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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 George C. Smith 

Magistrate Judge Michael R. Merz 

LYNEAL WAINRIGHT, Warden, 

 Marion Correctional Institution 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case is before the Court on Respondent’s Motion to Dismiss the case 

as barred by the statute of limitations (ECF No. 5). On July 19, 2018, the Court notified Petitioner 

that his response to the Motion was due to be filed by August 6, 2018 (ECF No. 7). Twice since 

then the Court has granted Petitioner’s requests for extensions of time, with the latest extension 

expiring September 10, 2018. 

Timeliness of Opposition 

 On September 21, 2018, the Clerk received and docketed Petitioner’s Reply/Opposition 

Brief (“Reply,” ECF No. 15). Petitioner claims he deposited this document in the United States 

mail on September 7, 2018. Id. at PageID 195. If that is true, the Reply was timely filed, because 

a prisoner’s papers are deemed filed when deposited in the prison mailing system. However, there 

is reason to doubt the veracity of Petitioner’s representation because the envelope in which the 
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Reply was mailed to the Court is postmarked September 14, 2018. Id. at PageID 206. That would 

make the filing untimely and subject to being stricken. Adjudicating the actual date of mailing, 

however, would consume more judicial resources than are appropriately devoted to the question. 

Therefore, unless Respondent produces evidence that Petitioner’s certificate of mailing is false, 

the Magistrate Judge will treat the Reply as timely filed and proceed to the merits of the Motion 

to Dismiss. 

 Sexton pleads the following Grounds for Relief: 

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. 

Ground Two: Mr. Sexton was denied due process and equal 

protection of the law when the trial court and counsel failed to 

inform him of his appellate rights, and his right to counsel on direct 

appeal, a violation of the Fourteenth Amendment to the United 

States Constitution. 

Ground Three: Mr. Sexton was denied his right to effective 

assistance of counsel when trial counsel failed to consult with him 

about his right to appeal, and that his guilty plea to aggravated 

murder with specifications was not in compliance with O.R.C. 

2945.06, a violation of the Sixth Amendment to the United States 

Constitution. 

(Petition, ECF No. 1, PageID 17-19.) 

Merits of the Motion to Dismiss 

 Habeas corpus actions under 28 U.S.C. § 2254, such as this one, are subject to a one-year 

statute of limitations, codified at 28 U.S.C. § 2244(d) which provides: 
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(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 

(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 

post-conviction 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. 

 Respondent’s Position 

 Sexton was sentenced on October 15, 1997 (State Court Record, Entry, ECF No. 4, PageID 

42-43). Because Sexton took no appeal at that time, Respondent asserts his conviction became 

final November 14, 1997, and the statute of limitations expired one year later, November 15, 1998. 

During that one year, Sexton filed no application for post-conviction review which would have 
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tolled the statute. Therefore, Respondent asserts, the Petition, filed April 26, 2018, was 

approximately nineteen and one-half years too late (Motion, ECF No. 5, PageID 148-49). 

Petitioner’s Position 

 Section 2244(d)(1)(B) 

 Sexton first claims his Petition is timely under 28 U.S.C. § 2244(d)(1)(B). He asserts there 

was a state-created impediment to his filing consisting of the trial court’s and his trial attorney’s 

failure to advise him at the time of his guilty plea of his appeal rights. He claims this impediment 

was not removed until he was informed by Inmate Law Clerk John Smith at the Marion 

Correctional Institution in June 2017 about the possibility of filing for a delayed appeal (Smith 

Affidavit, ECF No. 14-1, PageID 174; Sexton Affidavit, id. at PageID 176). Having learned of 

that possibility, Sexton filed for a delayed appeal in July 2017 (State Court Record ECF No. 4, 

PageID 66-68). The Tenth District Court of Appeals denied that delayed appeal September 21, 

2017. Id. at PageID 107-108. Sexton appealed to the Supreme Court of Ohio on November 3, 

2017. Id. at PageID 112-13. That Court declined jurisdiction on January 31, 2018. Id. at PageID 

130. Sexton claims the statute of limitations did not begin to run until ninety days later when the 

time allowed for him to seek certiorari from the United States Supreme Court expired, which he 

claims would have been April 29, 2018.1 Since he filed April 26, 2018, his Petition was, under 

this theory, timely filed. 

 

1

 Ninety days after January 31, 2018, is actually May 1, 2018. 
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 In Ground One, Sexton claims he was denied due process when the Tenth District denied 

him leave to file a delayed appeal. He says that claim accrued on September 21, 2017, when the 

Tenth District reached that decision and the statute began to run on that date, was tolled for fortythree days while his appeal to the Supreme Court of Ohio was pending, and then did not expire 

until December 28, 2018, well after he filed the Petition (Reply, ECF No. 15, PageID 192). 

Analysis 

 In an effort to show he diligently pursued his rights, Sexton claims he wrote to the State 

Public Defender seeking assistance after his conviction. He has expanded the record with part of 

a letter from that office dated December 3, 1998, advising him that his proper remedy was by way 

of a petition for post-conviction relief and enclosing the required form (ECF No. 14-5, PageID 

178). Sexton then filed that Petition pro se on December 22, 1998 (State Court Record, ECF No. 

4, PageID 46-49). The trial judge dismissed the Petition because it was untimely filed under Ohio 

Revised Code § 2953.21. Id. at PageID 56. Sexton took no appeal from that decision. Indeed, 

the next thing in the State Court Record is his attempt at a delayed appeal in July 2017. 

 Sexton gives no account of anything he did to assert his rights between January 28, 1999, 

when the petition for post-conviction relief was denied and June 2017 when he spoke with the 

inmate law clerk; his claim that he exercised due diligence during that time is purely conclusory 

(Reply, ECF No. 15, PageID 193). Complete inaction for more than eighteen years is simply not 

due diligence and Sexton is not entitled to equitable tolling of the statute for any of that time. 

 As an alternative theory, Sexton argues the trial court’s and his trial attorney’s failure to 

advise him of his appellate rights constituted a state-created impediment to his filing. Sexton is 
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correct that if his attorney provided ineffective assistance of trial counsel, that must be attributed 

to the State. Were it not so, ineffective assistance of trial counsel would not violate the Sixth 

Amendment, which imposes obligations on the State, not attorneys qua attorneys. 

 In support of this theory, Sexton relies on DiCenzi v. Rose, 452 F.3d 465 (6th Cir. 2006). 

In that case the petitioner claimed, as Sexton does here, that neither the trial court nor his trial 

attorney advised him of his right to appeal. Because the maximum sentence was imposed, the trial 

court was statutorily obliged to advise him of that right, despite his guilty plea, under Ohio Revised 

Code § 2953.08. About two years after he was sentenced, DiCenzi contacted the public defender 

and then filed a motion for delayed appeal. One of DiCenzi’s grounds for relief paralleled Sexton’s 

Ground One, to wit, that he was denied due process when he was denied a delayed appeal. The 

Sixth Circuit found this claim accrued when the delayed appeal was denied and his subsequent 

habeas petition was timely as to this claim. DiCenzi had three other habeas grounds related to his 

sentencing. The Sixth Circuit remanded for a district court determination of when DiCenzi could 

reasonably have learned of his appeal rights in the exercise of due diligence. 

DiCenzi supports Sexton’s claim that his Petition is timely as to the First Ground for Relief 

because of when that claim accrued. But DiCenzi does not support timeliness of Grounds Two 

and Three because Sexton has offered no evidence of any action that might be deemed due 

diligence between January 1999 and June 2017. As Respondent points out, the burden of proving 

diligence rests on a habeas petitioner (Motion, ECF No. 5, PageID 149, citing DiCenzi, Lott v. 

Coyle, 261 F.3d 594 (6th Cir. 2001), and Johnson v. United States, 544 U.S. 295 (2005)). 

 Moreover, Sexton presents no authority for the proposition that a trial court’s failure to 

advise of a right to appeal constitutes a state-created impediment to filing a habeas petition. Nor 
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does he present authority that there is a federal constitutional right to be advised by a trial court of 

a right to appeal. 

 

Section 2244(d)(1)(D)

 To obtain a later starting date for the statute of limitations under subsection (d)(1)(D), a 

petitioner is expressly required to show when he could have discovered the factual predicate of his 

claim in the exercise of due diligence. Based on DiCenzi, Ground One is timely because Sexton 

filed within one year of learning of its factual predicate. But that is not true of Grounds Two and 

Three. Sexton knew as soon as it happened in October 1997 that the trial judge had not told him 

he had a right to appeal and his attorney had not consulted with him about an appeal and possible 

grounds for appeal. Those are the factual predicates of Grounds Two and Three. Sexton claims 

he did not learn until his conversation with Inmate Law Clerk Smith in June 2017 the legal 

significance of those facts or at least the legal significance he now claims for those facts. But there 

is no deep mystery, at least inside the prison system, that there is a right to appeal from a final 

judgment of conviction and a right to appointed counsel for such an appeal. To allow a prisoner 

to do nothing to protect his rights for over eighteen years and allow that to excuse untimely filing 

would essentially write the statute of limitations out of the Judicial Code. 

 The Tenth District bolstered this finding of lack of diligence when it concluded, “Sexton 

has presented no viable reason for the delay in his attempt to appeal. He entered into a plea bargain 

and received the benefit of that plea bargain. He should not now be permitted a direct appeal from 

the agreement he made almost 20 years ago.” State v. Sexton, Case No. 17AP-564 (10th Dist. Sept. 

21, 2017). 
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 Sexton relies on Granger v. Hurt, 90 Fed. Appx. 97 (6th Cir. 2004), but the facts of that 

case are materially different. There the inmate thought his attorney was appealing and did not 

discover no appeal had been taken until two months past the filing deadline. The circuit court 

excused that two-month delay, finding it was reasonable. In this case we have an eighteen-year 

delay before Sexton filed his motion for delayed appeal, and no reasonable excuse for the delay. 

Conclusion 

 The habeas corpus statute of limitations applied on a claim-by-claim basis. Pace v. 

DiGuglielmo, 544 U.S. 408, 416 (2005); Bachman v. Bagley, 487 F.3d 979, 983, 984-85 (6th Cir. 

2007). Sexton’s First Ground for Relief did not accrue until the Tenth District denied his delayed 

appeal and his Petition is therefore timely as to that Ground. The Court should deny the Motion 

to Dismiss as to Ground One. 

 However, he has not shown due diligence with respect to Grounds Two and Three and 

those claims should be dismissed with prejudice as untimely filed. Because reasonable jurists 

would not disagree with this conclusion as to Grounds Two and Three, 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. 

October 4, 2018. 

 s/ Michael R. Merz

 United States Magistrate Judge 
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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).