Furmage

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISON

JUSTIN FURMAGE, ) CASE NO. 1:24-cv-02117-JJH

)

Petitioner, ) JUDGE JEFFREY J. HELMICK

)

v. ) MAGISTRATE JUDGE

) REUBEN J. SHEPERD

WARDEN HAROLD MAY, )

) REPORT AND RECOMMENDATION

Respondent. )

)

I. Introduction

On November 29, 2024, Petitioner Justin Furmage (“Furmage”) filed a petition for writ

of habeas corpus under 28 U.S.C. § 2254. (ECF Doc. 1). On January 24, 2025, the matter was

assigned to me under Local Rule 72.2. for issuance of a report and recommended decision. (Non-

document entry of Jan. 24, 2025).

Earlier, I denied without prejudice Furmage’s Motion to Expand the Record (ECF Doc.

12), determining that the Respondent had provided the state court record (ECF Doc. 8 and

attachments) in compliance with my Initial Order and the Rules Governing Section 2254 Cases

(ECF Doc. 13). I also granted in part Furmage’s Second Motion for Extension (ECF Doc. 14),

permitting him until December 19, 2025 to file his Traverse (ECF Doc. 15). On December 4,

2025, Furmage moved for leave to amend his petition (ECF Doc. 16), and moved for preliminary

injunction regarding his prison library and legal mail access (ECF Doc. 17). Respondent opposed

both motions (ECF Docs. 18, 19). On January 2, 2026, I permitted Furmage leave to amend his

petition to the extent that he wished to modify his first ground as raising a sufficiency of the

evidence claim, but denying leave to amend the petition in its entirety, and denying his motion

for extension to file his Traverse, with instruction that he could submit a motion for untimely

filing and attach his Traverse for the Court’s consideration. (ECF Doc. 20). Furmage again

requested extension, which I again denied. (ECF Doc. 21; non-document entry of Jan. 12, 2026).

On February 3, 2026, Furmage submitted an untimely Traverse along with attachments in

support, and I granted his motion for untimely filing on February 19, 2026. (ECF Doc. 22 and

attachments; non-document entry of Feb. 19, 2026). Respondent filed a reply to the Traverse on

March 3, 2026. (ECF Doc. 23). The matter is now fully ripe.

II. Factual Background

The Ohio Court of Appeals, Eleventh Appellate District, Ashtabula County, set forth the

facts of this case on direct appeal. These factual findings are presumed correct unless Furmage

rebuts this presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The

Eleventh District presented the facts as follows:

{¶2} The charges stem from allegations that Furmage repeatedly sexually abused

his stepdaughter when she was between the ages of 7 and 12. Furmage was indicted

on eight counts of rape in violation of R.C. 2907.02(A)(1)(b), felonies of the first

degree, and eight counts of gross sexual imposition in violation of R.C.

2907.05(A)(4)/(C)(2), felonies of the third degree. The indictment sets forth the

following eight time-periods during which one count each of gross sexual

imposition and rape were charged: (1) February 13, 2014 through May 2014; (2)

June through August 2014; (3) September 2014 through May 2015; (4) June 2015

through August 2015; (5) September 2015 through May 2016; (6) June 2016

through August 2016; (7) September 2016 through February 22, 2017; and (8)

March 3, 2017 through July 30, 2019.

{¶3} Prior to trial, Furmage filed a motion in limine to exclude all evidence and

testimony regarding a separate importuning case in which he had been charged. The

trial court ruled that only evidence related to the present case would be permitted

unless Furmage decided to testify, in which case evidence of other criminal

activities could be used for impeachment purposes.

{¶4} The matter proceeded to jury trial, after which the jury returned guilty verdicts

on all counts. Thereafter, the court imposed a prison sentence as follows: 15 years

to life on each of the first seven rape counts, 10 years to life on the remaining rape

count, and 60 months on each of the eight counts of gross sexual imposition, with

all sentences to be served consecutively.

. . .

{¶9} Here, the jury found Furmage guilty of rape, in violation of R.C.

2907.02(A)(1)(b), and gross sexual imposition, in violation of R.C. 2907.05(A)(4).

R.C. 2907.02(A)(1)(b) provides, “No person shall engage in sexual conduct with

another * * * when * * * [t]he other person is less than thirteen years of age, whether

or not the offender knows the age of the other person.” The trial court sentenced

Furmage based upon the jury’s additional finding that the victim was less than 10

years of age at the time of seven of the charged rapes. See R.C. 2971.03(B)(1)(b).

R.C. 2907.05(A)(4) provides, “No person shall have sexual contact with another,

not the spouse of the offender; cause another, not the spouse of the offender, to have

sexual contact with the offender; or cause two or more other persons to have sexual

contact when * * * the other person * * * is less than thirteen years of age, whether

or not the offender knows the age of that person.”

{¶10} In support of the charges, at trial, the state presented the testimony of the

victim, the victim’s mother, a friend of the victim’s mother, the victim’s

grandmother, a Children Services investigative caseworker, and the detective that

investigated this case.

{¶11} The victim, who was 13 years of age at the time of trial, testified that after

her mother and Furmage began seeing each other, when the victim was about seven

years old, they moved into a yellow house. Furmage had an office in the basement

of the yellow house, where he would play the “tickle game” with the victim nearly

every day. The “tickle game” consisted of Furmage putting his hand down the

victim’s pants and rubbing her vagina. Sometimes he would insert a finger into her

vagina. Furmage had also placed the victim’s hand on his penis under his clothing.

The victim did not at that time know that there was anything wrong with the “tickle

game,” but Furmage told her not to tell anyone about the game because “bad stuff”

could happen to her, her mom, and her siblings, and because Furmage would get in

trouble. The victim estimated that Furmage touched her vagina on approximately

30 occasions, with digital penetration occurring 10 to 15 times, while they resided

at the yellow house.

{¶12} The victim further testified that they moved from the yellow house into a

two-story house in 2017, when she was 10 years old. When they moved, their new

house included a first-floor room that Furmage used as an office. Although he did

not touch her as much in the new house as he had in the yellow house, the victim

maintained that Furmage continued to play the “tickle game” with her in his home

office approximately once per week until shortly before she turned 12 years old.

The victim estimated that digital penetration occurred on approximately five

occasions at the two-story house. In addition, the victim maintained that Furmage

showed her pictures of his penis on his phone, and at one point he unsuccessfully

attempted to insert his penis into her vagina. The victim told her mother about the

abuse shortly after Furmage was arrested in a separate case.

{¶13} The victim’s mother testified that when the victim disclosed the abuse, she

called Detective Taylor Cleveland, who suggested that she take the victim for a

forensic interview at Children Services. The caseworker who conducted the

interview with the victim authenticated a recording of that interview, which was

published for the jury and admitted into evidence.

{¶14} The victim’s mother maintained that she continued to speak with Furmage

after the victim’s disclosure because he had not yet been charged in the victim’s

case and she did not want to tip him off that anything was awry. After charges were

brought against him, the victim’s mother testified that Furmage offered to pay

$1000 to the victim if she recanted. The victim’s grandmother also testified that

Furmage had told her that he would pay the victim $1000 if she recanted. On cross-

examination of the grandmother, she denied making statements to Furmage that she

would back him up in court or that she believed the victim was lying.

{¶15} In addition to the purported bribe, a significant amount of the state’s evidence

focused on a typed letter allegedly found in Furmage’s truck. The letter was entered

into evidence by the state. The letter appears wrinkled, dirty, somewhat ripped and

worn, and contains typed page numbers on the bottom of each page. The bottom

half of one page and top half of another appear to have been ripped off, and the

pages contain a crease in the center indicating that they had been folded in half. The

handwritten numbers 1, 2, and 3, appear at the top of certain pages. The substance

of the letter contains graphic sexual propositions, invites the recipient to respond as

to whether she would be willing to engage in these sex acts, and questions how

much she would charge for specific acts. The letter is not signed, and the intended

recipient is not named. However, the letter contains references to the author

previously vaginally massaging and performing oral sex on the recipient in the

basement of the “yellow house” and playing the “tickle game.” The victim testified

that Furmage attempted to give her the letter while they were alone in his truck in

August 2019. She told Furmage that she did not want the letter and did not know

what Furmage did with the letter after that, but he told her that he threw it away.

{¶16} Misty, a friend of the victim’s mother and of Furmage, testified that she and

her boyfriend, Daniel, borrowed Furmage’s truck in August 2019. While cleaning

off the floorboard on the passenger side of the truck, Misty came across this letter.

Misty then held onto the letter for approximately two weeks before giving it to the

victim’s mother. She delayed because of the disturbing nature of the letter. The

victim’s mother testified that Misty notified her about the letter the day after

borrowing the truck, and the mother notified Detective Cleveland. The victim’s

mother gave the letter to the detective on the same day as the victim’s interview

with Children Services, which the caseworker testified occurred on August 20,

2019. On cross-examination, the victim’s mother could not recall if she had a

telephone conversation with Furmage’s brother the day prior to the letter being

found. However, she acknowledged that she may have had conversations with

Furmage’s brother concerning the son she and Furmage share, but she could not

remember the extent of the conversations because she was in a “bad place” at that

time and was using methamphetamines.

{¶17} Detective Cleveland reported that the victim’s mother told him that she found

the letter when cleaning out the truck. On cross-examination of Detective

Cleveland, he confirmed that law enforcement had confiscated Furmage’s laptop

and sent it to the Cyber Crimes Unit of the Bureau of Criminal Investigation

(“BCI”) to search for the keywords “tickle,” “yellow,” and “basement,” which were

all used in the typed letter. The detective confirmed that a report from BCI had been

returned to the prosecutor’s office. At that point, an off-the-record discussion

between the court and counsel was held. When cross-examination resumed, defense

counsel did not continue questioning regarding the BCI report from Furmage’s

laptop.

{¶18} The defense declined to make a Crim.R. 29 motion at the close of the state’s

case-in-chief. As part of the defense’s case, counsel elicited testimony from friends

and family of Furmage, Misty’s prior boyfriend Daniel whom she referenced in her

testimony above, and prior friends of the victim. The defense further recalled the

victim’s grandmother.

{¶19} One of Furmage’s friends testified that he lived with Furmage at the yellow

house in the basement for about two years. In addition, Furmage’s daughter testified

that she lived with Furmage in the yellow house from approximately 2014 to 2015,

and her bedroom was in the basement. She maintained that the victim did not come

into the basement very much. Furmage’s daughter also lived with the family at the

two-story house. Furmage’s friends and family testified that they were frequently

at the two-story house, and two of the friends testified that they lived at that house

for certain periods of time. These witnesses did not see anything inappropriate

between the victim and Furmage and indicated that it did not appear to them that

the victim was afraid of Furmage. The witnesses further testified that several

children resided at the houses, and the family’s adult friends frequently visited the

two-story house.

{¶20} Daniel testified that he borrowed Furmage’s truck for two days around

August 2019. The truck was “a wreck” inside. He did not recall anyone else using

the truck with him, and he had no knowledge of the letter that was admitted into

evidence.

{¶21} Furmage’s brother testified that he spoke with the victim’s mother regarding

the son that she and Furmage share. Furmage’s brother maintained that the day

before he became aware of the letter, he had told the victim’s mother that she needed

to be a more “respectable” mother to her and Furmage’s son so that she and

Furmage could raise the child without intervention of Furmage’s brother and

parents.

{¶22} One of Furmage’s friends, Shauna, testified that she regularly babysat for

Furmage. She maintained that she was at the two-story house in August 2019 when

the victim’s mother was making copies of the letter. Shauna maintained that the

letter that was introduced into evidence was in a different condition than the letter

when she read it, and the victim’s mother put page numbers on the copies.

Furmage’s daughter also testified that she looked at the letter, and the victim’s

mother read it to her at the two-story house. Furmage’s daughter maintained that

the letter that was admitted into evidence was different than the letter the victim’s

mother had shown her at the two-story house, as it previously had not been divided

into three parts, did not contain page numbers at the top, and none of the pages were

cut in half.

{¶23} H.S. testified that she was friends with the victim and frequently stayed

overnight in the victim’s home in 2018 and 2019. H.S. learned about the victim’s

accusations against Furmage when the victim’s mother gave her the letter to read

at the victim’s house. H.S. maintained that the letter introduced into evidence

differed from the letter that she read because there were no top or bottom page

numbers on the letter she read, and some of the wording was different.

{¶24} H.S. further testified that she recorded a telephone conversation between

herself and the victim on July 7, 2020. The recording was published to the jury.

During this conversation, the victim indicated that she was not raped, but she had

to cooperate with the prosecution or she and her mother would get into trouble. H.S.

testified that Shauna’s daughter, M.B., was a mutual friend of hers and the victim,

and M.B. was present with H.S. during the telephone call.

{¶25} M.B. testified that she has known Furmage her entire life. M.B. testified that

the victim’s mother was “showing off” the letter when she was at their house in the

summer of 2019. However, she maintained that the letter admitted into evidence

had been altered, as it had previously been in one packet, not divided into three,

was clean and folded, and did not contain page numbers.

{¶26} On cross, M.B. acknowledged that Detective Cleveland had interviewed her

at her school regarding Furmage, and she had told the detective that Furmage told

her that she was “hot” and had shown her a picture of his penis on his phone.

However, M.B. denied that she had told the detective that Furmage offered to be

her “uncle sugar daddy” and was attempting to contact her through Snapchat.

Thereafter, M.B. maintained that the victim’s mother had forced her to tell the

detective horrible things about Furmage, threatening that she would be in trouble

otherwise. However, she denied that she told the detective that she was trying to

distance herself from Furmage and maintained that she was very upset during the

interview.

{¶27} Furmage’s son testified that when he was a boy scout, Detective Cleveland

was his leader from 2017-18, and the detective had used the phrase “tickle game.”

{¶28} The defense recalled the victim’s grandmother, at which time it played audio

of telephone conversations between the victim’s grandmother and Furmage,

containing statements that the grandmother denied making when the defense had

earlier questioned her on cross-examination. In the first recording played, the

grandmother said to Furmage: “Like I said, I’ll back you up in court.” The second

recording provides:

[Victim’s grandmother]: “[The victim] is the one that needs to be ashamed that she

lied.”

Justin Furmage: “Yeah, you’re d*mned right. You know?”

[Victim’s grandmother]: “It’s all on [the victim].”

{¶29} The victim’s grandmother acknowledged her voice in these recordings, but

she maintained that she was drinking heavily during the time period that these

conversations were recorded and did not recall making these statements. She further

indicated that she no longer believed the statements that she had made to Furmage.

{¶30} After the defense rested, the state called Detective Cleveland to rebut the

testimony of certain witnesses. The detective testified that he never used the term

“tickle game” in boy scouts. Further, the detective authenticated an audio recording

of the interview between himself and M.B., wherein M.B. states that Furmage told

her “how hot” she was and then showed her a picture of his penis. After she asked

him not to show her that, Furmage offered to be her “uncle sugar daddy or

something like that.” M.B. then states that she had to remove Furmage from

Snapchat because he would not leave her alone.

State v. Furmage, 2022-Ohio-1465, 2022 WL 1307050, *1-5 (Ohio Ct. App. May 2, 2022)

(“Furmage I”).

III. State Court History

A. State Conviction

On November 5, 2019, the Ashtabula County Grand Jury indicted Furmage on eight

counts of rape (Counts 1, 3, 5, 7, 9, 11, 13, and 15) in violation of Ohio Revised Code Section

2907.02(A)(1)(b), and eight counts of gross sexual imposition (Counts 2, 4, 6, 8, 10, 12, 14, and

16) in violation of Section 2907.05(A)(4)(C)(2). (ECF Doc. 8-1, pp. 5-10). The allegations in the

indictment stated the victim was a minor born in 2007 and under ten or thirteen years old,

depending on the date of the offense. (Id.). Furmage pled not guilty on November 19, 2019.

(Id. at p. 11).

On July 6, 2020, Furmage filed a motion in limine to exclude any information, evidence,

testimony, or witnesses related to a separate case, 19CR494. (Id. at pp. 13-15). On September 8,

2020, Furmage filed a second motion in limine to exclude the State from using any testimony

from Jacqueline Almberg, stating that a physician’s letter had found her incompetent. (Id. at pp.

16-18). The State opposed that motion. (Id. at pp. 19-21). The State filed its own motion in

limine, arguing for the admission of evidence from the other case, including cross-examining

defense witnesses regarding sexual contact and sexual conduct, because the same investigation

led to charges in both cases. (Id. at pp. 23-25). On September 15, 2020, the state trial court

overruled Furmage’s motion to exclude the testimony of Jacqueline Almberg and granted the

State’s motion to cross-examine defense witnesses. (Id. at p. 26).

On September 18, 2020, a jury found Furmage guilty of all counts of the indictment. (Id.

at pp. 27-60). On November 9, 2020, Furmage was sentenced to a mandatory 15 years to life on

each of Counts One, Three, Five, Seven, Nine, Eleven, and Thirteen, and a mandatory 10 years

to life on Count Fifteen, for a combined total of 115 years to life on the eight rape convictions.

(Id. at p. 62). Furmage was also sentenced to sixty months on each of Counts Two, Four, Six,

Eight, Ten, Twelve, Fourteen, and Sixteen, to be served consecutively to each other, and

consecutive to the other eight counts.. (Id. at pp. 62-63). Furmage was also subject to a period of

three years post-release control under Ohio Revised Code Section 2967.28 for the eight gross

sexual imposition convictions. (Id. at p. 64). The trial court also informed Furmage that he was

classified as a Tier III sexual offender and advised him of his registration and duties under that

classification. (Id.). The trial court notified Furmage of his appeal rights, found him indigent, and

appointed David W. Perdue as appellate counsel. (Id. at p. 65).

B. Direct Appeal

On November 30, 2020, Furmage filed a notice of appeal in the Eleventh District Court

of Appeals. (ECF Doc. 8-1, pp. 70-72). On December 8, 2020, appointed appellate counsel filed

a motion to dismiss, noting that both he and retained counsel had filed an appeal on that date. (Id.

at pp. 83-85). On December 14, 2020, the appellate court granted the motion to dismiss and

directed that the separate case filed by retained counsel, Ashtabula App. No. 2020-A-0057,

would proceed. (Id. at p. 86). On September 3, 2021, through retained counsel Katelyn

Pruchnicki, Furmage filed his appellant’s brief. (Id. at pp. 88-121). He raised nine assignments of

error, as follows:

I. Appellant’s convictions for rape and gross sexual imposition are against the

manifest weight of the evidence.

II. Appellant was denied his constitutional right to a fair trial when the trial

court permitted the State of Ohio to elicit improper opinion testimony from

a witness during its case-in-chief in violation of Rule 701 of the Ohio Rules

of Evidence.

III. Appellant was denied his constitutional right to present a full and complete

defense by the trial court’s exclusion of evidence Appellant sought to

introduce on rebuttal to impeach the testimony of a witness called to testify

during the State’s case-in-chief.

IV. Appellant was denied his constitutional right to a fair trial and due process

of law when the trial court permitted the State of Ohio to introduce

cumulative evidence improperly on rebuttal.

V. The trial court erred by failing to grant a mistrial after several members of

the jury were exposed to extrinsic information by a witness who was called

to testify on behalf of the State of Ohio during its case-in-chief.

VI. Appellant was denied constitutional right to a fair trial and due process of

law based upon prosecutorial misconduct committed by the State of Ohio

throughout trial and during its closing argument.

VII. Appellant was denied the effective assistance of trial counsel.

VIII. The cumulative effect of multiple error at trial, even if singularly

insufficient to warrant reversal, together deprived Appellant of a fair trial

and his constitutional right to due process of law.

IX. The trial court erred in imposing consecutive sentences absent sufficient

findings pursuant to R.C. § 2929.14 and relied upon inappropriate

considerations in imposing Appellant’s sentence.

(Id. at p. 91). The State opposed on September 21, 2021. (Id. at pp. 122-164). On May 2, 2022,

the state appellate court found each of the assignments of error lacked merit and affirmed the

judgment of the trial court. (Id. at pp. 165-200; see also State v. Furmage, 2022-Ohio-1465, 2022

WL 1307050 (Ohio Ct. App. May 2, 2022)).

On June 15, 2022, Furmage, through counsel David L. Doughten, filed a notice of appeal

in the Ohio Supreme Court. (ECF Doc. 8-1, pp. 202-21). His brief in support of jurisdiction

raised five propositions of law:

Proposition of Law I:

If multiple jurors of a criminal trial overhear a comment by a state witness that the

witness possesses proof of the defendant’s guilt outside of the testimony, the failure

of the trial court to hold a full hearing to determine the extent to which the improper

comment may have biased the juror and/or if the comment was communicated to

the remainder of the panel requires a new trial.

Proposition of Law II:

A witness may not provide opinion testimony as to the authorship of a unfairly

prejudicial letter without a sufficient foundation establishing a reasonable

probability of reliability of such and opinion. Ohio Rule of Evidence 701.

Proposition of Law III:

The preclusion of testimony material to a criminal defendant’s defense to the

charged offenses violates the right to present a defense as guaranteed by the right

of compulsory process if the precluded testimony is material to the discrediting of

the States theory of the case.

Proposition of Law IV:

Repeated instances of the prosecution misstating evidence, misrepresenting the law,

accusing a defendant of uncharged offenses, and generally encouraging the jury to

base its verdict on emotion rather than the evidence individually and cumulatively

act to deprive a defendant his right to a fair trial.

Proposition of Law []V:

A defendant is denied effective assistance of trial counsel to object to meritorious

issues that altered the reliability of the verdict.

(Id. at pp. 205-06). The State opposed on July 12, 2022. (Id. at pp. 223-41). The Ohio Supreme

Court declined to accept jurisdiction pursuant to Ohio Supreme Court Practice Rule 7.08(B)(4)

on August 30, 2022. (Id. at p. 242; see also State v. Furmage, 193 N.E.3d 581 (Ohio 2022)

(Table) (“Furmage II”)).

C. Post-Conviction

On July 29, 2022, while his direct appeal was pending before the Ohio Supreme Court,

Furmage, through counsel David L. Doughten, filed an application for reopening under Appellate

Rule 26(B). (ECF Doc. 8-1, pp. 243-44). He raised as error the following:

I. Furmage’s direct appeal counsel was constitutionally ineffective.

II. Appellate Counsel were Prejudicially Ineffective for Failing to Raise Meritorious

Issues.

(Id. at p. 245). Furmage also sought to raise sub-claims of ineffective assistance of trial counsel

through reopening of his direct appeal. (Id. at p. 254). The State opposed on August 26, 2022.

(Id. at pp. 255-64). On November 18, 2022, the Eleventh District Court of Appeals denied the

application for reopening, finding it without merit. (Id. at pp. 265-75). On December 14, 2022,

Furmage appealed the denial to the Ohio Supreme Court. (Id. at pp. 276-92). His memorandum

in support of jurisdiction raised one proposition of law:

A defendant is denied effective assistance of appellate counsel if such counsel fails

to raise meritorious issues that were not in need of outside the record development

to fully address the assignment of error.

(Id. at p. 279). The state did not respond. On February 28, 2023, the Ohio Supreme Court

declined to accept jurisdiction pursuant to Ohio Supreme Court Practice Rule 7.08(B)(4). (Id. at

p. 294; see also State v. Furmage, 203 N.E.3d 739 (Ohio 2023) (Table) (“Furmage III”).

IV. Federal Habeas Corpus Petition

In his Petition, Furmage asserts the following grounds:

Ground One: Petitioner’s convictions are against the sufficiency of the evidence1

in violation of the Fourteenth Amendment of U.S. Constitution.

Supporting Facts: Petitioner’s convictions for rape and gross sexual imposition are

against the manifest weight of the evidence and not supported by sufficient

evidence in violation of petitioner’s due process rights in the Fourteenth

Amendment of the U.S. Constitution.

Ground Two: The trial court permitted the state to elicit improper opinion testimony

in violation of the Fourteenth Amendment of U.S. Constitution.

Supporting Facts: Petitioner was denied his constitutional right to a fair trial when

the trial court permitted the state to elicit improper opinion testimony from a

witness during its case in chief in violation of due process rights in the Fourteenth

Amendment of the U.S. Constitution.

Ground Three: Petitioner was denied his right to present a complete defense and

evidence in violation of the Fourteenth Amendment of U.S. Constitution.

Supporting Facts: Petitioner was denied his right of due process to present a full

and complete defense by the trial court’s exclusion of evidence he sought to

introduce on rebuttal to impeach the testimony of a witness called to testify during

the state’s case in chief and thus in violation of the Fourteenth Amendment of the

U.S. Constitution.

Ground Four: The trial court permitted the state to introduce cumulative evidence

in rebuttal in violation of the Fourteenth Amendment of U.S. Constitution.

1 In his Petition, Furmage listed Ground One as a manifest-weight claim. (ECF Doc. 1, p. 5). However, he later

sought, and was granted, leave to amend this ground to assert the state law manifest-weight claim as a federal

sufficiency of the evidence claim. (ECF Docs. 16, 20).

Supporting Facts: Petitioner was denied his constitutional right to a fair trial and

due process of law when the trial court permitted the state to introduce cumulative

evidence in rebuttal during appellants case in chief.

Ground Five: The trial court failed to grant a mistrial after the jury was exposed to

extrinsic information by the state’s witness in violation of the Fourteenth

Amendment of the U.S. Constitution.

Supporting Facts: The trial court erred by failing to grant a mistrial after several

members of the jury were exposed to extrinsic information by a witness who was

called to testify on behalf of the stated during its case in chief which violated the

Fourteenth Amendment of the U.S. Constitution.

Ground Six: Petitioner was denied his right to a fair trial based on prosecutorial

misconduct in violation of the Fourteenth Amendment of the U.S. Constitution.

Supporting Facts: Petitioner was denied his constitutional right to a fair trial and

due process of law based upon prosecutorial misconduct committed by the state

throughout trial and during its closing arguement [sic] in violation of the U.S.

Constitution.

Ground Seven: Petitioner was denied his right to the effective assistance of counsel

in violation of the Sixth and Fourteenth Amendments of the U.S. Constitution.

Supporting Facts: Petitioner was denied his right to the effective assistance of

counsel at trial (i.e. and during his appeal) in violation of the Sixth and Fourteenth

Amendments of the U.S. Constitution.

Ground Eight: The cumulative effect of multiple errors at Petitioner’s trial violated

the Fourteenth Amendment of the U.S. Constitution.

Supporting Facts: The cumulative effect of multiple errors at Petitioner’s trial even

if singularly insufficient to warrant reversal, together deprived petitioner of a fair

trial and violated his due process rights in violation of the Fourteenth Amendment

of the U.S. Constitution.

Ground Nine: The trial court erred in imposing consecutive sentences by relying on

inappropriate considerations in violation of the Fourteenth Amendment of the U.S.

Constitution.

Supporting Facts: The trial court erred in imposing consecutive sentences without

making the statutory required procedure findings and relied upon inappropriate

considerations in violation of due process rights in the Fourteenth Amendment of

the U.S. Constitution.

(ECF Doc. 1, pp. 5-14).

V. Standard of Review

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, PL 104-

132, April 24, 1996, 110 Stat 1214, 110 Stat. 1214 (“AEDPA”), applies to Furmage’s petition for

writ of habeas corpus. Lindh v. Murphy, 521 U.S. 320, 336 (1997). “As amended by AEDPA, 28

U.S.C. § 2254 sets several limits on the power of a federal court to grant an application for a writ

of habeas corpus on behalf of a state prisoner.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

This is so because “[s]tate courts are adequate forums for the vindication of federal rights” and

AEDPA thus acts as a “formidable barrier to federal habeas relief for prisoners whose claims

have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). As a result, AEDPA

“dictates a highly deferential standard for evaluating state-court rulings which demands that

state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005)

(internal citation and quotation omitted).

Under 28 U.S.C. § 2254, federal courts may “entertain only those applications alleging

that a person is in state custody ‘in violation of the Constitution or laws or treaties of the United

States’” and in most instances, federal courts may not grant habeas relief “unless . . . the

applicant has exhausted state remedies.” Cullen, 563 U.S. at 181, quoting 28 U.S.C. §§ 2254(a),

(b), (c). Further, if an application for writ of habeas corpus involves a claim that was

“adjudicated on the merits in State court proceedings,” the application shall not be granted . . .

unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2); Cullen, 563 U.S. at 181; Harrington v. Richter, 562 U.S. 86, 100

(2011); Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007). The burden of proof rests with the

petitioner. Cullen, 563 U.S. at 181.

First, clearly established federal law for purposes of AEDPA review includes “the

holdings, as opposed to dicta, of [U.S. Supreme Court] decisions.” Williams v. Taylor, 529 U.S.

362, 412 (2000). A state court decision is contrary to U.S. Supreme Court precedent if the state

court arrives at a conclusion opposite that reached by the Court on a question of law or if the

state court decides a case differently than the Court despite both cases having materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 (2000); White v. Mitchell, 431 F.3d

517, 523 (6th Cir. 2005), cert. denied, 549 U.S. 1047 (2006). Even so, a state court does not act

contrary to clearly established federal law where U.S. Supreme Court precedent is ambiguous or

otherwise unavailable. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per curiam).

A state court decision is an unreasonable application of Supreme Court precedent where

the state court’s adjudication was “objectively unreasonable” and not merely erroneous or

incorrect. Williams, 529 U.S. at 409-11; see also Machacek v. Hofbauer, 213 F.3d 947, 953 (6th

Cir. 2000), cert. denied, 531 U.S. 1089 (2001). Under § 2254(d)(2), a state court’s factual

determination will stand unless it is objectively unreasonable in light of the evidence presented in

state court. Harrington v. Richter, 562 U.S. 86, 100 (2011). “[A] federal habeas court may not

grant relief simply because it concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.” Williams, 529 U.S. at 365.

Next, “a determination of a factual issue made by a State court shall be presumed to be

correct. [Petitioner] shall have the burden of rebutting the presumption of correctness by clear

and convincing evidence.” 28 U.S.C. § 2554(e)(1). And, as the U.S. Supreme Court has repeated,

“a state court factual determination is not unreasonable merely because the federal habeas court

would have reached a different conclusion.” Burt, 571 U.S. at 18. Federal courts must also defer

to a state court’s judgment on issues of state substantive and procedural law. Murray v. Carrier,

477 U.S. 478, 491 (1986); Engle v. Isaac, 456 U.S. 107, 128-29 (1982).

In all, federal habeas corpus relief is a “guard against extreme malfunctions in the state

criminal justice systems,” and is different in kind from the relief available in direct appeal.

Harrington, 562 U.S. at 102-03; see also Brown v. Davenport, 596 U.S. 118, 133 (2022) (internal

quotation omitted). Thus, to obtain “habeas corpus from a federal court, a state prisoner must

show that the state court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing law beyond

any possibility for fair-minded disagreement.” Harrington, 562 U.S. at 103.

When a properly presented federal constitutional claim was not adjudicated on the merits

in the state courts, the reviewing federal court must apply the pre-AEDPA standard, reviewing de

novo questions of law and mixed questions of law and fact. Durr v. Mitchell, 487 F.3d 423, 432

(6th Cir. 2007) (“When the state court has not assessed the merits of a claim properly raised in a

habeas petition, the deference due under AEDPA does not apply.”).

A. Procedural Barriers to Federal Habeas Corpus Review

Before coming to federal court, a state habeas petitioner must overcome certain

procedural barriers, including exhaustion of state remedies and procedural default. See Daniels v.

United States, 532 U.S. 374, 381 (2001). A federal court sitting in habeas review may review

claims that were evaluated on the merits by the state court. But claims that were not evaluated by

a state court, either because they were never fully presented to the state court (i.e., state court

remedies were unexhausted) or because they were not properly presented to the state court (i.e.,

they are procedurally defaulted) are unavailable for federal habeas corpus review. Bonnell v.

Mitchel, 301 F. Supp. 2d 698, 722 (N.D. Ohio 2004), aff’d sub nom. Bonnell v. Mitchell, 212 F.

App’x 517 (6th Cir. 2007).

B. Exhaustion

A petitioner must first give the state courts a “fair” opportunity to act on his claims.

O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (emphasis in original). For a claim to have

been fairly presented, the factual and legal basis of the claim asserted by the petitioner must have

been raised at each and every stage of state review. Wagner v. Smith, 581 F.3d 410, 418 (6th Cir.

2009); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). It is not enough for the claim

raised in state court to be “somewhat similar” to the one raised in the habeas petition or implicate

the same facts; the state court must have been called on to apply the legal principles of the claim

now presented to the federal courts. Jalowiec v. Bradshaw, 657 F.3d 293, 304 (6th Cir. 2011).

The petitioner also must have presented their “claim to the state courts as a federal

constitutional issue – not merely as an issue arising under state law.” Williams, 460 F.3d at 807

(quotation marks omitted). In this Circuit, this can be done in one of four ways:

(1) reliance upon 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.

McMeans, 228 F.3d at 681 (paragraph breaks added).

Failure to exhaust occurs where state court remedies are still “available at the time of the

federal petition.” Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). This failure to exhaust

can also lead to a petitioner procedurally defaulting his claims. If the petitioner has not fully

utilized his state remedies and has no legal mechanism to do so now, the claim he failed to

present is procedurally defaulted, and this Court cannot act on the claim either. See Gray v.

Netherland, 518 U.S. 152, 161-62 (1996); Williams v. Anderson, 460 F.3d 789, 809 (6th Cir.

2006).

C. Procedural Default

The procedural default doctrine limits federal review if the petitioner has failed to follow

the state’s procedural requirements for presenting his or her claim in state court. See Coleman v.

Thompson, 501 U.S. 722, 732 (1991). This doctrine flows from the insight that courts must have

the authority to insist that “defendants present their arguments on time and according to

established procedures.” Benton v. Brewer, 942 F.3d 305, 307 (6th Cir. 2019). Thus, a federal

habeas court will not consider a habeas petition if “the last state-court judgment denying relief on

the claim rests on a procedural state-law ground that is ‘independent of the federal question and

is adequate to support the judgement.’” Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013)

(quotation marks omitted).

This Circuit consults a four-part test to determine whether a petitioner has procedurally

defaulted a claim. A petitioner procedurally defaults a claim if: (1) the petitioner fails to comply

with a state procedural rule; (2) the state courts enforced the rule; (3) the state procedural rule is

an adequate and independent state ground for denying review of a federal constitutional claim;

and (4) the petitioner cannot show cause and prejudice excusing the default. See Maupin v.

Smith, 785 F.2d 135, 138 (6th Cir. 1986).

Because the procedural-default bar to federal habeas review is harsh, courts have created

safety-valves to permit review in limited circumstances. A petitioner can obtain review of

procedurally defaulted claims if they show: (1) “cause,” i.e., that some external factor kept him

from complying with the state rule or fairly presenting his claim; and (2) “prejudice,” i.e., that,

assuming the petitioner’s constitutional claim has merit, there is a reasonable probability that a

different verdict would have resulted if the alleged constitutional violation hadn’t occurred.

Coleman, 501 U.S. at 750; Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012). A

petitioner can also obtain review of a procedurally defaulted claim if the procedurally defaulted

claim is based on new evidence that the petitioner was factually innocent of the crime of

conviction. See Coleman, 501 U.S. at 750 (“fundamental miscarriage of justice” exception to

procedural default); Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (A “fundamental

miscarriage of justice” can occur only when the procedurally defaulted claim would establish

that the petitioner was “actually innocent.”). But “[A]ctual[] innocen[ce]” means “factual

innocence, not mere legal insufficiency.”; Bousley v. United States, 523 U.S. 614, 623 (1998). To

overcome procedural default, an actual innocence claim must be supported by “new reliable

evidence . . . that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).

Moreover, because Petitioner is appearing pro se, the allegations in his Petition must be

construed in his favor, and his pleadings are held to a less stringent standard than those prepared

by counsel. Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). However, this Court may

dismiss the Petition at any time or make any such disposition as law and justice require, if it

determines the Petition fails to establish adequate grounds for relief. See Lonchar v. Thomas, 517

U.S. 314, 325 (1996); see also 28 U.S.C. § 2243. This can include cases where a petitioner fails

to exhaust state court claims. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (dismissal may be

necessary where a § 2254 petition contains both exhausted and unexhausted state court claims);

cf. Rhines v. Weber, 544 U.S. 269, 279 (2005).

VI. Discussion

Respondents argue Furmage’s petition is time-barred, and circumstances do not warrant

equitable tolling. (ECF Doc. 8, pp. 17-21; ECF Doc. 23, pp. 6-9). As Furmage notes in his

petition, the Ohio Supreme Court issued its decision in his postconviction appeal on February 28,

2023. (ECF Doc. 1, p. 16; ECF Doc. 8-1, p. 294; see also Furmage III, 203 N.E.3d 739 (Ohio

2023) (Table)). He had filed his postconviction appeals while his direct appeal was still pending;

the Ohio Supreme Court declined jurisdiction in direct review on August 30, 2022. (ECF Doc. 8-

1, p. 242; see also Furmage II, 193 N.E.3d 581 (Ohio 2022) (Table)). Therefore, statutory tolling

applies to the entire period between the conclusion of his direct review on August 30, 2022 and

the conclusion of his state postconviction review on February 28, 2023. See 28 U.S.C.

§§ 2244(d)(1)(A), (d)(2). Therefore, Furmage had until February 28, 2024 to file his federal

habeas corpus petition. See id. He asserts that he placed the petition in the prison mailing system

on November 29, 2024. (ECF Doc. 1, p. 18). Furmage’s petition is therefore untimely by nine

months, absent equitable tolling.

A. Furmage’s petition is untimely and equitable tolling is unwarranted.

As stated, AEDPA applies to Furmage’s petition for writ of habeas corpus. Lindh, 521

U.S. at 336. And AEDPA sets several limits on the power of a federal court to grant a Section

2254 petition for a prisoner in state custody. See Cullen, 563 U.S. at 181. One such limit is the

one-year statute of limitations requiring a petitioner file their federal habeas petition within one

year after their direct review concludes, unless that time is tolled. 28 U.S.C. §§ 2244(d)(1)(2). As

that provision states, the statute of limitations runs

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.

Id. §§ 2244(d)(1)(A)-(D). The statute of limitations is tolled while “a properly filed application

for State post-conviction or other collateral review with respect to the pertinent judgment or

claim is pending[.]” Id. § 2244(d)(2).

But AEDPA’s one-year statute of limitations does not present a jurisdictional bar; an

untimely petition may yet receive equitable tolling. Borns v. Chrisman, 167 F.4th 335, 343 (6th

Cir. 2026); see also Holland v. Fla., 560 U.S. 631, 649 (2010). ‘“[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 circumstance stood in his way’ and prevented timely filing.” Holland, 560

U.S. at 649, quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Attorney error may warrant

equitable tolling, where that attorney’s unprofessionalism was “egregious” and cause for the

“extraordinary circumstance” standing in the way of the otherwise-diligent petitioner’s timely

filing. See Holland, 560 U.S. at 651 (collecting cases). The type of attorney misconduct meriting

equitable tolling includes instances where the attorney has effectively abandoned their client,

failed to perform an essential service, denied the client access to their files, or failed to file the

petition at all. See id.

However, equitable tolling is applied “sparingly.” Borns, 167 F.4th at 346, quoting

Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010). It is available only in the extraordinary

circumstance – a “garden variety claim of excusable neglect” leading to “a simple

miscalculation” of the filing deadline will not equitably toll an untimely petition. Holland, 560

U.S. at 651-52. This is particularly so where the delayed petition is months late. Borns, 167 F.4th

at 346 (denying equitable tolling after a 364-day delay in the state postconviction filing caused

the federal habeas petition to be untimely); see also, e.g., Greene v. Lafler, 457 F. App’x 485, 487

(6th Cir. 2012) (denying equitable tolling after a five-month delay in filing the federal habeas

petition).

Furmage acknowledges in his Petition that it was untimely filed. (ECF Doc. 1, pp. 16-

17). In his Traverse, he states that he had one year after exhausting his appeals at all state levels

to file his federal habeas corpus – in other words, he must file “by or before February 28, 2024.”

(ECF Doc. 22-3, p. 4). He explains that he and his mother collectively paid $7,500 to attorney

Kimberly K. Corral & Associates on August 16, 2023. (Id.). He asserts there that he had hired

Attorney Corral to represent him and timely file a federal habeas corpus petition. (ECF Doc. 1,

pp. 16-17). He asserts that although six months remained for timely filing, neither Ms. Corral nor

her firm filed anything on his behalf. (Id. at p. 17). He stated that his family had written and

called over a dozen times in the remaining months to ask if it was filed. (Id.). Furmage states that

in January 2024, Attorney Corral had told him that the habeas corpus petition was filed and to

await the outcome. (Id.). In support, he provides credit card statements showing the $7,500

payment (ECF Doc. 1-2); that Attorney Corral requested to be his attorney of record on August

21, 2023 (ECF Doc. 1-3); and on October 22, 2024, he noticed Attorney Corral by letter that she

had breached their contract by failing to submit a timely federal habeas corpus petition (ECF

Doc. 1-6). He also includes correspondences from 2023 and 2024 where he requests updates on

his case. (ECF Docs. 1-7, 1-8, 1-9, 1-10, 1-11, 1-12, 1-13). He states that over the course of 15

months from August 16, 2023 through November 2024 he attempted to proactively engage with

Attorney Corral, but she did not file anything in his case, so he then “diligently filed this Pro Se

Habeas Corpus petition case now at bar.” (ECF Doc. 22-3, p. 4). He and his mother terminated

Attorney Corral and requested she return the $7,500 retainer. (e.g., ECF Doc. 22-5, p. 2; ECF

Doc. 22-15). Should this version of events prove true, then equitable tolling might apply.

However, as Furmage later revealed in his Traverse, he had retained Attorney Corral “to

continue the filing and pursuit of his criminal Appeals.” (ECF Doc. 22-3, p. 4). And this is what

proves fatal to his claims of equitable tolling. Furmage states that, despite the $7,500 retainer,

“[n]o written contract was signed or entered into by Corral, Petitioner, or his Mother. None

exists.” (Id.). And included as an attachment to his Traverse, Furmage provides a November 20,

2024 letter from Attorney Corral on her firm’s letterhead, in response to his termination letter the

month before. (ECF Doc. 22-16). Attorney Corral’s letter states in its first paragraph: “To be

clear, we were not retained for habeas representation. All conversations had about your case, the

price quoted for your case, and the representation agreement furnished in your case reference

post conviction litigation.” (Id. at p. 1). Attorney Corral goes on to explain that she does not do

federal habeas claims for $7,500, and the (unexecuted) contract her firm sent to Furmage’s

mother2 on August 16, 2023 stated “‘My fee for representing Justin Furmage is $15,000. My

representation is limited to post-conviction review in the Ashtabula Court of Common Pleas,

Case No. 2019 CR 676.’” (Id.). She confirms that she was only retained to pursue state

postconviction review and that filing a federal claim was not contemplated by the parties. (Id. at

p. 2). She offered to provide an accounting of time and return any unused funds, (id.), and

returned the $7,500 retainer in full on January 31, 2025 (ECF Doc. 22-18).

With this fuller accounting of events, it is clear that no attorney error occurred to cause

the late filing of Furmage’s federal habeas corpus petition. Attorney Corral was not retained to

2 The letter also states that Attorney Corral attached a copy of this email retrieved from her case software, but this

referenced attachment was not included in the exhibits to Furmage’s Traverse. (See ECF Doc. 22-16).

file his federal petition; Furmage engaged with her firm only to pursue state postconviction

remedy. (ECF Doc. 22-16). And, after learning of Furmage’s discontent, Attorney Corral

returned the full amount of the retainer to his mother, even though her firm had expended some

time in pursuing his state claims. (See ECF Docs. 22-16, 22-18). With respect to his federal

habeas petition, Attorney Corral made no error. She was not retained for these services and

therefore had no duty to file the present petition. Any delay in filing is Furmage’s alone.

I therefore find that equitable tolling does not apply to save Furmage’s petition, and

recommend the District Court dismiss the petition as untimely.

B. Actual Innocence does not apply to excuse Furmage’s untimely filing.

To excuse “filing his habeas corpus 9 months past the one year time limit,” Furmage

argues that his claims are based on “‘Actual Innocence’ and ‘Miscarriage of Justice’ exceptions”

(ECF Doc. 22-3, p. 18). But despite invoking his actual innocence, the arguments made in

support focus on an alleged miscarriage of justice relating to evidence at trial. (See id. at pp. 26-

36). He argues that because the state failed to include the full trial transcript in the Return of

Writ, particularly a 3-page letter used at trial, Respondent failed to file a complete record and

intentional false representation. (Id. at pp. 32-36). He asserts that this letter was the “#1 piece of

evidence relied on to convict Furmage” (Id. at p. 26), that the evidence was tainted, that

witnesses committed perjury, and police officials were corrupt, all in order to falsely convict him.

(Id. at pp. 26-35). Furmage asserts that the failure to include the evidence exhibits at trial denies

him his “mandatory procedural right to adequate, fair Appellate review” and asserts that the

evidence is spoliated, resulting in a “clear constitutional violation.” (Id. at p. 36). With this

petition, Furmage has received his right to review in federal habeas; that right does not require

petitions be reviewed on the merits. His arguments attacking the evidence at trial do not advance

a claim of actual innocence, nor do they merit granting equitable tolling for an untimely petition.

First, I have already addressed Furmage’s counterfactual assertions that Respondents did

not file a complete record when submitting the Return of Writ. (ECF Doc. 13; see also ECF

Docs. 4, 8, 12). As stated in my earlier Orders (ECF Docs. 4, 13), the Respondent is required to

comply with Rule 5 of the Rules Governing § 2254 Cases, which requires a respondent to attach

relevant portions of the transcript. See R. 5(c) of the Rules Governing § 2254 cases. A respondent

is not required to include copies of evidence used at trial. See id. Nor should they be. AEDPA

confers a presumption of correctness on factual determinations made in state courts, 28 U.S.C.

§ 2254(e)(1), and a federal court may not “reopen factual disputes that were conclusively

resolved in the state courts.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Furmage has not

overcome this presumption of correctness, leaving only matters of law available to resolve.

Respondent has submitted sufficient evidence from the state court record to resolve the questions

before this Court. Id.

But a petition’s timeliness is not a threshold inquiry. See McQuiggin v. Perkins, 569 U.S.

383, 400 (2013). A petitioner can also obtain review of a late-filed petition if his claims are based

on new evidence that he was factually innocent of the crime of conviction. See id. at 392-94

(describing that a “fundamental miscarriage of justice” may give cause to excuse late filing); see

also Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (A “fundamental miscarriage of

justice” can occur only when the otherwise-defaulted claim would establish that the petitioner

was “actually innocent.”). Yet demonstrating actual innocence is a demanding standard. See

Bousley v. United States, 523 U.S. 614, 623 (1998). “[A]ctual[] innocen[ce]” means “factual

innocence, not mere legal insufficiency.” Id. Moreover, an actual innocence claim must be

supported by “new reliable evidence . . . that was not presented at trial.” Schlup v. Delo, 513 U.S.

298, 324 (1995).

Furmage has not demonstrated he is actually innocent of the crimes of conviction. He

does not assert his factual innocence, rather, he asserts only the legal insufficiency of the

evidence at trial. (ECF Doc. 22-3, pp. 18-36). He does not produce new evidence of the type to

demonstrate he was actually innocent. (See id.). This is not enough to overcome AEDPA’s statute

of limitations on either statutory or equitable grounds.

I therefore recommend the District Court dismiss Furmage’s petition as untimely.

VII. Certificate of Appealability

Under 28 U.S.C. § 2253(c)(1)(A), this Court will grant a certificate of appealability

(“COA”) for an issue raised in a § 2254 habeas petition only if the petitioner has made a

substantial showing of the denial of a federal constitutional right. Cunningham v. Shoop, 817 F.

App’x 223, 224 (6th Cir. 2020). A petitioner satisfies this standard by demonstrating that

reasonable jurists “could disagree with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate to deserve encouragement to

proceed further.” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (internal quotation marks omitted);

see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).

When a claim is denied on procedural grounds, the petitioner must show “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.” Slack, 529 U.S. at 484. “Where a plain procedural bar is

present and the district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further. In such a circumstance, no appeal would be

warranted.” Jd. at 486.

Here, it is well-established that a petitioner must file a petition within one year of the

conclusion of direct review, unless statutorily tolled. 28 U.S.C. §§ 2244(d)(1)(A), (d)(2). And a

petitioner is entitled to equitable tolling only if he shows he has been pursuing his rights

diligently and that an extraordinary circumstance stood in his way to prevent timely filing. Pace,

544 US. at 418; Holland, 560 U.S. at 649-50. And untimely filing may be excused if the

petitioner can show they are actually innocent, supported by new reliable evidence not presented

at trial. Schlup, 513. U.S. at 324.

Thus, if the District Court accepts my recommendations, Furmage will not be able to

show that my conclusions in this Report and Recommendation are debatable. I therefore

recommend that no certificate of appealability issue.

Conclusion

Furmage’s petition was filed after AEDPA’s one-year statute of limitations had run, and

good cause does not exist to excuse the delay. He has not demonstrated actual innocence. I

therefore recommend the District Court dismiss Furmage’s habeas corpus petition as untimely. I

further recommend that no certificate of appealability issue.

Dated: March 30, 2026 Ely) SY

REUBEN J. SHEPERD

UNITED STATES MAGISTRATE JUDGE

OBJECTIONS

Objections, Review, and Appeal

Within 14 days after being served with a copy of this report and recommendation, a party

may serve and file specific written objections to the proposed findings and recommendations of

27

the magistrate judge.  Rule 72(b)(2), Federal Rules of Civil Procedure; see also 28

U.S.C.§ 636(b)(1); Local Rule 72.3(b). Properly asserted objections shall be reviewed de novo

by the assigned district judge.

* * *

Failure to file objections within the specified time may result in the forfeiture or waiver

of the right to raise the issue on appeal either to the district judge or in a subsequent appeal to the

United States Court of Appeals, depending on how or whether the party responds to the report

and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be

specific and not merely indicate a general objection to the entirety of the report and

recommendation; “a general objection has the same effect as would a failure to object.” Howard

v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). Objections should focus

on specific concerns and not merely restate the arguments in briefs submitted to the magistrate

judge. “A reexamination of the exact same argument that was presented to the Magistrate Judge

without specific objections ‘wastes judicial resources rather than saving them, and runs contrary

to the purpose of the Magistrates Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL

3018175, *2 (W.D. Ky. June 15, 2018) quoting Howard. The failure to assert specific objections

may in rare cases be excused in the interest of justice. See United States v. Wandahsega, 924

F.3d 868, 878-79 (6th Cir. 2019).