Motion to Dismiss, ECF No. 10, is GRANTED. This action is hereby
DISMISSED.

Pursuant to Rule 11 of the Rules governing Section 2255 Proceedings, the
Court now considers whether to issue a certificate of appealability. “In contrast to
an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in
federal court holds no automatic right to appeal from an adverse decision by a
district court.” Jordan v. Fisher, — U.S. ——, 135 S.Ct. 2647, 2650 (2015); 28
U.S.C. § 2253(c)(1) (requiring a habeas petitioner to obtain a certificate of
appealability in order to appeal.)

Where, as here, a claim has been denied on the merits, a certificate of
appealability may issue only if the petitioner “has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to make a
substantial showing of the denial of a constitutional right, a petitioner must show
“that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880,
893, n. 4 (1983)). When a claim has been denied on procedural grounds, a
certificate of appealability may issue if the petitioner establishes that jurists of
reason would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling. /d.

Case No. 2:17-cv-738 Page 5 of 6


motion to withdraw his guilty plea, with a lengthy hand-written Affidavit in
Support. PAGEID # 208-11. On February 2, 2015, he filed an Affidavit of
Disqualification of the trial judge, again submitting an Affidavit in Support.
PAGEID # 234-39. On December 24, 2015, he filed a Motion to Vacate
Void Sentence and Set Aside Unconstitutional Plea. PAGEID #245. He
filed a pro se Notice of Appeal and brief in support . PAGEID # 291-92.
He also filed a pro se Notice of Appeal and memorandum in support in the
Ohio Supreme Court. PAGEID # 344, 346. Thus, the record plainly
indicates that Petitioner's alleged mental health issues or alleged
incompetence has not prevented him from accessing the courts or from
earlier filing this habeas corpus petition. “[E]quitable tolling should be
applied “sparingly,” [Ata,] at 741, and mental incompetency is not a per se
reason to toll the statute of limitations.” Kitchen v. Bauman, 629 F. App’x
at 747 (citing McSwain v. Davis, 287 F. App’x 450, 456 (6th Cir. 2008)).
Thus, further development of the record with Petitioner’s medical records
would not assist him. This Court need not conduct an evidentiary hearing
to resolve the issue.

Petitioner's Objection, ECF No. 27, is OVERRULED. The Order and
Report and Recommendation, ECF No. 20, is ADOPTED and AFFIRMED.
Petitioner's Motion for Default Judgment, ECF No. 4, and Request for Judicial

Notice of Supplemental Evidence, ECF No. 19, are DENIED. Respondent's

Case No. 2:17-cv-738 Page 4 of 6


For the same reasons stated above, the Court is not persuaded that
Petitioner has met this standard here. Therefore, the Court DECLINES to issue a
certificate of appealability.

IT IS SO ORDERED.

ICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

Case No, 2:17-cv-738 Page 6 of 6


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEVEN A. JENKINS,
Case No. 2:17-cv-738
Petitioner, Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.
NEIL TURNER, WARDEN,

Respondent.

OPINION AND ORDER

On September 10, 2018, the Magistrate Judge issued an Order and Report
and Recommendation denying Petitioner's Motion for Default Judgment and
Request for Judicial Notice of Supplemental Evidence and recommending that
Respondent’s Motion to Dismiss be granted and that this action be dismissed.
ECF No. 20. Petitioner has filed an Objection to the Magistrate Judge’s Order
and Report and Recommendation. ECF No. 27. Pursuant to 28 U.S.C. § 636(b),
this Court has conducted a de novo review. For the reasons that follow,
Petitioner's Objection, ECF No. 27, is OVERRULED. The Order and Report and
Recommendation, ECF No. 20, is ADOPTED and AFFIRMED. Petitioner's
Motion for Default Judgment, ECF No. 4, and Request for Judicial Notice of
Supplemental Evidence, ECF No. 19, are DENIED. Respondent's Motion to
Dismiss, ECF No. 10, is GRANTED. This action is hereby DISMISSED.

The Court DECLINES to issue a certificate of appealability.


Petitioner challenges his April 2008 conviction pursuant to his guilty plea in
the Franklin County Court of Common Pleas for voluntary manslaughter. The
Magistrate Judge recommended dismissal of this action as barred by the one-
year statute of limitations pursuant to 28 U.S.C. § 2244(d). Petitioner objects to
that recommendation.

Petitioner argues, as he did previously, that the statute of limitations should
be equitably tolled in view of his mental health issues. He complains that the
Court failed to consider his request for an order compelling discovery of his
medical records to support this claim. He seeks an evidentiary hearing on the
issue or, alternatively, requests that the Court conduct an in camera review of his
medical records. Petitioner states that he prepared and filed all of the prior
pleadings in this case only through the assistance of a prison inmate he met in
2015. He claims that the state courts improperly denied his motion to withdraw
his guilty plea and vacate his void sentence as barred under Ohio’s doctrine of
res judicata, violating his due process and equal protection rights and asserts
that the trial judge was biased against him and improperly imposed sentence.

However, in order to obtain equitable tolling of the statute of limitations
based on mental incompetency, a petitioner must establish that his mental
incompetency caused his untimely filing. See Kitchen v. Bauman, 629 F. App’x
743, 747 (6th Cir. 2015) (citing Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011)).
In other words, “a blanket assertion of mental incompetence is insufficient to toll

the statute of limitations.” Ernst v. White, No. 2:17-CV-219-DCR-REW, 2018 WL

Case No. 2:17-cv-738 Page 2 of 6


843015, at *3 (E.D. Ky. Jan. 22, 2018). Petitioner cannot meet this standard
here. He previously alleged that he suffers from chronic depression and that
either the lack of medication or the effect of his medication caused him to be
unable to enter a valid guilty plea. See ECF No. 9, PAGEID # 210; ECF No. 16,
PAGEID # 422. These allegations, however, are entirely without support.
Additionally, “‘mental illness is not the same as mental incompetence,” and a
petitioner's failure to present any evidence of his mental health status during the
limitations period is fatal to his tolling effort. Ernst v. White, 2018 WL 843015, at
*3 (citing Watkins v. Deangelo-Kipp, 854 F.3d 846, 852 (6th Cir. 2017)); see also
Sales v. Taylor, No. 4:14-CV-58-HSM-SKL, 2015 WL 4487833, at *3 (E.D. Tenn.
July 23, 2015) (noting that generalized claims of mental incompetence do not

suffice):

Even assuming Petitioner did suffer from some degree of impaired
intellectual or mental functioning, not all cognitive deficiencies are
sufficiently pervasive or debilitating that they prevent compliance with
28 U.S.C. § 2254(d). See Starks v. Easterling, 2014 U.S. Dist. LEXIS
124395, 2014 WL 4347593, at *7 (M.D.Tenn. Sept. 2, 2014) (finding
mild mental impairment was not grounds for equitably tolling the
limitations period in the absence of any indication that such
impairment rendered the petitioner incapable of managing his court
filings).

Id.

Moreover, the record does not indicate that Petitioner lacked the
ability to access the courts. On May 7, 2008, he filed a pro se Notice of
Appeal. ECF No. 9, PAGEID # 137. He thereafter requested the dismissal
of the appeal. PAGEID # 205. On March 13, 2008, he filed a pro se

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