IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RYAN WATKINS, 

Case No. 2:18-cv-590

Petitioner, Judge Michael H. Watson

Magistrate Judge Kimberly A. Jolson

v. 

WARDEN, MADISON 

CORRECTIONAL INSTITUTION, 

Respondent.

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 United States Magistrate Judges. 

This matter is before the Court on its own motion under Rule 4 of the Rules Governing 

Section 2254 Cases in the United States District Courts (“Rule 4”). Pursuant to Rule 4, the Court 

conducts 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. . . .” if it does so 

appear, the petition must be dismissed. Id. For the reasons that follow, these are the 

circumstances here. 

I. FACTS AND PROCEDURAL HISTORY 

Petitioner challenges his October 19, 2001, convictions after a jury trial in the Franklin 

County Court of Common Pleas on murder, aggravated robbery, felonious assault, and having a 

weapon while under disability, with firearm specifications. On September 26, 2002, the 

appellate court affirmed the judgment of the trial court. State v. Watkins, 10th Dist. No. 01AP-
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1376, 2002 WL 31123872 (Ohio Ct. App. Sept. 26, 2002). Petitioner did not file a timely 

appeal, and on November 19, 2003, the Ohio Supreme Court denied his motion for a delayed 

appeal. State v. Watkins, No. 2003-1719, 2003-Ohio-5992, 100 Ohio St.3d 1483 (Ohio Sup. Ct. 

Nov. 19, 2003). 

On October 16, 2003, Petitioner filed his first federal habeas corpus Petition. He asserted 

(as he does here) that the trial court’s failure to instruct the jury on the essential element of theft 

and aggravated robbery denied him due process, and that he was denied the effective assistance 

of trial counsel based on his attorney’s failure to object to errors in the jury instructions. Watkins 

v. Hurley, Case No. 2:03-cv-941. However, on October 26, 2004, the Court issued final 

Judgment dismissing that action as procedurally defaulted. Id. 

Subsequently, in 2015, Petitioner filed a motion for re-sentencing in the state trial court 

based on the trial court’s failure to properly notify him of post-release control at his sentencing 

hearing. The trial court denied the motion, but on March 1, 2016, the state appellate court 

reversed that decision, and remanded the case to the trial court for a “limited resentencing to 

properly impose post-release control.” State v. Watkins, 10th Dist. No. 15AP-694, 2016 WL 

817003, at *2 (Ohio Ct. App. March 1, 2016). 

{¶ 3} On remand, the trial court held a resentencing hearing and properly notified 

appellant of post-release control. At the hearing, appellant argued that certain of 

his convictions should merge for purposes of sentencing. The trial court 

concluded that in light of this court’s limited remand, the only issue it could 

address at the resentencing hearing was appellant’s post-release control 

notification. Therefore, the trial court did not consider appellant’s merger 

argument.

State v. Watkins, 10th Dist. No. 16AP-581, 2017 WL 1162426, at *1 (Ohio Ct. App. March 14, 

2017). On March 14, 2017, the appellate court affirmed the judgment of the trial court. Id. On 
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July 26, 2017, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v.

Watkins, No. 2017-0535, 2017-Ohio-6964, 150 Ohio St.3d 1411 (Ohio Sup. Ct. July 26, 2017). 

On June 14, 2018, Petitioner filed this pro se Petition for a writ of habeas corpus pursuant 

to 28 U.S.C. § 2254. He asserts, as he did previously, that he was denied due process and the 

right to the effective assistance of counsel because the trial court failed to define theft in its jury 

instruction on aggravated robbery, and trial counsel failed to object.1 

II. SUCCESSIVE PETITIONS 

As discussed, this is not Petitioner’s first federal habeas corpus Petition. This Court 

therefore must first address whether the action is subject to transfer to the Sixth Circuit for 

authorization for filing as successive. 

Before a second or successive petition for a writ of habeas corpus can be filed in a district 

court, a petitioner must ask the appropriate circuit court of appeals to authorize the district 

court’s consideration of the application. 28 U.S.C. § 2244(b)(3)(A). If a district court in the 

Sixth Circuit determines that a petition is a second or successive petition, see In re Smith, 690 

F.3d 809 (6th Cir. 2012), the district court must transfer the petition to the United States Court of 

Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th Cir. 

1997). The Sixth Circuit, in turn, will authorize the filing of a second petition only if the 

petitioner establishes 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 if 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 

 1 Petitioner has attached to his Petition a motion for reconsideration under Rule 60(b)(6) of the Federal Rules of 

Civil Procedure, in which he argues that this action should not be dismissed as successive or untimely. (Doc. 1-3, 

PAGEID # 18-24). As discussed infra, this Court agrees. However, the Court will not address these arguments 

under Rule 60(b) because this action involves a new habeas corpus Petition filed under a separate case number from 

Petitioner’s prior habeas corpus Petition.
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convincing evidence that, but for the constitutional error, no reasonable fact finder would have

found the applicant guilty. Id.

However, in certain “limited circumstances, a § 2254 petition is not considered ‘second 

or successive’ within the meaning of § 2244(b) even though the petitioner filed a previous 

habeas application.” 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 

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, 459 (6th Cir. 2017).

As discussed, the Supreme Court has held that a habeas corpus petition is not successive 

where it is filed after the trial court conducts a re-sentencing hearing that results in the issuance 

of a new judgment. Magwood, 561 U.S. at 331–39 (2010). In Magwood, the petitioner had 

originally filed a § 2254 petition challenging his 1981 death sentence. “[T]he District Court 

upheld Magwood’s conviction but vacated his sentence and conditionally granted the writ based 

on the trial court’s failure to find statutory mitigating circumstances relating to Magwood’s 

mental state.” Id. at 326 (footnote omitted). The state trial court thereafter held a new 

sentencing hearing, again imposing death sentence. Id. Magwood filed a second petition under 

28 U.S.C. § 2254, in which he alleged that he had not received fair notice that he could be 

sentenced to death and that he had been denied the effective assistance of counsel during the re-
5

sentencing hearing. Id. at 328. Noting that the later sentencing hearing had resulted in a new 

judgment, the Supreme Court held that Magwood’s second habeas corpus petition did not 

constitute a successive petition. Id. at 331.

Similarly, in In re Stansell, 828 F.3d 412 (6th Cir. 2016), the Sixth Circuit held that, even 

where a sentence has been vacated only partially (because it did not include a term of postrelease control) and the state trial court re-sentenced the Petitioner for the limited purpose of 

imposing that term, that action resulted in a new or intervening judgment that permitted Stansell 

to raise challenges to his original conviction and his original sentence to a term of incarceration, 

as well as to his new term of post-release control. Id. at 416. “Final judgment in a criminal case 

means sentence. The sentence is the judgment.” Id. (quoting Berman v. United States, 302 U.S. 

211, 212 (1937); Burton v. Stewart, 549 U.S. 147, 156 (2007)). The Court noted that

[b]efore his resentencing, the judgment that kept Stansell “in custody” was a term 

of imprisonment ranging from twenty years to life. After his resentencing, the 

judgment that kept Stansell “in custody” was a term of imprisonment ranging 

from twenty years to life plus five years of post-release control. See Jones, 371 

U.S. at 238–43, 83 S.Ct. 373. Because a new custodial sentence means a new 

judgment for purposes of § 2254, Stansell’s partial resentencing restarted the 

second or successive count.

Id. at 416–17. “When a court alters a sentence to include post-release control, it substantially 

and substantively changes the terms under which an individual is held ‘in custody.’ 28 U.S.C. 

§ 2254(a), (b)(1). That means it has created a new judgment for purposes of the second or 

successive assessment.” Id. at 417. Under such circumstances, a petitioner’s numerically second 

petition does not constitute a successive petition within the meaning of 28 U.S.C. § 2244(b).

Such are the circumstances here, and this Petition is not successive. 
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III. STATUTE OF LIMITATIONS

The Court next addresses whether the one-year statute of limitations bars review of 

Petitioner’s claims. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 

which became effective on April 24, 1996, provides for a one-year statute of limitations on the 

filing of habeas corpus actions. 28 U.S.C. § 2244(d)(1) provides:

(d) (1) A one-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 post-conviction 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.

28 U.S.C. § 2244(d)(1),(2). The time bar may be overcome if a petitioner is able to make a 

credible showing of actual innocence. See Tyler v. Ray, 610 F. App’x 445, 452-53 (6th Cir. 

2015); Schulup v. Delo, 513 U.S. 298, 317 (1995).

Additionally, even where a § 2254 petition is statutorily time-barred, equitable tolling 

may save an otherwise untimely petition. The one-year statute of limitations is not jurisdictional 

and is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010); Perkins v.

McQuiggin, 670 F.3d 665, 670 (6th Cir. 2012). Whether the statute of limitations should be 
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equitably tolled depends upon whether a petitioner shows: (1) that he has been diligent in 

pursuing his rights; and (2) that an extraordinary circumstance prevented him from filing within 

the prescribed time. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The petitioner bears the 

burden of showing that he is entitled to equitable tolling. Id.

However, where the trial court re-sentences the petitioner, the new sentence “not only 

permits a challenge to either the new sentence or the undisturbed conviction, but also restarts the 

AEDPA’s one-year window to challenge that judgment.” Crangle v. Kelly, 838 F.3d 673, 678

(6th Cir. 2016). This Court has applied Crangle to a trial court’s limited re-sentencing made to 

advise the petitioner of the terms of post-release control. See McKinney v. Warden, Warren 

Corr. Inst., No. 2:14-cv-1992, 2017 WL 2336009, at *10–11 (S.D. Ohio May 30, 2017); Norris 

v. Bunting, No. 2:15-cv-764, 2017 WL 749200, at *7–8 (S.D. Ohio Feb. 27, 2017); see also 

Brown v. Harris, No. 3:17-cv-080, 2018 WL 1069986, at *4 (S.D. Ohio Feb. 27, 2018) (The 

“Court should not second-guess the Sixth Circuit’s decision in Crangle by limiting it to postrelease control corrections that impose a ‘worse-than-before’ sentence.”) 

Therefore, this action is timely and not subject to dismissal under the provision of 28 

U.S.C. § 2244(d).

2

 

IV. PROCEDURAL DEFAULT

Petitioner has procedurally defaulted both of the claims he now presents for relief. 

 2 On July 26, 2017, the Ohio Supreme Court declined to accept jurisdiction of Petitioner’s re-sentencing appeal. 

State v. Watkins, 150 Ohio St.3d at 1411. His judgment of conviction therefore became final under the provision of 

28 U.S.C. § 2244(d)(1)(A) in October 2017, when the time period expired to file a petition for a writ of certiorari to 

the United States Supreme Court. See Jackson v. Bradshaw, No. 1:16-cv-1852, 2017 WL 3475517, at *8 (N.D. 

Ohio June 22, 2017) (citing Lawrence v. Florida, 549 U.S. 327, 333 (2007)). The statute of limitations expired one 

year later, in October 2018. On June 14, 2018, Petitioner filed the Petition. 
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A. Standard

Congress has provided that state prisoners who are in custody in violation of the 

Constitution or laws or treaties of the United States may apply to the federal courts for a writ of 

habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to 

protect the constitutional rights of criminal defendants, and in order to prevent needless friction 

between the state and federal courts, a state criminal defendant with federal constitutional claims 

must first present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If 

he fails to do so but still has an avenue open to him by which he may present his claims, then his 

petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 

459 U.S. 4, 6, 103 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). 

However, where a petitioner has failed to exhaust his claims but would find those claims barred 

if later presented to the state courts, “there is a procedural default for purposes of federal 

habeas[.]” Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).

The term “procedural default” describes the situation where a person convicted of a crime 

in a state court fails (for whatever reason) to present a particular claim to the highest court of the 

State such that the State has not had a fair chance to correct any errors made in the course of the 

trial or the appeal before a federal court intervenes in the state criminal process. One aspect of 

“fairly presenting” a claim to the state courts is that a habeas petitioner must do so in a way that 

gives the state courts a fair opportunity to rule on the federal law claims being asserted. See 

McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (“The federal courts do not have 

jurisdiction to consider a claim in a habeas petition that was not “fairly presented” to the state 

courts.”) (citing Franklin v. Rose, 811 F.2d 322, 324–25 (6th Cir. 1987) ). In the Sixth Circuit, a 

petitioner can satisfy the fair presentment requirement in any one of four ways: (1) reliance upon 
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federal cases employing constitutional analysis; (2) reliance upon state cases employing federal 

constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms 

sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts 

well within the mainstream of constitutional law. Id. A claim is considered “fairly presented” 

only if the petitioner asserted both the factual and legal basis for his claim to the state courts. Id. 

If a petitioner fails to fairly present his claims through the requisite of levels of state appellate 

review to the state’s highest court and no avenue of relief remains open, or if it would otherwise 

be futile for a petitioner to continue to pursue his claims in the state courts, the claims are subject 

to dismissal with prejudice as procedurally defaulted. See O’Sullivan v. Boerckel, 526 U.S. 838, 

847–48 (1999).

A petitioner can overcome procedural default by showing (1) there was cause for him not 

to follow the procedural rule and that he was actually prejudiced by the alleged constitutional 

error or (2) a fundamental miscarriage of justice would result from a bar on federal habeas 

review. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); see also Hodges v. Colson, 727 

F.3d 517, 530 (6th Cir. 2013) (holding that if a claim is procedurally defaulted, it must not be 

considered unless “review is needed to prevent a fundamental miscarriage of justice, such as 

when the petitioner submits new evidence showing that a constitutional violation has probably 

resulted in a conviction of one who is actually innocent”) (citing Murray v. Carrier, 477 U.S. 

478, 495–96 (1986)). Of note, the “cause and prejudice” analysis applies to failures to raise or 

preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94, 97–99 (6th Cir. 

1985).
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B. Application

Petitioner asserts that he was denied a fair trial based on the issuance of improper jury 

instructions, and that he was denied the effective assistance of counsel due to his attorney’s 

failure to object. Petitioner raised both of the foregoing claims on direct appeal; however, he did 

not file a timely appeal of the appellate court’s decision denying his claims, and the Ohio 

Supreme Court denied his motion for a delayed appeal. As discussed in this Court’s dismissal of 

Petitioner’s prior § 2254 action, Petitioner has thereby procedurally defaulted his claims. See

Johnson v. Turner, No. 2:14-cv-01908, 2016 WL 6963177, at *3 (S.D. Ohio Nov. 29, 2016) 

(citing Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004); Womack v. Konteh, No. 3:06-cv157, 2008 WL 123867, at *2 (N.D. Ohio Jan. 10, 2008)). Moreover, this Court has previously 

concluded that Petitioner cannot establish either cause for this procedural default, or that he is 

actually innocent so as to permit review of his procedurally defaulted claims. See Watkins v.

Hurley, Case No. 2:03-cv-00941. 

V. RECOMMENDED DISPOSITION

For the foregoing reasons, 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 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 
11

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.

Date: June 26, 2018 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE