IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

WILLIAM K. SAPP,

Petitioner,

v.

CHARLOTTE JENKINS,

Warden, Chillicothe 

Correctional Institution

Respondent.

:

:

Case No. 2:17-cv-1069

Judge Sarah D. Morrison

Magistrate Judge Kimberly A. 

Jolson

OPINION AND ORDER

Petitioner, 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 on Petitioner’s Motions for Leave to File his Amended 

Petition for Writ of Habeas Corpus (ECF No. 56) and to Hold Proceedings in 

Abeyance Pending Exhaustion of State Court Remedies (ECF No. 55), Respondent’s

Opposition (ECF No. 59), and Petitioner’s Reply (ECF No. 67). For the reasons that 

follow, Petitioner’s motions must be DENIED at this time, but without prejudice 

and subject to renewal, should Petitioner be able to more fully develop the record 

concerning the timeliness of his proposed amendments.

I. BACKGROUND

Petitioner filed a timely habeas corpus petition on October 31, 2018 (ECF No. 

27), which Respondent answered with a Return of Writ on May 22, 2019 (ECF No. 

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30). On July 10, 2018, not quite four months before the petition in this case was to 

be filed, the Ohio Public Defender’s Office made a public records request on 

Petitioner’s behalf to the Springfield Police Department essentially for all 

documents related to the murders of Phree Morrow, Martha Leach, and Belinda 

Anderson, as well as the attempted murder of Hazel Pearson. (ECF No. 59-1.) It 

appears from the record that the Springfield Police Department provided 12,775 

pages of records some time in 2018, (ECF No. 67, at PageID 25694), and that 

Petitioner’s counsel completed review of those records on December 19, 2019 (ECF 

No. 36, at PageID 9541). 

During an August 27, 2019 telephone conference, Petitioner’s counsel 

announced their procurement of those police records, as well as their intent to file a 

motion to amend the petition to add a never-before-raised claim alleging that the 

prosecution failed to disclose material evidence in violation of Brady v. Maryland, 

373 U.S. 83 (1963). The Court accordingly stayed all of the filing deadlines set forth 

in its scheduling order (ECF No. 8), and established a briefing schedule for the 

motions to amend the petition and to stay these proceedings. Following the 

expansion of the record with the police records, (ECF Nos. 38 and 47), Petitioner 

filed his motions to amend and for stay-and-abeyance on February 25, 2020. 

Although circumstances in this case raise troubling questions about whether 

Petitioner was sufficiently represented in connection with his pursuit of state 

postconviction relief, and recognizing that the rules favor liberal allowance of 

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amendments, the Court is without sufficient information to rule with confidence 

that Petitioner’s proposed amendments are timely.

II. STANDARDS OF REVIEW

A motion to amend a habeas corpus petition is, per 28 U.S.C. § 2242, subject 

to the same standards which apply generally to motions to amend under Fed. R. 

Civ. P. 15(a). The general standard for considering a motion to amend under Fed. 

R. Civ. P. 15(a) was enunciated by the United States Supreme Court in Foman v. 

Davis, 371 U.S. 178 (1962):

If the underlying facts or circumstances relied upon by a plaintiff may 

be a proper subject of relief, he ought to be afforded an opportunity to 

test his claim on the merits. In the absence of any apparent or 

declared reason—such as undue delay, bad faith or dilatory motive on 

the part of the movant, repeated failure to cure deficiencies by 

amendments previously allowed, undue prejudice to the opposing party 

by virtue of any allowance of the amendment, futility of amendment, 

etc.—the leave sought should, as the rules require, be “freely given.”

371 U.S. at 182; see also Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir. 1997) (citing 

Foman standard). In considering whether to grant motions to amend under Rule 

15, a court should consider whether the amendment would be futile, i.e., if it could 

withstand a motion to dismiss under Rule 12(b)(6). Hoover v. Langston Equip. 

Assocs., 958 F.2d 742, 745 (6th Cir. 1992); Commc’n. Sys., Inc. v. City of Danville, 

880 F.2d 887, 895-96 (6th Cir. 1989); Martin v. Associated Truck Lines, Inc., 801 

F.2d 246, 248 (6th Cir. 1986); Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 

155 (6th Cir. 1983); Neighborhood Dev. Corp. v. Advisory Council, 632 F.2d 21, 23 

(6th Cir. 1980). Likewise, as noted above, a motion to amend may be denied if it is 

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brought after undue delay or with dilatory motive. Foman, 371 U.S. at 182; Prather 

v. Dayton Power & Light Co., 918 F.2d 1255, 1259 (6th Cir. 1990).

A claim added by amendment “relates back” to the date of filing of the 

complaint in a civil case and thereby avoids any statute of limitations bar if it 

“arose out of the conduct, transaction, or occurrence set out—or attempted to be set 

out—in the original pleading . . . .” Fed. R. Civ. P. 15(c)(1)(B). The Supreme Court 

has applied the relation back doctrine narrowly in habeas corpus cases:

An amended habeas petition . . . does not relate back (and thereby 

escape AEDPA’s one-year time limit) when it asserts a new ground for 

relief supported by facts that differ in both time and type from those 

the original pleading set forth.

Mayle v. Felix, 545 U.S. 644, 650 (2005). Further, when a petitioner seeks to add a 

never-before-raised claim based on newly discovered evidence, the one-year 

limitations period generally will begin to run on the date when the factual predicate 

could have been discovered through the exercise of due diligence. See, e.g., 

Munchinski v. Wilson, 694 F.3d 308, 327 (3d Cir. 2012) (citing 28 U.S.C. 

§ 2244(d)(1)(D)). Even if a court finds that a claim is untimely under § 2244(d), the 

court should consider whether the claim is eligible for equitable tolling. See, e.g., 

Giles v. Beckstrom, 826 F.3d 321, 325 (6th Cir. 2016); King v. Bell, 378 F.3d 550, 553

(6th Cir. 2004); see also Munchinski, 694 F.3d at 328-29.

With respect to Petitioner’s motion to stay these proceedings and hold them 

in abeyance: A state prisoner must exhaust available state court remedies before he 

can secure federal habeas corpus review. Coleman v. Thompson, 501 U.S. 722, 731 

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(1991); Picard v. Connor, 404 U.S. 270, 275 (1971). A petitioner satisfies the 

exhaustion requirement when he raises the claim in a manner that affords the state

courts a fair opportunity to address the federal constitutional issue. See, e.g., 

Castille v. Peoples, 489 U.S. 346, 351 (1989); Picard, 404 U.S. at 275-76. Petitioner 

must have presented to the state courts the very claim for which he seeks federal 

review—setting forth essentially the same facts, evidence, and legal basis. See Gray 

v. Netherland, 518 U.S. 152, 162-63 (1996); Picard, 404 U.S. at 275-76; Rust v. Zent, 

17 F.3d 155, 160 (6th Cir. 1994). If a petitioner fails to fairly present a claim and a 

state court remedy is still available for him to do so, then that claim is unexhausted 

and the petition would normally be subject to dismissal without prejudice for 

nonexhaustion. 28 U.S.C. § 2254(b), (c). When a district court is faced with a mixed 

petition containing both exhausted and unexhausted claims, the court has

discretion to stay the petition and hold the proceedings in abeyance to allow the 

petitioner to present the unexhausted claims to the state courts. Rhines v. Weber, 

544 U.S. 269, 275-76 (2005). In so holding, the Supreme Court emphasized that 

stay and abeyance should be utilized sparingly, explaining:

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.

Id. at 277 (citing 28 U.S.C. § 2254(b)(2)).

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III. ANALYSIS

A. Motion to Amend

Petitioner seeks to amend his petition to add a never-before-raised Brady

claim, as well as a supplemented ineffective-assistance-of-counsel claim. 

Specifically, Petitioner seeks to add the following two claims:

Nineteenth Ground for Relief: William Sapp’s convictions and 

death sentences are constitutionally infirm because the prosecution 

failed to provide trial defense counsel with exculpatory, material 

evidence.

Petitioner asserts in this proposed claim that the state failed to provide evidence 

implicating one of the victim’s father in the commission of murdering the two young 

girls; evidence implicating Petitioner’s younger brother in the commission of those 

two murders; evidence that other individuals confessed to the murders; evidence 

identifying individuals whose physical appearances matched the physical 

appearances of the assailants; evidence identifying other individuals whom police

investigated because of those individuals’ prior criminal history; evidence 

identifying other individuals the police investigated; reports inconsistent with the 

prosecution’s theory of the case—such as the time of the offense, and facts 

surrounding the abduction and the commission of the murders; reports that 

impeached the prosecution’s key witness; forensic reports; and evidence of the prior 

bad acts of Petitioner’s co-defendants. (ECF No. 56-1, at PageID 25579-603.)

Twentieth Ground for Relief: William Sapp’s convictions and death 

sentences are constitutionally infirm because trial counsel failed to 

provide him with reasonably effective assistance of counsel during 

pretrial, trial, and mitigation phases.

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Petitioner asserts that his trial counsel: failed to conduct a reasonable trial phase 

investigation—either induced by the prosecution’s suppression of the Brady

material set forth above or because, to the extent counsel received any of those 

materials, counsel failed to recognize the value of the materials; were ineffective 

during pretrial motion practice for insufficiently supporting their motion to 

suppress custodial statements and failing to challenge the state’s use of hypnosis; 

were ineffective during voir dire for failing to challenge for cause a juror who was 

exposed to pretrial publicity, failing to challenge other jurors who indicated they 

could not fairly consider mitigation evidence, and failing to raise mitigation issues 

with all of the prospective jurors; were ineffective during the prosecution’s case in 

chief for failing to cross examine the state’s only eyewitness on multiple issues; were 

ineffective during the defense case in chief for relying on cross-examination of a 

police sergeant to establish certain details rather than calling witnesses who could 

have provided direct evidence of those details; and were ineffective during the

mitigation phase for failing to emphasize the role Petitioner’s other co-defendants 

played in the commission of the offenses, for failing to corroborate the testimony of 

their sole mental health expert, and for presenting mental health records without 

any testimony to explain the significance of the records. (ECF No. 56-1, at PageID 

25603-612.)

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Petitioner’s proposed ground nineteen, and at least the first sub-part of his 

proposed ground twenty1, rely on 12,775 pages of materials that Petitioner obtained 

from the Springfield Police Department in 2018 through a public records request. 

Petitioner asserts that he is not guilty of undue delay, bad faith, dilatory motive, or 

repeated failure to cure deficiencies in his petition that would militate against 

allowing amendment. (ECF No. 56, at PageID 25438-444.) He additionally asserts 

that his proposed amendment would not unduly prejudice Respondent, and that his 

proposed claims are not futile. Petitioner’s explanation for his failure to obtain the

police records at issue and present his proposed claims sooner is because of 

seriously deficient performance on the part of his postconviction attorney, as well as 

other failings during the postconviction process that, according to Petitioner, 

resulted in habeas counsel having to conduct an investigation that should have been 

conducted years ago. Id. at PageID 25440.

Respondent disputes that Petitioner is “entitled, at this late date” to add 

“new, never-before-seen” Brady claims based on publicly available evidence. (ECF 

No. 59, at PageID 25620.) Relying on the decisions of Rose v. Lundy, 455 U.S. 509 

(1982); Duncan v. Walker, 533 U.S. 167 (2001); Mayle v. Felix, 545 U.S. 644 (2005); 

and Rhines v. Weber, 544 U.S. 269 (2005), Respondent argues that Petitioner may 

not add new claims after the expiration of the one-year statute of limitations, and 

1 Aside from the allegations relating to counsel’s failure to obtain, or appreciate the value of, 

the Brady material set forth in proposed ground nineteen, Petitioner’s proposed ground twenty 

largely mirrors ground ten as pleaded in the original petition. Compare ECF No. 27, at PageID 

9417-9426, with ECF No. 56-1, at PageID 25603-610.

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may not add new claims solely to saddle his petition with unexhausted claims 

warranting stay-and-abeyance. (ECF No. 59, at PageID 25621-632.) Respondent

also argues that the decision of Cullen v. Pinholster, 563 U.S. 170 (2011), forecloses 

“never-ending requests to add brand new claims . . . .” (ECF No. 59, at PageID 

25632.) Respondent argues in the alternative that Petitioner’s Brady claim is 

without merit, could have been raised at any time on the basis of those publicly 

available records, and is undercut by the fact that Petitioner is unequivocally and 

admittedly guilty. Id. at PageID 25633-635. Finally, Respondent argues that stayand-abeyance is not warranted because Petitioner has no viable state remedies 

available to him. Id. at PageID 25636-38.

In his reply, Petitioner offers several arguments in response, the gravamen of 

which is that even if postconviction counsel had managed to obtain the Springfield 

police records that Petitioner recently obtained through a public records request—

an occurrence that Petitioner insists is by no means a given (ECF No. 67, at PageID 

25694)—postconviction counsel could not have raised the proposed Brady and 

ineffective assistance claims at issue (1) because postconviction counsel never had 

access to a complete trial transcript or defense counsel’s files; (2) because 

postconviction counsel rendered seriously deficient performance; and (3) because 

postconviction counsel at times, due to health issues and allowing his death penalty 

certification to lapse, actually and/or effectively abandoned Petitioner. (ECF No. 67, 

at PageID 25693-706.) Regarding the timeliness of his proposed claims, Petitioner 

offers essentially the same arguments set forth above in support of the argument 

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that he is entitled to equitable tolling of the one-year statute of limitations. Id. at

PageID 25697-706. For the reasons that follow, the Court cannot find on the basis 

of the record as presently constituted that Petitioner has demonstrated that he is 

entitled to equitable tolling. That is not to say that he will not be able to do so.

As a preliminary matter, it does not appear to the Court that amendment is 

precluded under the standards established by Fed. R. Civ. P. 15(a) and the Foman

decision. The underlying facts and circumstances asserted by Petitioner in support 

of his proposed Brady and ineffective-assistance claims may present proper subjects

of relief, insofar as these claims in general are claims upon which habeas relief may 

be granted and on their face are not patently meritless. Respondent does not 

seriously contend, and the Court has no reason to believe, that Petitioner has acted 

in bad faith or has ever failed to cure deficiencies in his petition.

Notwithstanding Respondent’s arguments to the contrary, the Court is not 

persuaded that Petitioner is acting with dilatory motive, or that undue delay or 

prejudice to Respondent would result from allowing amendment, in view of the fact 

that Petitioner’s quest for obtaining the police records occurred in just the last two 

years and in a reasonable amount of time after habeas counsel assumed 

representation of Petitioner. Since obtaining the records, Petitioner has been in 

steady contact with the Court and appears to have been diligent in his review of, 

and expansion of the record with, the more than 12,000 pages at issue. And the fact

that this case is in its relative infancy, as opposed to having proceeded to a

substantive stage such as the completion of discovery or the briefing of summary 

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judgment, makes it difficult to find that amendment would unduly prejudice 

Respondent.

Respondent’s citations to Rose, Duncan, Mayle, Rhines, and Pinholster do not 

persuade the Court otherwise. With respect to Rose v. Lundy, Respondent is correct 

that a mixed petition containing exhausted and unexhausted claims cannot be 

granted. (ECF No. 59, at PageID 25621.) That does not mean, however, that a 

mixed petition can never be allowed. Rhines v. Weber, which was issued to provide 

a roadmap for how district courts should handle mixed petitions, would not have 

been necessary if mixed petitions were never allowed. On the topic of Rhines,

Respondent argues that Rhines does not support Petitioner’s motion to amend to 

add unexhausted claims because the Rhines Court was faced with a petition that 

was already mixed, as opposed to a petition that would become mixed if amended. 

The Court is not persuaded that Rhines is limited in that manner, or that Rhines

contains a prohibition against allowing amendment for the purposes of determining 

whether stay-and-abeyance is warranted, as Respondent argues. Id. at PageID 

25622, 25624-625. To that point, the Court hastens to note that its determination of 

whether amendment is warranted in this case will be informed solely by the 

standards governing amendment set forth in Fed. R. Civ. P. 15(a) and Foman—not 

as a stepping-stone for determining whether abeyance is justified.

Respondent cites Duncan for the proposition that Petitioner may not add a 

new claim after the expiration of the one-year statute of limitations. (ECF No. 59, 

at PageID 25624.) But that argument ignores 28 U.S.C. § 2244(d)(1)(D), which 

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anticipated the filing of claims based on newly discovered evidence, as well as 

equitable tolling. Respondent likewise invokes Mayle v. Felix to argue that 

Petitioner’s proposed claims do not relate back to the date on which the original 

petition was filed, but Petitioner does not raise that argument and this Court has 

not made that finding.

Finally, Respondent’s reliance on Pinholster is misplaced, insofar as 

Pinholster addressed how habeas courts should handle new evidence in support of 

existing claims, not entirely new claims. Petitioner’s proposed Brady claim is, by 

Respondent’s own characterization, a “new, never-before-seen” claim, Id. at PageID 

25620, and Petitioner’s proposed ineffective-assistance claim is comprised of one 

entirely new instance of alleged error based on the police records that Petitioner 

recently obtained, while the remaining instances appear to mirror or overlap with 

instances already pleaded in existing claim ten and do not appear to rely on new 

evidence. To the extent that Respondent offers Pinholster as a bulwark against

“never-ending requests to add brand new claims,” Id. at PageID 25632, even 

assuming for purposes of this argument that Pinholster stands for that proposition,

the Court is not persuaded that Petitioner’s request to add two discrete claims, 

based on recently obtained evidence, relatively early in these habeas proceedings, is 

properly characterized as a “never-ending request” to add new claims. Nor is the 

Court persuaded that Petitioner is attempting an “end-run around Pinholster with a 

breezy request for more state litigation to ‘exhaust’ new evidence.” Id. at PageID 

25633. The Court has already rejected Respondent’s assertion that Petitioner is 

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seeking to exhaust only new evidence, as opposed to new claims, and the Court is 

not persuaded that Petitioner’s requests to amend and for abeyance are anything 

but earnest.

Respondent argues in the alternative that Petitioner’s requests to amend and 

for abeyance should be denied because Petitioner’s proposed Brady claim is without 

merit, both because the new records on which that claim is based could have been 

obtained earlier with a simple request, and because Petitioner is “unequivocally and 

admittedly guilty.” The Court finds this argument unpersuasive because, for 

reasons discussed more fully below, whether or to what extent the records that 

Petitioner recently obtained could have been obtained decades earlier is not as 

easily answered as Respondent suggests. Further, the Court is not of the view that 

an accused who makes inculpatory statements is never entitled to raise a Brady

claim, especially where, as here, the accused has persistently challenged the 

constitutionality of the inculpatory statements. Respondent additionally argues 

against stay-and-abeyance on the ground that no viable state remedies exist for 

Petitioner to pursue (ECF No. 59, at PageID 25636-638); that argument is more 

appropriately addressed when considering Petitioner’s motion for abeyance rather 

than his motion to amend.

Thus, as to the ultimate question of whether allowing amendment would be 

futile, i.e., whether the proposed claims could withstand a Fed. R. Civ. P. 12(b)(6) 

motion to dismiss, the only component that neither the pleadings nor the record as 

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presently constituted can sufficiently answer is whether the proposed claims would 

be timely.

Petitioner argues that he is entitled to equitable tolling because his 

postconviction counsel never had a complete copy of the trial transcript or trial 

counsel’s files, because his postconviction counsel rendered seriously deficient 

assistance, and because this is a death penalty case. It is undisputed that the 

federal habeas corpus statute of limitations set forth in 28 U.S.C. § 2244(d) is 

subject to equitable tolling under appropriate circumstances. Holland v. Florida, 

560 U.S. 631, 634, 645 (2010); Hall v. Warden, Lebanon Correctional Inst., 662 F.3d 

745, 749 (6th Cir. 2011). A habeas petitioner is entitled to equitable tolling only 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. Holland, 

560 U.S. at 649; Hall, 662 F.3d at 750. The diligence required for equitable tolling 

purposes is “reasonable diligence,” not “maximum feasible diligence.” Holland, 560 

U.S. at 653 (citations omitted); Robinson v. Easterling, 424 F. App’x 439, 443 (6th 

Cir. 2011); Avery v. Warden, Marion Correctional Inst., Case No. 2:18-cv-387, 2019 

WL 1409562, at *9 (S.D. Ohio Mar. 28, 2019); see also Doe v. Busby, 661 F.3d 1001, 

1013 (9th Cir. 2011) (“To determine if a petitioner has been diligent in pursuing his 

petition, courts consider the petitioner’s overall level of care and caution in light of 

his or her particular circumstances.”); Ramos-Martinez v. United States, 638 F.3d 

315, 324 (1st Cir. 2011) (citation omitted) (diligence requirement for equitable 

tolling “does not demand a showing that the petitioner left no stone unturned.”).

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To demonstrate “extraordinary circumstance” for equitable tolling purposes, 

Petitioner must show that what prevented him from timely filing was both

extraordinary and beyond his control. Menominee Indian Tribe of Wisconsin v. 

United States, 136 S.Ct. 750, 756 (2016); Avery, 2019 WL 1409562, at *12. Attorney 

error can warrant equitable tolling, but only if it is “‘far more’” serious than “‘a 

garden variety claim of excusable neglect.’” Giles v. Beckstrom, 826 F.3d at 325

(quoting Holland, 560 U.S. at 651-52). Relatedly, attorney abandonment can rise to 

the level of an extraordinary circumstance warranting equitable tolling. Robertson 

v. Simpson, 624 F.3d at 785-86. Further, mental incompetence or incapacity may 

provide a basis for equitable tolling with a showing that (1) the petitioner is 

mentally incompetent; and (2) the petitioner’s mental incompetence caused his 

failure to comply with the statute of limitations. Ata v. Scutt, 662 F.3d 736, 741-42 

(6th Cir 2011); Robertson, 624 F.3d at 785-86; McSwain v. Davis, 287 F. App’x 450, 

456 (6th Cir. 2008).

Petitioner’s precise argument is that equitable tolling is warranted because 

his postconviction counsel never had a complete copy of the transcript or trial 

counsel’s files, because postconviction counsel provided seriously deficient 

assistance and even effectively abandoned Petitioner, and because Petitioner is 

under sentence of death. (ECF No. 56, at PageID 25438-440; ECF No. 67, at 

PageID 25672-673; 25680; 25700-707.) With respect to Respondent’s insistence that 

the 12,775 pages of records that Petitioner recently obtained through a public 

records request were publicly available long before that request was made, 

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Petitioner asserts that it is folly to speculate “that if post-conviction counsel had 

made a simple public records request of the Springfield Police Department, the 

record holder would have provided the same 12,775 pages in the year 2000 that it 

provided in 2018.” (ECF No. 67, at PageID 25694.) Beyond that, Petitioner reasons 

that even if postconviction counsel had been in possession of those records, without 

a complete copy of the transcript or trial counsel’s files, postconviction counsel 

would still have been in no position to recognize and raise the Brady and ineffectiveassistance claims that Petitioner only discovered when he obtained the police 

records.

With respect to postconviction counsel’s performance and alleged 

abandonment, Petitioner argues that counsel filed a woefully insufficient petition 

that consisted of six claims supported by two exhibits—one of which was 14 pages of 

transcript related to a stun-belt claim, and the other of which was two affidavits by 

Petitioner concerning the same stun-belt claim. (ECF No. 56, at PageID 25438-440; 

ECF No. 67, at PageID 25702-705.) Not surprisingly, Petitioner notes, the state

courts found that all six claims were barred by res judicata. Beyond rendering 

seriously deficient assistance, Petitioner continues, postconviction counsel at times 

effectively abandoned Petitioner, both because of a heart attack that incapacitated 

counsel for days if not months in 2003 and because counsel let lapse multiple times 

during his representation of Petitioner counsel’s Ohio Supreme Court certification 

for handling death penalty cases. (ECF No. 67, at PageID 25700-701).

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Finally, Petitioner asserts that equitable tolling is warranted in this instance 

because “death is different.” (ECF No. 67, at PageID 25673, 25706-707.)

Although the Court finds Petitioner’s arguments persuasive, the Court is 

concerned that for all it does know about the factors informing equitable tolling—

which is troubling—there is too much the Court does not know. As the Court will 

discuss below, the wealth of case law on equitable tolling emphasizes the factintensive nature of this inquiry and the corresponding importance of exhaustive 

factual development. To this point, it is necessary to set forth what the pleadings 

and record demonstrate, and what they do not. 

The record before this Court, even with critical gaps that the Court will 

identify, raises grave questions about the sufficiency of postconviction counsel’s 

representation of Petitioner, and about other irregularities in the postconviction 

proceedings—especially considering that this was a death penalty case. As 

Petitioner asserts and the record confirms, postconviction counsel, just over a year

after being appointed (ECF No. 19-9, at PageID 5252), filed a postconviction petition 

consisting of 17 pages, raising six claims, supported by two exhibits. By any 

measure of experience with or knowledge of capital cases in Ohio, that strikes this 

Court as an unusually paltry petition, wanting in substantive arguments and 

evidentiary support. That is especially so considering the complex circumstances of 

the offenses for which Petitioner was sentenced to death—including but not limited 

to the fact that Petitioner was charged with the commission of three aggravated 

murders and one attempted murder, to wit: the aggravated murders of Phree 

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Morrow, age 12, and Martha Leach, age 11, on August 22, 1992; the aggravated

murder of Belinda Anderson on September 8, 1993; and the attempted murder of 

Hazel Pearson on December 7, 1993. The crimes were under investigation for four

years, during which police investigated countless suspects before zeroing in on 

Petitioner’s co-defendants and eventually Petitioner himself. Multiple people 

participated in the sexual assaults and murders of Morrow and Leach. And 

Petitioner appears to suffer from serious mental health disorders. These facts alone 

give rise to a reasonable inference that a robust postconviction petition was in the 

offing. The petition that postconviction counsel filed was hardly robust. But the 

Court does not know why.

The record contains no testimony, affidavits, or other substantive evidence

shedding needed light on what kind of research, investigation, and strategy went 

into postconviction counsel’s preparation of the petition. That leaves the Court with 

just the paucity of the petition by which to assess postconviction counsel’s 

performance. A determination of whether equitable tolling is warranted requires 

more than speculation and inference.

Beyond postconviction counsel’s questionable performance, Petitioner alleges 

with some substantiation that there were periods during which postconviction 

counsel actually or effectively abandoned Petitioner. The first time that 

postconviction counsel sought to withdraw from Petitioner’s case, on September 2, 

2003, he stated in his motion that he had suffered a heart attack on March 24, 2003, 

had been in intensive care for three days, and had been in a rehabilitation program

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ever since. (ECF No. 19-16, at PageID 6193.) Further, in a motion to withdraw 

filed in the trial court on April 14, 2015, postconviction counsel noted that he had 

long since let lapse his Ohio Supreme Court certification to handle death penalty 

cases. (ECF No. 19-16, at PageID 6212.) Petitioner has provided documentation 

demonstrating that postconviction counsel’s certification lapsed from October 27, 

2000 till December 7, 2000; from July 1, 2004 till December 9, 2004; and from July 

2, 2007 until June 15, 2015—the date that the state court of appeals granted 

counsel’s motion to withdraw. (ECF No. 67-1.)

What the record does not reveal, however, is just as critical as what it does. 

Specifically, the record contains no evidence of whether, during any of the periods 

set forth above, postconviction counsel considered himself to no longer be 

representing Petitioner, or whether, during any of those periods, postconviction 

counsel was physically, mentally, or legally unable to represent Petitioner. The 

absence of such evidence hinders the Court’s ability to determine with the 

confidence that an equitable tolling determination demands whether any of the 

periods set forth above rise to the level of actual or effective abandonment 

constituting an extraordinary circumstance. Similarly, the record sheds no light on 

what Petitioner knew of, or had a duty to inquire about, postconviction counsel’s 

status. The latter particularly complicates the determination of whether Petitioner 

exercised reasonable diligence in pursuing his rights. The Sixth Circuit has found a 

failure to exercise reasonable diligence from a prisoner’s failure or delay in 

inquiring about the status of his or her legal case. Keeling v. Warden, Lebanon 

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Correctional Inst., 673 F.3d 452, 463-64 (6th Cir. 2012); Robinson v. Easterling, 424 

F. App’x at 442-43 (6th Cir 2011); Winkfield v. Bagley, 66 F. App’x 578 583-84 (6th 

Cir. 2003); see also, Patterson v. Lafler, 455 F. App’x 606, 610-11 (6th Cir. 2012) 

(declining to apply equitable tolling where postconviction counsel had suffered

cervical spine problems requiring surgery that prevented timely filing, due to the 

petitioner’s failure to inquire about the status of his petition).2

Petitioner alleges with some substantiation that postconviction counsel never 

had complete copy of the trial transcript (and perhaps defense counsel’s trial file). 

(ECF No. 67, at PageID 25674-677, 25680, 25695.) Petitioner asserts, and this 

Court’s review of the record confirms, that postconviction counsel initially had 

access only to transcripts from pretrial, competency, and final sentencing hearings. 

(ECF No. 67, at PageID 25674 (citing ECF No. 19-17, at PageID 6339).) Eventually, 

Petitioner continues, postconviction counsel obtained access to “significant 

amounts” of other portions of the transcripts—specifically, the mitigation hearing 

and closing arguments—which counsel was only able to access by driving to the 

Clark County Clerk’s Office and reading the transcripts there. Id. On appeal, years 

later and with new postconviction appellate counsel, the state court of appeals 

ordered prior postconviction counsel to provide postconviction appellate counsel 

with a copy of the transcript. Id. at PageID 25677 (citing ECF No. 19-17, at PageID 

2 With respect to questions about the adequacy of postconviction counsel’s representation of 

Petitioner, the Court notes, as Petitioner has, that although the state trial court docket indicates 

that W. Joseph Edwards was also appointed to represent Petitioner in postconviction (ECF No 19-16, 

at PageID 6214-15), it does not appear that Edwards ever actually represented Petitioner or 

otherwise did any work on his case.

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6337). According to Petitioner, direct appeal counsel did not have a copy of the 

transcript and original postconviction counsel provided postconviction appellate 

counsel with transcripts of just two hearings. Id. at PageID 25677 (citing ECF No. 

19-17, at PageID 6341, 6339). Eventually, Petitioner states, the appellate court 

located a copy of the transcript, but required postconviction appellate counsel to 

review the transcript at the clerk’s office. Id. at PageID 25677 (citing ECF No. 19-

17, at PageID 6343-44).

The foregoing is stunning and worth exploring in more detail than the record 

currently permits. The notion of an attorney preparing a postconviction petition, 

especially in a death penalty case, without having a complete copy of the trial 

transcript is incomprehensible. The importance of having a complete copy of the

trial transcript in preparation for filing a postconviction petition seems too obvious 

to require stating. But to the extent that it does require stating, it is telling that an 

Ohio’s defendant’s deadline for filing a timely postconviction petition is triggered by 

the filing of the trial transcript in the court of appeals. Ohio Rev. Code 

§ 2953.21(A)(2). Although it seems evident from the record that postconviction 

counsel was aware that he was not in possession of a complete copy of the trial 

transcript, the record does not illuminate what sort of research, investigation, and

strategy convinced counsel that he did not need a complete copy of the trial 

transcript to prepare the postconviction petition. That seems particularly

important to probe, in view of the fact that the petition that counsel filed consisted 

of 17 pages, raising six claims, supported by two exhibits.

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Additionally, it is not entirely clear from the record whether postconviction 

counsel’s failure to obtain a complete copy of the transcript was because he deemed 

it unnecessary or because it was unavailable. It is reasonable to infer from 

pleadings that were filed during the postconviction appellate proceedings in 2015 

that there was a time during the proceedings when a complete copy of the transcript

could not be located. That does not clear up whether a complete copy was available

to postconviction counsel prior to his filing the petition. The postconviction petition 

includes a statement that “[t]he transcript of proceedings in this case was filed on 

December 14, 2000.” (ECF No. 19-16, at PageID 6140.) That corresponds with a

December 14, 2000 entry on the trial court docket indicating that an original 

transcript of the jury trial and sentencing disposition was to be made, with one copy 

to be provided to defense counsel and one copy to be provided to the prosecution. Id. 

at PageID 6115. The foregoing strongly indicates, but does not definitively 

establish, that a complete copy of the transcript was available to postconviction 

counsel. This issue warrants further investigation.

Another circumstance, among the totality, that raises a red flag to this Court 

is the fact that 13 years elapsed between the time the appellate court dismissed the 

postconviction appeal for lack of a final appealable order, and the trial court’s 

actually issuing compliant findings of fact and conclusions of law. Counsel filed the 

17-page petition on June 4, 2001. (ECF No. 19-16, at PageID 6138-54.) Six months 

later, on January 10, 2002, the trial court summarily dismissed the petition without 

issuing any findings of fact and conclusions of law. Id. at PageID 6172. Several 

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weeks later, postconviction counsel filed a motion asking the trial court to issue 

findings of fact and conclusions of law (Id. at PageID 6173); but it does not appear 

that the trial court ever ruled on that motion or issued the requested findings and 

conclusions. Moreover, on August 26, 2002, the state sought leave to file a response,

indicating that the state had never received the petition. Id. at PageID 6175. The 

state filed its response on September 30, 2002, and postconviction counsel filed his 

reply on November 7, 2002. Id. at PageID 6178, 6188. It does not appear from the 

record that these pleadings resulted in the trial court issuing another decision 

setting forth findings of fact and conclusions of law. And ten months after he filed 

his reply, on September 2, 2003, postconviction counsel filed his first motion to 

withdraw, noting that he had suffered a heart attack six months earlier.

Despite filing a motion requesting findings of fact and conclusions of law

shortly after the trial court issued its summary decision, and despite the fact that 

the trial court permitted the state to file a response and Petitioner to file a reply, 

postconviction counsel still pursued a timely appeal from the trial court’s original 

summary decision. Postconviction counsel filed his appellate brief on April 5, 2002. 

(ECF No. 19-17, at PageID 6229.) The court of appeals dismissed the appeal for 

lack of a final appealable order, since the trial court’s summary decision did not set 

forth the required findings of fact and conclusions of law. Id. at PageID 6407.

Some thirteen years later, on March 25, 2015, the trial court issued an entry 

setting forth findings of fact and conclusions of law denying all six of the 

postconviction claims on the basis of res judicata. (ECF No. 19-16, at PageID 6195.) 

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The trial court indicated that although it had drafted findings of fact and 

conclusions of law immediately after the court of appeals dismissed the appeal in 

2002, the trial court only recently discovered that those findings and conclusions 

had never been docketed and could no longer be located, prompting the trial court to

draft those findings and conclusions anew in the March 25, 2015 entry. Id. at

PageID 6197.

The Court understands that mistakes happen and matters can be overlooked. 

But, however this 13-year lapse was able to occur, the obvious question remains: 

who was looking out for Petitioner’s rights during that time? Combined with the 

health issues and certification lapses discussed above, postconviction counsel’s 

apparent failure to inquire while Petitioner’s postconviction action sat dormant for 

13 years strikes this Court as an important issue to explore vis-à-vis the 

“extraordinary circumstance” component of an equitable tolling determination. 

Similarly, with respect to the “reasonable diligence” component, as discussed above

in conjunction with postconviction counsel’s health issues and certification lapses, it 

is important to know whether Petitioner ever inquired about the status of his 

postconviction case, or whether he had a duty to do so. The record as presently 

constituted answers neither question.

A final circumstance that bears consideration is Petitioner’s mental capacity. 

Petitioner appears to suffer from serious mental health problems. Although he is 

not strictly offering his mental incapacity, especially during the postconviction 

proceedings when the facts underlying his proposed claims arguably should have

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been discovered and developed, as the reason to apply equitable tolling, the fact that 

mental incompetence can provide the basis for equitable tolling persuades this 

Court that it is a factor to be considered in the totality of circumstances. See, e.g., 

Ata v. Scutt, 662 F.3d at 741-42 (mental incompetence or incapacity may provide a 

basis for equitable tolling); McSwain v. Davis, 287 F. App’x at 456 (same); see also 

Avery v. Warden, Marion Correctional Inst., 2019 WL 1409562, at *11 (holding that 

courts considering the application of equitable tolling should consider the realities 

and circumstances of a prisoner’s confinement) (discussing Jones v. United States, 

689 F.3d 621, 627 n.4 (6th Cir. 2012)). Although mental incompetence or incapacity 

typically informs the “extraordinary circumstance” component of an equitable 

tolling requirement, the Court is of the view that that factor could be relevant to the 

“reasonable diligence” component as well, as possibly lessening Petitioner’s duty to

inquire about the status of his case.

The confluence of circumstances set forth above presents serious questions 

about the representation that Petitioner received during postconviction proceedings,

as well as other irregularities that occurred during the postconviction proceedings, 

that could, if the record is more fully developed, trigger the application of equitable 

tolling as to the two claims that Petitioner seeks to add.3 As noted earlier, courts 

have made clear how fact-intensive an equitable tolling inquiry is, and thus how 

3 Petitioner does not appear to argue that his proposed claims nineteen and twenty might 

be timely under 28 U.S.C. § 2244(d)(1)(D), which provides that the statute of limitations begins to 

run when the factual predicate underlying a claim could have been discovered through the exercise 

of due diligence. But even if he had, that argument would seem to suffer from the same or similar 

factual gaps that afflict his equitable tolling argument—namely, whether records that were 

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important factual development is to that inquiry. See, e.g., Nassiri v. Mackie, 967 

F.3d 544, 548 (6th Cir. 2020) (“When faced with lingering questions of fact in 

confronting an equitable tolling argument, courts frequently remand for further 

factual development and legal argument.”) (collecting cases); Ata v. Scutt, 662 F.3d 

at 745; Robertson v. Simpson, 624 F.3d at 785-86 (“Whether equitable tolling is 

warranted is a fact-intensive inquiry best left to the district courts.”) (citing 

Holland, 560 U.S. at 649-50); Avery v. Warden, Marion Correctional Inst., 2019 WL 

1409562, at *9. With respect to every circumstance presented in this case, the

Court has identified important questions that the record, as currently constituted,

does not answer. And this Court would prefer to obviate the possibility of this case 

being remanded years down the road for factual development that this Court could

undertake now.

With the exception of timeliness, the Court finds that every other factor 

militates in favor of allowing Petitioner to amend his petition to add proposed 

claims nineteen and twenty. But being unable to determine whether Petitioner’s 

proposed claims would be timely or eligible for equitable tolling, the Court must 

DENY Petitioner’s Motion to Amend (ECF No. 56), but does so WITHOUT 

PREJUDICE, subject to reconsideration or timely renewal. The Court is of the 

view that Petitioner should be given the opportunity to more fully develop the facts 

underlying his plea for the application of equitable tolling.

technically publicly available could have been discovered sooner than 2018.

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To that end, the Court DIRECTS the Magistrate Judge to convene a status 

conference to discuss, and establish whatever briefing schedule is necessary to 

facilitate, further factual development on the issue of whether equitable tolling, or 

even 28 U.S.C. § 2244(d)(1)(D), should apply to proposed claims nineteen and 

twenty.

B. Motion to Stay

Having denied, for the time-being, Petitioner’s motion to amend, this Court is

not faced with a mixed petition in need of the stay-and-abeyance procedure set forth 

in Rhines v. Weber. To that point, the Court already rejected Petitioner’s argument 

that “amending the habeas petition is not a prerequisite to granting the abeyance 

motion,” (ECF No. 67, at PageID 25680-81), in its November 26, 2019 order

addressing Petitioner’s motion for clarification. (ECF No. 37, at PageID 9546-47.)

As with Petitioner’s motion to amend, the Court DENIES Petitioner’s Motion 

to Stay (ECF No. 55), WITHOUT PREJUDICE and subject to reconsideration or 

renewal, should Petitioner succeed in amending his petition to add unexhausted 

claims.

IV. CONCLUSION

For the foregoing reasons, Petitioner’s motions for abeyance (ECF No. 55) and 

to amend (ECF No. 56) are DENIED, WITHOUT PREJUDICE and subject to 

reconsideration or renewal as set forth above.

The Magistrate Judge is DIRECTED to convene a status conference to 

discuss, and establish whatever briefing schedule is necessary to facilitate, further 

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factual development on the issue of whether equitable tolling, or even 28 U.S.C. 

§ 2244(d)(1)(D), should apply to proposed claims nineteen and twenty. That status 

conference can take place in whatever format the Magistrate Judge deems best, in

view of the COVID-19 pandemic.

IT IS SO ORDERED.

/s/ Sarah D. Morrison 

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE

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