The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
BRYAN KIRBY,
Petitioner, : Case No. 1:23-cv-424
- vs - District Judge Douglas R. Cole
Magistrate Judge Michael R. Merz
TOM WATSON, WARDEN, North Central
Correctional Complex,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case was brought by Petitioner Bryan Kirby pro se under 28 U.S.C. §
2254 to obtain relief from his 2022 conviction in the Butler County Court of Common Pleas on
charges of aggravated arson, aggravated burglary, and arson (Petition, ECF No. 1, PageID 1). On
the Court’s Order (ECF No. 17), Respondent has filed the State Court Record (ECF No. 23) and a
Return of Writ (ECF No. 24). Petitioner has responded with a Reply (ECF No. 30), making the
case ripe for decision.
Respondent’s counsel, Ohio Attorney General Dave Yost, reports that Petitioner is
presently in the custody of Tom Watson, Warden of the Ohio North Central Correctional Complex.
Accordingly, Watson is substituted for Jenny Hildebrand, the originally named Respondent, and
the caption is ordered amended as set forth above.
Litigation History
On August 1, 2018, the Butler County Grand Jury indicted Petitioner on one count of
aggravated burglary in violation of Ohio Revised Code § 2911.11(A)(1) (Count 1); one count of
assault in violation of Ohio Revised Code § 2903.13(A) (Count 2); two counts aggravated arson
in violation of Ohio Revised Code § 2909.02(A)(2)(Counts 3-4); one count of arson in violation
of Ohio Revised Code § 2909.03(A)(1)(Count 5); and one count of arson in violation of Ohio
Revised Code § 2909.03(B)(1)(Count 6).
A jury convicted Petitioner on all counts and he was sentenced to an aggregated prison
term of thirteen years. Kirby took a direct appeal with new counsel, but his conviction was
affirmed. State v. Kirby, 2020-Ohio-4005 (Ohio App. 12th Dist. Aug. 10, 2020). The Supreme
Court of Ohio declined to exercise jurisdiction over a further appeal. State v. Kirby, 160 Ohio
St.3d 1495 (Dec 15, 2020).
On September 25, 2020, Kirby filed a pro se petition for post-conviction relief under Ohio
Revised Code § 2953.21 raising a single claim of ineffective assistance of trial counsel for failure
to investigate. (State Court Record, ECF No. 23, Ex. 20). The trial court denied the petition and
the Twelfth District affirmed. Id. at Exs. 23, 32. The Ohio Supreme Court again declined
jurisdiction over an appeal. Id. at Ex. 35.
Kirby filed his initial habeas corpus petition in this Court in Case No. 21-cv-00482. He
voluntarily dismissed that case on November 18, 2022. Id. at Ex. 39. He also filed a motion for
new trial and a second post-conviction petition in the state trial court, both of which were denied.
Id. at Exs. 42-44, 46. The Twelfth District affirmed. State v. Kirby, 2022-Ohio-4477 (Dec. 12,
2022). The Ohio Supreme Court again declined to exercise jurisdiction. Id. at Ex. 54.
Kirby filed his current Petition on June 27, 2023, pleading one ground for relief:
Ground One: The trial court abuse [sic] its discretion.
Supporting Facts: When it failed to hold a hearing on the motion
of leave the Appellant filed. This violated the appellant’s right to be
heard as the evident the appellant put forth met the requirement
pursuant to Criminal Rule 33 as well as the Ohio Postconviction
conviction statute dictate.
(Petition, ECF No. 1, PageID 5).
Analysis
Statute of Limitations
Respondent asserts Kirby’s Petition should be dismissed because it was untimely filed.
Prior to adoption of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L.
No 104-132, 110 Stat. 1214)(the "AEDPA"), state prisoners could seek habeas corpus relief as
long as they remained in custody. In the AEDPA Congress adopted a statute of limitations for the
first time. Codified at 28 U.S.C. § 2244(d), that statute 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 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.
Applying § 2244(d)(1)(A) to this case, Respondent argues that Kirby’s conviction became
final on direct review March 15, 2021, when his time to seek certiorari from the United States
Supreme Court expired, ninety days after the Ohio Supreme Court declined jurisdiction over his
direct appeal. His filing on June 27, 2023, would thus be untimely unless the statute was somehow
tolled in the meantime.
Respondent implicitly concedes Kirby’s post-conviction petition, during its pendency,
tolled the statute until the Ohio Supreme Court declined jurisdiction over an appeal of denial of
that petition on August 17, 2021 (Return, ECF No. 24, PageID 1379, citing State Court Record,
ECF No. 23, Ex. 35).
After denial of the post-conviction petition, Kirby filed a motion for leave to file a delayed
motion for new trial which the trial court denied. The Ohio Twelfth District Court of Appeals
affirmed, holding
We instead agree with the trial court's decision finding the record
devoid of any evidence indicating Kirby's motion was anything
other than a frivolous filing. This is because, as the record indicates,
it was no secret that the Ford Explorer was subject to a recall at the
time of Kirby's trial. It was also no secret that there existed an
impound lot that police could have, in theory, used to store the fire
damaged Ford Explorer after Kirby set the vehicle on fire. This
holds true regardless of whether Kirby, or his trial attorney, were
actually aware of these facts at the time Kirby's trial began.
State v. Kirby, 2022-Ohio-4447 (12th Dist. Dec. 12, 2022). Because the evidence in question could
readily have been discovered at the time of trial, its supposed later discovery did not qualify under
Ohio R. Crim. P. 33.
Under 28 U.S.C. § 2254(d)(2), only a “properly filed” collateral attack on a criminal
judgment can toll the statute of limitations. In Artuz v. Bennett, 531 U.S. 4 (2000), Justice Scalia
wrote for a unanimous court:
[A]n application is “properly filed” when its delivery and
acceptance are in compliance with the applicable laws and rules
governing filings. These usually prescribe, for example, the form of
the document, the time limits upon its delivery, (footnote omitted)
the court and office in which it must be lodged, and the requisite
filing fee. ... [T]he question whether an application has been
“properly filed” is quite separate from the question whether the
claims contained in the application are meritorious and free of
procedural bar.
531 U.S. at 8. In Pace v. DiGuglielmo, 544 U.S. 408 (2005), the Court held that a postconviction
petition rejected by the state courts as untimely is not “properly filed” within 28 U.S.C. §
2244(d)(2). Applying this precedent, the Magistrate Judge concludes Kirby’s motion for leave to
file a delayed motion for new trial did not toll the statute of limitations. See discussion infra of
the impact of State v. Bethel, 167 Ohio St. 3d 362 (2022), and State v. Hatton, 169 Ohio St. 3d 446
(2022).
As Respondent points out, Kirby provided no argument for the timeliness of his Petition in
the Petition itself. For that the Court must turn to his Reply.
Instead of directly addressing the limitations question, Kirby begins his 33-page Reply with
a discussion of the supposed materiality of the “new” evidence under Arizona v. Youngblood, 488
U.S. 51(1988), and California v. Trombetta, 467 U.S. 479 (1984)(Reply, ECF No. 30, PageID
1396-97). He follows with a summary of the facts presented at trial from his point of view. Id. at
PageID 1398-1401. Accepting the one-year statute of limitations as controlling, he asserts “The
petitioner has complied with the oneyear [sic] statute of limitation having filed this action well in
advance of the expiration of the one-year period.” Id. at PageID 1402. But then he does nothing
to substantiate that claim, in fact apparently conceding that his motion to leave to file a delayed
motion for new trial does not toll the statute. Id. at PageID 1414.
Kirby then asserts the one-year statute should be calculated from the decision of the
Supreme Court of Ohio on April 11, 2023. Id. at PageID 1417. In that decision, the Ohio Supreme
Court declined jurisdiction of an appeal from the Twelfth District’s decision affirming denial of
Kirby’s Motion to Leave to file a Delayed Motion for New Trial. (See Entry, State Court Record,
ECF No. 23, Ex. 54, declining review of Judgment, State Court Record, ECF No. 23, Ex. 51). As
established above, Kirby’s Motion for Leave to File a Delayed Motion to New trial did not toll the
statute because it was not properly (i.e. timely) filed. That absence of any tolling effect persists
from its initial filing through denial of Ohio Supreme Court review.
Beginning at page 25 of his Reply Kirby takes issue with the Twelfth District’s conclusion
that his “new evidence” could have been discovered at the time of trial. He returns to his argument
under Trombetta and Youngblood. Id. at PageID 1418-20. Those cases provide a substantive
basis for habeas relief; they do not speak to the timeliness issue which is procedural.
Kirby next turns to his claim of actual innocence and writes:
Of greater importance, the individual interest in avoiding injustice
is most impelling in the context of actual innocence. The
quintessential miscarriage of justice has been committed on an
innocence person such as Kirby. The defendant Kirby is entirely
innocent that is regarding the concern about the injustice which is
the result of Kirby's charges and conviction of sentence. The
concern is reflected; for example, the fundamental value
determination of our society that it is far worse to convict an
innocent man like Kirby than to let a guilty person go free. See In re
Worship [sic] 397 U. S. 358 [1970].
Reply, ECF No. 30, PageID 1420. The correct citation is In re Winship, 397 U.S. 358 (1970),
which held that the reasonable doubt standard of proof applies in juvenile criminal proceedings.
It is correct that new evidence factual innocence will excuse failure to comply with the statute of
limitations. McQuiggin v. Perkins, 569 U.S. 383 (2013). In Souter v. Jones, 395 F.3d 577 (6th
Cir. 2005), the Sixth Circuit anticipated McQuiggin by holding Congress enacted the statute of
limitations in 28 U.S.C. § 2244(d)(1) “consistent with the Schlup [v. Delo] actual innocence
exception.” The Souter court also held:
[I]f a habeas petitioner "presents evidence of innocence so strong
that a court cannot have confidence in the outcome of the trial unless
the court is also satisfied that the trial was free of nonharmless
constitutional error, the petitioner should be allowed to pass through
the gateway and argue the merits of his underlying claims." Schlup
v. Delo, 513 U.S. 298, 316 (1995)." Thus, the threshold inquiry is
whether "new facts raise[] sufficient doubt about [the petitioner's]
guilt to undermine confidence in the result of the trial." Id. at 317.
To establish actual innocence, "a petitioner must show that it is more
likely than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt." Id. at 327. The Court has noted
that "actual innocence means factual innocence, not mere legal
insufficiency." Bousley v. United States, 523 U.S. 614, 623, 140 L.
Ed. 2d 828, 118 S. Ct. 1604 (1998). "To be credible, such a claim
requires petitioner to support his allegations of constitutional error
with new reliable evidence -- whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence -- that was not presented at trial." Schlup, 513 U.S. at 324.
The Court counseled however, that the actual innocence exception
should "remain rare" and "only be applied in the 'extraordinary
case.'" Id. at 321.
Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005). Kirby’s new evidence does not meet this
standard. It is not scientific or physical evidence. A “reliable eyewitness account” could
presumably satisfy the Souter standard if it were, for example, alibi testimony that Kirby was many
miles from the scene of the crime. But Kirby’s false alibi witness, presented to the jury and
exposed as false, cuts against his claim of actual innocence.
In Part V of his Reply, Kirby argues
The Brady Standard is the progenitor that creates progeny of case
law suchlike in Bethel and Hatton having a state right which applied
retroactively.
(Reply, ECF No. 30, PageID 1421). The Magistrate Judge reads this assertion to be that Brady v.
Maryland, 373 U.S. 83 (1963), gave rise to cases such as State v. Bethel, 167 Ohio St. 3d 362
(2022), and State v. Hatton, 169 Ohio St. 3d 446 (2022), and the rights recognized in those cases
apply retroactively.
In Bethel the Ohio Supreme Court abrogated Ohio precedent which required that a
defendant file a motion to leave to file a delayed motion for new trial within “a reasonable period
of time after discovering evidence on which he relied, Bethel at ¶¶ 5 of the syllabus abrogating
State v. Thomas, 93 N.E.3d 227, State v. Stansberry, 1997 WL 626063, and State v. York, 2001
WL 332019.
The Bethel Court made clear its decision was based on interpreting the language of Ohio
Rule of Criminal Procedure 33. It concluded that because the “reasonable time” requirement was
not in the text of the rule, its addition by Ohio courts of appeal was improper. Bethel, 167 Ohio
St. at ¶¶ 54-55. It said nothing about the retroactivity of its rulings.
Bethel was decided March 22, 2022. Kirby’s Motion was filed April 14, 2022, but makes
no mention of Bethel (State Court Record, ECF No. 23, Ex. 43). Because the Motion for New
Trial was decided after Bethel was handed down, Bethel was clearly applicable. In denying the
Motion, Judge Haughey found “All of these issues [presented in the Motion] were either presented
at trial or considered on the appeal as of right.” In other words, he found not that Kirby’s Motion
was untimely, but that they were essentially rearguments of issues already presented (Decision,
State Court Record, ECF No. 23, Ex. 46). Kirby’s appeal brief, filed July 18, 2022, also does not
raise a Bethel or Hatton issue (Appeal Brief, State Court Record, ECF No. 23, Ex. 48). Kirby does
cite Bethel in his Memorandum in Support of Jurisdiction to the Ohio Supreme Court, claiming
that because he has shown a Brady violation, he has satisfied the “unavoidably prevented”
standard. Id. at Ex. 53, PageID 561. This essentially ignores the conclusion of the trial and
appellate courts that there was no Brady violation because the existence of the impound lot and
the recall notice were “no secret” at the time of trial. State v. Kirby, supra, at ¶ 13.
Bethel and Hatton, having been decided prior to the Twelfth District’s decision in this case,
were the law of the State of Ohio at the time the Twelfth District acted. But its decision is in no
way contrary to that precedent: it did not decide the Motion on timeliness grounds, but on the
merits.
To prevail on his habeas corpus claim Kirby must show that the Twelfth District’s decision
was contrary to or an objectively unreasonable application of clearly established Supreme Court
precedent. His single ground for relief1 is that the state trial court abused its discretion in denying
his motion for a new trial without conducting an evidentiary hearing (Petition, ECF No. 1, PageID
55). Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C.
§ 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990);
Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the
province of a federal habeas court to reexamine state court determinations on state law questions.
In conducting habeas review, a federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68
1 Kirby does not seek to reinstate the grounds for relief which were in his earlier Petition that he voluntarily dismissed.
(1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.);
Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar, J. concurring). The claim that a
state court abused its discretion in ruling in a criminal case does not state a claim for relief in
habeas corpus; abuse of discretion is not a denial of due process. Sinistaj v. Burt, 66 F.3d 804 (6th
Cir. 1995). Whether Kirby was entitled to an evidentiary hearing on his Motion for New Trial is
a question of Ohio law, not federal constitutional law.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
February 19, 2025.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #
1]