Webster

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISON

CLYDE R. WEBSTER, ) CASE NO. 1:25-cv-01547-SO

)

Petitioner, ) JUDGE SOLOMON OLIVER, JR.

)

v. ) MAGISTRATE JUDGE

) REUBEN J. SHEPERD

WARDEN TOM WATSON, )

) REPORT AND RECOMMENDATION

Respondent. )

)

I. Introduction

On July 2, 2025, Petitioner Clyde R. Webster (“Webster”) filed a petition for writ of

habeas corpus under 28 U.S.C. § 2254.1 (ECF Doc. 1). On August 4, 2025, the matter was

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

document entry of Aug. 4, 2025).

On October 3, 2025, Respondent Warden Tom Watson (“Respondent”) filed his Return of

Writ, answering the petition and including relevant portions of the state court record. (ECF Doc.

5). My initial order (ECF Doc. 4) gave Webster 30 days to respond with his Traverse; on

November 19, 2025, after that deadline had passed, I gave Webster an extension and established

a final deadline of December 19, 2025 for filing his Traverse (non-document entry of Nov. 19,

2025). Webster did not respond and has not filed a Traverse. The matter is therefore ripe.

1 Federal district courts apply the prison mailbox rule, accepting filings as of the date placed in the prison

mail system. See Houston v. Lack, 487 U.S. 266, 270 (1988).

Respondent notes that on July 12, 2025, Webster was placed on post-release control.

(ECF Doc. 5, p. 1 (citing to Ohio Dept. of Rehab. & Corr. Website for Webster’s personal

identifier A794437, https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A794437).

At the time of this writing, the provided link reveals that Webster is no longer under any

supervision.2

II. Factual Background

The Ohio Court of Appeals, Ninth Appellate District, Medina County, set forth the facts

of this case on direct appeal. These factual findings are presumed correct unless Webster rebuts

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

District presented the facts as follows:

{¶2} According to a retail store’s loss-prevention employee, she watched a man

leave the store with a television in his cart without paying for it. When she

approached the man, he abandoned the cart, got into a red Monte Carlo car, and

drove away. A police officer who was responding saw the car exiting the parking

lot and attempted to conduct a traffic stop, but the driver refused to stop. The officer

pursued the car for a short while but called off his pursuit because traffic volume

and poor road conditions created a heightened safety risk. A second officer saw the

car a little while later, but it again refused to stop.

{¶3} When police contacted the registered owner of the red Monte Carlo, he said

that he had sold the car to his aunt but had not had the opportunity to transfer the

title to her yet. The aunt said that she had let her boyfriend, Mr. Webster, borrow

the car one day for what she thought was a brief errand, but he never returned it.

Her nephew, therefore, reported the car stolen.

The owner’s aunt, Mr. Webster’s girlfriend, saw Mr. Webster still driving the car

one evening, but he refused to stop for her. Comparing Mr. Webster’s Bureau of

Motor Vehicles photograph to the store’s surveillance camera footage, officers

determined that Mr. Webster was the individual who attempted to steal the

television.

2 Section 2254(a) permits federal courts to entertain habeas applications only “in behalf of a person in

custody pursuant to the judgment of a State court.” However, release from custody does not moot

Webster’s petition, as he was in custody at the time of filing. See generally Green v. Arn, 839 F.2d 300

(6th Cir. 1988) (determining a petitioner’s release from custody and parole does not moot a habeas corpus

action).

(ECF Doc. 5-1, pp. 67-68); see also State v. Webster, 2023 WL 4862695, *1 (Ohio Ct.

App. July 31, 2023).

III. State Court History

A. State Conviction

On February 13, 2019, a grand jury indicted Webster on two counts: Count One:

Receiving Stolen Property, a fourth-degree felony under O.R.C. § 2913.51(A)(C)); and Count

Two: Failure to Comply with an Order or Signal of a Police Officer, a third-degree felony under

O.R.C. § 2921.331(B)(C)(5)(a)(ii). (ECF Doc. 5-1, pp. 3-4).

After jury trial, on November 9, 2022, the jury found Webster guilty of both counts and

returned a special finding on Count Two that Webster’s driving caused a substantial risk of

serious physical harm to persons or property. (Id. at p. 6).

On November 14, 2022, the trial court sentenced Webster to 24 months in prison on

Count Two, and 12 months in prison on Count One, to be served prior to Count One pursuant to

O.R.C. § 2921.331(D), and to be served consecutively, resulting in an aggregate 36-month prison

term. (Id. at pp. 7-8). In addition, the state trial court sentenced Webster to mandatory post-

release control of up to three years but not less than one year. (Id. at p. 8). Webster was awarded

49 days of jail-time credit. (Id.).

B. Direct Appeal

Webster filed a notice of appeal to the Ninth District on December 2, 2022. (Id. at p. 10).

On March 20, 2023, Webster filed his appellant’s brief, raising the following six assignments of

error:

FIRST ASSIGNMENT OF ERROR: APPELLANT’S CONVICTIONS FOR

FAILURE TO COMPLY WITH AN ORDER OR SIGNAL OF A POLICE

OFFICER AND RECEIVING STOLEN PROPERTY ARE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE. THE IDENTIFICATION OF

APPELLANT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

SECOND ASSIGNMENT OF ERROR: APPELLANT’S CONVICTION FOR

FAILURE TO COMPLY WITH AN ORDER OR SIGNAL OF A POLICE

OFFICER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. NO

EVIDENCE WAS PRESENTED TO SHOW APPELLANT WAS THE DRIVER.

THIRD ASSIGNMENT OF ERROR: APPELLANT’S FELONY CONVICTION

FOR FAILURE TO COMPLY WITH AN ORDER OR SIGNAL OF A POLICE

OFFICER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THE

EVIDENCE DOES NOT SHOW THAT APPELLANT CREATED A

SUBSTANTIAL RISK OF SERIOUS PHYSICAL HARM AS REQUIRED

UNDER THE STATUTE.

FOURTH ASSIGNMENT OF ERROR: APPELLANT RECEIVED

CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL WHERE

SHE DID NOT OBJECT TO HIGHLY PREJUDICIAL AND IRRELEVANT

TESTIMONY REGARDING APPELLANT WITH THE RED MONTE CARLO

IN AKRON. FURTHER, SHE WAS INEFFECTIVE FOR NOT OBJECTING TO

THE TESTIMONY ON 404(B) GROUNDS.

FIFTH ASSIGNMENT OF ERROR: THE TRIAL COURT COMMITTED

REVERSIBLE ERROR WHEN IT DID NOT CONSIDER THE FACTORS

LISTED IN R.C. 2921.331(C)(5)(b) WHEN SENTENCING DEFENDANT.

SIXTH ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED IN NOT

GRANTING APPELLANT MORE JAIL-TIME CREDIT FOR TIME HE SAT IN

PENNSYLVANIA ON THE OHIO FELONY WARRANT.

(Id. at pp. 19-20). The State filed its brief on April 5, 2023. (Id. at pp. 43-66). On July 31, 2023,

the Ninth District Court of Appeals affirmed the convictions and sentence. (Id. at 67-78; State v.

Webster, 2023 WL 4862695, *1 (Ohio Ct. App. July 31, 2023). Webster did not later appeal to

the Ohio Supreme Court or the United States Supreme Court.

C. Post-Conviction

On April 11, 2024, Webster, appearing pro se, filed an untimely Ohio App. R. 26(B)

application to reopen. (ECF Doc. 5-1, pp. 79-88). In it, he asserted three assignments of error:

First Assignment of Error: Appellant’s conviction for Receiving Stolen

Property was against the manifest weight of evidence and contrary to Law, in

Violation of Rights to Due Process Clause to proof beyond a reasonable doubt with

sufficient evidence to essential elements of the crime. Consent was given by a

person authorized, vehicle was not obtained by theft.

Second Assignment of Error: Appellant’s conviction for Failure to Comply with an

Order Or Signal of Police Officer was against the manifest weight of evidence and

contrary to Law, in Violation of Rights to Due Process Clause to proof beyond a

reasonable doubt with sufficient evidence to essential elements of the crime. No

evidence to the identity of the driver of vehicle was produced.

Third Assignment of Error: Trial Court committed Prejudice and Plain Error

Misconduct by failing to grant a Judgment of Acquittal, pursuant to Crim. R. 20(A)

on the charges, and thereafter entering a judgment on conviction of the offenses;

Receiving Stolen Property and Failure to Comply; as those charges were not

supported by sufficient evidence, in Violation of Appellant’s Rights to Due Process

of Law. As Guaranteed by the 14th Amendment to the U.S. Constitution and Article

1 section 10 Ohio Constitution.

(Id. at pp. 82-87). The State opposed on May 7, 2024. (Id. at pp. 149-58). On October 28, 2024,

the Ninth District Court of Appeals denied Webster’s application for reopening, finding that he

had not established good cause for the delay. (Id. at pp. 159-61). Webster did not later appeal.

IV. Federal Habeas Corpus Petition

In his Petition, Webster asserts the following grounds:

Ground One: Petitioner’s 5th, 6th, and 14th Amendment Rights were violated by the

trial court when it convicted him based on insufficient evidence, also giving

improper and inaccurate jury instructions.

Supporting Facts: state did not meet it’s [sic] burden to the essential elements of the

crimes for a conviction and the trial court gave improper and inaccurate jury

instructions when defining “owner” and omitting the element of “operator”,

committing plain error and actual prejudice.

Ground Two: Petitioner’s 6th and 14th Amendment rights were violated when he

was denied effective assistance of appellate counsel.

Supporting Facts: Appellate counsel committed acts of gross negligence, willful

deceit, and blatant lies during direct appeal, when Petitioner had a constitutional

right to counsel. Appellate counsel’s actions were in direct violation of the

professional standards of conduct.

(ECF Doc. 1, pp. 5-7).

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 Webster’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

Respondent first asserts that Webster’s federal habeas petition is time-barred, that he is

not entitled to statutory tolling, and that equitable tolling is not warranted. (ECF Doc. 5, pp. 6-

14). Further, Respondent argues, Webster’s claims are procedurally defaulted for failure to

exhaust his remedies in state court. (Id. at pp. 17-26). Webster did not respond with a Traverse.

As is discussed in more detail below, I agree with Respondent that Webster’s failure to

pursue his remedies at each and every level in state court results in both an untimely federal

habeas petition, and procedurally defaulted claims for failure to exhaust. I therefore recommend

the District Court dismiss his petition.

Respondent also asserts that Ground One, asserting the trial court erred in its jury

instructions, is a state law claim and is not a cognizable federal claim. (Id. at pp. 15-17).

Respondent further asserts that Webster’s petition should be denied because his claims lack

merit. (Id. at pp. 29-40). Because I recommend dismissal due to timeliness and procedural

default, I do not reach the merits of Webster’s grounds for relief, nor the cognizability of those

claims here.

A. Timeliness

As Respondent presents, Webster’s conviction became final 45 days after the Ninth

District Court of Appeals affirmed the trial court’s judgment, i.e., on September 14, 2023. (ECF

Doc. 5, p. 8). Under AEDPA and absent tolling, Webster would have one year thereafter to file

his petition. (Id.). Webster waited 209 days to file his delayed application to reopen his appeal.

According to Respondent’s calculations, the statute of limitations expired on April 2, 2025. (Id.).

Because Webster did not file the present petition until July 2, 2025, his federal habeas petition is

untimely. (Id.).

I agree with Respondent that Webster’s petition is untimely.

As stated, AEDPA applies to Webster’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).

Here, the initial period for Webster’s direct review concluded 45 days after the Ninth

District issued its decision on his direct appeal on July 31, 2023. (ECF Doc. 5-1, pp. 67-77).

Therefore, the one-year clock initially began to run on September 14, 2023. However, Webster

filed his delayed application for reopening on April 11, 2024. (Id. at p. 79). The Sixth Circuit

holds that a delayed application to reopen is part of the direct review process and thus the

“appropriate period of limitations in this circumstance is found in 28 U.S.C. § 2244(d)(1)[.]”

Penson v. Collins, 27 F. App’x 369, 371 (6th Cir. 2001). However, even though a delayed appeal

may toll the statutory limitations period, it does not cause it to run anew when the state court

denies the motion. Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001). Therefore, the limitations

period ran for 209 days, was tolled for the period from when Webster filed the delayed

application and until the Ninth District denied his appeal as without good cause for its

untimeliness on October 28, 2024. (ECF Doc. 5-1, pp. 159-60). Webster therefore had until April

2, 2025 to file his petition in this Court. He did not, (ECF Doc. 1, p. 15), and therefore his

petition is untimely, absent equitable tolling.

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).

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).

Webster makes no argument before this Court to demonstrate that equitable tolling

should apply to his petition. Furthermore, he has demonstrated a lack of diligence, both in

pursuing his claims in state court, as well as in his petition here. Webster did not appeal to the

Ohio Supreme Court, nor thereafter, and he filed a delayed application for reopening in state

court. Here, he did not respond with a Traverse. Therefore, extraordinary circumstances do not

exist to warrant a grant of equitable tolling.

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

recommend the District Court dismiss the petition as untimely.

A. Actual Innocence does not apply to excuse Webster’s untimely filing.

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).

Webster 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. (See generally ECF Doc. 1). 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 Webster’s petition as untimely.

B. Exhaustion

Furthermore, Webster has not properly exhausted any of his claims.

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

O’Sullivan, 526 U.S. at 844. (emphasis in original). This includes raising each ground at each

and every stage of state review. Wagner, 581 F.3d at 418; McMeans, 228 F.3d at 681. In Ohio,

this includes delayed appeal to the Ohio Supreme Court. See Allen v. Perini, 424 F.2d 134, 140

(6th Cir. 1970).

Procedural default of unexhausted claims occurs where the opportunity to raise that claim

in state court has passed. O’Sullivan, 526 U.S. at 853-54. In those circumstances, a federal court

sitting in habeas review looks to the last “reasoned state judgment rejecting a federal claim” to

determine procedural default. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). However, such

reasoning does not apply where the claims were not fairly presented to the highest state court.

See Harris v. Reed, 489 U.S. 255, 263 n.9 (1989). And a federal court need not require the

petitioner return to state court where, as here, it is clear any claim would be procedurally barred.

Id.

Here, Webster did not raise any claims before the Ohio Supreme Court and therefore his

claims are unexhausted for failure to fairly present to each and every level for state court review.

It is unnecessary to require him return to state court to exhaust these claims, as it appears that

any claim would be procedurally barred, since Webster is both delayed, and because it appears he

is no longer under supervision. Following Harris, I determine analysis of procedural default for

his claims is unnecessary where he did not raise such claims before the state court and where I

have no state court determination to review on the matter. I therefore recommend, in the

alternative, that the District Court dismiss his petition for failure to exhaust.

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.” Id. 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 U.S. 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.

Furthermore, a petitioner is required to fairly present his claims to each and every level of

state court for review, including delayed appeal to the Ohio Supreme Court, or else his claims

will be procedurally defaulted for failure to exhaust. O’Sullivan, 526 U.S. at 844; Wagner, 581

F.3d at 418; McMeans, 228 F.3d at 681; Allen, 424 F.2d at 140.

Thus, if the District Court accepts my recommendations, Webster 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.

VIII. Conclusion

Webster’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 Webster’s habeas corpus petition as untimely.

Further, and in the alternative, I recommend the District Court dismiss because Webster

has failed to fairly present his claims to every level of state court for review, and his claims are

therefore unexhausted.

I further recommend that no certificate of appealability issue.

Dated: June 16, 2026 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

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.

te OOK OK

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).

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