enclosed my attorney notes of all the witness interviews which
were audio recorded.) Not enclosed are materials which were
marked “counsel only” by the prosecutor’s office. Those
documents are not enclosed as I am not allowed to disclose them to
you. Of course, you and I reviewed the “counsel only” documents
together during the course of my representation, as is my policy
with all clients and all such documents.
(ECF No. 1-1, PAGEID #51.)

Contrary to Petitioner’s allegation here, none of the foregoing documents, and nothing in
the record whatsoever, supports his claim that any unidentified additional discovery material will
assist him in establishing his unsupported allegations that police fabricated or tampered with the
evidence against him or that his attorney colluded with the prosecutor to prevent the discovery of
such evidence. Petitioner does not indicate the nature of the discovery material he seeks. His
discovery request constitutes the type of fishing expedition discouraged by the rules governing
habeas corpus cases. Moreover, and most fatally to Petitioner’s request, the discovery sought by
Petitioner is not relevant to the sole issue presently before the Court, i.e., whether the one-year
statute of limitations forecloses this Court’s review of the merits of Petitioner’s claims.

Petitioner’s request for discovery therefore is DENIED.

Objections

Petitioner’s objections likewise are not well-taken. As discussed by the Magistrate
Judge, applying the provision of 28 U.S.C. § 2244(d)(1)(A), the statute of limitations expired in
November 2013. Petitioner waited more than four years, until January 22, 2018, to file this
habeas corpus petition. Further, the record does not indicate either that Petitioner acted
diligently in pursuing relief, or that equitable tolling of the statute of limitations is warranted.

“The burden of production and persuasion rests on the petitioner to show he or she is entitled to

equitable tolling.” Kitchen v. Bauman, 629 F. App’x 743, 747 (6th Cir. 2015) (citing Ara v.


Fisher, 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 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.

This Court is not persuaded that reasonable jurists would debate the dismissal of
Petitioner’s claim as failing to provide a cognizable issue for relief. Therefore, the Court
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.

IT IS SO ORDERED.

san 3 ~ -ddlg
EDMUND\A. SARGUS, JR.

CHIEF ITED STATES DISTRICT JUDGE



Burns' cousin, Donna Glover, stated that in 1999 Burns dropped
off his son, Ashlin O'Neal, at her home in Columbus. Burns told
Glover that he was leaving O'Neal with her because O'Neal had
been accused of taking nude photographs of a fourteen-year-old
female and his biological mother was abusing O'Neal.

Oneida Roseberry, Woods' friend, confirmed that she was present
in Burns' bedroom with J.W. in 1999 and observed a computer
camera. Burns asked J.W. and Roseberry to perform on the
Internet. J.W. did perform and took off her top.

Faye, Burns' ex-wife, confirmed that a computer camera and
Polaroid camera were present in the bedroom. She further
confirmed Burns was the most knowledgeable household member
concerning operation of computers.

Burns' daughter, Alyssa Burns, confirmed the family had a
Polaroid camera and that Burns was the most computer savvy
individual in the home. She also testified regarding a recorded
conversation she had with Burns when he was being held at the
Licking County jail. During the recording, which was played for
the jury, Burns stated he had fled and lived in Mexico for the past
decade; placed blame on J.W., stating J.W. had constantly walked
around his home naked; and reported that the entire case was a set
up by his former employer, the Newark police, his brother, his wife
and J.W.

Two members of the Newark Police Department, Timothy Elliget
and William Hatfield, confirmed that unrelated Polaroid
photographs, a computer camera and the zip drive were recovered
during execution of the search warrant at Burns' residence in 1999.

Detective Kenneth Ballantine, lead detective on the case,
interviewed Burns after his arrest on March 18, 1999. Burns
claimed during the interview that the nude photographs of J.W.
were taken for her boyfriend. Prior to the arrest Detective
Ballantine had J.W. engage in a controlled call to Burns. During
the call, J.W. told Burns that she had some brandy, was planning to
get drunk, and wanted to take some pictures like before. J.W. noted
that she did not have sex with anyone before and was not going to
do so this time, either. Burns initially ignored her and told her to
tell her mother that he would come over later to pick-up
something. Nevertheless, J.W. continued to push about the
photographs, so Burns eventually told her that he would check
with some other people to see if they wanted to do the

photographs.


Scutt, 662 F.3d 736, 741 (6th Cir. 2011)), cert. denied, 136 S. Ct. 1462 (2016). Petitioner has

failed to meet this burden here. As discussed above, Petitioner’s allegations of fraud and

collusion, and his claim that police planted or fabricated evidence against him are entirely

without support.’ Additionally, and as discussed by the Magistrate Judge, the record does not

indicate that Petitioner can establish that he is actually innocent of the charges. The state

appellate court made the following findings of fact regarding the charges against Petitioner:
A. Use of a Minor in a Nudity Oriented Performance.

Three images of a nude juvenile (“J.W.”) were presented in
connection with three counts that alleged violations of illegal use
of a minor in nudity-oriented performance. Two of the images
were Polaroid camera photographs of a fully nude J.W. posing in
Burns' bedroom. The third photograph was recovered from a zip
disc seized from Burns” bedroom by police during the search
warrant and later analyzed by the Ohio Bureau of Criminal
Investigation. [“BCI”].

J.W. confirmed that Burns had both a computer camera and
Polaroid camera in his bedroom. Burns had requested J.W. to
perform on the Internet and engage in sexual activity with him.
While performing J.W. could view her own image on Burns’
computer screen. J.W. identified all three nude images as her in
1999 and as having been taken in Burns’ bedroom. J.W. also
identified three other witnesses to Burns' behavior: his son, Ashlin
O'Neal; his wife, Vicky Faye (fka Vicky Burns); and a friend,
Oneida Roseberry.

Diamond Boggs, computer forensic analyst with B.C.I. found a
single nude image of J.W. on a zip disk recovered from Burns'
bedroom. Boggs stated that where she recovered the image was not
a default location and someone would have physically transferred
it to that location. Boggs also found evidence of video streaming
software on Burns' computer.

' The state appellate court affirmed the trial court’s denial of Petitioner’s June 2017, “motion to
compel disclosure of exculpatory material and information” regarding items marked “counsel
only” and other documents that Petitioner claimed had been sealed or excluded from trial, noting
that the trial court had determined that “[t]here appears to be nothing in [appellant's] request that
he did not or does not have access to through his own counsel.” State v. Burns, No. 17 CA 0069,
2018 WL 355162, at *2 (Ohio App. Sth Dist. Jan. 8, 2018).

6


bedroom in a prescription bottle. Faye confirmed that a Valium
prescription was present in the headboard and that marijuana was
regularly in the house. Timothy Elliget, a criminalist with the City
of Newark Police Department photographed Burns' headboard
during execution of the search warrant and observed an empty
prescription bottle of Valium. By the time of trial, several items of
evidence were lost by the police and were not available for use at
trial. This included the empty Valium bottle, the Polaroid camera,
and the computer web cam.

The jury found Burns not guilty of Count 7, Corrupting Another

with Drugs (Valium) in violation of R.C. 2925.04(A)(4)(a), a

felony of the second degree. The jury found Burns guilty of Count

8 Corrupting Another with Drugs (Marijuana) in violation of R.C.

2925.02(A)(4), a felony of the fourth degree.
State v. Burns, No. 2012-CA-37, 2012 WL 4831630, at *1-3 (Ohio App. Sth Dist. Oct. 9, 2012).
In short, the record fails to reflect that this is a rare and extraordinary case where the Petitioner
has demonstrated that his actual innocence justifies consideration of the merits of his otherwise
time-barred claims. See Souter v. James, 395 F.3d 577, 602 (6th Cir. 2005).

For all of the foregoing reasons, and for the reasons already detailed in the Magistrate
Judge’s Report and Recommendation, Petitioner’s Objection (ECF No. 5) is OVERRULED.
The Report and Recommendation (ECF No. 4) is ADOPTED and AFFIRMED. This action is
hereby DISMISSED.

Petitioner’s Motion for Leave to Proceed in forma pauperis (ECF No. 6) is DENIED, as
moot. Petitioner already has paid the filing fee.

Petitioner’s Motion for Discovery (ECF No. 7) is DENIED.

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 y.


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.
OPINION AND ORDER

On February 1, 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. 4.) Petitioner has filed an
Objection to the Magistrate Judge’s Report and Recommendation. (ECF No. 5.) 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. 5) is OVERRULED. The Report and Recommendation (ECF
No. 4) is ADOPTED and AFFIRMED. This action is hereby DISMISSED.

Petitioner’s Motion for Leave to Proceed in forma pauperis (ECF No. 6) is DENIED as
moot. Petitioner already has paid the filing fee.

The Motion for Discovery (ECF No. 7) is also DENIED.

The Court DECLINES to issue a certificate of appealability.

In April 2012, Petitioner was convicted 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, three

counts of corruption of a minor, and one count of corrupting another with drugs. The Ohio Fifth


B. Corruption of a Minor.

J.W. relayed that Burns had sexual conduct with her in at least
three specific locations when she was fourteen in support of three
counts of Corruption of a Minor in violation of R.C. 2907.04(A).
In one instance, Burns engaged in sexual conduct with her at the
University Inn hotel on her birthday. J.W. and Burns also engaged
in sexual conduct at a location known as Staddens Bridge and in
Burns' home. Multiple other witnesses confirmed J.W.'s testimony
and Burns' sexual behavior toward J.W.

The former owner of the University Inn, Praven Patel, confirmed
that he had personally checked in a “Robert Burns” on November

3, 1998.

Roseberry testified that she had viewed Burns sucking on J.W.'s
breast the night she was present in Burns' bedroom. Faye was
present with Burns in the bedroom once and recalled Burns
requesting J.W. take her shirt off.

J.W. did not report these allegations to the police until March
1999. J.W. claimed she was frightened because Burns had made
comments that if he were caught, he would leave and make sure no
was able to speak about the incidents. J.W. provided the police
with some Polaroid pictures of her nude that she claimed Burns
had taken.

J.W. admitted at trial that she did not tell the police everything at
once, but gave them bits of information at a time. J.W. gave the
police three handwritten statements, on March 17, 1999, May 6,
1999, and June 17, 1999. J.W. never mentioned the Staddens
Bridge incident in any of her statements. In her second statement,
J.W. noted the University Inn incident, but merely claimed that she
had sex with O'Neal, not Burns. J.W.'s statement indicated that she
did not know if she had sex with Burns because she blacked out.
J.W.'s statement also indicated that she could not recall the date of
the University Inn incident, even though she subsequently claimed
that it occurred on her birthday.

C. Corruption of a Minor with Drugs.

Burns was also charged with two counts of corruption of a minor
with drugs in violation of R.C. 2925.02. Burns had regularly
furnished J.W. with Valium, marijuana and alcohol during the time
he knew her. The Valium was kept in a headboard cabinet in his


Petitioner apparently seeks to obtain discovery of an unspecified nature in support of his
claim of “police tampering” and “corruption of the judicial process.” (ECF No. 7, PAGEID
#119.) Petitioner asserts that he has been unable to obtain evidence in support of these
allegations and refers in support to various exhibits he has attached to the Petition, including
discovery material previously provided to him, an Amended Bill of Particulars, a letter from his
former attorney, Diane M. Menashe, and a letter from the Licking County prosecutor’s office
rejecting Petitioner’s request that charges be filed against police for tampering with evidence and
purportedly planting the pornographic images found on his computer. The letter from the
prosecutor’s office is dated October 3, 2016, and indicates in relevant part that Petitioner was on
the run for many years but that before he absconded, in 1999, his attorney requested a
continuance of the trial date based on the alleged unavailability of a “tape specialist.” (ECF No.
1-1, PAGEID #44.) However, the prosecutor goes on to indicate that

[nJo report of any such “tape specialist” then ever surfaces as far as

I can see. Thus I am left to conclude that there is no forensic

opinion that supports your claims that any recordings were

tampered with and that this may very well be because the “tape

specialist” retained by your former attorney was not willing to

provide you with a forensic opinion that supported your claims.
Id. Petitioner also refers to a Supplemental Discovery document provided to him upon the re-
filing of charges in Case Number 12-CR-116, wherein the State indicated that “witnesses in this
matter have differing recollections as to the number of photographs of J.W. and manner in which
the photographs of J.W. were placed into the custody of the Newark Police Department.” (ECF
No. 1-1, PAGEID #47.) The letter from his attorney, Diane M. Menashe, is dated February 10,
2017, and indicates that she provided him with a complete copy of his case files:

Enclosed you will find a complete copy of the discovery filed by

the State in the above-referenced case files minus any audio that
either is on CD Rom and/or cassette disc. (I have however


Request for Discovery

Petitioner has filed a motion for discovery pursuant to Rule 6 of the Rules Governing
Section 2254 Cases in the United States District Courts, which provides as follows:

(a) Leave of Court Required. A judge may, for good cause,
authorize a party to conduct discovery under the Federal Rules of
Civil Procedure and may limit the extent of discovery. If necessary
for effective discovery, the judge must appoint an attorney for a
petitioner who qualifies to have counsel appointed under 18 U.S.C.
§ 3006A.

(b) Requesting Discovery. A party requesting discovery must
provide reasons for the request. The request must also include any
proposed interrogatories and requests for admission, and must
specify any requested documents.

Under this “good cause” standard, a district court should grant leave to conduct discovery in
habeas corpus proceedings only “‘where specific allegations before the court show reason to
believe that the petitioner may, if the facts are more fully developed, be able to demonstrate that
he is. . . entitled to relief... .’” Bracy, 520 U.S. at 908-909 (quoting Harris v. Nelson, 394 U.S.
286, 300 (1969)). See also Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001), cert. denied,

537 U.S. 831 (2002).

“The burden of demonstrating the materiality of the information
requested is on the moving party.” Stanford, 266 F.3d at 460. Rule
6 does not “sanction fishing expeditions based on a petitioner's
conclusory allegations.” Rector v. Johnson, 120 F.3d 551, 562 (5th
Cir.1997); see also Stanford, 266 F.3d at 460. “Conclusory
allegations are not enough to warrant discovery under [Rule 6]; the
petitioner must set forth specific allegations of fact.” Ward v.
Whitley, 21 F.3d 1355, 1367 (Sth Cir. 1994).

Williams v. Bagley, 380 F.3d 932, 975 (6th Cir. 2004), cert. denied, 544 U.S.

1003 (2005).


District Court of Appeals affirmed the judgment of the trial court. State v. Burns, No. 2012-CA-
37, 2012 WL 4831630 (Ohio Fifth App. Dist. Oct. 9, 2012). Petitioner did not file an appeal to
the Ohio Supreme Court. In February and October of 2015, he unsuccessfully pursued post-
conviction relief. He now asserts that the state courts improperly denied his petition for post-
conviction relief and that he was denied the effective assistance of trial and appellate counsel due
to the admission of tainted evidence, suppression of exculpatory and impeachment evidence,
prosecutorial misconduct, and his attorney’s failure to file a request for competency evaluation or
motion to dismiss. The Magistrate Judge recommended dismissal of this action as time-barred
and because claim one fails to provide a basis for federal habeas corpus relief. Petitioner objects
to the recommendations of the Magistrate Judge.

According to Petitioner, the statute of limitations does not apply because his convictions
resulted from fraud, prosecutorial misconduct, and racism. Petitioner claims that police
fabricated and tampered with evidence. Additionally, he complains that his attorney refused to
turn over certain records, including information regarding investigative services. Petitioner
further alleges that defense counsel conspired with the prosecution to suppress evidence
establishing that police fabricated or tampered with evidence by marking certain documents as
“counsel only” and sealing other evidence which would have established that the alleged victim
lied. Petitioner asserts that he has acted diligently in pursuing relief. He argues that his mental
health issues, as can be shown after a competency evaluation and expansion of the record or
discovery on this issue, may warrant equitable tolling of the statute of limitations. Petitioner
claims that he is actually innocent. In support, he states that a report by Diamond Boggs, a
computer forensic specialist, was excluded from trial, and Vicky King, his ex-wife, provided

inconsistent statements against him.