IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DAVID HILL, 

 CASE NO. 2:17-CV-864 

 Petitioner, JUDGE GEORGE C. SMITH 

 Magistrate Judge Chelsey M. Vascura 

 v. 

CHARLOTTE JENKINS, WARDEN, 

 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, it is RECOMMENDED that this action be 

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

2244(d). 

Facts and Procedural History 

 Petitioner challenges his November 29, 2012 convictions pursuant to his guilty plea in the 

Licking County Court of Common Pleas on two counts of rape and two counts of unlawful 

sexual conduct. The Ohio Fifth District Court of Appeals summarized the facts and procedural 

history of the case as follows: 

Appellant negotiated a plea agreement wherein the State moved to 

amend 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. On 

November 29, 2012, Appellant plead guilty to the two amended 

rape counts and also plead guilty to two counts of unlawful sexual 

conduct with a minor. Appellant was sentenced to an agreed upon 

sentence of 12 years in prison. The 12 year sentence was reached 
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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. 

Appellant did not appeal his initial conviction and sentence. 

Rather, approximately two years lately, Appellant filed a “Motion 

to Re–Sentence” based upon Appellant's contention the trial court 

lacked any evidence to support findings sufficient to impose 

consecutive sentences. The trial court denied the motion, and 

Appellant has appealed. 

Counsel for Appellant has filed a Motion to Withdraw and a brief 

pursuant to Anders v. California (1967), 386 U.S. 738, rehearing 

den. (1967), 388 U.S. 924, indicating that the within appeal was 

wholly frivolous and setting forth one proposed Assignments of 

Error. Appellant has also raised assignments of error pro se. 

In Anders, the United States Supreme Court held if, after a 

conscientious examination of the record, a defendant's counsel 

concludes the case is wholly frivolous, then he should so advise the 

court and request permission to withdraw. Id. at 744. Counsel must 

accompany his request with a brief identifying anything in the 

record that could arguably support his client's appeal. Id. Counsel 

also must: (1) furnish his client with a copy of the brief and request 

to withdraw; and, (2) allow his client sufficient time to raise any 

matters that the client chooses. Id. Once the defendant's counsel 

satisfies these requirements, the appellate court must fully examine 

the proceedings below to determine if any arguably meritorious 

issues exist. If the appellate court also determines that the appeal is 

wholly frivolous, it may grant counsel's request to withdraw and 

dismiss the appeal without violating constitutional requirements, or 

may proceed to a decision on the merits if state law so requires. Id. 

Counsel in this matter has followed the procedure in Anders v. 

California (1967), 386 U.S. 738.

POTENTIAL ASSIGNMENTS OF ERROR

ASSIGNMENT OF ERROR FROM COUNSEL

I.

“THE TRIAL COURT ERRED BY DENYING APPELLANT'S 

MOTION FOR RESENTENCING TO ADDRESS AN ERROR IN 

IMPOSING CONSECUTIVE SENTENCES.”
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ASSIGNMENTS OF ERROR FROM APPELLANT PRO SE

II.

“THE TRIAL COURT COUNSEL WAS INEFFECTIVE WHEN 

HE FAILED TO ADDRESS THE CONSECUTIVE SENTENCES 

DURING SENTENCING.”

III.

“THE TRIAL COURT COUNSEL WAS INEFFECTIVE WHEN 

HE FAILED TO FILE A NOTICE OF APPEAL FOR HIS 

CLIENT WITHIN 30 DAYS OF HIS CLIENT BEING 

SENTENCED.” 

State v. Hill, No. 15-CA-13, 2016 WL 1176036, at *1-2 (Ohio App. 5th Dist. Mar. 17, 2016). 

On March 17, 2016, the appellate court affirmed the judgment of the trial court, denying 

Petitioner’s claims as barred under Ohio’s doctrine of res judicata, and for failure to file a 

motion for a delayed appeal. Id. On October 26, 2016, the Ohio Supreme Court declined to 

accept jurisdiction of the appeal. State v. Hill, 147 Ohio St.3d 1412 (Ohio 2016). 

 On October 2, 2017, Petitioner filed this petition for a writ of habeas corpus pursuant to 

28 U.S.C. § 2254. He asserts that the trial court erred by denying the motion for re-sentencing to 

address an error in the imposition of consecutive sentences (claim one); that he was denied the 

effective assistance of trial counsel based on his attorney’s failure to object to imposition of 

consecutive terms of incarceration (claim two); that he was denied the effective assistance of 

counsel because his attorney failed to file a timely notice of appeal (claim three); and that he was 

denied his 5th and 14th Amendment right to “adjudicate for the first time in a post-conviction 

proceeding the claim that he received incompetent counsel” (claim four). 
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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 as follows:

(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; 

(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. 

Applying the language of § 2244(d)(1)(A), Petitioner's conviction became final on 

December 30, 2012, thirty days after Petitioner's November 29, 2012, entry of sentence, when 

the time period expired to file a timely appeal. See Watkins v. Dayton Corr. Inst., No. 2:16-cv501, 2016 WL 3855206, at *2 (S.D. Ohio July 15, 2016) (citing Worthy v. Warden, No. 2:12-cv652, 2013 WL 4458798, at *2 (S.D. Ohio Aug. 19, 2013) (citing Searcy v. Carter, 246 F.3d 515, 
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518–19 (6th Cir. 2001)); Marcum v. Lazarof, 301 F.3d 480, 481 (6th Cir. 2002); Ohio App.R. 

4(A)). The statute of limitations expired one year later, in December 2013. Petitioner, however, 

waited more than three years and eight months, until September 2017, before executing this 

habeas corpus petition. (ECF No. 1, PageID# 16.) Petitioner’s December 8, 2014 motion for resentencing did not toll or otherwise affect the running of the statute of limitations because the 

statute of limitations had already expired prior to the filing of that motion. “State collateral 

actions filed after the statute of limitations has expired do not toll the running of the statute of 

limitations under 28 U.S.C. 2244(d)(2).” Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) 

(“The tolling provision does not . . . ‘revive’ the limitations period (i.e., restart the clock at zero); 

it can only serve to pause a clock that has not yet fully run. Once the limitations period is 

expired, collateral petitions can no longer serve to avoid a statute of limitations.”). Further, the 

record fails to reflect that equitable tolling of the statute of limitations is appropriate. See 

Holland v. Florida, 560 U.S. 631, 649 (2010) (“A ‘petitioner’ is ‘entitled to equitable tolling’ 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” (quoting Pace v. DiGuglielmo, 544 

U.S. 408, 418 (2005)). 

Recommended Disposition 

For the reasons set forth above, it is RECOMMENDED that this action be DISMISSED

as barred by the one-year statute of limitations. 

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 
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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