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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION AT COLUMBUS 

JASON S. SEXTON, 

Petitioner, : Case No. 2:18-cv-424 

- vs - District Judge Sarah D. Morrison 

Magistrate Judge Michael R. Merz 

LYNEAL WAINRIGHT, Warden, 

 Marion Correctional Institution 

 : 

 Respondent. 

OPINION AND ORDER 

 This habeas corpus case is before the Court after remand by the United 

States Court of Appeals for the Sixth Circuit. Sexton v. Wainwright, 968 F.3d 607 

(6th Cir. 2020). On appeal the circuit court vacated this Court’s decision that 

Sexton’s Ground One was barred by the statute of limitations in 28 U.S.C. § 2244(d) 

and remanded the case for consideration of Ground One on the merits. 968 F.3d at 

614. The circuit court declined to grant a certificate of appealability on Grounds 

Two and Three, which remain dismissed on limitations grounds. 

 The sole Ground for Relief before this Court on remand is: 

Ground One: Mr. Sexton was denied due process and equal protection 

of the law when the Franklin County Court of Appeals denied his 

motion for leave to file a direct appeal, and appointment of counsel for 

that appeal, a violation of the Fourteenth Amendment to the United 

States Constitution. 

 The Magistrate Judge has filed both a Report and Recommendations on the 

remanded issue (ECF No. 44) and a Supplemental Report and Recommendations 
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(ECF No. 51) reconsidering the case in light of the Warden’s Objections (ECF No. 

45) and Petitioner’s Objections to the Report (ECF No. 50). The case is now before 

the Court on Petitioner’s Objections to the Supplemental Report (ECF No. 56). 

 Under Fed.R.Civ.P. 72(b), a District Judge is required to consider de novo any 

portion of a Magistrate Judge’s report and recommendations as to which objection is 

made. This Decision is the result of the Court’s de novo consideration of both sets of 

Objections made by the Petitioner as well as the Warden’s Response to Petitioner’s 

most recent set of Objections (ECF No. 57). 

I. Post-Remand Litigation 

 The original Report interpreted Ground One as arguing that “the Franklin 

County Court of Appeals denied [Petitioner] due process of law and equal protection 

of the laws, both in violation of the Fourteenth Amendment to the United States 

Constitution, when it denied his request for a delayed direct appeal.” (Report., ECF 

No. 44, PageID 384.) The Report recommended deferring to the Tenth District 

Court of Appeals rejection of this claim on the merits because the rejection was 

neither contrary to nor an objectively unreasonable application of clearly 

established Supreme Court precedent. Id. at 391. 

Assuming arguendo that it was a constitutional violation to deny a delayed 

appeal, the Report also found it was harmless error because the sole assignment of 

error Sexton wished to raise on appeal is without merit. Id. at PageID 391-92. The 

Report also recommended rejecting the Warden’s position that error in granting or 

denying a delayed appeal was not cognizable in habeas corpus because delayed 
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appeal is a collateral remedy. Id. at PageID 384-85. 

Both Sexton and the Warden objected, and the Magistrate Judge filed a 

Supplemental Report. (ECF No. 51). Persuaded by the decisions of other judges of 

this Court that seeking a delayed appeal is a collateral attack on a criminal 

judgment and that errors in that process are not cognizable in habeas, the 

Supplemental Report reversed course and recommended Ground One be dismissed 

as not cognizable. (Id. at PageID 422). 

Sexton objected that the Tenth District’s decision was not entitled to 

deference because it was not made on the merits. The Supplemental Report 

rejected this argument on the basis of Harrington v. Richter, 562 U.S. 86 (2011). Id.

at PageID 423-26. In response to the Report’s conclusion that Sexton had cited no 

on-point Supreme Court precedent, Sexton relied in his Objections on United States 

ex rel. Smith v. McMann, 417 F.2d 648, 654 (2nd Cir. 1969), cert. denied, 397 U.S. 

925 (1970). The Supplemental Report rejected this argument because a denial of 

certiorari lacks precedential value. (ECF No. 51, PageID 426-27). 

Sexton’s sole proof in the Tenth District that he was not told of his right to 

appeal was his own self-serving affidavit. The Report concluded the Tenth District’s 

refusal to accept Sexton’s Affidavit as conclusive proof was not an unreasonable 

determination of the facts. Sexton objected to the Magistrate Judge’s refusal to 

accept the Affidavit as conclusive proof, but the Magistrate Judge declined to 

change his mind, writing “[n]o court is bound to accept as proven uncorroborated 

facts set forth in an affidavit prepared by an interested party twenty years after the 
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fact.” (ECF No. 51, PageID 427-29). 

 Sexton’s Fourth objection was that the Court had held no evidentiary hearing 

on his claims. (Objections, ECF No. 50, PageID 413-415). The Supplemental Report 

noted a hearing was barred by Cullen v. Pinholster, 563 U.S. 170 (2011). 

II. Consideration of Petitioner’s Objections 

 In his instant Objections, Sexton again claims he was misinformed by the 

trial court and his counsel about his appeal rights. (ECF No. 56, PageID 446). 

However, he points to no additional evidence from the State Court Record 

supporting this claim. It thus rests solely on his affidavit prepared twenty years 

after the events occurred. The Court agrees with the Magistrate Judge that the 

Tenth District Court of Appeals was not bound to accept the Affidavit as conclusive 

proof. Sexton relies on State v. Silsby, 119 Ohio St. 3d 370 (2008), for the 

proposition that direct appeals and delayed appeals are substantively and 

procedurally the same. That is true once a defendant obtains an appeal which is a 

matter of right for the first thirty days after conviction and then depends on a 

showing of good cause for a delayed appeal. 

 Sexton again objects that the Tenth District’s decision was not on the merits. 

The Court agrees with the Magistrate Judge that the Tenth District’s decision, 

though brief, was on the merits of the question at issue here: was Sexton entitled to 

a delayed appeal? Sexton has not overcome the presumption that state court 

decisions are on the merits recognized in Harrington.

 In response to the Supplemental Report’s conclusion that Sexton has cited no 
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Supreme Court precedent holding there is a right to a delayed appeal in state court, 

Sexton again cites Wolfe v. Randle, 267 F. Supp. 2d 743 (S.D. Ohio 2003). As the 

Supplemental Report notes, Wolfe is not a Supreme Court holding nor does it cite 

any Supreme Court holdings in point. (ECF No. 51, PageID 51, PageID 427). 

Sexton again objects to the Magistrate Judge’s refusal to accept his Affidavit, but 

the Court agrees that the question is not what the Magistrate Judge believes, but 

whether it was reasonable for the Tenth District not to accept the Affidavit as 

conclusive proof. 

 Despite Sexton’s objection, the Court agrees with the Magistrate Judge that 

Pinholster precludes an evidentiary hearing here. Sexton relies on McClellan v. 

Rapelje, 703 F. 3d 344 (6th Cir. 2013), but that court held “Pinholster only applies to 

limit consideration of additional evidence when the state court has previously 

decided the same merits issue later presented to the federal court.” 703 F.3d at 350. 

But here the Tenth District did decide the issue presented in Ground One on the 

merits. 

 In the Report, the Magistrate Judge found that any error in not allowing a 

delayed appeal was harmless because the intended assignment of error was 

meritless. In the Supplemental Report the Magistrate Judge noted Sexton had not 

objected to this conclusion. (ECF No. 51, PageID 429-30). Sexton now objects (ECF 

No. 56, PageID 453-54). He offers no analysis to show his proposed assignment of 

error would have had merit but speculates that appointed counsel might come up 

with different assignments of error. The Court agrees with the Magistrate Judge 
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that Sexton has forfeited his right to object to the harmless error analysis in the 

Report. 

Finally, Sexton objects that the Magistrate Judge did not order a complete 

state court transcript. When the case was filed, Magistrate Judge Vascura, to 

whom it was initially assigned, ordered the State to file “those portions of the state 

court record needed to adjudicate any defenses made in the response.” (Order, ECF 

No. 2, PageID 22). The Warden filed portions of the State Court Record along with 

his Motion to Dismiss the Petition as time barred. (ECF Nos. 4, 5). Sexton 

previously requested that he be furnished with the transcripts. (ECF No. 13). The 

Magistrate Judge denied that request September 27, 2018. (ECF No. 17). Sexton’s 

present objection is untimely – by more than two years. 

III. Conclusion 

 Based on the foregoing analysis, the Report (except as to the cognizability of 

Ground One) and the Supplemental Report are ADOPTED and Petitioner’s 

Objections are OVERRULED. The Clerk will enter judgment dismissing the 

Petition with prejudice. The Court also ADOPTS the Magistrate Judge’s 

recommendation that a certificate of appealability be issued on the question 

whether denial of a delayed appeal by an Ohio court of appeals states a claim for 

habeas corpus relief where the Petitioner claims neither the trial court nor his 

attorney informed him of his right to appeal. 

IT IS SO ORDERED. 

 _/s/ Sarah D. Morrison_________________ 

SARAH D. MORRISON 

UNITED STATES DISTRICT JUDGE