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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

DUSTIN GLENN,

Petitioner, : Case No. 3:17-cv-435

- vs - District Judge Walter H. Rice

Magistrate Judge Michael R. Merz

PREBLE COUNTY SHERIFF

DEPARTMENT AND STATE OF 

OHIO

:

Respondent.

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 14) to the 

Magistrate Judge’s Supplemental Report and Recommendations recommending the Petition be 

dismissed (ECF No. 13). District Judge Rice has recommitted the case for reconsideration in light 

of the Objections (ECF No. 15).

Glenn objects that the Magistrate Judge did not order the Respondent to answer the Petition 

and file the relevant portions of the state court record (ECF No. 14, PageID 129). As noted in the 

original Report and Recommendations, Rule 4 of the Rules Governing § 2254 Cases provides for 

initial review by the Court and “[i]f it plainly appears from the petition and any attached exhibits 

that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition 

and direct the clerk to notify the petitioner.” (ECF No. 4, PageID ___). Rule 5(a) specifically 

provides that a respondent is not required to answer the petition unless ordered by the Court. Thus 
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the Habeas Rules, promulgated by the Supreme Court, contemplate that a case may be dismissed 

without ordering an answer if it appears from the Petition that it is barred. Here the original and 

Supplemental Reports both found the Petition was not timely filed.

In his Objections Glenn purports to amend his Petition so that his Ground One now reads: 

Petitioner’s U.S. Constitutional right to counsel was violated AND when no waiver of counsel was 

executed,” the addition of “and” being the amendment.

Glenn’s next objection is that his due process rights were violated when he was denied a

delayed appeal. In the Supplemental Report, the Magistrate Judge pointed out that the States are 

not required as a matter of due process to provide any appellate review at all (ECF No. ) Glenn 

objects by citing Evitts v. Lucey, 469 U.S. 387 (1985). Evitts followed earlier law holding that 

counsel must be appointed on appeal of right for indigent criminal defendants. Douglas v. 

California, 372 U.S. 353 (1963). Douglas followed even earlier precedent holding that if a State

provides for appeal of right and requires a transcript, the transcript must be, as a matter of equal 

protection, furnished to the indigent appellate Griffin v. Illinois, 351 U.S. 12 (1956). But no 

Supreme Court case law holds that a State cannot impose time limits on filing notices of appeal 

and Glenn does not suggest that wealthy litigants get favorable treatment over the indigent in filing 

for delayed appeal. 

Glenn’s next objection is that without a full record this Court cannot determine whether his 

waiver of counsel was valid or not. Glenn’s claim as he first made it was that the waiver was not 

valid because there was no signed waiver form. But the Constitution does not require a written 

waiver. Glenn’s claim now seems to be that the waiver was invalid for other reasons (See ECF 

No. 14, PageID 132). It could be the case that this Court could not fully adjudicate that claim 
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without the record. But that is a question of the merits and the Court cannot reach the merits if the 

Petition as a whole is barred by the statute of limitations. 

Glen claims his Grounds One and Three1 are currently pending at all three levels of the 

Ohio court system, although he provides no proof of that claim (ECF No. 14, PageID 133). But 

the only way that fact could be relevant is if one or more of those state court filings is a “properly 

filed” collateral attack on the judgment in this case, filed before the statute of limitations expired. 

See 28 U.S.C. § 2254(d)(2). By the calculation set forth in the original Report, the statute of 

limitations began to run July 11, 2014, and would have expired July 12, 2015, but this case was 

not filed until December 28, 2017. If Glen has some proof of a collateral attack on the conviction 

that he properly filed before July 12, 2015, he needs to submit it to this Court. Absent any such 

proof, the Magistrate Judge again recommends the Petition be dismissed with prejudice as barred 

by the statute of limitations. A state court collateral attack filed after the statute of limitations 

expires does not restart the statute. 

Because reasonable jurists would not disagree with this conclusion, Petitioner should be 

denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal 

would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.

March 6, 2018.

 s/ Michael R. Merz

 United States Magistrate Judge

 1 Glenn has withdrawn Ground Two (ECF No. 14, PageID 133).
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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days 

because this Report is being served by mail. .Such objections shall specify the portions of the 

Report objected to and shall be accompanied by a memorandum of law in support of the objections. 

If the Report and Recommendations are based in whole or in part upon matters occurring of record 

at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or 

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless 

the assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 

947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).