The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
JAMES K. BISHOP,
Petitioner, : Case No. 2:24-cv-4063
- vs - District Judge James L. Graham
Magistrate Judge Michael R. Merz
JAY FORSHEY, WARDEN,
Noble Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the
merits. Relevant pleadings are the Petition (ECF No. 3), the State Court Record (ECF No. 15), the
Warden’s Return of Writ (ECF No. 16), and Petitioner’s Amended Reply (ECF No. 21).
Litigation History
On November 8, 2017, a Jefferson County grand jury indicted Thompson on: one count of
theft, a felony of the fourth degree in violation of Ohio Revised Code § 2913.02(A(1), (B)(2); one
count of receiving stolen property, a felony of the fifth degree in violation of Ohio Revised Code
§ 2913.51(A), (C); one count of burglary, a felony of the second degree in violation of Ohio
Revised Code § 2911.12(A)(1), (D); and one count of safe cracking, a felony of the fourth degree
in violation of Ohio Revised Code § 2911.31(A), (B)(Indictment, ECF No. 15, Ex. 1). A trial jury
convicted him on all counts except that it failed to find the stolen goods were of sufficient value
to warrant a fourth degree felony and found him guilty of the lesser included fifth degree felony.
Id. at Ex. 3.
With permission of the Seventh District Court of Appeals and new counsel, Bishop
appealed, but the conviction was affirmed. State v. Bishop, 2019-Ohio-2720 (Ohio App. 7th Dist.
June 28, 2019). The Ohio Supreme Court thereafter denied leave to file a delayed appeal the
declined to exercise jurisdiction. State v. Bishop, 157 Ohio St.3d 1522, Ohio (2019).
On September 30, 2019, Bishop filed an Application to Reopen his appeal under Ohio R.
App. P. 26(B)(State Court Record, ECF No. 15, Ex. 23). The Seventh District denied reopening,
State v. Bishop, 2019-Ohio-4963 (7th Dist. Nov. 21, 2019), and the Ohio Supreme Court declined
jurisdiction over a further appeal. State v. Bishop, 158 Ohio St. 3d 1458 (2020).
On February 24, 2020, Bishop filed a Petition for Post-Conviction Relief under Ohio
Revised Code § 2953.21 (State Court Record, ECF No. 15, Ex. 38). The trial court denied relief.
Id. at Ex. 41-B. On August 5, 2020, Bishop sought to amend his Post-Conviction Petition. Id. at
Ex. 44. The trial court denied that motion. Id. at Ex. 45. Bishop attempted to appeal, but the
Seventh District dismissed the appeal for lack of a final appealable order. Id. at Exs. 46, 47.
Bishop has filed numerous additional matters in both the trial and appellate courts which
are detailed in the Return of Writ (ECF No. 16, PageID 1856-69.) They are not discussed further
in this Report except as they may bear on this Court’s decision.
Bishop filed his Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 in this Court
on October 8, 2024 (docketed October 16, 2024). He pleads the following grounds for relief:
Ground One: Ineffective assistance of trial and appeals counsel, for
failure to consult with appellant before filing their briefs and before
going to trial.
Supporting Facts: The fact that my trial counsel never once came
to see me before trial to go over any of the discovery, nor explain
the charges and what evidence they were basing their claims on, nor
ask me if I had any alibi that could be used in my defense, my
appeals counsel never once spoke to me to see if I could provide any
assistance in my direct appeal which I did mention the ineffective
assistance of trial counsel at sentencing.
Ground Two: prosecutor misconduct, for failure to comply with
crim. R. 16(b)(5).
Supporting Facts: the prosecutor withheld exculpatory evidence,
the Cross Creek policeman Jack Henderson's report stated he got my
phone records just for the Jefferson county prosecutor. The state's
main witness testified I confessed over a phone call, the phone
records contain no call from or to him by me. The state withheld
these records from the discovery. I received these phone records
from Cross Creek Police Chief Casey Robinson in July 2022. (5
years after trial), that were not part of the state’s discovery.
Ground Three: Witness misconduct, for the states main witness
Tom Brown committing perjury several times at trial.
Supporting Facts: the witness committed perjury several times
while testifying, (Tom Brown) the state's main witness testified I
confessed during a phone call that was never made and proven once
I recovered my phone records over 5 years later. That was withheld
from my discover [sic].
Ground Four: Prosecutions misconduct, for failing to keep a chain
of custody with evidence.
Supporting Facts: the Cross Creek Policeman Jack Henderson did
not keep any chain of custody with the evidence that resulted in
several items in states exhibit #6 being tainted, (1). The photo
presented was admitted that it was from Eastliverpool cash land
pawn shop of defendant at the counter pawning the victims wedding
ring, when in fact it was a photo from a different pawn shop verified
by Policeman Henderson at trail during his testimony, by the states
exhibit # 5 a Leads online report it was confirmed to be from another
pawn shop,(and never removed from states exhibit #6 once confirm
by police it was wrong) (2) the defendants STATE I.D. used in
exhibit #6 was also false it was not the copy of the I.D. that was sent
to Leads online the day the item was pawned at Eastliverpool cash
land. But from again another pawn shop in Toledo Ohio, that was
determined at trial had nothing to do with the case at hand. (3) The
Policeman Henderson returned victims wedding ring before defense
counsel had a chance to examine it with expert witness of the one
who made the victims wedding ring (chip warren). [sic].
(Petition, ECF No. 1, PageID: 18-22).
Analysis
Statute of Limitations
Respondent asserts review of the merits in this case is barred by Bishop’s failure to file
within the statute of limitations.
Prior to 1996, there was no statute of limitations for habeas corpus cases. Then, on April
24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L.
No 104-132, 110 Stat. 1214)(the "AEDPA") adopting a one-year statute of limitations for habeas
petitions. That statute is codified at 28 U.S.C. § 2244(d) and 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.
The State Court Record shows the Seventh District Court of Appeals decided Bishop’s
direct appeal on June 28, 2019. State v. Bishop, 2019-Ohio-2720 (Ohio App. 7th Dist. June 28,
2019). Under Ohio Supreme Court Rules, Bishop’s appeal to that court was due to be filed not
later than forty-five days after the appellate court’s judgment. Bishop did not timely appeal, so
the statute of limitations began to run on the forty-fifth day after the appellate judgment, which
was August 12, 2019.
Under 28 U.S.C. § 2244(d)(2), the running of the statute of limitations is tolled during the
pendency of any properly filed collateral attack on the judgment. The State Court Record shows
Bishop filed his App. R. 26(B) Application for Reopening on September 30, 2019 (State Court
Record, ECF No. 15, Ex. 23). The Seventh District implicitly found the 26(B) Application was
properly filed as it proceeded to decide at least one of Bishop’s Assignments of Error on the merits.
Thus the statute of limitations ran for forty-nine days until it was tolled by the 26(B) filing. That
tolling continued until March 17, 2020, when the Ohio Supreme Court declined to exercise
jurisdiction (State Court Record, ECF No. 15, Ex. 27). This left 316 days to run; the statute expired
January 27, 2021, unless again tolled.
While the 26(B) Application was pending, Bishop filed his Petition for Post-Conviction
Relief under Ohio Revised Code § 2953.21 on February 24, 2020 (State Court Record, ECF No.
15, Ex. 38). That Petition was denied two days later on February 26, 2020, and Bishop did not
appeal. He later attempted to amend the Post-Conviction Petition and attempted to appeal from
denial, but the appeal was dismissed for lack of a final appealable order (Entry, State Court Record,
ECF No. 15, Ex. 47). Thus the pendency of the post-conviction petition provides no additional
tolling.
On September 8, 2020, Bishop filed in the Seventh District a motion for relief from its final
judgment (State Court Record, ECF No. 15, Ex. 52). That motion was overruled for lack of
jurisdiction and thus provides no additional tolling. Id. at Ex. 54.
Because Petitioner did not properly file any additional collateral attacks on his conviction
before January 27, 2021, the statute expired on that date and merits review is barred by § 2244(d)
unless Petitioner has some other excuse for his late filing.
Bishop provides as a general excuse that COVID happened. While it is true that the
COVID-19 pandemic affected all Americans and made it especially hard for the imprisoned, the
pandemic will not excuse delay from January 27, 2021, to October 9, 2024.
In the alternative, Bishop claims that he is actually innocent. The controlling precedent on
this point is now the Supreme Court’s decision in McQuiggin v. Perkins, 569 U.S. 383 (2013), in
which the Supreme Court held:
[A]ctual innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar, as
it was in Schlup and House, or, as in this case, expiration of the
statute of limitations. We caution, however, that tenable actual-
innocence gateway pleas are rare: “[A] petitioner does not meet the
threshold requirement unless he persuades the district court that, in
light of the new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.
S., at 329, 115 S. Ct. 851, 130 L. Ed. 2d 808; see House, 547 U. S.,
at 538, 126 S. Ct. 2064, 165 L. Ed. 2d. 1 (emphasizing that the
Schlup standard is “demanding” and seldom met). And in making
an assessment of the kind Schlup envisioned, “the timing of the
[petition]” is a factor bearing on the “reliability of th[e] evidence”
purporting to show actual innocence. Schlup, 513 U. S., at 332, 115
S. Ct. 851, 130 L. Ed. 2d. 808.
* * *
[A] federal habeas court, faced with an actual-innocence gateway
claim, should count unjustifiable delay on a habeas petitioner’s part,
not as an absolute barrier to relief, but as a factor in determining
whether actual innocence has been reliably shown.
McQuiggin v. Perkins, 569 U.S. 383, 386-87 (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).
In support of his actual innocence claim, Bishop argues:
(A). Mr. Bishop has demonstrated his actual innocence in his motion
for a new trial under crim. R. 33. (respondents exhibit 128, page ID.
#924). In petitioners' affidavit of facts and law in support attached
to his R. 33 motion as exhibit (A), (page ID. #930), and furthermore,
in petitioners' R. 33 motion exhibit (B), (page ID. #941), petitioner
asserts that the new evidence he has gathered, that his trial lawyer
did not. This new evidence is de-hors the record, and proves his
innocence without a doubt.
(B). Furthermore, in petitioners' R. 33 motion exhibit (B) part 1;
(page ID. #991), Bishop demonstrates the materiality of the
evidence, also proving his innocence. Which is furthered in exhibit
(B) part 2; (page ID. #1004). By using the evidence that is De-hors
the record due to ineffective assistance of trial counsel, Mr. Bishop
trial would have had a different outcome and Bishop asserts he was
prejudiced.
(C). Furthermore, in Petitioners' R. 33 motion exhibit (C), (page ID.
#1019), Bishops asserts the ground for prosecution misconduct,
which is set forth in ground one, (page ID. #1021), ground two,
(page ID. #1024), ground three, (page ID. #1027), In Petitioners' R.
33 motion exhibit (D), (page ID. #1031), Bishops asserts the ground
for witness misconduct, which is set forth in ground one, (page ID.
#1032), ground two, (page ID. #1034), this is an equitable showing
of actual innocence, and that Bishop was prejudiced by the
prosecution.
(D). Mr. Bishop has demonstrated his actual innocence in his post-
conviction petition under 2953. 21 (Respondents exhibit 142, page
ID. #1134), which is demonstrated in grounds 1-7 under prosecutor
misconduct, (page ID. #1138-1153), this prosecutor misconduct,
prejudiced Bishop of having a fair trial, and is further demonstrated
in grounds 1 & 2, under witness misconduct, (page ID. #1154-1158).
This witness misconduct also prejudiced Bishop of having a fair
trial.
(E). This is further demonstrated in Petitioners' post-conviction
petition under 2953.21 exhibit (A), (page ID. #1161, respondents
exhibit #143), and also presented in Petitioners' postconviction
petition under 2953.21 exhibit (B), (page ID. #1172, respondents
exhibit 144), also presented in Petitioners' post-conviction petition
under 2953.21 exhibit (B) part 1, (page ID. #1213, respondents
exhibit 145), also presented in Petitioners' post-conviction petition
under 2953.21 exhibit (B) part 2, (page ID. #1226, respondents
exhibit 146).
(F). These grounds have absolutely proven that Bishop rights to due
process were violated by the aforesaid, and that he has proven that
with all this new evidence that is De-hors the record he is actually
innocent. And was prejudiced. (All of which the respondent failed
to address in their answer).
Amended Reply, (ECF No. 21, PageID 1940-41).
The Magistrate Judge has examined the newly-discovered evidence referenced in the
Amended Reply. None of it constitutes evidence that satisfies the Schlup standard. That is, none
of it is exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence. All of it is new in the sense that it was not presented at trial (i.e. it is dehors the record).
However, no new eyewitness accounts are presented nor is there any exculpatory scientific or
critical physical evidence. For example, Bishop presents telephone records which may or may not
undercut the trial testimony of his employer, Tom Brown. There are a number of affidavits from
Bishop which are hearsay. There are official records from the Bureau of Motor Vehicles. Many
of these items might have been admissible evidence if offered at trial or could be evidence that the
State withheld in violation of Brady v. Maryland, 373 U.S. 83 (1963). However, they are not the
kind of evidence needed to prove actual innocence so as to avoid the statute of limitations bar.
Because Bishop has not shown actual innocence by evidence sufficient to meet the Schlup
standard, Respondent’s statute of limitations defense is well taken and must be upheld.
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.
March 20, 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 recetved. 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. #
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