IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

STEVEN A. JENKINS, 

 Case No. 2:17-cv-738 

 Judge Michael H. Watson 

Chief Magistrate Judge Elizabeth P. Deavers 

 v. 

NEIL TURNER, WARDEN, 

 Respondent. 

ORDER and 

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 also before the Court on the Petition, Respondent’s Motion to

Dismiss, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge 

RECOMMENDS that Respondent’s Motion to Dismiss (ECF No. 10) be GRANTED and that 

this action be DISMISSED. 

Petitioner’s Motion for Default Judgment (ECF No. 4) is DENIED. 

Facts and Procedural History 

 The Ohio Tenth District Court of Appeals summarized the facts and procedural history of 

the case as follows: 

On March 13, 2002, a Franklin County Grand Jury indicted 

appellant for aggravated murder stemming from a fatal shooting 

during a robbery in 1980. Appellant pleaded guilty to the charge of 

voluntary manslaughter, and the trial court convicted him of that 

offense. On April 10, 2008, the trial court imposed the maximum 

sentence for the offense of 7 to 25 years in prison. 

On May 7, 2008, appellant filed a notice of appeal to this court 

from the judgment of the trial court. Appellant also filed a motion 

to withdraw his guilty plea on May 13, 2008. On July 9, 2008, the 

trial court denied appellant's motion to withdraw his plea. 

Appellant did not file an appeal to this court from the trial court's 
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July 9, 2008 decision. On July 15, 2008, appellant dismissed his 

appeal from his conviction and sentence.1

On December 24, 2015, appellant filed the instant “motion to 

vacate void sentence and set aside unconstitutional plea.” The 

motion alleges several grounds for relief, including (1) “[t]his 

defendant did not have an impartial judge, resulting in structural 

error,” (2) due to appellant's documented mental illness, “[t]he plea 

tendered was not made knowingly, voluntarily and intelligently 

making it unconstitutional,” (3) the statute of limitations barred his 

prosecution, and (4) “[t]rial counsel was ineffective falling short of 

the 6th amendment.” (Mot. to Vacate at 6, 8, and 14.) 

On January 8, 2016, the state filed an “answer to petition and 

motion to dismiss,” wherein the state urged the trial court to treat 

appellant's motion as a petition for postconviction relief, pursuant 

to R.C. 2953.23(J), and dismiss the petition as untimely filed. The 

state argued alternatively that res judicata barred the grounds for 

relief asserted in appellant's motion. On January 18, 2016, the trial 

court issued a decision and entry construing appellant's motion as a 

petition for postconviction relief, pursuant to R.C. 2953.23(A), and 

dismissing the petition as untimely filed. 

Appellant timely appealed to this court from the decision of the 

trial court. 

II. ASSIGNMENTS OF ERROR 

Appellant assigns the following as error: 

[1.] The trial court erred in recasting this appellant's motion to 

correct void sentence as a post conviction to deny it on procedural 

grounds and applying the principals of res judicata when the 

motion advanced two jurisdictional challenges and obvious errors 

which by law can be raised at any time thus violating this 

appellant's constitutional right to a fair trial and the due process of 

law guaranteed by the 5th and 14th amendments of the U.S. 

Constitution and the equivalent Articles and Sections of the Ohio 

Constitution. 

[2.] The trial court erred in not granting relief because it is clear 

that this defendant did not have an impartial judge at trial and 

sentencing which results in structural error and violates his rights 

 

1

 This date appears to be a typographical error. The record indicates that, on July 15, 2009, the appellate court 

issued a Journal Entry of Dismissal granting Petitioner’s voluntary motion to dismiss the appeal. (ECF No. 9, 

PageID# 207.) 
3 

to a fair trial and the due process of law under the 5th and 14th 

amendments of the U.S. Constitution and the equivalent Articles 

and Sections of the Ohio Constitution. 

[3.] The trial court erred in not granting relief on the claim the plea 

tendered was not possibly knowingly, voluntarily and intelligently 

made thus making it unconstitutional, violating this appellant's 

constitutional rights to a fair trial and the due process of law under 

the 5th and 14th amendments of the U.S. Constitution and the 

equivalent Articles and Sections of the Ohio Constitution. 

[4.] The trial court erred in not granting relief on the statute of 

limitation claim. A conviction for voluntary manslaughter in 2006 

stemming from an offense committed in 1980, when the corpus 

delecti was available in 1980, with no tolling provision available, 

was barred by the provisions of O.R.C. 2901.13. Since no proper 

waiver was made to that defense, the sentencing court lacked the 

jurisdiction to impose a sentence in 2006 and the sentence is void 

as a matter of law. The trial court's refusal to grant relief violated 

this appellant's constitutional rights to the due process of law and a 

fair trial in the 5th and 14th amendments of the U.S. constitution 

[sic] and the equivalent Articles and Sections of the Ohio 

Constitution. 

[5.] The trial court erred in not granting relief on this appellant's 

ineffective assistance of counsel claim as counsel at trial and 

sentencing was ineffective in numerous ways violating this 

appellant [sic] constitutional rights to a fair trial, effective 

assistance of couns [sic] and the due process of law under the 5th, 

6th and 14th amendments of the U.S. Constitution and the 

equivalent Articles and Sections of the Ohio Constitution. 

State v. Jenkins, No. 16AP-105, 2016 WL 4480525, at *1-2 (Ohio App. 10th Dist. Aug. 25, 

2016). On August 25, 2016, the appellate court affirmed the trial court’s dismissal of 

Petitioner’s motion to vacate as an untimely post conviction petition and, to the extent that it 

challenged the validity of his guilty plea, as barred under Ohio’s doctrine of res judicata. See id. 

On February 22, 2017, the Ohio Supreme Court declined to accept jurisdiction of the appeal. 

State v. Jenkins, 148 Ohio St.3d 1412 (Ohio 2017).2

 

 

2

 On February 2, 2015, Petitioner filed an affidavit of disqualification in the Ohio Supreme Court, in which he 

asserted that the trial judge was biased against him. (ECF No. 9, PageID# 234-41.) On February 17, 2017, the Ohio 
4 

 On August 21, 2017, Petitioner filed the Petition for a writ of habeas corpus pursuant to 

28 U.S.C. § 2254.3 He asserts that he was denied a fair trial, due process, and equal protection of 

law based on the trial court’s involvement in a federal civil law action against Petitioner (claim 

one); that his guilty plea was not knowing, intelligent, or voluntary in view of his mental health 

issues (claim two); that the trial court lacked jurisdiction because the statute of limitations had 

expired on the charges against him (claim three); that he was denied the effective assistance of 

trial counsel (claim four); and that the trial court unconstitutionally construed his motion to 

vacate as a petition for post conviction relief (claim five). 

Motion for Judgment of Default 

 On November 28, 2017, Petitioner filed a Motion for Default Judgment pursuant to Rule 

55(a) of the Federal Rules of Civil Procedure, requesting that judgment be granted in his favor 

due to the Respondent’s failure to file a timely response. (ECF No. 4.) However, shortly 

thereafter, on December 4, 2017, the Court issued an Order directing the Respondent to file an 

answer within sixty (60) days. (ECF No. 5.) On February 27, 2018, the Court granted 

Respondent’s request for an extension of time until February 27, 2018, to file a response. Order

(ECF No. 8.) On March 13, 2018, Respondent filed the Motion to Dismiss this action as timebarred. (ECF No. 10.) Therefore, Respondent did not fail to submit a timely response to the 

Petition. Moreover, “default judgments are not appropriate in habeas proceedings based on a 

respondent's failure to answer.” Scott v. Merlak, No. 4:17-cv-296, 2017 WL 6453333, at *1 

(N.D. Ohio Sept. 22, 2017) (citing Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 1970) (superseded 

on other grounds by statute); Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990); Aziz v. 

Leferve, 830 F.2d 184, 187 (11th Cir. 1987); Jackson v. Lazaroff, No. 1:16CV2072, 2017 WL 

 Supreme Court denied the affidavit of disqualification, as Petitioner had no pending action in the state trial court. 

(PageID# 242.) 

3

 He indicates that he executed the Petition on August 3, 2017. (ECF No. 1-2, PageID# 25.) 
5 

3098578, at *3 (N.D. Ohio June 13, 2017), report and recommendation adopted, No. 1:16 CV 

2072, 2017 WL 3088252 (N.D. Ohio July 19, 2017); Alder v. Burt, 240 F. Supp. 2d 651, 677 

(E.D. Mich. 2003)). 

“The burden to show that he is in custody in violation of the 

Constitution of the United States is on the prisoner” and the state's 

failure to file a timely response “does not relieve the prisoner of his 

burden of proof.” Allen, 424 F.2d at 138; citing Jones v. Russell, 

396 F.2d 797 (6th Cir.1968) and Gray v. Johnson, 354 F.2d 986 

(6th Cir. 1965). Furthermore, “[r]eleasing a properly convicted 

prisoner or imposing on the state the costs and uncertainties of 

retrying him, perhaps many years after the offense, is apt to be a 

disproportionate sanction for the wrong of failing to file a timely 

motion for an extension of time.” Bleitner v. Welborn, 15 F.3d 652, 

653 (7th Cir. 1994). 

Id. Therefore, Petitioner’s Motion for Default Judgment (ECF No. 4) is DENIED. 

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) provides: 

(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 
6 

(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. 

Petitioner's conviction became final on July 15, 2009, when the appellate court granted 

his motion to dismiss his appeal. Journal Entry of Dismissal (ECF No. 9, PageID# 207.) The 

statute of limitations began to run on the following day, and expired one year later, on July 16, 

2010. Petitioner waited more than seven years, until August 3, 2017, to execute this Petition. 

Petitioner’s December 2015, state collateral action did not toll the running of the statute of 

limitations under the provision of 28 U.S.C. § 2244(d)(2), as the statute of limitations had 

already long since expired. See Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003); Wright v. 

Warden, Noble Correctional Institution, No. 1:15-cr-123, 2016 WL 3746259, *5 (S.D. Ohio Feb. 

11, 2016) (“Once the limitations period is expired, state collateral review proceedings can no 

longer serve to avoid the statute of limitations bar”), adopted and affirmed 2016 WL 3654463 

(S.D. Ohio July 8, 2016). Further, the record fails to reflect that Petitioner acted diligently in 

pursuing relief or that some extraordinary circumstances prevented him from timely filing such 

that equitable tolling of the statute of limitations applies. See Holland v. Florida, 560 U.S. 631, 

650 (2010) (A 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)(citing Pace, 544 U.S. at 418). The record likewise fails to reflect 

that Petitioner can establish a credible claim of actual innocent that would justify equitable 
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tolling of the statute of limitations. See Cook v. Ohio, No. 2:15-cv-02669, 2016 WL 374461, at 

*10 (S.D. Ohio Feb. 1, 2016) (citing Souter v. James, 395 F.3d 577, 602 (6th Cir. 2005)). 

Recommended Disposition 

Therefore, the Magistrate Judge RECOMMENDS that Respondent’s Motion to Dismiss

(ECF No. 10) be GRANTED and that this action be DISMISSED. 

Petitioner’s Motion for Default Judgment (ECF No. 4) is DENIED. 

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 

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). 
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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. 

IT IS SO ORDERED. 

 

 s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers 

 Chief United States Magistrate Judge