UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DANIEL BRONSON, Case No. 1:17-cv-701

Petitioner,

Black, J.

vs. Bowman, M.J.

WARDEN, WARREN REPORT AND

CORRECTIONAL INSTITUTION, RECOMMENDATION

Respondent.

Petitioner, an inmate in state custody at the Warren Correctional Institution, has filed a 

pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 3). This matter is 

before the Court on respondent’s motion to dismiss (Doc. 8), to which petitioner has filed a 

response in opposition (Doc. 9). 

For the reasons stated below, the motion to dismiss should be granted. 

I. PROCEDURAL HISTORY

State Trial Proceedings 

On February 5, 2013, the Hamilton County, Ohio, grand jury returned a two-count

indictment charging petitioner with one count each of aggravated robbery and robbery. (Doc. 7, 

Ex. 1). The aggravated robbery count included two firearm specifications. 

On August 12, 2013, petitioner withdrew his prior plea of not guilty and entered a guilty 

plea to robbery and one firearm specification. (See Doc. 7, Ex. 2). After accepting petitioner’s 

guilty plea (Doc. 7, Ex. 3), on September 4, 2013 the trial court sentenced petitioner to a total 

aggregate prison sentence of six years in the Ohio Department of Corrections. (Doc. 7, Ex. 5). 

Petitioner did not file a direct appeal of his conviction and sentence. 

Post-Conviction Petition

On June 25, 2014, the trial court appointed petitioner counsel. (Doc. 7, Ex. 6). On June 
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7, 2015, through appointed counsel, petitioner filed a petition for post-conviction relief and 

motion to withdraw his guilty plea. (Doc. 7, Ex. 7, 8). Petitioner raised the following three 

grounds for relief in his petition: 

1. Bronson’s guilty plea is invalid on its face and was not made in a knowing and 

voluntary, or intelligent frame of mind on the basis of several factors, all of 

which were either plainly evident or caused by the trial court. Accordingly,

Bronson’s plea runs contrary to Ohio law and his state and federal constitutional 

rights on several counts. Therefore, the trial court should never have accepted 

Bronson’s guilty plea, or at a minimum the court should have vacated Bronson’s 

guilty plea at the sentencing hearing.

2. Trial counsel provided constitutionally ineffective assistance of counsel in 

violation of the Sixth Amendment through a series of omissions which: (1) left 

Bronson uninformed about (a) the maximum sentence he faced for all charges 

in the indictment, and (b) the nature and potential consequences of the charges 

involved in the guilty plea and resulting convictions; and (2) resulted in the trial 

court accepting (and not vacating) an invalid guilty plea. 

3. The trial court failed to advise Bronson of his appellate rights on the record in 

violation of his state and federal due process and equal protection rights. 

(Doc. 7, Ex. 7). On July 1, 2015, the trial court denied the post-conviction petition, finding that 

it had no jurisdiction to entertain the petition because petitioner failed to meet the requirements 

for filing a late petition, as set forth in Ohio Rev. Code § 2953.23(A).

1

 (Doc. 7, Ex. 11). 

Petitioner, through counsel, filed a notice of appeal. (Doc. 7, Ex. 12). In his appellate 

brief, petitioner raised the following four assignments of error: 

1. The trial court erroneously determined that it lacked jurisdiction to consider 

Bronson’s post-conviction petition, because Bronson satisfied the factors 

delineated in ORC 2953.23(A). Therefore, the trial court should have 

considered his petition and granted him relief, or at a minimum, granted him a 

 1 Under Ohio Rev. Code § 2953.23(A), petitioner was required to demonstrate that he was unavoidably prevented 

from discovery of the facts upon which he must rely to present the claim for relief or that petitioner’s claim for relief 

relies on a new, retroactive federal or state right recognized by the United States Supreme Court and that, but for the 

constitutional error at trial, no reasonable fact finder would have found petitioner guilty of the offenses of which he 

was convicted. See Ohio Rev. Code § 2953.23(A)(1)(a, b). 
3

hearing on the petition. 

2. Bronson’s guilty plea is invalid on its face and was not made in a knowing and 

voluntary, or intelligent frame of mind on the basis of several factors, all of 

which were either plainly evident or caused by the trial court. Accordingly,

Bronson’s plea runs contrary to Ohio law and his state and federal constitutional 

rights on several counts. Therefore, the trial court should never have accepted 

Bronson’s guilty plea, or at a minimum the court should have vacated Bronson’s 

guilty plea at the sentencing hearing. 

3. Trial counsel provided constitutionally ineffective assistance of counsel in 

violation of the Sixth Amendment through a series of omissions which: (1) left 

Bronson uninformed about (a) the maximum sentence he faced for all charges 

in the indictment, and (b) the nature and potential consequences of the charges 

involved in the guilty plea and resulting convictions; and (2) resulted in the trial 

court accepting (and not vacating) an invalid guilty plea. 

4. The trial court failed to advise Bronson of his appellate rights on the record in 

violation of his state and federal due process and equal protection rights.

(Doc. 7, Ex. 13). On October 5, 2016, the Ohio Court of Appeals found that the trial court 

lacked jurisdiction to consider the post-conviction petition because petitioner failed to meet the 

statutory requirements for filing a late petition, as set forth in Ohio Rev. Code § 2953.23(A). 

The appeals court modified the trial court’s judgment to reflect a dismissal of the petition and 

affirmed the judgment as modified. (Doc. 7, Ex. 15). 

Petitioner, again through counsel, filed a notice of appeal to the Ohio Supreme Court. 

(Doc. 7, Ex. 16). In his memorandum in support of jurisdiction, petitioner raised the following 

six propositions of law: 

1. A defendant who satisfies the factors in ORC 2953.23(A) for filing a postconviction petition beyond the 365-day timeframe outlined in ORC 

2953.23(A)(2) based on proving the invalidity of his guilty plea, need not prove 

his innocence, in addition to proving the invalidity of his guilty plea, in order 

for the court to find that he has satisfied the jurisdictional requirement in ORC 

2953.23(A)(1)(b) that “no reasonable fact finder would have found him guilty” 

but for the Constitutional violation. 
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2. A defendant satisfies the factors in ORC 2953.23(A) for failing to file a postconviction petition within the 365-day timeframe outlined in ORC 

2953.23(A)(2) when clear and convincing evidence exists that: (1) the 

petitioner undisputedly was never informed of his due process rights to appeal 

his conviction and sentence and to have appellate counsel appointed; (2) his 

grounds for relief warrant reversal. 

3. A guilty plea is not made in a knowing, voluntary, or intelligent frame of mind 

(thus invalidating the guilty plea) when: (1) in his presentence investigation 

interview, the defendant makes a statement claiming innocence to an essential 

element of the charge involved; (2) the defendant is unaware that he is pleading 

guilty to a gun specification carrying a mandatory prison term; (3) the defendant 

is unaware of the maximum potential sentence in the event he pursues a trial; 

(4) the defendant has a history of mental health disorders; and (5) the defendant 

exhibits trouble concentrating during his guilty plea hearing, PSI, and 

sentencing. In these circumstances, the trial court should not accept the guilty 

plea, or vacate the guilty plea at the sentencing hearing.

4. When a defendant claims actual innocence to an essential element of a charge, 

the trial court must further inquire before accepting a guilty plea to the charge. 

5. Trial counsel provides constitutionally ineffective assistance through a series of 

omissions that: (1) leave the defendant uninformed about (a) the maximum 

sentence he faced for all charges in the indictment, and (b) the nature and 

potential consequences of the charges involved in the guilty plea and resulting 

convictions; and (2) result in the trial court accepting (and not vacating) an 

invalid guilty plea. 

6. A trial court’s failure to advise a defendant of his appellate rights on the record 

violates the defendant’s state and federal due process and equal protection 

rights.

(Doc. 7, Ex. 17). On June 21, 2017, the Ohio Supreme Court declined jurisdiction over the 

appeal. (Doc. 7, Ex. 18). 

Federal Habeas Corpus

On October 20, 2017, petitioner, acting pro se, commenced the instant federal habeas 
5

corpus action.2

 (See Doc. 8 at PageID 88). Petitioner raises the following three grounds for 

relief in the petition: 

GROUND 1: Trial court failed to advise Bronson of his appellate rights on the 

record in violation of his due protection (sic) rights 

Supporting Facts: As demonstrated in Bronson transcripts the trial court failed to 

inform him of his appellate rights on the record at his trial hearing. Bronson was 

prejudiced by this stand-alone violation of his state and federal constitutional rights 

to due process. 

GROUND 2: Trial counsel provided constitutionally ineffective assistance of 

counsel in Violation of Bronson’s Sixth Amendment. (sic). 

Supporting Facts: 1 Failing to correctly inform Bronson of the maximum sentence 

he could have faced for all charges in his indictment, such that he would properly 

assess whether he wanted to accept a plea bargain. 2 Failing to ensure that Bronson 

understood to what charges he was pleading guilty to along with the nature of the 

charge and potential consequence of a conviction 3 Failing to ensure that Bronson 

understood and was advised by trial court on the record of his appellate rights. (sic).

GROUND 3: Bronson guilty plea is invalid on its face and was not made in a 

knowing, voluntary or intelligent frame of mind. 

Supporting Facts: As seen in Bronson transcripts, trial counsel never explained 

that Bronson’s guilty plea to his robbery charge was attached with a gunspecification. Also at Bronson plea hearing trial counsel never required Bronson to 

acknowledge his gun-specification charge separate and apart from his original 

charge on the record.

(Doc. 3). 

Respondent has filed a motion to dismiss the petition on statute of limitations grounds. 

(Doc. 8). Petitioner opposes the motion to dismiss. (Doc. 9). 

 2 Petitioner indicates that he placed his petition in the prison mailing system on October 23, 2017, however the 

petition was received by the Court prior to that date, on October 20, 2017. (See Doc. 1; Doc. 3 at PageID 54). 
6

II. RESPONDENT’S MOTION TO DISMISS SHOULD BE GRANTED 

Under 28 U.S.C. § 2244(d)(1), as amended by § 101 of the Antiterrorism and Effective 

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, a person in custody 

pursuant to the judgment of a state court must file an application for a writ of habeas corpus 

within one year 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. 

28 U.S.C. § 2244(d)(1). Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled during the 

pendency of a properly filed application for state post-conviction relief or other collateral review.

In this case, there is no evidence in the record in this case to suggest that the provisions 

set forth in §§ 2244(d)(1)(B) through (D) apply to petitioner’s grounds for relief. Petitioner has 

not alleged that a State created impediment prevented him from filing the instant petition or that

his claims are governed by a newly recognized constitutional right made retroactively applicable 

to his case. Furthermore, petitioner’s grounds for habeas relief are based on alleged errors that 

occurred during the trial court proceedings. Since petitioner was aware of the facts underlying 

his claims by the close of the direct review, his grounds for relief are governed by the one-year 

statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A), which began to run when 
7

petitioner’s conviction became final “by the conclusion of direct review or the expiration for the 

time for seeking such review.” 

Petitioner has raised in his first ground for relief the claim that the trial court neglected to 

inform him of his right to appeal at trial. To the extent that petitioner may contend that this 

constituted a state-created impediment to filing a timely habeas petition or that he was not aware 

of the factual predicate until after the close of direct review, such an argument is unavailing. 

Petitioner has not demonstrated that he could not have determined that he had the right to appeal 

through the exercise of due diligence prior to the expiration of time to file his direct appeal. In 

any event, even if the Court were to conclude that petitioner’s conviction did not become final 

until June 25, 2014 (when the trial court appointed petitioner counsel) or June 7, 2015 (the date 

on which petitioner filed his motion to withdraw guilty plea), the limitations period ended on 

June 8, 2016 at the latest. Because, for the reasons stated below, petitioner is not entitled to 

statutory or equitable tolling, the statute of limitations expired more than a year before petitioner 

filed his October 20, 2017 petition. 

Under § 2244(d)(1)(A), petitioner’s conviction became final on October 4, 2013, upon 

expiration of the 30-day period for filing an appeal as of right from the trial court’s September 4, 

2013 final judgment entry. See Ohio R. App. P. 4(A). The statute commenced running on 

October 7, 2013, the next business day after petitioner’s conviction became final, see Fed. R. 

Civ. P. 6(a); Bronaugh v. Ohio, 235 F.3d 280, 285 (6th Cir. 2000), and expired one year later on 

October 7, 2014, absent the application of statutory or equitable tolling principles.

During the one-year limitations period, petitioner was entitled to tolling of the statute 

under 28 U.S.C. § 2244(d)(2) based on any pending “properly filed” applications for state post-
8

conviction relief or other collateral review. See 28 U.S.C. § 2244(d)(2); see also Holland v. 

Florida, 560 U.S. 631, 635 (2010); Allen v. Siebert, 552 U.S. 3, 4 (2007) (per curiam); Vroman 

v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003). “The tolling provision does not, however, 

‘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.” Vroman, 346 F.3d at 602 (quoting Rashid v. Khulmann, 991 F. Supp. 

254, 259 (S.D.N.Y. 1998)). Once the limitations period is expired, state collateral review 

proceedings can no longer serve to avoid the statute-of-limitations bar. Id.

It is well-settled that a state application for post-conviction relief is “properly filed”

within the meaning of § 2244(d)(2) “when its delivery and acceptance are in compliance with the 

applicable laws and rules governing filings,” such as those prescribing the time limits for filing. 

Artuz v. Bennett, 531 U.S. 4, 8 (2000). State post-conviction or collateral review applications 

rejected by the state courts on timeliness grounds are not “properly filed” and, therefore, are not 

subject to statutory tolling under § 2244(d)(2). See Allen, 552 U.S. at 5-6; see also Pace v. 

DiGuglielmo, 544 U.S. 408, 413-14 (2005); Vroman, 346 F.3d at 603.

No statutory tolling applies under Section 2244(d)(2) to extend the limitations period in 

this case. The statute of limitations had run for 608 days before petitioner filed his June 7, 2015 

post-conviction petition. Because petitioner’s petition was filed after the one-year statute of 

limitations had already expired, statutory tolling would not serve to extend the limitations period. 

Vroman, 346 F.3d at 602. Furthermore, even if the motion was filed within the applicable 

limitations period, the petition was untimely and therefore not properly filed. As noted above, 

the trial court determined that petitioner failed to meet the statutory requirements for filing a late 
9

petition. Therefore, petitioner is not entitled to statutory tolling based on the untimely petition. 

See Allen, 552 U.S. at 5-6; see also Pace, 544 U.S. at 413-14; Vroman, 346 F.3d at 603.

The AEDPA’s statute of limitations is subject to equitable tolling, see Holland, 130 S.Ct. 

at 2560, “when a litigant’s failure to meet a legally-mandated deadline unavoidably arose from 

circumstances beyond the litigant’s control.” Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 

745, 749 (6th Cir. 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)). 

Equitable tolling is granted “sparingly.” Id. (quoting Robertson, 624 F.3d at 784). A habeas 

petitioner is entitled to equitable tolling only if he establishes that (1) “he has been pursuing his 

rights diligently;” and (2) “some extraordinary circumstance stood in his way and prevented 

timely filing.” Id. (quoting Holland, 130 S.Ct. at 2562 (internal quotations omitted)); see also 

Pace, 544 U.S. at 418. Although the Sixth Circuit previously utilized a five-factor approach in 

determining whether a habeas petitioner is entitled to equitable tolling, Holland’s two-part test 

has replaced the five-factor inquiry as the “governing framework” to apply. Hall, 662 F.3d at 

750 (citing Robinson v. Easterling, 424 F. App’x 439, 442 n.1 (6th Cir. 2011)). “With Holland

now on the books, the ‘extraordinary circumstances’ test, which requires both reasonable 

diligence and an extraordinary circumstance, has become the law of this circuit.” Id.; see also 

Patterson v. Lafler, 455 F. App’x 606, 609 n.1 (6th Cir. 2012).

Petitioner has not demonstrated that he is entitled to equitable tolling in this case. In 

response to the motion to dismiss, petitioner argues that his conviction did not become final until 

the Ohio Supreme Court declined jurisdiction over his appeal from the denial of his untimely 

post-conviction petition. (See Doc. 9 at PageID 296). However, as noted above, petitioner’s 

post-conviction petition does not restart the limitations period and petitioner’s conviction and 
10

sentence became final on October 4, 2013, more than four years before he filed his October 20, 

2017 federal habeas petition. Petitioner has not otherwise demonstrated that he has been 

pursuing his rights diligently or that an extraordinary circumstance prevented him from filing a 

timely petition. The Sixth Circuit has indicated that the relevant inquiry in determining whether 

equitable tolling applies is whether petitioner was diligent in pursuing federal habeas relief. In 

this case, petitioner waited 1,213 days to file his habeas petition after he was appointed counsel 

and was unquestionably aware of his right to appeal. (Doc. 7, Ex. 6). Petitioner’s decision to 

proceed solely in the state courts demonstrates a lack of diligence. Vroman, 346 F.3d at 605 

(finding that the petitioner’s decision to proceed solely in state court “rather than filing his 

federal habeas petition and protecting his federal constitutional rights, demonstrates a lack of 

diligence”). See also Wells v. Harry, No. 17-1476, 2017 WL 9248730, at *2 (6th Cir. Nov. 15, 

2017) (noting that the Sixth Circuit has repeatedly held that a petitioner’s reliance on his attorney 

is not ground for equitable tolling). 

Finally, petitioner has neither argued nor otherwise demonstrated that the procedural bar 

to review should be excused based on a colorable showing of actual innocence. “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 . . 

. new evidence.’” McQuiggin v. Perkins, U.S. , 133 S.Ct. 1924, 1935 (2013) (quoting 

Schlup v. Delo, 513 U.S. 298, 327 (1995)). No such showing has been made in this case.

Accordingly, in sum, the undersigned concludes that the instant federal habeas corpus 

petition is barred from review by the one-year statute of limitations governing habeas corpus 

actions brought pursuant to 28 U.S.C. § 2254. 
11

IT IS THEREFORE RECOMMENDED THAT:

1. Respondent’s motion to dismiss (Doc. 8) be GRANTED, the petition for a writ of 

habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 3) be DISMISSED with prejudice on the 

ground that the petition is time-barred under 28 U.S.C. § 2244(d).

2. A certificate of appealability should not issue with respect to any of the claims for 

relief alleged in the petition, which this Court has concluded are barred from review on a 

procedural ground, because under the first prong of the applicable two-part standard enunciated 

in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), “jurists of reason” would not find it 

debatable whether the Court is correct in its procedural ruling.3

3. With respect to any application by petitioner to proceed on appeal in forma pauperis,

the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting 

this Report and Recommendation would not be taken in “good faith,” and therefore DENY

petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R. 

App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

 s/ Stephanie K. Bowman 

Stephanie K. Bowman 

United States Magistrate Judge

 3 Because the first prong of the Slack test has not been met, the Court need not address the second prong of Slack as 

to whether “jurists of reason” would find it debatable whether petitioner has stated a viable constitutional claim in 

his time-barred grounds for relief. See Slack, 529 U.S. at 484. 
12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DANIEL BRONSON, Case No. 1:17-cv-701

Petitioner,

Black, J.

vs. Bowman, M.J.

WARDEN, WARREN

CORRECTIONAL INSTITUTION,

Respondent.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of 

the recommended disposition, a party may serve and file specific written objections to the 

proposed findings and recommendations. This period may be extended further by the Court on 

timely motion for an extension. 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 Recommendation is based in whole or in part upon matters occurring on the 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 14 DAYS after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).