brackets in original). Judgment Entry, June 29, 

2016.

The trial court therefore effectually removed the language in the 

August 26, 2011 entry referencing “Tier II of Chapter 2950.” The 

judgment entry therefore brings appellant’s Judgment Entry of 

Sentence into accord with our opinion in Bates IV, as noted supra.

“[C]ourts possess inherent authority to correct clerical errors in 

judgment entries so that the record speaks the truth.” State ex rel.

Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006–Ohio–5795, 856 

N.E.2d 263, ¶ 19. The original judgment entry of sentence did not 

reflect the origin of the sex-offender classification as Megan’s Law 

instead of Tier II of Chapter 2950. The entry appealed here 

corrected the record at appellant’s request. See, State v. Clark, 5th 

Dist. Stark No. 2010CA0006, 2010–Ohio–4649, citing State v.

Harrison, 12th Dist. Butler Nos. CA2009–10–272 and CA2010–

01019, 2010–Ohio–2709; State v. Mackey, 5th Dist. Licking No. 

10–CA–74, 2011–Ohio–2651.

We agree with appellee’s citation to our decision in State v.

Haddix, in which we observed “* * * [appellant] has already 

received the benefit that he sought in his motion to resentence. We 
11

must be mindful of the “ * * * elementary proposition of law that 

an appellant, in order to secure reversal of a judgment against him, 

must not only show some error but must also show that that error 

was prejudicial to him.” State v. Haddix, 5th Dist. Stark No. 2012–

CA–00218, 2013–Ohio–1974, ¶ 22, citing Smith v. Flesher, 12 

Ohio St.2d 107, 233 N.E.2d 137(1967); State v. Stanton, 15 Ohio 

St.2d 215, 217, 239 N.E.2d 92, 94 (1968); Wachovia Mtg. Corp. v. 

Aleshire, 5th Dist. Licking No. 09 CA 4, 2009–Ohio–5097, ¶ 16. 

See, also, App.R. 12(D).

Appellant’s argument that his sentence is void is premised upon 

the same arguments he made in Bates IV. He now claims that 

because the trial court issued a corrective judgment entry at his 

request, which “amended” the sentence only to the extent that it 

demonstrates for the record that his sex offender classification 

arises from the version of R.C. 2950 in effect at the time he 

committed the offenses, i.e. “Megan’s Law.”

In the instant case, however, appellant has already appealed 

multiple times and we found the sentence was not void but was 

valid. Bates I through Bates IV, supra. Appellant’s latest round of 

arguments is thus barred not only by res judicata but also under the 

law of the case doctrine.

State v. Bates, 2017 WL 831310, at *3.

Thus, the trial court’s June 29, 2016, judgment entry did nothing more than correct a 

clerical error. Under these circumstances, the amended judgment did not “alter[] the sentence 

‘pursuant to’ which the petitioner is ‘in custody’” or otherwise change the terms of Petitioner’s 

sentence in any manner. See In re Stansell, 828 F.3d at 419 (quoting 28 U.S.C. § 2254(a), (b)(1)

and citing Magwood, 561 U.S. at 332)). Consequently, the Court concludes that Petitioner’s 

§ 2254 petition is successive.

III. CONCLUSION

For the foregoing reasons, the Magistrate Judge RECOMMENDS that this action be 

TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as successive.
12

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.

Date: November 15, 2017 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE