IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JASON S. SEXTON, 

 

 Petitioner, 

 Case No. 2:18–CV–424 

 v. Judge George C. Smith 

 Magistrate Judge Michael R. Merz 

LYNEAL WAINWRIGHT, WARDEN, 

MARION CORRECTIONAL INSTITUTION, 

 Respondent. 

 

OPINION AND ORDER 

Respondent has moved to dismiss the petition for federal habeas relief because the three 

grounds it asserts are time–barred. (“Motion to Dismiss”). (ECF No. 5). On September 17, 

2018, the Magistrate Judge issued a Report and Recommendation (“First R&R”) recommending 

that the petition be dismissed because it was untimely. (ECF No. 12). In light of Petitioner’s 

subsequently received Response in Opposition to the Motion to Dismiss (“Response”), (ECF No. 

15), the Magistrate Judge withdrew the First R&R (ECF No. 16). Petitioner also filed objections 

to the First R&R. (ECF No. 18). On October 4, 2018, the Magistrate Judge issued a second 

Report and Recommendation (“Second R&R”) recommending that the Motion to Dismiss be 

granted in part and denied in part because even though grounds two and three are untimely, 

ground one is not. (ECF No. 19). Respondent filed objections to the Second R&R (ECF No. 20), 

and the Court recommitted the matter to the Magistrate Judge for further analysis. (ECF No. 21). 

Petitioner also filed objections to the Second R&R. (ECF No. 22). 
2 

On October 29, 2018, the Magistrate Judge issued a Substituted Report and 

Recommendation (“Substituted R&R”), (ECF No. 23), recommending that the Motion to 

Dismiss, (ECF No. 5), be granted in its entirety because all three grounds in the petition are 

untimely. Petitioner has objected to the Substituted R&R. (ECF No. 24). Pursuant to 28 U.S.C. 

§ 636(b), the Court has conducted a de novo review. For the reasons that follow, Petitioner’s 

objections are OVERRULED. The Substituted R&R is ADOPTED and AFFIRMED subject to 

one exception described below. This action is DISMISSED. 

Pursuant to a plea agreement entered in the Franklin County Court of Common Pleas, 

Petitioner was convicted and sentenced to serve consecutive terms of 20 years to life for one 

count of aggravated murder, and ten to twenty–five years for one count of aggravated robbery. 

(ECF 4, at PAGE ID # 38–43). Petitioner alleges that his case was heard by a single judge. 

(ECF No. 1, at PAGE ID # 1). Sentence was imposed on October 15, 1997. (ECF No. 4, at 

PAGE ID # 42–43). Petitioner alleges that counsel failed to consult with him about his right to 

appeal or to tell him that he was entitled to have his case heard by a three–judge panel, and that 

both counsel and the trial court failed to inform Petitioner about his appellate rights, including 

his right to appointed counsel on direct appeal. (ECF No. 1, at PAGE ID # 18–19). Petitioner 

alleges that because of those failures, he did not directly appeal his conviction or sentence. 

At some point after sentencing, Petitioner wrote to the State Public Defender, as 

evidenced by a December 3, 1998, letter from the Public Defender’s Office addressed to 

Petitioner. The letter acknowledged Petitioner’s correspondence, informed him that he could file 

a petition for post–conviction relief, and stated that filing forms were enclosed. (ECF No. 14–5). 

Subsequently, on December 22, 1998, Petitioner filed a pro se petition for post–conviction relief 

under Ohio Rev. Code § 2953.21 and moved for appointed counsel. (ECF No. 4, at PAGE ID # 
3 

46–54; ECF No. 14–6, at page ID # 180–182). The state appellate court denied the petition for 

post–conviction relief on January 28, 1999, because it was untimely and lacked merit. (ECF No. 

4, at PAGE ID # 55–61). Petitioner did not directly appeal that January 28, 1999, decision 

either. 

Petitioner wrote to the state court’s clerk on August 17, 2000, to request a copy of his 

docket sheet, and then wrote a second letter to the Public Defender’s Office sometime prior to 

January 3, 2017. (ECF No. 4, at PAGE ID # 101, ECF No. 14–6, at PAGE ID # 179). Petitioner 

alleges that he remained, however, ignorant of his appellate rights until June of 2017, when he 

spoke to an inmate law clerk about his state court case. After that discussion, Petitioner sought 

leave in the state courts on July 23, 2017, to file a delayed appeal of his 1997 conviction pursuant 

to Rule 5(A) of the Ohio Rules of Appellate Procedure. (ECF No. 4, at PAGE ID # 62–65, 66–

74). On September 21, 2017, the Ohio Court of Appeals denied Petitioner’s request for leave to 

file a delayed appeal because he did not present a “viable reason for the delay in his attempt to 

appeal.” (Id., at PAGE ID # 107–108). Petitioner sought an appeal of that determination, but the 

Ohio Supreme Court declined to exercise jurisdiction over the matter on January 31, 2018. (Id., 

at PAGE ID # 112–129, 130). 

Petitioner placed his petition for federal habeas relief in the prison mail system on April 

25, 2018. (ECF No. 1, at PAGE ID # 15). In ground one, Petitioner alleges that he was denied 

his due process and equal protection rights when the Ohio Court of Appeals denied his motion 

for a delayed appeal on September 21, 2017. (ECF No. 1, at PAGE ID # 17–18). In ground 

two, Petitioner alleges that he was denied his due process and equal protection rights in 1997, 

when the trial court and counsel failed to inform him about his appellate rights. (Id., at PAGE ID 

# 18). In ground three, Petitioner alleges that counsel rendered constitutionally ineffective 
4 

assistance in 1997 by failing to consult with him about his appellate rights; by allowing him to 

plead guilty to aggravated murder before a single judge instead of a three–judge panel; and by 

failing to inform Petitioner that a three–judge panel was required to take his guilty plea. (Id., at 

PAGE ID # 19). 

The Magistrate Judge correctly concluded that Petitioner’s grounds are all time–barred. 

28 U.S.C. § 2244(d)(1)(A) 1 provides that the one–year statute of limitations commences running 

from “the date on which the judgment became final by the conclusion of direct review or the 

expiration of the time for seeking such review . . .” Petitioner’s judgment of conviction became 

final on November 14, 1997, i.e., thirty days after his October 15, 1997 conviction, and when the 

time to directly appeal that conviction expired pursuant to Ohio Appellate Rule 4(A). Under 

§ 2244(d)(1)(A), the statute of limitations started running the next day, November 15, 1997, and 

expired one year later, on November 16, 1998.2

 Petitioner, however, filed his April 25, 2018 

 

1

 All possible statute of limitation start dates are set forth in 28 U.S. C. § 2244(d)(1)(A)–(D), which provides: 

 

(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

 November 15, 1998, fell on a Sunday. Therefore, the one–year statute of limitations expired one day later. 
5 

petition almost twenty years after that. Accordingly, his claims are untimely unless some other 

provision of § 2244(d)(1) applies.3

 

The Magistrate Judge also correctly concluded that no other provision of § 2244(d)(1)4

applies to grounds two and three. Specifically, the Magistrate Judge correctly rejected 

Petitioner’s contention that the applicable statute of limitations for grounds two and three is 

found in § 2244(d)(1)(B), which provides that the statute of limitations starts to run from “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 . . .” In support of that contention, Petitioner alleges that counsel’s 

actions—failing to consult with him about his appellate rights, allowing him to plead guilty to 

aggravated murder before a single judge, failing to inform him about the three–judge panel 

requirement,5

 and failing to inform him about his appellate rights—and the trial court’s failure to 

advise Petitioner about his appellate rights, all constituted state–created impediments. Petitioner 

further contends that those state–created impediments were not removed until his June 2017 

discussion with an inmate law clerk about his case, and therefore, the statute of limitations for 

 

3

 Petitioner’s other collateral filings in the state courts— the December 22, 1998 motion for post-conviction relief 

and the July 23, 2017 motion for a delayed appeal—do not toll the statute of limitations under 28 U.S.C § 

2244(d)(2) because the statute of limitation had already expired before they were filed. State collateral actions filed 

after the statute of limitations has expired do not toll the running of the statute of limitations under § 2244(d)(2). 

Board v. Bradshaw, 805 F.3d 769 (6th Cir. 2015) (citing cases and explaining that unsuccessful motions for a 

delayed appeal cannot restart the running of the statute under § 2244(d)(1)(A), but can only toll an unexpired 

limitations period under § 2244(d)(2)); see also Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (“The tolling 

provision does not . . . ‘revive’ the limitation 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”). 

 

4

 Petitioner does not invoke § 2244(d)(1)(C). 

5

 The Magistrate Judge explained that the applicability of the three–judge panel requirement in cases like 

Petitioner’s, where a defendant pleads guilty to a capital offense but the death penalty is not sought, was not 

definitively announced by the Ohio Supreme Court until 2002, which is after Petitioner pleaded guilty in 1997. See 

State v. Parker, 95 Ohio St. 3d 524 (2002). Accordingly, any claims related to the three–judge panel requirement 

would likely be barred on the merits even if they were not untimely. 
6 

grounds two and three did not start running until then. As the Magistrate Judge explained, 

however, even if these alleged failures constituted state–created impediments to filing a direct 

appeal in state court, “a state–created impediment to a direct appeal in the state court does not 

invoke the limitations period of § 2244(d)(1)(B) because it is not an impediment to filing a 

timely federal habeas petition.” Oberacker v. Noble, No. 18–3589, 2018 WL 4620666, *2 (6th 

Cir. Sept. 24, 2018) (citing cases); Winkfield v. Bagley, 66 F. App’x. 578, 582–83 (6th Cir. 2003) 

(holding that the ineffectiveness of counsel—which caused petitioner to miss the appeal 

deadline—was not an “impediment” to filing a timely habeas application because “[petitioner] 

has not alleged that [his attorney] erroneously informed him that he had no federal remedies”); 

Miller v. Cason, 49 F. App’x. 495, 497 (6th Cir. 2002) (the failure to give the petitioner notice of 

his appeal rights and to appoint appellate counsel did not constitute a state–created impediment 

under § 2244(d)(1)(B) because while such action may have interfered with the petitioner’s direct 

appeal in the state courts, it did not preclude him from timely filing a federal habeas petition). 

Petitioner does not object to this finding in the Substituted R&R. (ECF No. 24). 

The Magistrate Judge also correctly rejected Petitioner’s contention that the statute of 

limitations for grounds two and three is governed by 28 U.S.C. § 2244(d)(1)(D). When that 

subsection applies, the statute of limitations starts running on “the date on which the factual 

predicate of the claim or claims could have been discovered through the exercise of due 

diligence.” § 2244(d)(1)(D). Petitioner alleges that he did not discover the factual predicate for 

his claims until he learned about his appellate rights during his June 2017 discussion with an 

inmate law clerk. As explained by the Magistrate Judge, however, the term “factual predicates” 

refers to factual evidence and events, not legal conclusions. “The operative question in such an 

inquiry is when the person was aware of the vital facts for his claim, not when he understood the 
7 

legal significance of those facts.” Smith v. Meko, 709 F. App’x. 341, 344 (6th Cir. 2017), cert. 

denied, 138 S. Ct. 1034 (2018) (citing cases). See also Owens v. Boyd, 235 F.3d 356, 359 (7th 

Cir. 2000) (rejecting a habeas petitioner’s argument that the statute of limitations begins to 

run “when a prisoner actually understands what legal theories are available”) (emphasis in 

original). The vital facts for Petitioner’s claims are that counsel allegedly failed to consult with 

him about his appellate rights; allowed him to plead guilty to aggravated murder before a single 

judge; failed to inform Petitioner about the three–judge panel requirement; and that counsel and 

the trial court failed to advise him about his appellate rights. Petitioner became aware of these 

vital facts when they allegedly occurred in 1997, and his awareness of them triggered the statute 

of limitations even if he did not appreciate their legal significance. Webb v. United States, 679 F. 

App’x. 443, 448 (6th Cir. Feb. 17, 2017) cert denied, 137 S. Ct. 2314, (June 26, 2017) (quoting 

Redmond v. Jackson, 295 F.Supp. 2d 767, 771 (E.D. Mich. 2003) (“Also, under § 2244(d)(1)(D), 

the time under the limitations period begins to run [ ] when a petitioner knows, or through due 

diligence, could have discovered, the important facts for his claims, not when the petitioner 

recognizes the legal significance of the facts.”). Petitioner does not object to this finding in the 

Substituted R&R. 

The Magistrate Judge also correctly concluded that ground one is untimely. In ground 

one, Petitioner alleges that he was denied his due process and equal protection rights when the 

state appellate court denied his motion for leave to file a delayed appeal on September 21, 2017. 

He also alleges that the statute of limitations for this claim is also governed by 

§ 2244(d)(1)(D)—i.e., it did not start running until the factual predicate of the claim or claims 

could have been discovered through the exercise of due diligence. Petitioner contends that he 

could not know the factual predicate for this claim until his motion for delayed appeal was 
8 

denied. The Magistrate Judge determined, however, that even if the statute of limitations for this 

claim is governed by § 2244(d)(1)(D), the claim is untimely because Petitioner failed to exercise 

diligence. 

When reaching that conclusion, the Magistrate Judge considered the Sixth Circuit Court 

of Appeals holdings in DiCenzi v. Rose, 452 F.3d 465 (6th Cir. 2006), and Shorter v. Richard, 

659 Fed. App’x. 227 (6th Cir. 2016). In Dicenzi, counsel and the state trial court failed to inform 

a petitioner who pleaded guilty about his appellate rights and he failed to file a timely direct 

appeal. 452 F.3d at 465. Two years later, and after filing motions for judicial release and to 

merge his convictions, the petitioner contacted a public defender, who informed him about his 

appellate rights. Id. at 467. The petitioner filed a motion for a delayed direct appeal, but that 

motion was denied by the state appellate court. Id. The petitioner sought federal habeas relief 

and alleged a number of claims, including that his due process rights were violated when the 

state appellate court denied his motion for a delayed appeal. The Sixth Circuit summarily stated 

that pursuant to § 2244(d)(1)(D), the statute of limitations for that due process claim started 

running when the motion for a delayed appeal was denied. Id. at 468. It then analyzed whether 

the petitioner had initiated his federal habeas action within a year of that date, and concluded that 

because he had done so, his due process claim was timely. Id. at 468–69. 

In Shorter, however, the Sixth Circuit reached a different conclusion. In that case, a state 

trial court failed to inform a petitioner who pleaded guilty about his appellate rights and he failed 

to file a timely direct appeal. 659 Fed. App’x. at 228–229. Five years later, he filed a motion for 

a delayed appeal, which the state appellate court denied. Id. In his subsequent federal habeas 

action, the petitioner alleged, among other things, that his equal protection and due process rights 

were violated when the state appellate court denied his motion for a delayed appeal. Id. The 
9 

Sixth Circuit concluded that the Shorter petitioner’s equal protection and due process claim was 

untimely because § 2244(d)(1)(D) allows a delayed start date for the statute of limitations when 

the claims could have been discovered through due diligence, not when they are discovered. Id.

at 232. The Shorter court explained that the duty of diligence was triggered when the Shorter 

petitioner was sentenced, but that he did not demonstrate diligence— he waited five years after 

he was sentenced to file a motion for a delayed appeal, offered no explanation for that five–year 

delay, and failed to describe what he did during those five years aside from claiming that he 

learned about the possibility of an appeal after talking to another inmate in 2013. Id. at 230, 232. 

The Shorter court reasoned that although Petitioner did not know that his motion for delayed 

appeal would be denied until it was in fact denied, that denial could have occurred sooner had 

petitioner exercised diligence in bringing his motion. 

The Shorter court also discussed the United States Supreme Court’s decision in Johnson 

v. United States, 544 U.S. 295 (2005). It noted that in Johnson, a federal prisoner’s habeas claim 

was untimely under 28 U.S.C. § 2255(f)(4),6

 even though it was brought within one year of the 

date that a state court vacated a state conviction that had been used to enhance the petitioner’s 

federal sentence. 659 Fed. App’x. at 231 (discussing Johnson, 544 U.S. at 295, 302). The 

Supreme Court explained that the one–year statute of limitations could only start running from 

the date of the state court’s vacatur order “if the petitioner has shown due diligence in seeking 

the [state court] order.” Id. (quoting Johnson, 544 U.S. at 302). Moreover, the Shorter court 

noted that reading DiCenzi for the proposition that a petitioner is not required to diligently seek a 

delayed direct appeal in cases like the one before it would fail to give full effect to 

 

6

 Section 2255(f)(4) is the analog to § 2244(d)(1)(D) for federal prisoners. It provides that the statute of limitations 

begins to run on “the date on which the facts supporting the claim or claims presented could have been discovered 

through the exercise of due diligence.” 
10 

§ 2244(d)(1)(D), which states that the statute of limitations starts running when the factual 

predicate for a claim “‘could have been discovered through the exercise of due diligence.’” Id. at 

232 (quoting § 2244(d)(1)(D)). 

The Magistrate Judge concluded that although a panel of the Sixth Circuit cannot 

overrule the published decision of another panel, DiCenzi should be modified in light of the 

Supreme Court’s decision in Johnson because DiCenzi did not consider Johnson. 6th Cir. R. 

32.1(B); see also Issa v. Bradshaw, 904 F.3d 446, 454 n.2 (6th Cir. 2018) (quoting Salmi v. 

Secretary of HHS, 774 F.2d 685, 689 (6th Cir. 1985) (“A panel of this Court cannot overrule the 

decision of another panel. The prior decision remains controlling authority unless an inconsistent 

decision of the United States Supreme Court requires modification of the decision or this Court 

sitting en banc overrules the prior decision.”)). Accordingly, the Magistrate Judge found that the 

statute of limitations for ground one did not start running until the motion for delayed appeal was 

denied unless Petitioner was diligent in moving for the delayed appeal. The Magistrate 

determined that Petitioner had failed, however, to demonstrate such diligence. The Court agrees. 

Even though he was permitted to expand the record (ECF Nos. 14, 15), Petitioner does not 

explain or demonstrate why he could not have moved for a delayed appeal sooner through the 

exercise of due diligence. Instead, it appears that Petitioner simply was not diligent. In 1998, 

Petitioner wrote one letter to the Public Defender’s Office and filed an untimely motion for post–

conviction relief. Petitioner waited eighteen and a half years before speaking to an inmate law 

clerk and filing a motion for a delayed appeal. He waited nineteen years to file his federal 

habeas petition. The record demonstrates that during that lengthy period, Petitioner wrote one 

letter to the clerk to request his docket sheet and one additional letter to the State Public 

Defender’s Office. Petitioner does not allege that he took any other actions during this lengthy 
11 

period. Nor does he explain why he could not have done more. Consequently, Petitioner is not 

entitled to a delayed start date of the statute of limitations for ground one pursuant to 

§ 2244(d)(1)(D). Ground one is, therefore, untimely. 

Petitioner objects to the Magistrate Judge’s analysis of ground one. Those objections are 

not well taken. Petitioner asserts that the Magistrate Judge erred by relying on the Sixth 

Circuit’s decision in Shorter instead of DiCenzi because one panel of the court cannot overrule 

another panel. As explained above, however, the Magistrate Judge concluded that DiCenzi 

should be modified in light of Johnson. The Court agrees and finds that Shorter supports that 

conclusion. In addition, Petitioner asserts that the Magistrate Judge wrongly found that the 

Johnson petitioner’s situation precisely paralleled that of the Petitioner in this matter. The 

Magistrate Judge did not, however, make such a finding but instead found that the Supreme 

Court’s analysis in Johnson persuasively demonstrates that habeas claims predicated upon court 

actions, such as vacatur orders and delayed direct appeals, require federal and state habeas 

petitioners to diligently pursue such court actions. Petitioner also urges that the Court to rely 

upon the reasoning in a 2009 decision from the Northern District of Ohio citing DiCenzi. The 

Court nevertheless remains persuaded by the Sixth Circuit’s more recent reasoning in Shorter. 

For all of the foregoing, Petitioner’s objections are OVERRULED. This action is 

DISMISSED. The Substituted R&R, is ADOPTED and AFFIRMED in part. 

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States 

District Courts, the Court must consider if it will issue a Certificate of Appealability (“COA”). 

A state prisoner who seeks a writ of habeas corpus in federal court does not have an automatic 

right to appeal a district court’s adverse decision unless the court issues a COA. 28 U.S.C. 

§ 2253(c). When a claim has been denied on the merits, a COA may be issued only if the 
12 

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 be issued 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. Id. 

In this case, the Court is not convinced that jurists of reason could debate whether the 

Court’s timeliness analysis is correct. The Court, therefore, DECLINES to issue a COA. 

The Magistrate Judge also recommended that the Court certify that any appeal would be 

objectively frivolous. The Court does not adopt that recommendation and does not make that 

certification. 

 IT IS SO ORDERED.

 

 s/ George C. Smith__________________ 

 GEORGE C. SMITH, JUDGE 

 UNITED STATES DISTRICT COURT