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. Jd.

The Court is not persuaded that reasonable jurists would debate this Court’s dismissal of
this action as plainly barred by the one-year statute of limitations provided for under the provision
of 28 U.S.C. § 2244(d). The Court therefore DECLINES to issue a certificate of appealability.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal would not be in good
faith and that an application to proceed in forma pauperis on appeal should be DENIED.

The Clerk is DIRECTED to enter final JUDGMENT.

AY 7-10 ~-Jo\8

EDM . SARGUS, JR.
Chief Unitéd States District Judge

IT ISSO ORDERED.



IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROBERT B. ROUSH,
Case No. 2:18-cv-457

Petitioner, Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Kimberly A. Jolson

ve

WARDEN, ROSS
CORRECTIONAL INSTITUTION,

Respondent,

OPINION AND ORDER

On June 13, 2018, the Magistrate Judge issued a Report and Recommendation pursuant to
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts
recommending that this action be dismissed as barred by the one-year statute of limitations
provided for under 28 U.S.C. § 2244(d). (ECF No. 6.) Petitioner has filed an Objection to the
Magistrate Judge’s Report and Recommendation. (ECF No. 9.) 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. 9) is OVERRULED. The Report and Recommendation (ECF No. 6) is ADOPTED
and AFFIRMED. This action is hereby DISMISSED.

The Court DECLINES to issue a certificate of appealability.

Petitioner objects to recommendation of dismissal of this case as time-barred. He argues
that the statute of limitations is an affirmative defense that must be raised by the Respondent, or
waived, and further contends that his filing of a delayed application to reopen the appeal under
Ohio Appellate Rule 26(B) tolled the running of the statute of limitations. Additionally, Petitioner

asserts that this action is timely based on his actual innocence.


A District Court is permitted, but not obligated, to sua sponte address the timeliness of a
federal habeas corpus petition, Day v. McDonough, 547 U.S. 198 (2006), and may do so when
conducting an initial review under Rule 4. See Wogenstahl v. Charlotte, No. 1:17-cv-298, 2017
WL 3053645, at *2 (S.D. Ohio July 19, 2017) (citing McDonough, 547 U.S. at 198). As discussed
by the Magistrate Judge, Petitioner’s judgment of conviction became final under the provision of
28 U.S.C. § 2244(d)(1)(A) on May 7, 2014, when the time period expired to file an appeal from
the trial court’s re-sentencing entry. The statute of limitations began to run on the following day,
and expired one year later, on May 8, 2015. Petitioner waited years later, until May 2018, to file
this action. He did not file his delayed Rule 26(B) application until July 21, 2016, also after the
statute of limitations had long since expired. Therefore, that action could not toll the running of
the statute of limitations under § 2244(d)(2). See Vroman v. Brigano, 346 F.3d 598, 602 (6" Cir.
2003) (citation omitted).

The one-year statute of limitations may be equitably tolled upon a “credible showing of
actual innocence.” 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)). Accordingly, “a
petitioner whose claim is otherwise time-barred may have the claim heard on the merits if he can
demonstrate through new, reliable evidence not available at trial, that it is more likely than not that
no reasonable juror would have found him guilty beyond a reasonable doubt.” Yates v. Kelly, No.
1:11-cv-1271, 2012 WL 487991, at *1 (N.D. Ohio Feb. 14, 2012) (citing Souter, 395 F.3d at 590).
Actual innocence means factual innocence, not mere legal sufficiency. See Bousely v. United
States, 523 U.S. 614, 623 (1998). However, the Petitioner must overcome a high hurdle in order

to establish his actual innocence.

The United States Supreme Court has held that if a habeas petitioner “presents
evidence of innocence so strong that a court cannot have confidence in the outcome


of the trial unless the court is also satisfied that the trial was free of nonharmless

constitutional error, the petitioner should be allowed to pass through the gateway

and argue the merits of his underlying claims.” Schlup, 513 U.S. at 316, 115 S. Ct.

851, 130 L.Ed, 2d 808. Thus, the threshold inquiry is whether “new facts raise[ ]

sufficient doubt about [the petitioner's] guilt to undermine confidence in the result

of the trial.” Id. at 317, 513 U.S. 298, 115 S. Ct. 851, 130 L.Ed.2d 808 .... “To be

credible, such a claim requires petitioner to support his allegations of constitutional

error with new reliable evidence—whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence—that was not

presented at trial.” Schlup, 513 U.S. at 324, 115 S. Ct. 851, 130 L.Ed.2d 808. The

Court counseled however, that the actual innocence exception should “remain rare”

and “only be applied in the ‘extraordinary case.’ ” Jd. at 321, 513 U.S. 298, 115 S.

Ct. 851, 130 L-Ed.2d 808.

Souter, at 589-90 (footnote omitted). “To invoke the miscarriage of justice exception to AEDPA's
statute of limitations ... a petitioner ‘must show that it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence.’ ” McQuiggin v. Perkins, 569
USS. 383, 399 (2013) (quoting Schlup, 513 U.S. at 327). Petitioner has failed to meet this burden
here, and has provided no new reliable evidence in support of his claim of actual innocence. Thus,
Petitioner has failed to establish he is entitled to equitable tolling under this exception.

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts, 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).

When 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). 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