IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ROBERT L. BURNS, JR., 

 CASE NO. 2:18-CV-00055 

 Petitioner, CHIEF JUDGE EDMUND A. SARGUS, JR. 

 Magistrate Judge Chelsey M. Vascura 

 v. 

WARDEN, CHILLICOTHE 

CORRECTIONAL INSTITUTION, 

 Respondent. 

REPORT AND RECOMMENDATION 

Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 

28 U.S.C. § 2254. This matter is before the Court on its own motion to consider the sufficiency 

of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United 

States District Courts. For the reasons that follow, it is RECOMMENDED that this action be 

DISMISSED. 

Facts and Procedural History 

Petitioner challenges his April 25, 2012 convictions after a jury trial in the Licking 

County Court of Common Pleas on three counts of illegal use of a minor in nudity oriented 

performance, in violation of O.R.C. § 2907.323; three counts of corruption of a minor, in 

violation of O.R.C. § 2907.04(A); and one count of corrupting another with drugs, in violation of 

O.R.C. § 2925.02. Petitioner was sentenced to an aggregate term of thirteen years and three 

months incarceration and classified as a sexually oriented offender. See State v. Burns, No. 

2012-CA-37, 2012 WL 4831630 (Ohio Fifth App. Dist. Oct. 9, 2012). On October 9, 2012, the 

state appellate court affirmed the judgment of the trial court. Id. Petitioner apparently did not 

file an appeal to the Ohio Supreme Court. 
2 

On October 22, 2015, more than three years after his trial, 

appellant filed a pro se petition for post-conviction relief (“PCR”). 

Via a judgment entry issued on November 25, 2015, the trial court 

denied appellant's petition for post-conviction relief as untimely. 

On July 6, 2016, we affirmed. See State v. Burns, 5th Dist. Licking 

No. 15–CA–98, 2016–Ohio–4833. Appellant's attempts to have the 

decision reviewed by the Ohio Supreme Court and the United 

States Supreme Court were unsuccessful. See State v. Burns, 147 

Ohio St.3d 1506, 2017–Ohio–261, 67 N.E.3d 824; Burns v. Ohio, 

138 S.Ct. 73, 199 L.Ed.2d 50 (2017). 

In addition, on February 23, 2015, prior to his aforesaid PCR 

petition, appellant had filed a post-conviction “motion for 

production of Brady material.”FN1 Then, on June 22, 2017, 

appellant filed a “motion to compel disclosure of exculpatory 

material and information.” The State filed a response on August 3, 

2017. 

On August 8, 2017, the trial court denied appellant's motion to 

compel disclosure via a judgment entry. 

On August 31, 2017, appellant filed a notice of appeal. He herein 

raises the following sole Assignment of Error: 

“I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

DENIED APPELLANT'S ‘MOTION TO COMPEL 

DISCLOSURE OF EXCULPATORY MATERIAL AND 

INFORMATION,’ WHEN IT IS CLEAR THAT SOME OF THE 

DISCOVERY WAS SUPPRESSED, AND OTHER DISCOVERY 

WAS MARKED ‘COUNSEL ONLY’ BY THE PROSECUTION 

WHO SET OUT TO MISLEAD THE TRIAL PROCESS, IN 

VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS.” 

FN1: See Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 

10 L.Ed.2d 215. 

State v. Burns, No. 17 CA 0069, 2018 WL 355162, at *1 (Ohio App. 5th Dist. Jan. 8, 2018). On 

January 8, 2018, the appellate court affirmed the judgment of the trial court. Id. Petitioner 

apparently did not file an appeal to the Ohio Supreme Court. 

 On January 22, 2018, Petitioner filed this pro se petition for a writ of habeas corpus 

pursuant to 28 U.S.C. § 2254. He asserts that the state courts improperly denied his petition for 
3 

post-conviction relief (claim one); and that he was denied the effective assistance of trial and 

appellate counsel due to the admission of tainted evidence, the suppression of exculpatory and 

impeachment evidence, prosecutorial misconduct, and based on his attorney’s failure to file a 

request for a competency evaluation or a motion to dismiss due to the violation of Petitioner’s 

right to a speedy trial (claim two). 

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 

(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. 
4 

Applying the language of § 2244(d)(1)(A), Petitioner's conviction became final in 

November 2012, forty-five days after the appellate court’s October 9, 2012, decision affirming 

Petitioner’s convictions, and when the time for filing a timely appeal to the Ohio Supreme Court 

expired. See Albert v. Warden, Chillicothe correctional Institution, No. 2:16-cv-1110, 2017 WL 

2189561, at *3 (S.D. Ohio May 18, 2017) (citing Norris v. Bunting, No. 2:15-cv-764, 2017 WL 

749200, at *8 (S.D. Ohio Feb. 27, 2017) (citing Crangle v. Kelly, 838 F.3d 673, 679 (6th Cir. 

2016); Adams v. Chillicothe Correctional Institution, No. 2:16-cv-00563, 2016 WL 3906235, at 

*2 (S.D. Ohio July 19, 2016) (citing Worthy v. Warden, No. 2:12-cv-652, 2013 WL 4458798, at 

*2 (S.D. Ohio Aug. 19, 2013)) (citing Searcy v. Carter, 246 F.3d 515, 518–19 (6th Cir. 2001); 

Marcum v. Lazarof, 301 F.3d 480, 481 (6th Cir. 2002)). The statute of limitations expired one 

year later, in November 2013. Petitioner’s February 23, 2015 and October 22, 2015 postconviction motions did not affect the running of the statute of limitations because Petitioner filed 

these actions after the statute of limitations had already expired. “State collateral actions filed 

after the statute of limitations has expired do not toll the running of the statute of limitations 

under 28 U.S.C. § 2244(d) (2).” Lacking v. Jenkins, No. 2:15-cv-3069, 2016 WL 4505765, at *3 

(S.D. Ohio Aug. 29, 2016) (citing Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (“The 

tolling provision does not...‘revive’ the limitations period (i.e., restart the clock at zero); it can 

only serve to pause a clock that has not yet fully run. Once the limitations period is expired, 

collateral petitions can no longer serve to avoid a statute of limitations.”). Moreover, the state 

courts dismissed Petitioner’s October 22, 2015 post-conviction petition as untimely. “A postconviction petition that is rejected as untimely by the state courts is not “properly filed” within 

the meaning of § 2244(d)(2) and does not toll the running of the statute of limitations. See 

Henderson v. Bunting, 698 F. App’x 244, 246-47 (6th Cir. 2017) (citing Allen v. Siebert, 552 
5 

U.S. 3, 7 (2007). Thus, the statute of limitations expired in November 2013. Petitioner waited 

more than three years later, until January 21, 2018, to execute this habeas corpus petition. (ECF 

No. 1, PageID# 29.) 

According to the Petitioner, this action nonetheless is timely because he filed his postconviction petition on the basis of newly discovered evidence that was not submitted at trial, and 

his court-appointed counsel was working with the State to secure his convictions and refused to 

provide him with paperwork that would establish that the State fabricated or tampered with 

evidence. Additionally, Petitioner claims that his convictions are the result of fraud upon the 

court, and the one-year statute of limitations therefore does not apply. He asserts that he is 

actually innocent and the victim of a manifest miscarriage of justice. He further argues that the 

trial court’s failure to order a competency evaluation constitutes grounds for equitable tolling of 

the statute of limitations. (PageID# 29.) Petitioner’s arguments are not persuasive. 

Petitioner alleges that police tampered with a tape recording of a telephone conversation 

he had with the alleged victim in which he made incriminating statements regarding the 

allegations against him. (See ECF No. 1-1, PageID# 60.) He claims that police “planted” the 

evidence of drugs and child pornography in his home, and that some of the photographs of the 

alleged victim show that they were taken in the bedroom of his son, who recanted his testimony 

against Petitioner prior to trial. (ECF No. 1, PageID# 8-9.) Petitioner alleges that his attorney 

helped to conceal this exculpatory evidence from him. (PageID# 10.) However, Petitioner’s 

allegations are entirely without support. Moreover, the record does not indicate that Petitioner 

could not have earlier raised these claims, or that he was prevented from doing so for the time 

period at issue here. In a letter dated October 3, 2016, the Licking County prosecutor noted that 

Petitioner’s allegations of fraud and prosecutorial misconduct could have been raised at trial and 
6 

that Petitioner knew of the factual basis for his claims as early as in March 2000, but at that time 

he absconded from the authorities and remained “on the run for many years” before he was rearrested on September 12, 2011. (ECF No. 1-1, PageID# 41-44.) 

Under the provision of 28 U.S.C. § 2244(d)(1)(D), the statute of limitations does not 

begin to run until “the date on which the factual predicate of the claim or claims presented could 

have been discovered through the exercise of due diligence.” The question is not when the 

petitioner first learns of the factual predicate for his claim but, rather, when the petitioner should 

have learned of the basis for his claim had he exercised reasonable care. Townsend v. Lafler, 99 

F. App’x 606, 608 (6th Cir. 2004) (citations omitted). “Section 2244(d)(1)(D) . . . does not 

convey a statutory right to an extended delay while a habeas petitioner gathers evidence that 

might support a claim.” Brooks v. McKee, 307 F. Supp. 2d 902, 906 (E.D. Mich. 2004) (citation 

omitted). It is the petitioner's burden to establish that he exercised due diligence in searching for 

the factual predicate for his habeas corpus claim. Redmond v. Jackson, 295 F.Supp.2d 767, 772 

(E.D. Mich. 2008) (citing Stokes v. Leonard, 36 F. App’x 801, 804 (6th Cir. 2002)). He has 

failed to meet this burden. 

 Further, the record does not indicate 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 would be appropriate. 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). While a petitioner’s mental 

incompetence that prevents him from timely filing a habeas petition may warrant equitable 

tolling of the statute of limitations, “a blanket assertion of mental incompetence is insufficient to 
7 

toll the statute of limitations . . . . Rather, a causal link between the mental condition and 

untimely filing is required.” Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011) (citing McSwain v. 

Davis, 287 F. App’x 450, 456 (6th Cir. 2008)). 

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.’ ” Id. at 321, 513 U.S. 298, 115 S. Ct. 851, 

130 L.Ed.2d 808. 
8 

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 U.S. 383, 399 (2013) (quoting Schlup, 513 U.S. at 327). Petitioner has failed to 

provide credible evidence of actual innocence. He has provided no new reliable evidence 

supporting his claim of actual innocence. Thus, Petitioner has failed to establish he is entitled to 

equitable tolling under this exception. 

Additionally, Petitioner’s claim that the state court abused its discretion by dismissing his 

post-conviction petition does not provide him a basis for relief. “The Sixth Circuit has 

consistently held that errors in post-conviction proceedings are outside the scope of federal 

habeas corpus review.” Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007) (citing Kirby v.

Dutton, 794 F.2d 245, 246-47 (6th Cir. 1986); Roe v. Baker, 316 F.3d 557, 571 (6th Cir. 2002)). 

See also Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 854-55 (6th Cir. 2017) 

(declining to revisit the issue) (citations omitted). 

Recommended Disposition 

For the reasons set forth above, it is RECOMMENDED that this action be 

DISMISSED. 

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 
9 

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). 

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. 

 /s/ Chelsey M. Vascura___ 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE