1 

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. 

SUBSTITUTED REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case is before the Court on Respondent’s Objections (ECF No. 20) to 

the Magistrate Judge’s Report and Recommendations (“Report,” ECF No. 19) recommending that 

Respondent’s Motion to Dismiss the case as barred by the statute of limitations (ECF No. 5) be 

granted in part and denied in part. Petitioner has also objected (ECF No. 22) and District Judge 

Smith has recommitted the case for reconsideration in light of the Objections (ECF No. 21). 

 The following Report is substituted for the original. 

Procedural History 

 In January 1997 Sexton was indicted by the Franklin County grand jury on three counts of 

aggravated murder with death penalty specifications, one count of kidnapping, and one count of 

aggravated robbery (Indictment, State Court Record, ECF No. 4, PageID 28-35). Prior to trial his 

attorney negotiated a plea agreement pursuant to which he pleaded guilty to one count of 
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aggravated murder with specifications and one count of aggravated robbery with agreed 

consecutive sentences of twenty years to life for the murder and ten to twenty-five years for the 

robbery (Entry of Guilty Plea, State Court Record, ECF No. 4, PageID 41.) The prosecutor also 

agreed not to pursue a rape charge arising at the county jail after arrest. The trial judge then 

imposed the agreed sentence. Id. at PageID 42-43). Sexton took no direct appeal. 

 On December 22, 1998, Sexton filed a petition for post-conviction relief under Ohio 

Revised Code § 2953.21 in which he acknowledged that he had not appealed the conviction and 

sentence (State Court Record, ECF No. 4, PageID 46-49). The trial court denied the petition 

January 28, 1999, concluding both that it was untimely and that it was without merit. Id. at PageID 

55-61. Sexton did not appeal from that decision and in fact took no other action in the case until 

he filed a motion for a delayed appeal August 8, 2017 (State Court Record, ECF No. 4, PageID 

62-74). The Tenth District Court of Appeals denied that motion September 21, 2017. Id. at PageID 

107-108. The Ohio Supreme Court declined to accept jurisdiction of Sexton’s appeal on January 

31, 2018, and he effectively filed his Petition here on April 26, 2018.1

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 

 

1

 See ECF No. 1, PageID 15, showing placement in the prison mailing system that date. That therefore is the effective 

filing date. Houston v. Lack, 487 U.S. 266 (1988); Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). 
3 

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.) 

The Motion to Dismiss and the Original Report 

 Sexton pleaded guilty to aggravated murder and aggravated robbery on October 10, 1997, 

in the Franklin County Court of Common Pleas and 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, when the time for appeal ran, 

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 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). 

 Sexton claims that the trial court and trial attorney’s failures to advise him of his right to 

appeal constitute a “state-created impediment” to filing a habeas petition that was not removed 

until June 2017 when an inmate law clerk advised him of the possibility of a delayed appeal (Smith 

Affidavit, ECF No. 14-1, PageID 174; Sexton Affidavit, id. at PageID 176). After that 

“impediment” was removed, he promptly filed for a delayed appeal and appealed from the denial 

of that request to the Ohio Supreme Court. He then filed here April 26, 2018. He therefore claims 

a start date for the statute of limitations of June 2017 under 28 U.S.C. § 2244(d)(1)(B), when the 

“state-created impediment” was removed by his conversation with inmate law clerk Smith. 

 Sexton also asserts his due process claim in Ground One, based on denial of his delayed 
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appeal, did not accrue until that denial took place on September 21, 2017, and the statute was tolled 

during his appeal to the Ohio Supreme Court. He claims “he could not have learned about his lack 

of notification of appellate rights until he spoke to an Inmate Law Clerk in June of 2017, and thus 

that the statute of limitations on these claims [Grounds Two and Three] should have started running 

only at that time, under 28 U.S.C. § 2244(d)(1)(D).” (Reply/Opposition Brief, ECF No. 15, 

PageID 192-93). 

 The Original Report accepted Sexton position that his First Ground for Relief only accrued 

when the Tenth District denied his delayed appeal, relying on DiCenzi v. Rose, 452 F.3d 465 (6th 

Cir. 2006)(Report, ECF No. 19, PageID 219). The Report rejected Sexton’s position on Grounds 

Two and Three, concluding he had “offered no evidence of any action that might be deemed due 

diligence between January 1999 and June 2017.” Id. Furthermore, 

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. 

Id. at PageID 220. 

 Both parties have objected to the Original Report. 

Respondent’s Objections 

 Sexton’s First Ground for Relief claims he was denied due process and equal protection 

when the Franklin County Court of Appeals denied his motion for leave to file a delayed appeal 

(Petition, ECF No. 1, PageID 17). Sexton asserts that claim actually accrued on September 21, 

2017, when the Tenth District entered its denial (Reply, ECF No. 15, PageID 192). He thus claims 

the benefit of the starting date for the statute of limitations provided in 28 U.S.C. § 2244(d)(1)(D): 
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“the date on which the factual predicate of the claim or claims presented could have been 

discovered through the exercise of due diligence.” Obviously the denial of the delayed appeal 

motion could not have been discovered before it happened, with or without the exercise of 

diligence. The Original Report concluded that since the Petition was filed within one year of that 

denial, it was timely, citing DiCenzi v. Rose, 452 F.3d 465 (6th Cir. 2006), for the proposition that 

a habeas claim arising from denial of a delayed direct appeal accrues when the denial occurs. The 

precise language from DiCenzi reads: 

DiCenzi first claims that the appellate court improperly refused to 

allow him to file a delayed appeal. This claim accrued when the 

Court of Appeals for Cuyahoga County denied DiCenzi's motion for 

delayed appeal, on September 25, 2001. Therefore, under 28 U.S.C. 

§ 2244(d)(1), the AEDPA "clock" began running on September 25, 

2001. 1 See 28 U.S.C. § 2244(d)(1)(D) (initiating the one-year 

AEDPA requirement on the date upon which the factual predicate 

of the claim or claims presented could have been discovered through 

the exercise of due diligence). 

452 F.3d at 468. 

 To overcome this language from DiCenzi, Respondent relies on Shorter v. Richard, 659 

Fed. Appx. 227 (6th Cir. Aug. 12, 2016), cited at Objections, ECF No. 20, PageID 224. Shorter 

had pleaded guilty with an agreed sentence and did not seek a delayed appeal until November 

2013, five years after he was sentenced. Shorter’s relevant ground for relief reads: 

GROUND ONE: Petitioner was denied due process and equal 

protection of the law, when the trial court did not inform him of his 

appellate rights and his subsequent application for leave to file a 

delayed appeal was denied, in violation of the Fourteenth 

Amendment to the United States Constitution. 

Id. at **4. 

 Petitioner Shorter relied on DiCenzi for the same proposition for which the Original Report 

relied on it. Respondent Warden counters that Shorter could not use the delayed appeal denial 
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date because he had not been diligent in seeking a delayed appeal. Id. at **8, relying on Johnson 

v. United States, 544 U.S. 295 (2005). Judge Clay’s opinion in Shorter found that the DiCenzi 

court had failed to consider Johnson which held that 

Where one "discovers" a fact that one has helped to generate, 

however, whether it be the result of a court proceeding or of some 

other process begun at the petitioner's behest, it does not strain logic 

to treat required diligence in the "discovery" of that fact as entailing 

diligence in the steps necessary for the existence of that fact. 

Id. at 310. Circuit Judge White concurred in the judgment only, noting that DiCenzi was a 

published decision directly in point which could not be overruled by a subsequent panel.2 

 It is the well-settled law of the Sixth Circuit that a panel of the Court cannot overrule the 

published decision of another panel. Hinchman v. Moore, 312 F.3d 198, 203 (6th Cir. 2002). The 

prior decision remains controlling authority unless an inconsistent decision of the United States 

Supreme Court requires modification of the decision or the Sixth Circuit en banc overrules the 

prior decision. Issa v. Bradshaw, ___ F.3d ___, 2018 U.S. App. LEXIS 27131 n.2 (6th Cir. 2018) 

United States v. Verwiebe, 874 F.3d 258, 262 (6th Cir. 2017); United States v. Elbe, 774 F.3d 885, 

891 (6th Cir. 2014); Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001); Salmi v. 

Secretary of HHS, 774 F.2d 685, 689 (6th Cir. 1985); accord 6th Cir. R. 206(c). 

 Although the Original Report did not discuss Shorter, the Magistrate Judge concludes the 

rule in DiCenzi must be modified in light of Johnson. Johnson relied on the discovered predicate 

start date in 28 U.S.C. § 2255 that parallels 28 U.S.C. § 2244(d)(1)(D)3. Johnson sought as a start 

date the day on which a Georgia court vacated a prior conviction on which the federal court had 

later relied to enhance his sentence. The Supreme Court held Johnson did not show due diligence 

 

2

 Judge White concurred in the judgment because she found Shorter’s claim had no merit. That question is not before 

this Court at this time and the Magistrate Judge suggests no resolution of it. 

3

 The two statutes should be read in pari materia since both were adopted as part of the Antiterrorism and Effective 

Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"). 
7 

in attacking the state judgment in that he did not file for vacatur until more than three years after 

the federal sentence relying on the state court judgment was entered. Johnson’s situation precisely 

parallels Sexton’s. And as the Shorter Court noted, the DiCenzi court did not consider the impact 

of Johnson, even though it had been decided before DiCenzi reached the Sixth Circuit. 

 Sexton certainly has not shown he exercised due diligence in filing his motion for delayed 

direct appeal. He relies on his having contacted the Ohio Public Defender in December 1998, but, 

as the Original Report noted, he did nothing after denial of his pro se post-conviction petition until 

speaking with the inmate law clerk in June 2017. Therefore his First Ground for Relief should be 

dismissed with prejudice as barred by the statute of limitations. 

Sexton’s Objections 

Objection 1: The Magistrate Judge Erred in Not Considering Whether Ground Three Was 

Timely Due to the Operation of 28 U.S.C. § 2254(d)(1)(B). 

 

 In his first objection, Sexton asserts the Magistrate Judge should find his Ground Three is 

timely, based on his state-created impediment theory. The asserted impediment is his trial 

attorney’s failure to consult with him about his right to appeal and that his guilty plea is invalid 

under the Sixth Amendment because it did not comply with Ohio Revised Code § 2945.06 

(Objections, ECF No. 22, PageID 230). 

 For his theory that ineffective assistance of trial counsel constitutes a state-created 

impediment within the meaning of § 2244(d)(1)(B), Sexton relies on Waldron v. Jackson, 348 F. 

Supp. 2d 877 (N.D. Ohio 2004). Waldron was convicted by a jury on two counts of rape and two 

counts of compelling prostitution; he was sentenced to fifty-two years to life. Judge Wells recited 
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the relevant procedural facts as follows: 

During sentencing, the trial court advised Mr. Waldron of his 

appellate rights and asked him if he wished to appeal. (Tr. at 708). 

Both Mr. Waldron and his attorney responded that Mr. Waldron 

intended to pursue an appeal. (Tr. at 708). The trial court then 

determined that Mr. Waldron was indigent and appointed attorney 

James Ingalls to represent him on appeal. (Tr. at 708). 

Because Mr. Waldron's judgment entry of conviction and sentence 

was filed in the trial court on 11 August 1998 (Docket # 14, Ex. D), 

Mr. Waldron had until 10 September 1998 to file a timely notice of 

appeal. See Ohio App. R. 4(A) (requiring defendants to file a notice 

of appeal within 30 days "of entry of the judgment or order appealed 

. . ."). Mr. Ingalls, Mr. Waldron's court-appointed appellate counsel, 

missed that deadline by four days, filing a notice of appeal on 14 

September 1998. (Docket # 14, Ex. F). On 11 January 1999, the 

court of appeals dismissed sua sponte Mr. Waldron's appeal as 

untimely. (Docket # 14, Ex. G). According to Mr. Waldron, his 

appellate counsel did not notify him that the court of appeals had 

dismissed his appeal. (Waldron Aff. at PP5-6). 2 Eventually, Mr. 

Waldron asked a friend to contact the court of appeals about his 

appeal and consequently learned, for the first time, that it had been 

dismissed. (Waldron Aff. at P7). He then sought assistance from the 

Office of the Ohio Public Defender. (Waldron Aff. at P8). 

On 10 September 2001, the Ohio Public Defender filed, on Mr. 

Waldron's behalf, a motion for leave to file a delayed appeal, 

pursuant to Ohio App. R. 5(A). (Docket # 14, Ex. H). On 15 

October 2001, the court of appeals denied Mr. Waldron's motion for 

leave. (Docket # 14, Ex. I). Shortly thereafter, Mr. Waldron filed a 

motion for reconsideration which the court of appeals also denied 

on 20 November 2001. (Docket # 14, Exs. J and K). On 26 

November 2001 and 3 January 2002, Mr. Waldron appealed both 

rulings to the Ohio Supreme Court. (Docket # 14, Exs. L and N). 

The Ohio Supreme Court, on 6 February 2002 and 20 March 2002, 

denied leave to appeal and dismissed both appeals as not involving 

any substantial constitutional question. (Docket # 14, Exs. M and 

P). 

On 29 July 2002, Mr. Waldron filed a petition for a federal writ of 

habeas corpus, pursuant to 28 U.S.C. § 2254, in which he asserts 

two grounds for relief 

348 F. Supp. 2d at 880-81. The State had moved to dismiss Waldron’s habeas petition as untimely. 
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Judge Wells first concluded that it was ineffective assistance of appellate counsel for Waldron’s 

appointed appellate attorney to fail to file a timely notice of appeal despite Waldron’s express 

request that he do so. Id. at 883-84, citing Roe v. Flores-Ortega, 528 U.S. 470 (2000); White v. 

Schotten, 201 F.3d 743 (6th Cir. 2000); and Ludwig v. United States, 162 F.3d 456 (6th Cir. 1998). 

Because ineffective assistance of appellate counsel is imputed to the State, Judge Wells concluded 

it constituted a state-created impediment to filing a habeas petition. Id. at 884, citing Winkfield v. 

Bagley, 66 Fed. Appx. 578 (6th Cir. May 28, 2003). She adopted Waldron’s argument that he 

could not have brought the habeas petition without exhausting the delayed direct appeal possibility, 

but he had only needed to file a motion for delayed appeal because his attorney, although appointed 

to do so, did not file a timely direct appeal. She concluded the ineffective assistance of appellate 

counsel impediment was not effectively removed until the delayed appeal was denied. 

 Waldron’s procedural situation was materially quite different from Sexton’s. Waldron was 

convicted at trial and had not negotiated a favorable plea agreement as Sexton did. Waldron knew 

of his right to appeal and expressed his desire to do so in open court at sentencing, which is why a 

new appellate attorney was appointed to prosecute that appeal4. Sexton claims neither his trial 

judge nor his attorney told him of his appeal rights. He does not claim he ever told either the judge 

or his attorney that he wanted to appeal. In the event, no direct appeal was filed and Sexton never 

asked for an appellate attorney until the delayed appeal motion, August 8, 2017. 

 Sexton never had an appointed direct appeal attorney, so he cannot blame his failure to 

 

4

 In Ohio it is standard practice to appoint new counsel for appeal because Ohio requires ineffective assistance of trial 

counsel claims which can be shown from the appellate record to be raised on direct appeal and an attorney cannot be 

expected to plead his or her ineffectiveness. 
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appeal on the purported ineffectiveness of any such attorney, who never existed. Had he directed 

his trial attorney to file a notice of appeal and that attorney had failed to do so, that would have 

constituted ineffective assistance of trial counsel under Roe, supra.5 However, he does not claim 

he ever told his trial attorney to appeal. 

 Sexton has not demonstrated that it was ineffective assistance of trial counsel to fail to file 

a notice of appeal in his circumstances. His trial attorney had negotiated a dismissal of two out of 

three aggravated murder counts. He had also negotiated an agreed sentence that was at the time 

the mandatory minimum for aggravated murder – twenty years to life. In the absence of the plea 

agreement, Sexton had three chances to find himself in the execution chamber at Lucasville. It is 

therefore not obvious that he would have wanted to appeal and risk losing the benefit of that plea 

agreement. In Ludwig the Sixth Circuit held 

We emphasize, of course, that a defendant’s actual “request” is still 

a crucial element in the Sixth Amendment analysis. The 

Constitution does not require lawyers to advise their clients of the 

right to appeal. Rather, the Constitution is only implicated when a 

defendant actually requests an appeal, and his counsel disregards the 

request. 

162 F.3d at 459. In Roe the Supreme Court rejected a per se rule which would require an attorney 

to file a notice of appeal regardless of whether the client asks. The Court held counsel must consult 

with the client about the advantages and disadvantages of taking an appeal when there is reason to 

think that a rational defendant would want to appeal or this particular defendant reasonably 

demonstrated to counsel that he was interested in appealing. In sum, Judge Wells’ reasoning in 

 

5 Roe was decided in 2000, well after Sexton’s conviction. Ludwig was decided in 1998, but it followed every Court 

of Appeals to decide that question. 162 F.3d at 459. Thus a reasonably competent attorney at the time of Sexton’s 

trial would have understood it would be ineffective assistance of trial counsel to fail to file a notice of appeal if the 

client requested it. 
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Waldron depends upon a finding of ineffective assistance of counsel which Sexton has not 

demonstrated. 

Waldron also depends on construing ineffective assistance of trial or appellate counsel as 

a state-created impediment within the meaning of 28 U.S.C. § 2244(d)(1)(B). For that proposition, 

Judge Wells relied entirely on Winkfield v. Bagley, supra. In that case the trial judge was told at 

sentencing that one of the trial attorneys, Roger Warner, would be handling the appeal, but no 

appeal was ever filed. Although Winkfield was not sentenced to death, Mr. Warner, who was then 

a member of the death penalty bar of this Court, gave Winkfield the standard death penalty attorney 

excuse for delay: 

Contrary to your mistaken belief at this time, we have been working 

on your case .... Delay at this point in time can only help your case. 

I cannot emphasize that enough .... the negligence that you allege 

in your letter is not correct-- it is a trial tactic, or an appellate tactic, 

designed to be of benefit to you .... One must consider what is the 

makeup of the [Supreme Court] potentially five to ten years from 

now. The further I can delay it now, the better the chance we will 

have a favorable court reviewing your case some time in the future 

.... Therefore, the decision to not expedite the appellate process is a 

carefully reasoned and thought out process with consultation with 

numerous other attorneys on your behalf. 

Ten years later, finding this conduct to constitute ineffective assistance of appellate counsel, the 

Tenth District Court of Appeals granted Winkfield’s motion for delayed appeal. While the Sixth 

Circuit accepted that finding and imputed the ineffective assistance of appellate counsel to the 

State, it was unwilling to find that the ineffective assistance of appellate counsel prevented 

Winkfield from filing his petition: 

No connection has been established between Warner's ineffective 

assistance and Winkfield's ability to file a federal habeas petition. 

The fact that Winkfield was able to file his Rule 5(a) motion for a 
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delayed appeal while the alleged impediment still existed (i.e., while 

operating under the mistaken belief that his appeal was pending or 

was being strategically delayed by Warner) also suggests that 

Winkfield was not prevented by Warner's advice from timely filing 

his habeas petition. Cf. Dean v. Pitcher, 2002 U.S. Dist. LEXIS 

24628, No. Civ. 02-71203-DT, 2002 WL 31875460, at *3 (E.D. 

Mich. Nov. 7, 2002) ("The fact that petitioner eventually filed his 

habeas petition even though his state appellate counsel had advised 

him not to do so demonstrates that his counsel's advice was not an 

unconstitutional impediment to the filing of his habeas petition.") 

Therefore, Winkfield has failed to "allege facts that establish that he 

was so inhibited by the state's action that he was unable to file and 

state a legal cause of action before the limitation period expired." 

Neuendorf v. Graves, 110 F. Supp.2d 1144, 1153 (N.D. Iowa 2000) 

(quotation omitted). 

Id. at 583. Sexton is in the same position: he asserts a causal relationship between his trial 

attorney’s failure to file and his delay, but he has not proved such a causal relationship. 

 In sum, Sexton has not established that the failure of his trial attorney to tile a notice of 

appeal was ineffective assistance of trial counsel or that, even if it was, that failure prevented him 

from filing his petition here in time. Sexton is not entitled to a start date for the statute of 

limitations under 28 U.S.C. § 2244(d)(1)(B). 

Objection 2: The Magistrate Failed to Liberally Construe Sexton’s Claim that Ineffective 

Assistance of Counsel Constituted a State-Created Impediment that Prevented the Filing of 

His Habeas Petition. 

 Sexton contends the Magistrate Judge mischaracterized his state-created impediment 

argument by limiting it to failure to advise of appellate rights. Instead, he says, the Court must 

also consider trial counsel’s ineffectiveness in failing to advise that the guilty plea was 

unintelligent because trial counsel did not advise Sexton of the three-judge panel requirement for 
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taking a guilty plea in a capital case (Objections, ECF No. 22, PageID 232-34). 

 The Magistrate Judge agrees that Sexton’s state-created impediment claim embraces both 

these ineffective assistance of trial counsel assertions. However, expanding the analysis to include 

this second sub-claim does not change the outcome. 

 Sexton’s material added by expansion of the record shows that he learned about delayed 

appeal and of the three-judge panel requirement from Inmate Law Clerk Smith in June, 2017. This 

does not prove that he could not have learned of it earlier or that ineffective assistance of trial 

counsel prevented him from filing. First of all, for the reasons given under Objection 1, he has not 

proven an ineffective assistance of trial counsel claim on failure to take an appeal. 

 As to the second new piece of law learned from Inmate Smith, Sexton has also not proved 

ineffective assistance of trial counsel. Under the governing federal standard adopted in Strickland 

v. Washington, 466 U.S. 668 (1984), a habeas petitioner must prove both deficient performance 

and resulting prejudice. Trial counsel’s failure to advise of the three-judge panel requirement as a 

basis for appeal did not constitute deficient performance. 

 In State v. Parker, 95 Ohio St. 3d 524 (2002), the Ohio 

Supreme Court held that “A defendant charged with a crime punishable by death who has waived 

his right to trial by jury must, pursuant to R.C. 2945.08 and Crim. R. 11(C)(3), have his case heard 

and decided by a three-judge panel even if the state agrees it will not seek the death penalty.” Id.

at syllabus. Justice Douglas noted “regardless of the state's agreement that it would not seek the 

death penalty, appellee was still charged with an offense that was punishable with death.” 95 Ohio 

St. 3d at ¶ 11. That language describes Sexton’s situation: even though he had an agreed sentence 

of twenty years to life, Count Two of the Indictment, to which he pleaded guilty, still contained a 
14 

capital specification. 

 However, trial counsel’s failure to advise Sexton about the three-judge panel requirement 

was not ineffective assistance of trial counsel. First of all, Parker was not decided until June 26, 

2002, more than four and one-half years after Sexton pleaded guilty. Nor was Parker a 

foreordained decision just waiting for pronouncement by the Supreme Court: in Parker the 

Supreme Court of Ohio adopted an interpretation of Ohio Revised Code § 2945.06 given by the 

Eighth District Court of Appeals but in conflict with the interpretations of that statute by the Fifth 

District. The Supreme Court of Ohio took the case in part to resolve the conflict. 95 Ohio St. 3d 

at ¶ 3. Moreover, Parker was decided by a narrowly divided court, on a vote of four to three. In 

dissent Justice Resnick called the decision hypertechnical. Id. at ¶ 13. Counsel is not ineffective 

for failure to predict the development of the law. Thompson v. Warden, 598 F.3d 281 (6th Cir. 

2010), citing Lott v. Coyle, 261 F.3d 594, 609 (6th Cir. 2001)(not ineffective assistance of appellate 

counsel to fail to anticipate State v. Foster in an appellate district which had ruled the other way.) 

Accord, Carter v. Timmerman-Cooper, 2010 U.S. App. LEXIS 10549 (6th Cir. 2010). 

 Because it was not ineffective assistance of trial counsel to fail to anticipate Parker, that 

was not a state-created impediment to filing in habeas. 

Objection 3: The Magistrate Judge Erroneously Concluded Mr. Sexton Was Aware of the 

Factual Predicates of Grounds Two and Three 

 Petitioner claims his Second and Third Grounds for Relief are timely because he filed his 

Petition within a year of learning the factual predicates of the claims. If that were so, the Petition 

would be timely under 28 U.S.C. § 2244(d)(1)(D). The factual predicate of Ground Two is that 

neither the trial judge nor Petitioner’s counsel advised him of his right to appeal. The factual 
15 

predicate of Ground Three is that trial counsel did not consult with Sexton about taking an appeal 

or the three-judge panel rule. 

 The Original Report concluded Sexton learned of these facts when they happened – in 

October 1997 at the time of sentencing. Sexton now claims he did not learn of these facts until he 

consulted with Inmate Smith in June 2017 (Objections, ECF No. 22, PageID 234). He claims to 

have prove this with Inmate Smith’s Affidavit and notes that Respondent has not refuted that 

Affidavit which he asserts means the Affidavit must be taken as true. Id. 

 Smith’s Affidavit does not speak to the factual predicates of Grounds Two and Three, but 

to their purported legal significance. Sexton was in court when the trial judge failed to advise of 

appeal rights; Smith was not. Smith only learned of the lack of advice of rights from Sexton (See 

Affidavit, ECF No. 14-1, ¶ 7). Learning the legal significance of historical facts one has known 

for over eighteen years does not re-start the statute of limitations. 

 Even if discovering what Smith had to tell him were to constitute discovery of the factual 

predicate of Grounds Two and Three, Sexton has done nothing to show he exercised due diligence 

in learning about those predicates. Doing nothing between January 1999 and June 2017 is not due 

diligence. 

Objection 4. Respondent’s Reliance on Unpublished Cases Is Misplaced. 

 This Objection is dealt with in the discussion of Shorter under Objection 1. 
16 

Conclusion 

 Based on the foregoing analysis, the Magistrate Judge recommends granting Respondent’s 

Motion in its entirety. The Petition herein should be dismissed with prejudice. Because reasonable 

jurists would not disagree with this conclusion, 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 26, 2018. 

 s/ Michael R. Merz

 United States Magistrate Judge 

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).