IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

KENNETH RYAN WEST, 

 CASE NO. 2:18-CV-336 

 Petitioner, CHIEF JUDGE EDMUND A. SARGUS, JR. 

 Magistrate Judge Elizabeth Preston Deavers 

 v. 

WARDEN, WARREN CORRECTIONAL 

INSTITUTION, 

 Respondent. 

ORDER and REPORT AND RECOMMENDATION 

Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus under 28 

U.S.C. § 2254. (ECF No. 1.) Petitioner seeks release from confinement 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 

United States Magistrate Judges. Petitioner also moves to proceed with this action in forma 

pauperis. (ECF No. 2.) The Court finds that Petitioner’s motion is meritorious, and thus, the 

motion 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. 

 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 petition and any attached exhibits that the petitioner is not entitled to 

relief in the district court . . . .” Rule 4. If it does so appear, the petition must be dismissed. Id. 

Rule 4 allows for the dismissal of petitions which raise legally frivolous claims, as well as 
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petitions that contain factual allegations that are palpably incredible or false. Carson v. Burke, 

178 F.3d 434, 436–37 (6th Cir. 1999). For the reasons that follow, it plainly appears Petitioner is 

not entitled to relief because his claims are time-barred. Accordingly, the Undersigned 

RECOMMENDS that this action be DISMISSED. 

Facts and Procedural Background 

On July 30, 2015, Petitioner was tried and convicted of one count of robbery in the Court 

of Common Pleas for Muskingham County, Ohio. State v. West, No. CT2015-0050, 2016 WL 

3961995, at * 1 (Ohio Ct. App. July 18, 2016). On September 8, 2015, Petitioner was sentenced 

to an aggregated term of 13 years for robbery with a Repeat Violent Offender specification. Id. 

On direct appeal, Petitioner alleged that the trial court erred by failing to suppress evidence 

obtained by a police officer during a warrantless stop of his vehicle because the officer lacked a 

reasonable, articulable suspicion to justify the stop. Id. at * 2. On July 18, 2016, the state 

appellate court overruled that single assignment of error and affirmed the trial court’s judgment. 

Id. at *2−5. 

Petitioner did not timely appeal that determination to the Ohio Supreme Court. The online docket for the Muskingham County Clerk of Court indicates, however, that on December 1, 

2016, Petitioner moved to re-open his appeal pursuant to Rule 26(B) of the Ohio Rules of 

Appellate Procedure. The appellate court denied Petitioner’s Rule 26(B) motion on January 9, 

2017.1 Petitioner did timely appeal that determination to the Ohio Supreme Court either. 

Instead, the on-line docket for the Ohio Supreme Court indicates that on July 25, 2017, Petitioner 

executed a motion to file a delayed appeal in the Ohio Supreme Court pursuant to Rule 

7.01(A)(4)(a). The Ohio Supreme Court denied Petitioner’s motion for a delayed appeal on 

 

1 The docket does not indicate why the Rule 26(b) motion was denied. 
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September 27, 2017. State v. West, 150 Ohio St. 3d 1441 (2017). Petitioner executed his federal 

habeas corpus petition on April 7, 2018. 

Law and Analysis 

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year 

statute of limitations on the filing of habeas corpus petitions. 28 U.S. C. § 2244(d) 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) 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. 

The trial court’s judgment was affirmed by the appellate court on July 18, 2016. Pursuant to § 

2244(d)(1)(A), Petitioner’s judgment of conviction became final on September 1, 2016, i.e., 

forty-five days after the state appellate court affirmed the trial court’s judgment, and when the 

time to file a timely appeal of that determination with the Ohio Supreme Court expired. The 

statute of limitations began running the next day, on September 2, 2016. 

Ninety days later, on December 1, 2016, Petitioner filed a Rule 26(B) motion seeking to 

reopen his direct appeal. It appears that the Rule 26(B) motion was untimely because it was filed 
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136 days after the appellate court’s July 18, 2016 determination. See Oh.R.App.Proc. 26(B)(1) 

(“An application for reopening shall be filed in the court of appeals where the appeal was 

decided within ninety days from the journalization of the appellate judgment unless the applicant 

shows good cause for filing at a later time.”) Accordingly, the Rule 26(B) motion presumably 

did not toll the statute of limitations under § 2244(d)(2) because only a “properly filed” 

application for postconviction relief or collateral review can stop the clock, and “a state postconviction petition rejected by the state court as untimely is not ‘properly filed’ within the 

meaning of § 2244(d)(2).” Allen v. Siebert, 552 U.S. 3, 4 (2007); Pace v. DiGuglielmo, 544 U.S. 

408, 417 (2005) (“time limits, no matter their form, are ‘filing’ conditions, and a state 

postconviction petition is therefore not ‘properly filed’ if it was rejected by the state court as 

untimely”). Nevertheless, because the appellate court’s on-line docket does not indicate why the 

Rule 26(b) motion was denied, for purposes of this analysis, and construing all ambiguities in 

Petitioner’s favor, the Undersigned assumes that the statute of limitations was tolled while that 

motion was pending. 

Assuming such tolling, the statute of limitations began running again when the appellate 

court denied the Rule 26(B) motion on January 9, 2017, and it continued running for 197 days, or 

until July 25, 2017, when Petitioner filed a motion for a delayed appeal in the Ohio Supreme 

Court. The statute of limitations was again tolled while that motion was pending, and it began 

running again when the Ohio Supreme Court denied the motion on September 27, 2017. At that 

point, Petitioner had 78 days, or until December 14, 2017, to execute a timely federal habeas 

corpus petition. The petition was not, however, executed until April 7, 2018. Therefore, the 

petition is untimely. 
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Further, the petition fails to allege facts demonstrating that equitable tolling is warranted. 

A petitioner is entitled to equitable tolling only if he shows: “1) that he has been pursuing his 

rights diligently, and 2) that some extraordinary circumstances stood in his way” and prevented 

timely filing. Holland v. Florida, 560 U.S. 631, 648 (2010). “Petitioner bears the burden of 

persuading the court that he or she is entitled to equitable tolling.” McClendon v. Sherman, 329 

F.3d 490, 494 (6th Cir. 2003). Equitable tolling is applied only sparingly. Hall v. Warden, 

Lebanon Corr. Inst., 662 F.3d 745, 750 (6th Cir. 2011) (citing Robertson v. Simpson, 624 F.3d 

781, 783 (6th Cir. 2010)). 

The petition does not allege that Petitioner diligently pursued his rights. Nor does the 

petition allege that some extraordinary circumstance stood in Petitioner’s way and prevented 

timely filing. Petitioner alleges that he “was waiting for a reply communication from appellate 

attorney, which he never did, and then [Petitioner] had to attempt studying the law in order to 

attempt filing [himself].” (ECF No. 1, at PAGE ID # 13.) Nevertheless, a prisoner's pro se

incarcerated status, lack of knowledge regarding the law, and limited access to the prison's law 

library or to legal materials do not provide a sufficient justification to apply equitable tolling of 

the statute of limitations. Hall, 662 F.3d at 751 (6th Cir. 2011) (citation omitted); Keeling v. 

Warden, Lebanon Corr. Inst., 673 F.3d 452, 464 (6th Cir. 2012). These conditions are typical 

for many prisoners and simply do not constitute exceptional circumstances. Adams v. 

Chillicothe Corr. Inst., No. 2:16-CV-563, 2016 WL 4442826, at *2 (S.D. Ohio Aug. 22, 2016.) 

Moreover, Petitioner filed his motion for a delayed appeal in the Ohio Supreme Court pro se. 

Thus, he cannot credibly claim that he was waiting to hear from counsel about the resolution of 

that motion. When the Ohio Supreme Court denied that motion, Petitioner still had 78 days to 
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execute a timely petition. Petitioner alleges no explanation as to why he waited to execute his 

petition or facts that justify equitable tolling. 

Recommended Disposition 

WHEREUPON, the Undersigned RECOMMENDS 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 district 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 district judge of this Court may accept, reject, or modify, in 

whole or 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). 

 

IT IS SO ORDERED. 

DATE: July 20, 2018 s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers 

 United States Magistrate Judge