IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

LOGAN MURPHY, 

 Case No. 2:18-cv-638 

 Petitioner, Judge George C. Smith 

 Magistrate Judge Chelsey M. Vascura 

 v. 

WARDEN, MADISON 

CORECTIONAL INSTITUTION, 

 Respondent. 

ORDER and 

REPORT AND RECOMMENDATION 

 This is an action pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. Petitioner 

seeks release from confinement imposed pursuant to a state-court judgment in a criminal action. 

This case has been referred to the Undersigned pursuant to 28 U.S.C. § 636(b) and Columbus 

General Order 14-1 regarding assignments and references to the United States Magistrate Judges. 

 Petitioner has filed a motion to proceed in forma pauperis. Upon consideration, the 

Undersigned finds the motion to be meritorious and it is GRANTED. Petitioner shall be 

PERMITTED to prosecute this action without prepayment of fees or costs and judicial officers 

who render services in this action will do so as if costs had been prepaid. 

The Court notes that Petitioner has not signed the Petition (see ECF No. 1-2, PAGEID # 

19). 28 U.S.C. § 2242 provides that an “[a]pplication for a writ of habeas corpus shall be in 

writing and signed and verified by the person for whose relief it is intended or by someone acting 

in his behalf.”) See also Rule 2(c) of the Rules Governing Section 2254 Cases (providing that 

the petition must “be signed under penalty of perjury by the petitioner or by a person authorized 

to sign it for the petitioner.”) The Petition therefore is subject to dismissal on this basis. See 

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Hall v. Trierweiler, No. 16-cv-10126, 2016 WL 3511887, at *2 (E.D. Mich. July 6, 2016) (citing 

Vernon v. Alexander, 815 F.2d 81 (Table) (6th Cir. 1987); Moorer v. Winn, No. 2:14-12463, 

2014 WL 2993721, at *1 (E.D. Mich. July 3, 2014)). However, even if the filing was compliant, 

this action nonetheless is plainly time-barred. 

Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States 

District Court (“Rule 4”), this Court must conduct a preliminary review to determine whether “it 

plainly appears from the face of the petition and any attached exhibits that the petitioner is not 

entitled to relief in the district court . . . .” If it does so appear, the petition must be dismissed. 

Id. Rule 4 allows for the dismissal of petitions that raise legally frivolous claims, as well as 

petitions that contain factual allegations that are palpably incredible or false. Carson v. Burke, 

178 F.3d 434, 436-37 (6th Cir. 1999). Here, for the reasons that follow, it plainly appears from 

the face of the petition that Petitioner is not entitled to relief, as this action is barred by the oneyear statute of limitations provided for under 28 U.S.C. § 2244(d). 

Facts and Procedural History 

Petitioner challenges his conviction after a jury trial in the Ross County Court of 

Common Pleas on the charge of aggravated murder, in violation of O.R.C. § 2903.01. On 

December 23, 2014, the trial court imposed a term of life in prison with parole eligibility after 

thirty years. See State v. Murphy, No. 15CA3475, 2016 WL 1090463, at *7 (Ohio Ct. App. Mar. 

10, 2016). On March 10, 2016, the appellate court affirmed the judgment of the trial court. Id. 

Petitioner apparently did not file a timely appeal. On December 28, 2016, the Ohio Supreme 

Court denied Petitioner’s motion for a delayed appeal. State v. Murphy, 147 Ohio St.3d 1473 

(Ohio 2016). 

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 On June 29, 2018, Petitioner filed this habeas corpus petition. Liberally construing his 

pleadings, Petitioner appears to assert that he was denied the effective assistance of counsel, 

because his attorney failed to qualify his treating psychologist as an expert witness, failed to keep 

“some essential people” on the jury, and failed to properly question a witness. 

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). The statute 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. 

Even construing the statute of limitations in the light most favorable to the Petitioner, and 

assuming, arguendo, that the statute of limitations did not begin to run until December 29, 2016, 

the day after the Ohio Supreme Court denied Petitioner’s motion for a delayed appeal, this action 

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is untimely.1 Under such a scenario, the statute of limitations would have expired one year later, 

on December 29, 2017. Petitioner nonetheless waited approximately six additional months, until 

June 29, 2018, to file this § 2254 petition. Further, he does not allege any extraordinary 

circumstances that would justify equitable tolling of the statute of limitations. See Holland v. 

Florida, 560 U.S. 631, 649 (2010) (In order to obtain equitable tolling of the statute of 

limitations, a litigant must establish that he has been diligently pursued relief and that some 

extraordinary circumstance stood in his way of timely filing.) (citing Pace v. DiGuglielmo, 544 

U.S. at 418)). 

Recommended Disposition 

For the foregoing reasons, 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 

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or 

                                                            

1 Applying the language of § 2244(d)(1)(A), Petitioner’s conviction became final in April 2016, 

forty-five days after the appellate court’s March 10, 2016 decision affirming the judgment of the 

state trial court. See Burns v. Warden, Chillicothe Corr. Inst., No. 2:18-cv-00055, 2018 WL 

684647, at *2 (S.D. Ohio Feb. 1, 2018) (citations omitted). The statute of limitations began to 

run on the following day. The website of the Ross County Clerk indicates that, on November 7, 

2016, Petitioner filed a Notice of Appeal in the Ohio Supreme Court. That action, or the filing of 

a motion for a delayed appeal, would have tolled the running of the statute of limitations the time 

period during which it remained pending. See DiCenzi v. Rose, 452 F.3d 465, 468 (6th Cir. 

2006) (citing Searcy v. Carter, 246 F.3d 515, 519 (6thCir. 2001)). 

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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. 

IT IS SO ORDERED.     

 /s/ Chelsey M. Vascura_____ 

 CHELSEY M. VASCURA 

 UNITED STATES MAGISTRATE JUDGE

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