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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT CINCINNATI

D’JANGO HENDRIX, 

Petitioner, : Case No. 1:17-cv-623 

- vs - District Judge Douglas R. Cole 

Magistrate Judge Michael R. Merz 

WARDEN, Lebanon Correctional 

 Institution, 

 

 : 

 Respondent. 

 DECISION AND ORDER 

 

 This habeas corpus case, brought pro se by Petitioner D’Jango Hendrix under 28 U.S.C. § 

2254, is before the Court on Petitioner’s Motion for Stay and Abeyance (ECF No. 117), filed and 

served January 26, 2024. On the Court’s order, the parties have briefed the Motion (Response in 

Opposition, ECF No. 120; Reply, ECF No. 125), making it ripe for decision. 

Petitioner’s Motion 

 Hendrix seeks a stay in order to exhaust his Third Ground for Relief1 by litigating a delayed 

motion for new trial. Hendrix had not filed that motion as of the date of filing his Motion for Stay 

1

 Hendrix claims in his Third Ground that he received ineffective assistance of trial counsel when his trial attorney 

failed to present medical and forensic ballistics evidence (Motion, ECF No. 117, PageID 2731, n. 1). 

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and has not done so as of the filing of this Order. Instead, he requested that he be given sixty days 

“from District Judge Cole’s Decision and Order” to do so (ECF No. 117, PageID 2736). 

Presumably he means sixty days from whenever Judge Cole decides any objections Hendrix may 

file to a Magistrate Judge’s order denying the stay. He says he will file a Motion for Leave to File 

New Trial [Motion] Instanter pursuant to Crim. R. 33 (A)(1), [and] (E)(5), in the Hamilton County 

Common Pleas Court and present in that new trial motion the following Grounds for Relief: 

One: Trial counsel was ineffective for failing to present medical and 

ballistic forensic witnesses. 

Two: Trial Counsel was ineffective for failure to Investigate, 

Compel the testimony of Dr. Timothy Pritts. 

Three: Trial Counsel was ineffective for failure to Discover, 

Investigate, Compel the testimony of Dr. Bryce Robinson. 

Three:[sic] Trial Counsel was ineffective for failure to Discover, 

Investigate, Compel the testimony of Dr. Alex Chang. 

Four: Trial Counsel was ineffective for failure to Discover, 

Investigate, Compel the testimony of Dr. D A Millar. 

Five: Trial Counsel was ineffective for failure to Discover, 

Investigate, Compel the testimony of Dr. Priya S. Prakas. 

Six: Trial counsel was ineffective for failing to investigate and 

present expert on bullet trajectories 

(Motion, ECF No. 117, PageID 2735). Hendrix relies on State v. Bethel, 167 Ohio St. 3d 362 

(2022), as the case that makes available the remedy he now seeks to exhaust. 

The Warden’s Response in Opposition 

 The Respondent opposes the Motion for Stay. He acknowledges that Bethel “recently 

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cleared away some of the procedural hurdles to having new evidence considered in a delayed 

motion for a new trial.” (Response, ECF No. 120, PageID 2782). However, he asserts Hendrix 

cannot meet the remaining hurdles because his motion for new trial will be meritless and he cannot 

meet the remaining timeliness standard under Ohio law. 

Petitioner’s Reply 

 Hendrix replies in support of his Motion for Stay that his new evidence has merit and that 

he was unavoidably prevented from discovering this evidence by the ineffective assistance of his 

trial counsel (ECF No. 125). 

Analysis 

 Ohio Rule of Criminal Procedure 33 provides in pertinent part: 

A) Grounds. A new trial may be granted on motion of the defendant 

for any of the following causes affecting materially his 

substantial rights: 

(1) Irregularity in the proceedings, or in any order or ruling of the 

court, or abuse of discretion by the court, because of which the 

defendant was prevented from having a fair trial; . . . 

(6) When new evidence material to the defense is discovered which 

the defendant could not with reasonable diligence have discovered 

and produced at the trial. When a motion for a new trial is made 

upon the ground of newly discovered evidence, the defendant must 

produce at the hearing on the motion, in support thereof, the 

affidavits of the witnesses by whom such evidence is expected to be 

given, and if time is required by the defendant to procure such 

affidavits, the court may postpone the hearing of the motion for such 

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length of time as is reasonable under all the circumstances of the 

case. The prosecuting attorney may produce affidavits or other 

evidence to impeach the affidavits of such witnesses. 

(B) Motion for new trial; form, time. Application for a new trial shall 

be made by motion which, except for the cause of newly discovered 

evidence, shall be filed within fourteen days after the verdict was 

rendered, or the decision of the court where a trial by jury has been 

waived, unless it is made to appear by clear and convincing proof 

that the defendant was unavoidably prevented from filing his motion 

for a new trial, in which case the motion shall be filed within seven 

days from the order of the court finding that the defendant was 

unavoidably prevented from filing such motion within the time 

provided herein. 

Motions for new trial on account of newly discovered evidence shall 

be filed within one hundred twenty days after the day upon which 

the verdict was rendered, or the decision of the court where trial by 

jury has been waived. If it is made to appear by clear and convincing 

proof that the defendant was unavoidably prevented from the 

discovery of the evidence upon which he must rely, such motion 

shall be filed within seven days from an order of the court finding 

that he was unavoidably prevented from discovering the evidence 

within the one hundred twenty day period. 

(E) Invalid grounds for new trial. No motion for a new trial shall be 

granted or verdict set aside, nor shall any judgment of conviction be 

reversed in any court because of: . . . 

(5) Any other cause, unless it affirmatively appears from the record 

that the defendant was prejudiced thereby or was prevented from 

having a fair trial. 

 Crim. R. 33 in this form was adopted by the Ohio Supreme Court pursuant to its authority 

to make rules under the Modern Courts Amendment and became effective July 1, 1973. It has 

remained in effect in its original form since adoption. Nonetheless a number of Ohio courts had 

engrafted onto this language a requirement that a motion for new trial must be presented within a 

“reasonable time” after verdict. Respecting that “reasonable time” requirement, the Supreme 

Court held in Bethel: 

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{¶ 51} Another preliminary issue is whether Bethel waited too long 

to file his motion for leave. As noted above, Bethel's counsel 

acknowledges that Bethel may have obtained Summary 86 in 2008. 

At the latest, Bethel discovered the document in May 2017, when 

Withers provided him with an affidavit reiterating the statement 

Withers had made to investigators. This means that there was a delay 

of at least 16 months—and perhaps much longer—between the 

discovery of Summary 86 and the filing of the motion for leave. 

{¶ 52} The court of appeals held that it was within the trial court's 

discretion to deny Bethel's motion for leave because this delay was 

unreasonable. 2020-Ohio-1343 at ¶ 24. In so holding, the court of 

appeals followed a rule adopted by most other courts of appeals—

that under Crim.R. 33(B), a defendant seeking leave to file a motion 

for a new trial must do so within a reasonable period of time after 

discovering the new evidence on which he relies. Id. at ¶ 19; see also

State v. Thomas, 2017-Ohio-4403, 93 N.E.3d 227, ¶ 8 (1st Dist.)

(collecting cases). 

{¶ 53} Crim.R. 33(B) does not give a deadline by which a defendant 

must seek leave to file a motion for a new trial based on the 

discovery of new evidence. The rule states only that a defendant 

must show that he was “unavoidably prevented from the discovery 

of the evidence upon which he must rely.” Courts nevertheless have 

concluded that a convicted defendant must file a motion for leave 

within a reasonable period of time after discovering the new 

evidence, to prevent defendants from deliberately delaying filing the 

motion “in the hope that witnesses would be unavailable or no 

longer remember the events clearly, if at all, or that evidence might 

disappear.” State v. Stansberry, 8th Dist. Cuyahoga No. 71004, 1997 

WL 626063, *3 (Oct. 9, 1997). Bethel offers several reasons why 

we should reject this rule. He argues that the rule discourages 

defendants from conducting full investigations before seeking a new 

trial, ignores the fact that defendants often lack the resources 

necessary to seek relief promptly after discovering new evidence, 

and wrongly assumes that defendants will delay filing a motion 

simply to gain an evidentiary advantage at a potential new trial. 

{¶ 54} We need not weigh the pros and cons of requiring defendants 

to seek leave to file a delayed motion for a new trial within a 

reasonable time after discovering new evidence. We instead must 

examine whether the Rules of Criminal Procedure permit trial courts 

to impose this additional hurdle on criminal defendants. In doing so, 

we apply general principles of statutory construction. See State ex 

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rel. Office of Montgomery Cty. Pub. Defender v. Rosencrans, 111 

Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.2d 250, ¶ 23. Those 

principles instruct that our role is to apply the language in Crim.R. 

33(B) as written “without adding criteria not supported by the text.” 

State v. Taylor, 161 Ohio St. 3d 319, 2020-Ohio-3514, 163 N.E.3d 

486, ¶ 9. 

{¶ 55} Crim.R. 33(B), again, does not establish a time frame in 

which a defendant must seek leave to file a motion for a new trial 

based on the discovery of new evidence. Courts have justified 

imposing a reasonable-time filing requirement by relying on 

Crim.R. 1(B) and 57(B). See, e.g., Thomas, 2017-Ohio-4403, 93 

N.E.3d 227, at ¶ 8; State v. York, 2d Dist. Greene No. 2000 CA 70, 

2001 WL 332019, *3-4 (Apr. 6, 2001). But neither of those rules 

supports the imposition of a reasonable-time filing requirement. 

{¶ 56} Crim.R. 1(B) provides that the Rules of Criminal Procedure 

“shall be construed and applied to secure the fair, impartial, speedy, 

and sure administration of justice, simplicity in procedure, and the 

elimination of unjustifiable expense and delay.” Requiring a 

defendant to seek leave to file a motion for new trial within a 

reasonable period of time after discovering the new evidence could 

help to further some of these objectives, most notably the 

elimination of delay. But that does not mean that Crim.R. 1(B)

authorizes a court to narrow a defendant's opportunity to seek a new 

trial. Crim.R. 1(B) instructs courts to construe Crim.R. 33(B)—that 

is, to explain its meaning. In requiring defendants to seek leave 

within a reasonable time after discovering new evidence, courts 

have not construed Crim.R. 33(B); they have simply added a 

requirement that makes sense to them. Crim.R. 1(B) does not 

authorize the creation of a new requirement that has no foundation 

within Crim.R. 33(B) itself. 

{¶ 57} Crim.R. 57(B) also does not support the creation of a 

reasonable-time filing requirement. Crim.R. 57(B) provides that 

“[i]f no procedure is specifically prescribed by rule, the court may 

proceed in any lawful manner not inconsistent with these rules of 

criminal procedure, and shall look to the rules of civil procedure and 

to the applicable law if no rule of criminal procedure exists.” 

Crim.R. 33(B), of course, already prescribes the circumstances 

under which a defendant may seek leave to file a motion for a new 

trial. Crim.R. 57(B) does not authorize a court to establish a new 

procedure when a rule of criminal procedure already governs. 

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{¶ 58} We hold that the court of appeals erred when it held that it 

was within the trial court's discretion to deny Bethel's motion for 

leave based on Bethel's failure to file the motion within a reasonable 

time after discovering Summary 86. 

Bethel, supra. Based on Bethel, Hendrix’s proposed Motion for Leave to File a Delayed Motion 

for New Trial Instanter will not have to satisfy a “reasonable time” standard. 

 However, it will have to satisfy the “unavoidably prevented from discovery” standard 

which is in the text of Rule 33 and reinforced by Bethel. Hendrix has done little in his current 

motion papers to show he can meet that standard and Respondent argues he has not succeeded. 

Respondent notes Hendrix is not making a claim under Brady v. Maryland, 373 U.S. 83 

(1963), that the State suppressed any of the evidence he now seeks to present. A Brady claim was 

at the heart of Bethel, and such a claim obviously gives a petitioner a leg up on the “unavoidably 

prevented” test. Hendrix does not have that advantage. 

 District courts have authority to grant stays in habeas corpus cases to permit exhaustion of 

state court remedies in consideration of the AEDPA’s preference for state court initial resolution 

of claims. Rhines v. Weber, 544 U.S. 269 (2005). However, in recognizing that authority, the 

Supreme Court held: 

[S]tay and abeyance should be available only in limited 

circumstances. Because granting a stay effectively excuses a 

petitioner's failure to present his claims first to the state courts, stay 

and abeyance is only appropriate when the district court determines 

there was good cause for the petitioner's failure to exhaust his claims 

first in state court. Moreover, even if a petitioner had good cause for 

that failure, the district court would abuse its discretion if it were to 

grant him a stay when his unexhausted claims are plainly meritless. 

Cf. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas 

corpus may be denied on the merits, notwithstanding the failure of 

the applicant to exhaust the remedies available in the courts of the 

State"). . . . 

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On the other hand, it likely would be an abuse of discretion for a 

district court to deny a stay and to dismiss a mixed petition if the 

petitioner had good cause for his failure to exhaust, his unexhausted 

claims are potentially meritorious, and there is no indication that the 

petitioner engaged in intentionally dilatory litigation tactics. 

Id. at 277-278. “Staying a federal habeas petition frustrates AEDPA’s objective of 

encouraging finality by allowing a petitioner to delay the resolution of federal proceedings. Id. 

 Hendrix has not established good cause for his delay in seeking a new trial and the docket 

shows intentionally dilatory litigation tactics. He filed this case in September 2017, more than six 

years ago (Petition, ECF No. 1). He filed a Motion to Hold in Abeyance the same day (ECF No. 

2). On Petitioner’s motion, the case was stayed to permit exhaustion from September 15, 2018, 

until April 2, 2020 (ECF Nos. 15, 20). On August 31, 2021, District Judge Black again stayed the 

case to permit exhaustion (ECF No. 37). In June, 2022, the Magistrate Judge reference was 

transferred to the undersigned who dissolved the stay, again at Petitioner’s request (ECF No. 40). 

After a good deal more motion practice regarding timing, Petitioner finally filed his Traverse 

(Reply) on April 17, 2023 (ECF No. 79). The undersigned then filed a dispositive Report and 

Recommendations on May 5, 2023 (ECF No. 88), and after recommittal a Supplemental Report 

reaching the same conclusion (ECF No. 107). Petitioner finally filed Objections after four 

extensions of time to do so (ECF No. 116). This rendered the case ripe for decision by Judge Cole 

until Hendrix filed the instant third motion for stay. 

 During all this time Hendrix has not filed for leave to file a new trial motion in the Common 

Pleas Court. Although his most recent report from Frank Miller is dated the day before this motion, 

he had an original report from Miller in 2019 and, as Respondent points out, the new report adds 

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little or nothing. He has had the admissions2

 from trial attorney Forg on which he relies to prove 

ineffective assistance of trial counsel even longer (See Motion for Post-Conviction Relief, State 

Court Record, ECF No. 24). 

 Whether his Motion for Leave to File a Delayed Motion for New Trial is likely to succeed 

is a question which ought to be decided in the first instance by the Ohio courts which will also 

have to decide if he was unavoidably prevented from filing that motion. If those courts eventually 

grant him a new trial and he is acquitted, the case will be over. If they grant him a new trial and 

he is again convicted, the statute of limitations will run from the finality of that judgment and he 

will be able to file a new petition for habeas corpus without satisfying the second or successive 

hurdle. If his Motion for New Trial is denied and this case has been decided adversely to his 

claims in the meantime, he will indeed be barred by the statute of limitations from amending the 

Petition in this case. But that will be a direct consequence of his own lack of diligence in pursuing 

these claims. The Court is not required to protect Petitioner’s ability to litigate by granting 

repeated stays. 

 Petitioner’s Motion for Stay and Abeyance is DENIED. 

March 14, 2024. 

 s/ Michael R. Merz

 United States Magistrate Judge 

2

 The purported Affidavit from Attorney Forg attached to the instant Motion is partial, unsigned, and not otherwise 

authenticated. 

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