IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

WILLIAM K. SAPP,

Petitioner,

v. Case No. 2:17-cv-1069

Judge Sarah D. Morrison

CHARLOTTE JENKINS, Warden, Magistrate Judge Kimberly A.

Jolson

Chillicothe Correctional Institute,

Respondent.

OPINION AND ORDER

Petitioner Sapp, an inmate sentenced to death by the State of Ohio, has 

pending before this Court a habeas corpus petition pursuant to 28 U.S.C. § 2254. 

This matter is before the Court for consideration of the Respondent-Warden’s 

Appeal to the District Court from the Doc. 120 Opinion and Order of the Magistrate 

Judge. (ECF No. 123.) Also before the Court is Sapp’s Response. (ECF No. 124.) 

Because the Warden has failed to demonstrate any error of law, this appeal is 

OVERRULED.

I. BACKGROUND

In 2021, this Court granted Sapp leave to conduct discovery to determine the 

timeliness of two claims that Sapp seeks to add to his Petition. (ECF No. 90.) The 

question previously identified by the Court was whether deficiencies in 

postconviction counsel’s performance and other irregularities during the 

postconviction proceedings warrant equitable tolling of the statute of limitations. 

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(ECF No. 68, at PageID 25749-50.) On July 8, 2022, as the discovery was near 

completion, the Warden sought reconsideration of the allowance of discovery, 

arguing that two recent Supreme Court decisions rescinded this Court’s authority to 

permit that kind of factual development. (ECF No. 116, at PageID 30953, citing 

Shinn v. Ramirez, 142 S.Ct. 1718 (May 23, 2022), and Shoop v. Twyford, 142 S.Ct. 

2037 (June 21, 2022).) On February 7, 2023, the Magistrate Judge issued an 

Opinion and Order denying the Warden’s motion. (ECF No. 120.) The Warden

appeals that decision. (ECF No. 123.)

II. LEGAL STANDARDS

According to Fed. R. Civ. P. 72(a), when a party objects to a magistrate 

judge’s ruling on a non-dispositive motion, the district court must “modify or set 

aside any part of the order that is clearly erroneous or is contrary to law.” Likewise, 

28 U.S.C. § 636(b)(1)(A) provides that “[a] judge of the court may reconsider any 

pretrial matter . . . where it has been shown that the magistrate judge’s order is 

clearly erroneous or contrary to law.” The “clearly erroneous” standard applies to 

factual findings and the “contrary to law” standard applies to legal conclusions. 

Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992) (citations omitted). A 

factual finding is “clearly erroneous” when the reviewing court is left with the 

definite and firm conviction that a mistake has been made. Bisig v. Time Warner 

Cable, Inc., 940 F.3d 205, 219 (6th Cir. 2019) (citations omitted). A legal conclusion 

is “contrary to law” when the magistrate judge has misinterpreted or misapplied 

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applicable law. Id. (citations omitted).

The Magistrate Judge correctly identified the standard governing motions for 

reconsideration (ECF No. 120, at PageID 30974-75), and the Warden does not argue 

otherwise.

III. DISCUSSION

The Warden’s position is that the Magistrate Judge erred as a matter of law 

in concluding that the factual development could proceed. According to the Warden, 

Shinn v. Ramirez and Shoop v. Twyford foreclose any factual development based on 

alleged malfeasance of state court postconviction counsel, absent compliance with 

28 U.S.C. § 2254(e)(2). (ECF No. 123, at PageID 30993.) The Warden asserts: (1)

that Sapp’s conclusive guilt either renders futile the two claims he seeks to add or 

makes it impossible for him to satisfy § 2254(e)(2)’s “actual innocence” component; 

(2) that the Shinn decision upended an earlier case addressing equitable tolling by 

making clear that statutory law—i.e., § 2254(e)(2)’s restrictions--trumps equitable 

rules; and (3) that the decisions relied upon by the Magistrate Judge either were 

wrongly decided or actually support the Warden’s position that, following Shinn,

factual development of any sort based on alleged malfeasance of state postconviction

counsel is prohibited absent compliance with § 2254(e)(2). (Id. at PageID 30993-94.)

Sapp argues in response that the Warden’s appeal should be overruled, first, 

because the Warden is appealing a different issue than that raised in the motion for 

reconsideration, and second, because Shinn, Shoop, and § 2254(e)(2)’s restrictions 

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on factual development apply only to substantive claims relief. (ECF No. 124, at 

PageID 31030.) 

As a preliminary matter, the Court agrees with Sapp’s contention that the

Warden’s arguments about the underlying facts and Sapp’s guilt are not relevant to 

the limited issue before the Court, i.e., whether factual development is permitted on 

the equitable tolling issue. (Id. at PageID 31031, n.2.) Assuming that the Warden 

offers these arguments to demonstrate that Sapp cannot overcome § 2254(e)(2)’s 

restrictions on factual development, the Court’s decision below that § 2254(e)(2)

does not apply to the instant discovery renders the arguments irrelevant. The 

Court need not address that part of the Warden’s appeal.

According to the Warden, the Supreme Court in Shinn v. Ramirez “plainly 

and repeatedly” held that any factual development based on the alleged 

malfeasance of state postconviction counsel is governed by (and subject to the 

restrictions set forth in) 28 U.S.C. § 2254(e)(2). (ECF No. 123, at PageID 31002.) 

But review of Shinn, 28 U.S.C. § 2254(e)(2), the decisions relied upon by the 

Magistrate Judge, and additional decisions issued thereafter persuade this Court 

(1) that the Warden’s reading of Shinn is overbroad and that the Warden’s focus on 

statutory law vis-à-vis equitable rules is misplaced; and (2) that the Magistrate 

Judge, in concluding that § 2254(e)(2) applies only to factual development of

substantive claims for relief, committed no error of law.

The Court turns first to Sapp’s contention that the instant appeal should be 

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overruled because “[t]he issues that the Warden raises in this appeal were not 

contained in the Warden’s motion for reconsideration, ECF No. 116.” (ECF No. 124, 

at PageID 31031.) In Murr v. United States, 200 F.3d 895, 902, n.1 (6th Cir. 2000), 

the case relied upon by Sapp, the United States Court of Appeals for the Sixth 

Circuit stated “that while the Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits 

de novo review by the district court if timely objections are filed, absent compelling 

reasons, it does not allow parties to raise at the district court stage new arguments 

or issues that were not presented to the magistrate [judge].” (citations omitted).

In the motion for reconsideration filed on July 8, 2022, the Warden argued 

that reconsideration was warranted because: (1) under Shoop v. Twyford, 142 S.Ct. 

2037 (2022), habeas petitioners must clear § 2254(e)(2)’s restrictions before being 

permitted to develop any new evidence that was not before the state courts; (2) 

under Shinn v. Ramirez, 142 S.Ct. 1718 (2022), the Martinez line of cases does not

excuse habeas petitioners from having to satisfy § 2254(e)(2) in order to obtain 

consideration of evidence beyond the state court record; and (3) Sapp was granted 

discovery to obtain evidence to support new Brady and/or ineffective assistance of 

counsel claims. (ECF No. 116, at PageID 30954.) “In light of the newly-announced 

cases of Shinn v. Ramirez and Shoop v. Twyford,” the Warden concluded, “before 

allowing the collection of evidence outside the state court record, the Court must 

first require petitioner Sapp to either show how 2254(e)(2) does not apply to his

case, or alternatively show, by the appropriate level of proof, that he can overcome 

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the gatekeeping rules in 2254(e)(2).” (Id. at PageID 30955.)

In the instant appeal of the Magistrate Judge’s Opinion and Order denying 

the motion for reconsideration, the Warden argues that the discovery should be 

suspended, and Sapp be compelled to satisfy § 2254(e)(2) for discovery to continue. 

The reasons the Warden advances now are: (1) the facts show that Sapp is 

conclusively guilty of all charges; (2) the view in Holland v. Florida, 560 U.S. 631

(2010), addressing equitable tolling, that equitable rules trump statutory law has 

been upended by Shinn’s view that statutory law now trumps equitable rules; and 

(3) the single decision supporting the Magistrate Judge’s Opinion and Order 

(Barbour v. Hamm) was wrongly decided, and the remaining decisions cited by the

Magistrate Judge actually support the Warden’s position that Shinn precludes 

factual development of any sort based on alleged malfeasance of state postconviction 

counsel absent compliance with § 2254(e)(2). (ECF No. 123, at PageID 30993-94.)

The Warden arguably suggested in the original motion for reconsideration, as 

he argues more extensively in the instant appeal, that Shinn precludes any factual 

development involving malfeasance by state postconviction counsel unless the 

petitioner can satisfy the conditions set forth in 28 U.S.C. § 2254(e)(2). And the 

Warden’s arguments questioning the decisions relied upon the Magistrate Judge, 

while new, could not have been raised in the original motion for reconsideration.

There can be little question, however, that arguments in the instant appeal about 

post-Shinn prevalence of statutory law over equitable principles constitute brand 

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new arguments that were never presented to the Magistrate Judge, and that these

new arguments could have been raised at the time the Warden filed the motion for 

reconsideration. The Court could deny this component of the Warden’s appeal on 

that basis alone. But that is not necessary because the Court finds all of the 

Warden’s arguments unpersuasive and insufficient to establish any error of law.

First, the Court is not of the view that Shinn applies as broadly as the 

Warden asserts. According to the Warden, the Court in Shinn “plainly and 

repeatedly” held that any factual development based on the alleged malfeasance of 

state postconviction counsel is prohibited unless the petitioner can satisfy the 

conditions set forth in 28 U.S.C. § 2254(e)(2). The Court disagrees. Shinn says that 

a federal habeas court may not conduct factual development based on ineffective 

assistance of state postconviction counsel. Shinn, 142 S.Ct. at 1734. That is not

necessarily the same, as the Warden posits, as saying that a federal habeas court 

may not conduct factual development on ineffective assistance of state 

postconviction counsel. In other words, Shinn simply holds that the equitable rule 

created by Martinez—namely, that ineffective assistance of postconviction counsel 

can in some circumstances serve as cause to excuse the default of a claim of 

ineffective assistance of trial counsel—does not supplant § 2254(e)(2)’s restrictions 

on factual development of the substantive claim for relief. The Warden has not 

demonstrated as settled law that Shinn necessarily extended § 2254(e)(2) to all

claims of ineffective assistance of postconviction counsel offered for any reason.

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Second and more to the point, the Warden’s theory about the prevalence of 

statutory law over equitable principles does not establish that § 2254(e)(2)’s 

restrictions apply to the instant discovery. The Warden appears to justify the above

broad interpretation of Shinn by lumping all equitable rules (here, equitable tolling 

and the Martinez rule) together, and then pointing to where the Supreme Court 

said in Shinn that while the Constitution authorizes the Court to alter equitable 

rules and procedural rules that are “judge-made” rules, the Constitutional does not 

authorize the Court to alter statutory law enacted by Congress (here, § 2254(e)(2)). 

Shinn, 142 S.Ct. at 1736. But nothing about the Court’s grant of the discovery at 

issue alters, circumvents, or ignores § 2254(e)(2). Rather, the Court is merely 

saying, by using § 2254(e)(2)’s own language limiting its applicability to substantive 

claims for relief, that § 2254(e)(2) does not apply to the instant discovery on the

issue of whether equitable tolling is warranted. The Warden’s focus on statutory

law trumping equitable rules misses the mark. More determinative is the plain 

language in § 2254(e)(2) that limits its restrictions to factual development on 

substantive claims for relief. The Warden’s argument focusing on the prevalence of 

statutory law over equitable rules, while clever, is a novel extrapolation that cannot

logically demonstrate an error of law on the part of the Magistrate Judge.

Turning next to the Warden’s challenge on the cases relied upon by the 

Magistrate Judge, the Court begins with a reminder of what 28 U.S.C. § 2254(e)(2)

says:

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(e)(2) If the applicant has failed to develop the basis of a claim in State 

court proceedings, the court shall not hold an evidentiary hearing on 

the claim unless the applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to 

cases on collateral review by the Supreme Court, that was 

previously unavailable; or

(ii) a factual predicate that could not have been 

previously discovered through the exercise of due 

diligence; and

(B) the facts underlying the claim would be sufficient to 

establish by clear and convincing evidence that but for 

constitutional error, no reasonable factfinder would have found 

the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). The statute’s own language—particularly subsection (B) 

linking the undeveloped facts at issue with undermining the finding of guilt—

combined with the Court’s discussion above of the Warden’s interpretation of Shinn,

persuade this Court that by focusing on § 2254(e)(2)’s own language limiting its 

restrictions to factual development of substantive claims for relief, Barbour v. 

Hamm, Case No. 2:01-cv-612-ECM, 2022 WL 3570327, at *3 (M.D. Ala. Aug. 18, 

2022) was correctly decided. The Warden’s objection asserting that Barbour was 

wrongly decided (ECF No. 123, at PageID 31016-19) is thus overruled.

The Court also concludes that the other decisions cited in the Opinion and 

Order, (ECF No. 120, at PageID 30981-85) do not support the Warden’s positions 

that statutory law (§ 2254(e)(2)) trumps equitable rules (equitable tolling) or that

Shinn precludes all factual development involving performance of postconviction 

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counsel in all instances. The Warden’s objection asserting that the “cases cited by 

the Magistrate Judge support the Shinn rule that statutory law trumps equitable 

rules” (ECF No. 123, at PageID 31023) is overruled.

Review of more recent decisions interpreting Shinn does not reveal a 

prevalent trend one way or the other with respect to the reach of Shinn and §

2254(e)(2) sufficient to establish an error of law in the Magistrate Judge’s 

interpretation and application of Shinn vis-à-vis 28 U.S.C. § 2254(e)(2). Several 

recent decisions support the Magistrate Judge’s interpretation and application. 

Row v. Miller, Case No. 1:98-cv-00240-BLW, 2023 WL 2744409, at *8-10 (D. Ida. 

Mar. 31, 2023), undertook a thorough analysis to adopt a post-Shinn model for 

addressing Martinez-based cause arguments, and recognized various circumstances

in which § 2254(e)(2) simply does not apply to the question of whether an 

evidentiary hearing may be held. See also Rankin v. Payne, Case No. 5:06-cv00228-JM, 2023 WL 2163822, at *5 (E.D. Ark. Feb. 22, 2023) (confining Shinn’s 

extension of § 2254(e)(2)’s restrictions to “potentially meritorious rubric” [i.e., 

substantive-ness of defaulted trial counsel ineffectiveness claim] by reading Shinn

as saying that a hearing on the ineffectiveness of postconviction counsel would serve 

no purpose only if the defaulted trial counsel ineffectiveness claim does not, based 

on the existing state court record, appear meritorious). These recent decisions 

bolster the Magistrate Judge’s reliance on Barbour and Guevara-Pontifes v. Baker, 

et al., Case No. 3:20-cv-00652-ART-CSD, 2022 WL 4448259, at *4 (D. Nev. Sep. 23, 

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2022), where the district courts held that Shinn did not preclude factual 

development on the issues of “gateway” actual innocence to excuse procedural 

default and of good cause for stay and abeyance under Rhines v. Weber, 544 U.S. 

269 (2005), respectively.

The Court also found several recent decisions that appear to support the 

proposition that Shinn extended the restrictions on factual development set forth in

§ 2254(e)(2) to a Martinez-based ineffective assistance of postconviction counsel 

claim offered as cause to excuse the petitioner’s failure to exhaust a claim of

ineffective assistance of trial counsel. See Millet v. Adams, Case No. 4:20-cv-539 

RLW, 2023 WL 2987612, at *15 (E.D. Missouri Apr. 18, 2023) (holding that a 

petitioner seeking to conduct discovery on a Martinez claim for purposes of excusing 

procedural default must satisfy § 2254(e)(2)); Taylor v. May, Case No. 11-1251-CFC, 

2023 WL 2686375, at *9 (D. Del. Mar. 29, 2023) (applying Shinn’s extension of §

2254(e)(2)’s restrictions to both the determination of the merits of the defaulted trial 

counsel ineffectiveness claim and the determination of postconviction counsel 

ineffectiveness offered as cause to excuse the default); Bearup v. Shinn, Case No.

CV-16-03357-PHX-SPL, 2023 WL 1069686, at *3 (D. Ariz. Jan. 27, 2023) (“After 

Ramirez [Shinn], a federal habeas court may not consider [new] evidence, even 

when reviewing a petitioner’s claim of good cause [ineffective assistance of 

postconviction counsel] for failure to exhaust a claim, unless it first meets the 

requirements of 2254(e)(2).” (emphasis added)); Bossie v. Davis, Case No. 1:21-cvCase: 2:17-cv-01069-SDM-KAJ Doc #: 125 Filed: 05/16/23 Page: 11 of 13 PAGEID #: 31058
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00256-BLW, 2023 WL 35278, at *3 (D. Ida. Jan. 4, 2023) (“Now, a petitioner must 

make a § 2254(e)(2) showing before being permitted to engage in discovery for the 

purpose of overcoming procedural default.”).

1 These decisions fail to demonstrate 

an error of law for two important reasons.

First, the decisions above extend § 2254(e)(2)’s restrictions to factual 

development of a Martinez claim offered to excuse the procedural default of a trial 

counsel ineffectiveness claims. But as the Magistrate Judge correctly observed, the 

factual development at issue does not relate “to the excuse of procedural default for 

any claims, whether by the rule announced in Martinez or otherwise.” (ECF No. 

120, at PageID 30980-81.) Further, the Court is not persuaded that a few

unreported decisions concerning a new, evolving legal principle are sufficient to 

demonstrate that the Magistrate Judge’s interpretation of Shinn, Shoop, and 

2254(e)(2) constituted a misinterpretation or misapplication of law.

IV. CONCLUSION

For the foregoing reasons, the Warden’s Appeal of the ECF No. 120 Opinion 

and Order denying the motion for reconsideration, (ECF No. 123), is DENIED. 

Further, the February 14, 2023, ECF No. 122 Notation Order staying the discovery 

schedule is LIFTED and the ECF No. 115 Discovery Scheduling Order is hereby 

REINSTATED.

IT IS SO ORDERED.

1The Court notes that this somewhat summary conclusion appears to be in 

conflict with a more reasoned conclusion reached by the same court in the

subsequent case of Row v. Miller, 2023 WL 2744409, discussed above.

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s/Sarah D. Morrison

____________________________________

 SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE

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