IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RUSSELL CHAFIN, JR., 

 Case No. 2:17-cv-1143 

 Petitioner, Judge James L. Graham 

 Magistrate Judge Elizabeth P. Deavers 

 v. 

CHARLES BRADLEY, WARDEN, 

PICKAWAY CORRECTIONAL INST., 

 Respondent. 

OPINION AND ORDER 

 On January 25, 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. 2.) Petitioner has filed an 

Objection and Request for Evidentiary Hearing. (ECF No. 9.) Pursuant to 28 U.S.C. § 636(b), 

this Court has conducted a de novo review. For the reasons that follow, Petitioner’s Objection 

and Request for Evidentiary Hearing (ECF No. 9) is DENIED. The Report and 

Recommendation (ECF No. 2) is ADOPTED and AFFIRMED. This action is hereby 

DISMISSED. 

 The Court DECLINES to issue a certificate of appealability. 

 Petitioner challenges his September 20, 1993, convictions pursuant to his guilty plea in 

the Franklin County Court of Common Pleas on charges of murder, attempted murder, and 

attempted abduction, with specifications. The trial court imposed 20 1⁄2 years to life 

incarceration. Petition (ECF No. 1, PAGEID # 1.) Petitioner asserts that he was denied due 

process and equal protection, because he did not waive his right to appeal, neither the trial court 
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nor defense counsel advised him of his right to an appeal, and the state appellate court denied his 

motion for a delayed appeal (claim one); and that he was denied the effective assistance of 

counsel in the connection with the appeal (claim two). As discussed, the Magistrate Judge 

recommended dismissal of these claims as time-barred. Petitioner objects to that 

recommendation. 

Petitioner states that he did not learn about his right to appeal until 2003, when he filed a 

motion for a delayed appeal, which the appellate court unconstitutionally denied without 

examining the transcripts of his guilty plea and sentencing hearing. On March 22, 2017, 

Petitioner filed a second motion for a delayed appeal and motion for the appointment of counsel. 

(ECF No. 9, PAGEID # 194.) On May 23, 2017, the appellate court denied that motion, but 

according to the Petitioner, again did so without first examining the transcripts of his guilty plea 

and sentencing hearing. (PAGEID # 229.) On October 11, 2017, the Ohio Supreme Court 

declined to accept jurisdiction of the appeal. (PAGEID # 250.) Petitioner claims that the state 

appellate court violated Ohio law by dismissing his motion for a delayed appeal without making 

a determination as to whether he had been advised of his right to appeal. (PAGEID # 54-55.) 

He argues that Johnson v. United States, 544 U.S. 295 (2005), does not apply, but that this action 

is timely under DiCenzi v. Rose, 452 F.3d 465, 469 (6th Cir. 2006), and McIntosh v. Hudson, 632 

F.Supp.2d 725 (N.D. Ohio 2009). Petitioner contends that the statute of limitations did not begin 

to run until May 23, 2017, when the appellate court denied his motion for a delayed appeal and 

he discovered the factual basis for his claims. He disputes the factual findings of the state 

appellate court and asserts that his guilty plea was not knowing, intelligent, and voluntary. 

(PAGEID # 62-63.) He asserts that equitable tolling of the statute of limitations should be 

applied. Petitioner states that, after a parole board hearing, a legal clerk advised him of his right 
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to appeal. (PAGEID # 67.) Shortly thereafter, on February 2, 2016, he filed a motion to 

withdraw his guilty plea. (Id.) Petitioner has attached various exhibits to his objections, 

including a copy of his sentencing transcripts (ECF No. 9, PAGEID # 101-114), documents 

relating to state court proceedings in the underlying criminal case, and to a prior § 2254 Petition

he filed in this Court. (PAGEID # 122-134.) 

 Because this is not Petitioner’s numerically first § 2254 action, the Court must first 

address whether this action constitutes a successive petition. On August 3, 2000, Petitioner filed 

a prior § 2254 Petition. See Chafin v. Russell, Case Number 2:00-cv-870. He asserted therein 

that he had been denied the effective assistance of counsel because his attorney failed to advise 

him of the nature of the charges, coerced him to enter a guilty plea, and failed to advise him of 

his right to appeal; that the trial court committed misconduct by failing to explain the nature of 

the charges or advise him of his right to appeal; that his guilty plea was not knowing, intelligent, 

or voluntary; and that the prosecutor committed prosecutorial misconduct. (ECF No. 9, PAGEID 

# 130-31.) On June 1, 2001, Judgment was issued dismissing that action as time-barred. 

28 U.S.C. § 2244(b)(3)(A) states that before a second or successive petition for a writ of 

habeas corpus can be filed in the district court, the applicant shall move in the appropriate circuit 

court of appeals for an order authorizing the district court to consider the application. 

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court does 

not have jurisdiction to entertain a successive post-conviction motion or petition for writ of 

habeas corpus in the absence of an order from the court of appeals authorizing the filing of such 

successive motion or petition. Burton v. Stewart, 549 U.S. 147, 152-53 (2007). Unless the court 

of appeals has given approval for the filing of a second or successive petition, a district court in 

the Sixth Circuit must transfer the petition to the United States Court of Appeals for the Sixth 
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Circuit. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam ). Under § 2244(b)(3)(A), only a 

circuit court of appeals has the power to authorize the filing of a successive petition for writ of 

habeas corpus. Id. 

That being the case, this Court is without jurisdiction to entertain a second or successive 

§ 2254 petition unless authorized by the Court of Appeals for the Sixth Circuit. The Sixth 

Circuit, in turn, will issue this certification only if Petitioner succeeds in making a prima facie 

showing either that the claim sought to be asserted relies on a new rule of constitutional law 

made retroactive by the United States Supreme Court to cases on collateral review; or that the 

factual predicate for the claim could not have been discovered previously through the exercise of 

diligence, and these facts, if proven, would establish by clear and convincing evidence that, but 

for the constitutional error, no reasonable factfinder would have found the applicant guilty. 28 

U.S.C. § 2244(b)(2). 

The Sixth Circuit described the proper procedure for addressing a second or successive 

petition filed in the district court without § 2244(b)(3)(A) authorization in In re Sims:. 

[W]hen a prisoner has sought § 2244(b)(3)(A) permission from the district court, 

or when a second or successive petition for habeas corpus relief or § 2255 motion 

is filed in the district court without § 2244(b)(3) authorization from this court, the 

district court shall transfer the document to this court pursuant to 28 U.S.C. § 

1631. 

Id. at 47. 

 However, not all second-in-time habeas corpus petitions are considered “second or 

successive” within the meaning of § 2244(b). See Storey v. Vasbinder, 657 F.3d 372, 376 (6th 

Cir. 2011). 

For example, a habeas petition is not considered “second or successive” under § 

2244(b) when the claim has been raised in a prior petition, but dismissed as 

unripe, although other claims in the initial petition were decided on the merits. 

Stewart v. Martinez-Villareal, 523 U.S. 637, 643–46, 118 S.Ct. 1618, 140 L.Ed.2d 
5 

849 (1998). Even if the claim was not presented in an earlier petition, a 

subsequent petition raising the claim does not constitute a “successive” petition 

for purposes of § 2244(b) if the claim would have been dismissed as unripe in the 

initial petition. Panetti, 551 U.S. at 945, 127 S.Ct. 2842. Nor do the successive 

petition restrictions apply if the first petition was dismissed for lack of exhaustion. 

Slack, 529 U.S. at 478, 487, 120 S.Ct. 1595. The restrictions also do not apply if 

an intervening state court judgment (such as a resentencing) occurred after the 

first habeas petition was decided. Magwood, 561 U.S. at 335, 339, 130 S.Ct. 

2788; King v. Morgan, 807 F.3d 154, 157 (6th Cir. 2015). 

In re Campbell, 874 F.3d 454, (6th Cir. 2017). 

 Here, Petitioner asserts that that the appellate court unconstitutionally denied his motion 

for a delayed appeal, and that he was denied the right to counsel in connection with the appeal. 

To the extent that Petitioner’s claims relate to the appellate court’s denial of his motion for a 

delayed appeal, Petitioner arguably could not have raised these issues in his prior federal habeas 

corpus petition, because he did not file his first motion for a delayed appeal until 2003, and after 

the dismissal of that action. Therefore, this action does not appear to constitute a successive 

habeas corpus petition. 

 That said, and for the reasons detailed in the Magistrate Judge’s Report and

Recommendation, this action nonetheless plainly is time-barred. The state appellate court noted 

in its March 25, 1999, dismissal of Petitioner’s post-conviction appeal, that he should have raised 

his claims on direct appeal. State v. Chafin, No. 98AP-865, 1999 WL 163386, at *3 (Ohio App. 

10th Dist. March 25, 1999). Therefore, Petitioner should have learned about his right to appeal 

at that time. In any event, he clearly, he knew about his right to appeal in August of 2000, when 

he filed his prior § 2254 Petition, because he asserted in those proceedings claims alleging that 

the trial court and defense counsel had unconstitutionally failed to advise him of his right to 

appeal. (ECF No. 9, PAGEID # 125-26.) Nonetheless, Petitioner waited until August 2003, to 

file his first motion for a delayed appeal in the state appellate court. (PAGEID # 135.) On 
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September 16, 2003, the appellate court denied the motion for a delayed appeal. The factual 

predicate for Petitioner’s claim was apparent, at the latest, at that time. Despite his argument to 

the contrary, a defense attorney’s obligation to advise his client regarding the filing of an appeal 

does not involve an unforeseeable development in the law. See Roe v. Flores-Ortega, 528 U.S. 

470, 478 (2000). Still, Petitioner waited more than fourteen years, until December 19, 2017, to 

execute this habeas corpus Petition. Under these circumstances, the record does not reflect that 

Petitioner acted diligently in pursuing his claims. Petitioner does not allege, and the record 

likewise does not reflect, that any extraordinary circumstance prevented his timely filing such 

that equitable tolling of the statute of limitations would be appropriate. See Holland v. Florida, 

560 U.S. 631, 649 (2010) (To obtain equitable tolling of the statute of limitations, a litigant must 

establish that he has diligently pursued relief and that some extraordinary circumstance 

prevented his timely filing) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Thus, for 

the foregoing reasons, and for the reasons detailed in the Magistrate Judge’s Report and 

Recommendation, Petitioner’s Objection and Request for Evidentiary Hearing (ECF No. 9) is 

DENIED. The Report and Recommendation (ECF No. 2) is ADOPTED and AFFIRMED. 

This action is hereby DISMISSED. 

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 v. 

Fisher, –––U.S. ––––. ––––, 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). 
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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. Id. 

The Court is not persuaded that reasonable jurists would debate the dismissal of 

Petitioner’s claims as barred by the one-year statute of limitations. The Court therefore 

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. 

Date: May 24, 2018 

 _s/James L. Graham____________ 

 JAMES L. GRAHAM 

 United States District Judge