# Lewis

> District Court, S.D. Ohio · August 3, 2026

URL: https://www.frixlaw.com/law-library/cases/11417844

## Case

- **Full name:** Kenneth O. Lewis v. Warden, London Correctional Institution
- **Court:** District Court, S.D. Ohio
- **Decided:** August 3, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
KENNETH O. LEWIS,
Petitioner, : Case No. 2:24-cv-04033
-vs - Chief Judge Sarah D. Mo rrison
Magistrate Judge Michael R. Merz
WARDEN,
London Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS

This habeas corpus case was brought pro se by Petitioner Kenneth Lewis to obtain relief
from his convictions for aggravated robbery and kidnapping in the Common Pleas Court of
Delaware County, Ohio. The case is ripe for decision on the Amended Petition (ECF No. 31), the

State Court Record (ECF No. 32), the Return of Writ (ECF No. 33) and the Reply (ECF No. 40).
The Magistrate Judge reference in the case was recently transferred to the undersigned to help
balance the Magistrate Judge workload in the District (ECF No. 42).

Litigation History
On September 18, 2020, the Delaware County grand jury returned an indictment charging
Petitioner with one count of aggravated robbery in violation of Ohio Revised Code §
2911.01(A)(1) and two counts of kidnapping in violation of Ohio Revised Code § 2905.01(B)(2),
1
with accompanying firearm and repeat violent offender specifications. A trial jury convicted
Petitioner on all counts and on the repeat violent offender specification and he was sentenced to
the term of imprisonment he is now serving.
Petitioner appealed to the Ohio Fifth District Court of Appeals which affirmed (Opinion,

State Court Record, ECF No. 32, Ex. 11). Petitioner did not timely appeal to the Ohio Supreme
Court. His August 11, 2023, motion for leave to file a delayed appeal was denied.
On August 17, 2022, Petitioner moved under Ohio R. App. P. 26(B) to reopen his appeal to
raise one assertedly omitted assignment of error, to wit, that the evidence was insufficient to
support conviction (Application, State Court Record, ECF No. 32, Ex. 15). The Fifth District
denied relief, holding that because the evidence was sufficient, there was no ineffective assistance
of appellate counsel in failing to claim otherwise. Id. at Ex. 20. Petitioner did not appeal to the
Ohio Supreme Court.
Petitioner filed a number of other unsuccessful attempts to appeal. Then on May 2, 2024,
he filed a petition for post-conviction relief (State Court Record, ECF No. 32, Ex. 40) which the

trial court denied. Id. at Ex. 41. On appeal the Fifth District denied all of his assignments error.
Id. at 46. On February 18, 2025, the Ohio Supreme Court declined to accept jurisdiction of the
appeal. Id. at Ex. 50. A subsequent attempt to be heard on a successive post-conviction petition
was unsuccessful at all levels of the state system.
Petitioner filed his Petition in this Court November 8, 2024. After the Court granted him
leave to amend, he filed an Amended Petition on May 18, 2025, pleading the following grounds
for relief:

2
Ground One: Trial court violated the Due Process Clause of the
Fourteenth Amendment to the U.S. Constitution when it allowed the
Aggravated Robbery and Kidnapping charges to remain valid.
Supporting Facts: The trial court acted in a manner contrary to due
process when the State of Ohio failed to provide [sic] every element
of the crime of Aggravated Robbery and Kidnapping beyond a
reasonable doubt. The Fourteenth Amendment to the U.S.
Constitution Due Process Clause was violated when the trial court
allowed this conviction of charges to remain valid.

Ground Two: The trial court violated the fourteenth amendment
Due Process Clause when it allowed a surprise witness testimony to
be admissible.

Supporting Facts: The trial court acted in manner contrary to the
Due Process Clause when it allowed a surprise witness who was not
on the witness list and was never disclosed in the state's discovery
to testify against the defendant. The untimely discovery and
inadmissible testimony by the surprise witness violated the Due
Process Clause by depriving the Defendant to properly prepare a
defense and the guarantee of a fair trial.

Ground Three: The trial court violated defendants Fourteenth,
fourth and Sixth Amendment rights to the U.S. Constitution when it
allowed the unauthorized and unauthenticated CVS video to be
admissible in trial.

Supporting Facts: The trial court made Constitutional error when
it allowed the CVS and the Cash Land video to be used as evidence
in trial as both videos were unauthorized and unauthenticated by the
Corporate security or by the record custodian.

Ground Four: The maximum and consecutive sentences imposed
without due process violated the Fourteenth and Fifth Amendment
to the U.S. Constitution.

Supporting Facts: When imposing the maximum and consecutive
sentences the trial court failed to provide evidence or proof to
support its findings. The trial court erred when it imposed multiple
maximum and consecutive sentences for a single episode of criminal
conduct in which the sentence should have been the minimum and
merged concurrently.

3
Ground Five: Trial counsel was ineffective when failing to argue
the merits of his client pro se motion for a new trial under Ohio
Crim. R. 33 (A).

Supporting Facts: After a three-day trial the jury returned a guilty
verdict on charges for Aggravated Robbery and Kidnapping. I then
filed a pro se timely motion for a new trial claiming that the evidence
was insufficient and the verdict was contrary to law. The trial court
denied my motion and the trial counsel failed to argue the merits of
this motion orally or by submitting a motion for an evidentiary
hearing. Trial counsel was non-existent in acknowledging his client
motion.

Ground Six: The trial counsel was ineffective when he failed to
present or prepare an identity defense.

Supporting Facts: Trial counsel failed to argue during trial that
neither victims or witnesses made an out of court or in court
identification pointing to the defendant as the person who
committed the offense. Trial counsel also failed to argue that the
detective in court identification was unduly suggestive. An identity
defense should have been more rigorously advanced by counsel as
the identity of the perpetrator was unclear and should have been a
contested issue at trial.

Ground Seven: Trial counsel was ineffective when he failed to
move to suppress the illegally obtained and unauthenticated CVS
video evidence.

Supporting Facts: During the jury trial the state presented a CVS
video as evidence that was not authorized by the corporate office to
be released to police officer and this video was not authenticated by
the record custodian. Trial counsel was ineffective when he failed to
move to suppress this video and present the material evidence
proving that the CVS video was not authorized to be released to law
enforcement and was not authenticated by the CVS corporate record
custodian.

Ground Eight: Trial counsel was ineffective he failed to argue that
the state attorney failed to invoke the trial court subject matter
jurisdiction.

Supporting Facts: Trial counsel failed to argue that the state did
not invoke the trial courts subject matter jurisdiction when it failed
4
to include the charges of kidnapping in the criminal complaint,
affidavit of probable cause and the arrest warrant. Trial counsel
should have pointed out that the kidnapping charges were only in
the indictment and should have been in the criminal complaint and
affidavit of probable cause in order to invoke the trial court
jurisdiction for the subject matter of kidnapping.

Ground Nine: The trial court committed reversable error by
admitting two piece[s] of evidence used to link Lewis to the crime
charged: improperly authenticated CVS video footage of the
suspect and a surprise witness.

Supporting Facts: During the trial the court committed error when
it allowed unauthenticated CVS video footage to be admissible in
court. The court also committed error when it allowed a surprise
witness who was not on the witness to testify against the petitioner
during trial.

Ground Ten: The evidence that Lewis was the person who
committed the crimes was legally insufficient as a matter of law.

Supporting Facts: During the trial the state provided insufficient
evidence that Lewis was the person who committed the crime as
neither witness pointed to the defendant in court as the perpetrator.

Ground Eleven: Trial Court should have merged Lewis's
Aggravated Robbery offense with his Kidnapping offenses.

Supporting Facts: Trial court should have merged Lewis's
aggravated robbery offense with his kidnapping offense because it
was a criminal episode of a single conduct that was an event within
the duration of seven minutes.

Ground Twelve: Appellate counsel was ineffective for failing to
argue that the trial counsel was ineffective when failing to object to
the trial court having discussions with the jury in absence of the
defense counsel and the defendant.

Supporting Facts: Trial court committed constitutional structural
error when having numerous conversation with the jury in absence
of the defendant and the defense attorney.

5
Ground Thirteen: Appellate Counsel was ineffective when failing
to argue that the state prosecutor committed misconduct when
having a sidebar discussion in the chambers.

Supporting Facts: The State prosecutor called surprise witness to
testify during trial but he refused to testify unless he spoke to the
prosecutor. This information was discussed in sidebar with the
prosecutor and the trial court, and was not disclosed to the defendant
or the jury during trial.

Ground Fourteen: Appellate counsel was ineffective failing to
argue that the state prosecutor committed misconduct when it
knowingly used coerced and perjured testimony by the surprise
witness.

Supporting Facts: during the petitioner's trial the state prosecutor
presented a surprise witness who was a prison informant who
testified at trial and lied in his testimony and used coerced
testimony. I the petitioner did not know the witness and never had a
discussion with the witness about my case before, during or after the
trial.

Ground Fifteen: Appellate counsel was ineffective when failing to
argue that the prosecutor committed misconduct when failing to
present law enforcement officer as a key witness who illegally
obtained CVS video evidence that was used at trial.

Supporting Facts: During the trial the state prosecutor presented a
CVS video as evidence that was obtained by the Delaware police
officer but failed to present the officer as a witness at trial.

Ground Sixteen: Appellate counsel was ineffective when failing to
argue that the prosecutor committed misconduct when the state
objected to the trial counsel questions to the officer about the
perpetrator identity and also committed misconduct when the officer
improperly bolstered witness Ryan Bundy credibility. It was also
plain error when the court sustained the prosecutor objection and
allowed the officer testimony to be admissible.

Supporting Facts: During trial the prosecutor committed
misconduct when objecting to trial counsel questioning officer about
failing to stop a suspect in a vehicle to confirm the identification of
the person in the vehicle. Prosecutor also committed misconduct
6
when using the detective testimony to bolster the credibility of and
testimony of the surprise witness.

Ground Seventeen: Appellate counsel was ineffective when failing
to advise the appellant on the appeal process, failing to notify the
appellant of the decision on his first appeal of right and for failing
to provide the trial transcripts to the appellant.

Supporting Facts: During trial the prosecutor committed
misconduct when objecting to trial counsel questioning officer about
failing to stop a suspect in a vehicle to confirm the identification of
the person in the vehicle. Prosecutor also committed misconduct
when using the detective testimony to bolster the credibility of and
testimony of the surprise witness.

Ground Eighteen: Trial counsel was ineffective when he failed to
object to the detective’s testimony to cell phone location as the
detective was not an expert on the witness list and trial counsel also
failed to challenge the state DNA expert testimony by affording an
independent expert or advice from such expert.

Supporting Facts: During the trial a detective made testimony
concerning the location of the petitioner’s cell phone location and
the trial counsel failed to object to the detectives testimony as he
was not an expert on the expert witness list. Trial counsel also failed
to challenge the state's DNA expert witness by affording an
independent expert or advice from such expert.

Amended Petition, ECF No. 31, PageID 1344-1363.
Analysis

Statute of Limitations
Habeas corpus petitions filed after April 24, 1996, the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA") are
subject to a one-year period of limitations codified at 28 U.S.C. § 2244(d)(1).
7
Respondent asserts this case is time-barred under that statute, arguing the conviction became
final on direct review July 16, 2022, the last day on which Petitioner could have timely appealed
to the Ohio Supreme Court on direct review. The Fifth District affirmed the conviction on direct
review on June 1, 2022 (Judgment, State Court Record, ECF No. 31, Ex. 11), so July 16, 2022, is

forty-five days later, the deadline for a timely appeal.
Under § 2244(d)(1), the statute would have expired a year later on July 16, 2023. However,
Respondent concedes that the running of the statute was tolled under 28 U.S.C. § 2244(d)(2) by
Petitioner’s properly filing several collateral attacks on the judgment after the statute began to run.
Petitioner’s first 26(B) application tolled the statute until it was denied November 18, 2022. His
second 26(B) application tolled the statute during its pendency until May 31, 2023. Petitioner’s
motion for leave to file a delayed appeal of the denial of his motion for new trial tolled the statute
until its denial February 20, 2024; the tolling was extended by his second motion for leave to file
a delayed appeal regarding his motion for new trial until March 4, 2024. The record shows
Petitioner’s petitions for post-conviction relief were rejected as untimely and such petitions are not

“properly filed” so as to toll the time under § 2244(d)(2). Therefore, Respondent argues, the statute
expired August 26, 2024, and Petitioner did not file until November 8, 2024.
In his Traverse, Petitioner devotes nine single-spaced pages (PageID 2177-85) to his statute
of limitations argument. He does not contest Respondent’s calculation of the date the statute began
to run, but he offers several arguments about why his Petition should be considered timely filed.

Equitable Tolling
Lewis begins by noting that the AEDPA statute of limitations is not jurisdictional (Traverse,

8
ECF No. 40, PageID 2178), citing Griffin v. Rogers, 399 F.3d 626,631 (6th Cir. 2005), and Allen
v. Yukins, 366 F. 3d 296, 401 (6th Cir. 2004) (citing Dunlap v United States, 250 F. 3d 1001, 1007
(6th Cir. 2001)). The Magistrate Judge agrees.
Lewis then notes that he filed about two months after the statute expired and argues this

should be short enough time to allow equitable tolling. (Traverse, ECF No. 40, PageID 2178) citing
“Cook at 295 F. 3d at 522.” That citation is actually to a case captioned Pfennig v. Household
Credit Services, Inc., 295 F.3d 522 (6th Cir. Jul. 2, 2002), a case which has nothing to do with any
statute of limitations.
Petitioner argues: “In the absence of constructive knowledge of filing requirements and
knowledge of the exact date that equity tolling would have extended the statute of limitations
expiration date, two months for preparation and filing by a pro se litigant is not unreasonable.” Id.
at PageID 2178. 28 U.S.C. § 2244 clearly spells out that there is a one-year statute of limitations;
constructive knowledge of that date is imputed to him under the principle that ignorance of the law
does not excuse. Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004). See Rose v. Dole, 945 F.2d
1331, 1335 (6th Cir. 1991)(holding the statute itself gives notice that the statute begins to run at the

conclusion of direct review and does not restart based on the intervening commencement of state
collateral proceedings).
There is no way any petitioner could know in advance how much time would be credited to
equitable tolling, so not knowing that time does not justify, as Petitioner seems to argue, equitable
tolling. Petitioner blames his late filing on lack of notice from his appellate attorney of state court
filing dates for post-conviction, but providing such notice is not within the professional
responsibilities of an appointed direct appeal attorney. Lewis was indeed working on various post-

9
conviction efforts during the time after he failed to appeal to the Ohio Supreme Court, but those
efforts entitled him, as Respondent concedes, to statutory tolling under § 2244(d)(2).
Lewis next relies on Lehman v United States, 154 F. 3d 1010, 1016 (9th Cir. 1998), for the
proposition that "equitable tolling focuses primarily on the plaintiff’s excusable ignorance of

limitation period.” Petitioner fails to note that in Lehman the Ninth Circuit refused to recognize
equitable tolling and noted its own prior decision:

This court has explained that the doctrine is not available to avoid
the consequences of one's own negligence:

The equitable tolling doctrine has been applied by the
Supreme Court in certain circumstances, but it has been
applied sparingly; for example, the Supreme Court has
allowed equitable tolling when the statute of limitations
was not complied with because of defective pleadings,
when a claimant was tricked by an adversary into letting a
deadline expire, and when the [agency's written] notice of
the statutory period was clearly inadequate. Courts have
been generally unforgiving, however, when a late filing is
due to claimant's failure “to exercise due diligence in
preserving his legal rights.”

Id. at 1016, quoting Scholar v. Pacific Bell, 963 F.2d 264, 267–68 (9th Cir.1992).
Lewis next blames the “unstable and unsettled nature of AEDPA statute of limitations that
does not notify the petitioner on how to properly file a motion in the state court in order to receive
tolling of time or how the tolling of time actually works.” There is nothing unstable about the
AEDPA statute of limitations jurisprudence and no court has ever held the statute had to explain
to state prisoners what they needed to do to exhaust state court remedies.
Lewis next asserts that because he raised a claim that the Common Pleas Court lacked subject
10
matter jurisdiction over the kidnapping charge, he should be allowed to raise that claim at any
time. He writes:

In the petitioner's successive post-conviction in which was claims
for the ineffective assistance of trial counsel, Lewis raised in his
motion that the court lacked subject matter jurisdiction for the
charges of kidnapping in which could be raised at any time on direct
or collateral attack, therefore Lewis should be granted equity tolling
on that issue.

Traverse, ECF No. 40, PageID 21791.

Petitioner’s successive post-conviction petition appears at State Court Record, ECF No. 7,
Ex. 50. He argued
A motion to vacate a void judgment is of common law ancestry.
There is no point in time beyond which the judgment becomes valid,
and the motion to vacate a void judgment is not subject to a time
limitation. GMS Management Co. v. axe et al., 5 Ohio Misc. 2d 1,
10-11, 449 N.E.2d 43 (1982). See also State v. Davies, 2013-Ohio-
436, P7-P13; and United States v. Cotton, 535 U.S.625, 630 (2002).
Although the term 'void' describes a result, rather than the conditions
that render a judgment unenforceable, it suffices to say that a void
judgment is one so affected by a fundamental infirmity may be
raised even after the judgment becomes final. United Student Aid
Funds Inc. v. Espinos, 130 S. Ct. 1367, 1377 176 L.Ed.2d 158
(2010).

* * *

I the defendant asserts (sic) that the trial court judgment was reached
without due process of the law and lacked subject matter jurisdiction
because of the trial counsel ineffectiveness. Trial counsel was
nonexistent when he failed to argue any merits of his client pro se
motion for a new trial pursuant to Crim.R.33(a).

1 Notice that here, as in many other places in the 104-page Traverse, Lewis fails to comply with Judge Litkovitz’s
December 3, 2024, Order of Answer which requires that “All papers filed in the case thereafter (i.e. after the State
Court Record) by either party shall include record references to the PageID number.)” (ECF No. 6, PageID 95).

11
Id. at PageID 474.

The proper method to obtain relief from a void judgment is by motion for relief from
judgment under Ohio R. Cv. P. 60(b)(4). At the time he filed his successive motion for post-
conviction relief, Petitioner had already litigated a petition for post-conviction relief under Ohio
Revised Code § 2953.21. Ohio law denies trial courts jurisdiction to adjudicate successive
petitions under Ohio Revised Code § 2953.21 unless they meet the requirements of Ohio Revised
Code § 2953.23, which Lewis’s successive petition did not.
Moreover, denial of effective assistance of counsel does not deprive a court of jurisdiction,
nor does a claim that the court acted without due process of law. Ohio Common Pleas Courts have
subject matter jurisdiction over felonies that are indicted in the county where they sit. State ex rel.
Winnefeld v. Court of Common Pleas of Butler County, 159 Ohio St. 225 (1953); State ex rel
Miller v. Court of Common Pleas of Lake County, 151 Ohio St. 397 (1949). That determination is
subject to review on appeal. State ex rel. Heimann v. George, 45 Ohio St. 2d 231 (1976).
Lewis next contends that there is an absence of a state court remedy for his claims because

they were held barred by res judicata (Traverse, ECF No. 40, PageID 2179). He writes:
Pursuant to U.S.C 2254 (B) (i) There is absence of available state
corrective process; (ii) Circumstance exist that render such process
ineffective to the rights of the applicant. Petitioner contends that
there is an absence of available state corrective process as the state
court has barred the merits of all of the petitioner's claims of the
violation of his sixth and fourteenth amendment to the U.S.
Constitution by incorrectly using the doctrine of res judicata. When
in the interest of justice and fairness the doctrine of res judicata
should not bar a meritorious claim(s) of violation of the
constitutional law. In the present case of the petitioner, the
constitutional violation of the sixth and fourteenth amendment
committed by the trial court, the trial counsel and the appellate
counsel created a miscarriage of justice and abridged the petitioner's
fundamental rights. In the petitioner Lewis's post-conviction and
12
successive post-conviction motion for relief the State of Ohio used
the doctrine of res judicata to bar all of the petitioner's viable claims
of the constitutional law and fundamental rights that was abridged
during trial and the appeal process. The binding effect of res judicata
has been held not to apply when fairness and justice would not
support it." Davis v Wal-Mart stores.Inc. (2001), 93 Ohio St, 3d
288,491, 2001 Ohio 1593, 756 N.E. 2d 657; Lucas v Porter, 2008
ND 160, 755 N.W. 2d 88, P 22 ("Fundamental Fairness underlies
the determination of privity"). Moreover, res judicata is not to be
so rigidly applied "When fairness and justice would not support it".
State ex rel. Estate of Miles v Piketon, 121 Ohio St. 3d 231, 2009-
Ohio-786, 903 N.E. 2d 311, at 30. Also see Dep't of Nat. Res., Div.
of Forestry v Srofe. 2024-Ohio-1842 at (*P 57) "we decline to apply
res judicata so rigidly in the case considering the lack of due process
that occurred in Srofe's 2018 litigation. The petitioner has made
claims of the trial court violations of the fourteenth amendment and
the trial counsel and appellate counsel violation of the sixth
amendment in which prejudiced and harmed the petitioner and if not
for these errors the outcome of the trial and appeal proceedings
would have been different. The state provided no remedies or
corrective procedures when barring all of the petitioner's claims
using the doctrine of res judicata. On May 5, 2025 the petitioner
filed a motion in the fifth district court of appeals seeking a relief of
judgment pursuant Civil R. 60 (B) In order to reopen the direct
appeal for the gross neglect of his appellate attorney. The Petitioner
concurrently submitted his amended brief pursuant to Ohio App. 26
(B) for the ineffectiveness of the appellate counsel in which the fifth
district court appeals dismissed his motion for a relief of judgment
and provided no remedy or corrective process for the constitutional
claims presented in his amended brief 26(B) motion.

Due [to] the bar of res judicata there is absence of available state
corrective process that does not provide a Constitutional remedy for
issues raised in the petitioner's post-conviction procedures for the
constitutional violation of the trial court, the trial and appellate
counsel. Thus, pursuant to U.S.C 2254 (B) (I) and circumstances
exist that render such process ineffective to the rights of the
applicant pursuant U.S.C 2254 (B) (II).

Traverse, ECF No. 40, PageID 2180.

Petitioner’s argument implies that at any given stage in the history of a state criminal case
the State must provide an available state court remedy for any constitutional claim that a defendant
13
wishes to raise at that moment in the history of the case, in order to prevent habeas corpus
intervention. But that is not the law. The State Court Record here provides a number of examples
of situations where Petitioner could have raised a claim but did not, then sought to raise it later2.
In Ohio any constitutional claim which can be raised on direct appeal must be raised in that forum

or be barred by res judicata. State v. Perry, 10 Ohio St. 2d 175 (1967). Claims that cannot be
raised on direct appeal because they depend on evidence dehors the appellate record must be
brought by petition for post-conviction relief under Ohio Revised Code § 2953.21. Ohio law limits
defendants to one direct appeal, and one post-conviction petition unless they satisfy Ohio Revised
Code § 2953.23. Nothing in Supreme Court precedent provides that a person must be given more
than one attempt at post-conviction relief. Claims of ineffective assistance of appellate counsel
cannot be brought under Ohio Revised Code § 2953.21, but must be brought by an application to
reopen the direct appeal. State v. Murnahan, 63 Ohio St. 3d 60 (1992). But nothing in Ohio or
federal law provides that, if a defendant does not raise a claim in his or her first 26(B) application,
they must be given another opportunity or federal habeas is available.

The federal courts recognize equitable tolling to excuse late filing in habeas cases. Holland
v. Florida, 560 U.S. 631, 646 (2010). But it is not automatic. A petitioner must establish that
extraordinary circumstances beyond his control prevented him from filing. The burden is on the
petitioner to demonstrate that he is entitled to equitable tolling. Keenan v. Bagley, 400 F.3d 417,
420-22 (6th Cir. 2005); Allen v. Yukins, 366 F.3d 396 (6th Cir. 2004); McClendon v. Sherman, 329
F.3d 490, 494 (6th Cir. 2003); Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). Typically,
equitable tolling applies only when a litigant’s failure to meet a legally-mandated deadline

2 This has nothing to do with equitable tolling of the statute of limitations.
14
unavoidably arose from circumstances beyond that litigant’s control. Jurado v. Burt, 337 F.3d 638
(6th Cir. 2003), citing Graham Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552,
561 (6th Cir. 2000). “Absent compelling equitable considerations, a court should not extend
limitations by even a single day.” Id. at 561. Equitable tolling should be granted sparingly.
Solomon v. United States, 467 F.3d 928, 033 (6th Cir. 2006).

Based on the precedent cited here, Petitioner has not established that he is entitled to
equitable tolling in this case.

Later Start Date

Petitioner next contends he is entitled to a later start date under 28 U.S.C. § 2244(1)(D).
Traverse, ECF No. 40, PageID 2181. That section permits the statute to begin to run on “(D) the
date on which the factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.” However, Lewis make no argument as what that date

would have been, instead repeating many of the same argument he made in the equitable tolling
section of the Traverse. Traverse, ECF No. 40, PageID 2181-82.

Actual Innocence
Petitioner next argued he is entitled to equitable tolling because he is actually innocent. He
writes:

[H]e has presented new reliable evidence of a CVS material
document that was not presented at trial. This document was also
15
presented in the petitioner's post-conviction motion that dehor (sic)
the record and was not presented by the trial counsel during the trial
by a jury. This CVS document clearly shows that the Delaware
police officer received the CVS video from the employee without
the authorization of the CVS Corporate office. See a copy of the
material CVS document in exhibit (A).

Traverse, ECF No. 40, PageID 2183.

There is no Exhibit A attached to the Traverse. The first attachment is a copy of a police
report labeled Exhibit M. Moreover, a report from the corporate offices of CVS showing that the
police officer did not have authority to provide the video to the prosecutor would not be new
reliable evidence of the sort required by Schlup v. Delo, 513 U.S. 298 (1995) - exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence. It would not
even have prevented admission of the video.
Petitioner has not shown excusing actual innocence as provided in Schlup and McQuiggin
v. Perkins, 569 U.S. 383 (2013).
In sum, Petitioner has not established any basis on which to excuse his late filing.
Respondent’s statute of limitations defense should be upheld and the Petition dismissed on that
basis.
Exhaustion of State Court Remedies
Petitioner’s Traverse next turns to a two-page explanation of how his state court remedies
were exhausted (Traverse, ECF No. 40, PageID 2186-87). But Respondent does not claim there
are any unexhausted state court remedies.

Procedural Default
Respondent does, however, assert that Grounds One, Five, Six, Seven, Eight, Ten, Twelve,
16
Thirteen, Fourteen, Fifteen, Sixteen, Seventeen, and Eighteen are procedurally defaulted (Return
of Writ, ECF No. 33, PageID 2128-33).
Petitioner responds that “any procedural defaults were for good cause” (Traverse, ECF
No. 40, PageID 2188-92).

The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786
F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);
Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th
Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261
F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).

Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.

Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner
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can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
Petitioner, although writing at length about procedural default (Traverse, ECF No. 40,
PageID 2188-92), does not organize his response in terms of the relevant Grounds for Relief.

Instead, he seems to blame all of his procedural defaults on his appointed appellate attorney, April
F. Campbell. Instead of tracking the Traverse, this Report will deal with the Grounds for Relief
in order.
Grounds One and Ten
In Grounds One and Ten, Petitioner claims he was convicted on insufficient evidence.
Respondent asserts this claim, while properly raised on direct appeal, was defaulted by failure to
appeal to the Ohio Supreme Court (Return of Writ, ECF No. 33, PageID 2128). Petitioner blames
this default on his appellate attorney’s failure to advise him of the Fifth District’s decision on direct
review appeal.
The State Court Record shows Attorney Campbell filed a timely notice of appeal on March

22, 2021 (Notice, State Court Record, ECF No. 32, Ex. 8). She then filed a brief on December 6,
2021. Id. at Ex. 9. The Fifth District then decided the case on June 1, 2022. Id. at Ex. 11.
Petitioner did not file an appeal to the Ohio Supreme Court. Instead, on August 17, 2022,
he filed an Application for Reopening the appeal under Ohio R. App. P. 26(B), asserting Attorney
Cambell provided ineffective assistance of appellate counsel by not raising certain assignments of
error, but not asserting that she failed to advise him of the decision (Application, State Court
Record, ECF No. 32, Ex. 15). On the very same day, however, he filed a Motion to Amend his
26(B) Application in which he does accuse Attorney Campbell of not notifying him of the decision.

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Id. at Ex. 16, PageID 1491. On August 31, 2022, the Fifth District granted him until September
29, 2022, to file an amended 26(B) application, Id. at Ex. 19. Despite stating it would not grant
any extensions, the Fifth District did so, extending the time to amend to October 29, 2022. Id. at
Ex. 20. When Petitioner failed to amend by that date, the Fifth District on November 18, 2022,

denied his 26(B) application on the merits. Id. at Ex. 20.
Petitioner next wrote a letter to the Fifth District in which he accuses his inmate legal
assistant of lying about obtaining a third extension and then being in segregation because of illness.
Id. at Ex. 21. The Fifth District treated the letter as a second application to reopen, but denied it
because Ohio law does not permit such second applications. Id. at Ex. 23. On December 11, 2023,
Petitioner filed in the Ohio Supreme Court a Notice of Appeal directed to the
Fifth District’s post-appeal decisions. Id. at Ex. 31.
On August 11, 2023, Petitioner filed a motion for delayed appeal in the Ohio Supreme
Court. Id. at Ex. 35. In it he does not claim Attorney Campbell did not advise him of the Fifth
District’s decision. Instead he adverts to the August 17, 2022, motion to amend the then-pending

Application to Reopen the Appeal under Ohio R. App. P. 26(B) which he says was granted, but
the amendment was never filed because the inmate who was assisting him was placed in solitary
confinement and never completed the amendment (Motion, State Court Record, ECF No. 32, Ex.
12, PageID 1462). He adverts to a second motion to amend which he also says was granted with
a deadline of October 29, 2022, which was also never completed. Id. There is an attached copy of
the Fifth District’s decision which shows it was faxed to someone on June 1, 2022. Id. at PageID
1463. Petitioner does not explain when it came into his possession.
Considering this history altogether, the Magistrate Judge concludes it does not excuse

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Petitioner’s failure to appeal to the Ohio Supreme Court the Fifth District’s decision that his
conviction is supported by sufficient evidence. He was not entitled to have counsel appeal because
the right to appointed counsel is limited to the first appeal of right. The right to appointed counsel
extends to the first appeal of right and no further. Pennsylvania v. Finley, 481 U.S. 551, 555

(1987); Ross v. Moffitt, 417 U.S. 600 (1974). Ineffective assistance of counsel can excuse
procedural default only when it occurs in a proceeding where a defendant is constitutionally
entitled to counsel under the Sixth Amendment. Wainwright v. Torna, 455 U.S. 586 (1982)(where
there is no constitutional right to counsel there can be no deprivation of effective counsel); Riggins
v. Turner, 1997 U.S. App. LEXIS 6115, *5 (6th Cir. 1997); Barkley v. Konteh, 240 F. Supp. 2d
708, 714 (N.D. Ohio 2002).
Of course, Petitioner was entitled to effective assistance of counsel on his direct appeal.
One of the duties of such counsel is to furnish the client with notice of the decision so he can if he
wishes pursue the matter further. To fail to give such notice would constitute ineffective assistance
of appellate counsel and that would excuse a procedural default. However, before a habeas

petitioner can use ineffective assistance of appellate counsel to excuse a default the petitioner must
have submitted that ineffective assistance claim to the state courts and obtained a favorable
decision. Edwards v. Carpenter, 529 U.S. 446 (2000); Chase v. MaCauley, 971 F.3d 582, 592
(6th Cir. 2020); Scuba v. Brigano, 527 F.3d 479, 488 (6th Cir. 2007). Although Petitioner
submitted that claim as required by Ohio law, he did not receive a favorable decision.
Accordingly, Grounds One and Ten are barred by procedural default and should be
dismissed on that basis.

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Grounds Five, Six, Seven, Eight, and Eighteen

Respondent notes that all five of these claims depend on evidence that was part of the
record on direct appeal and could have been adjudicated in the appeal. For example, Ground Five

accuses trial counsel of ineffective assistance for failure to argue in support of Petitioner’s pro se
motion for new trial.3 The relevant facts – counsel did not make an argument on the motion –were
or should have been in the record on direct appeal.
Under Ohio law a claim which can be litigated on direct appeal but is not raised is barred
from later consideration by the res judicata doctrine. Perry, supra. Petitioner argues as excusing
cause the ineffective assistance of appellate counsel of Attorney Campbell, but he has never
obtained an Ohio court ruling to that effect.
Accordingly, Grounds Five, Six, Seven, Eight, and Eighteen are barred by procedural
default.

Grounds Twelve, Thirteen, Fourteen, Fifteen, Sixteen, and Seventeen
These six claims all assert ineffective assistance of appellate counsel. Petitioner claims he
fairly presented these claims to the Ohio courts by including them in an Application for Reopening
under Rule 26(B)(Amended Petition, ECF No. 31, PageID 1356-62). But a reading of the 26(B)
Application does not show that these claims were raised. Petitioner also claimed in the Amended
Petition that they were included in his motion for relief from judgment under Ohio R. Civ. P. 60

3 Whether the trial court would have permitted such argument is in question. Ohio does not permit hybrid
representation and there is no constitutional right to hybrid representation, with a defendant representing himself and
also having counsel. McKaskle v. Wiggins, 465 U.S. 168 (1984).
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in the Second District, but a motion for relief from judgment is not an allowed method to amend a
judgment of a court of appeals; it applies only to judgments of trial courts.
Because Petitioner has not shown Grounds Twelve, Thirteen, Fourteen, Fifteen, Sixteen,
and Seventeen were fairly presented to the Ohio courts and he has shown no excusing cause and

prejudice. These Grounds should also be dismissed with prejudice as procedurally defaulted.

Grounds Two, Three, and Nine
In Ground Two, Petitioner claims his Fourteenth Amendment Due Process rights were
violated when the trial court allowed the testimony of a surprise witness – a person whose identity
had not been revealed in discovery. In Ground Three, he asserts his Due Process rights were again
violated when the trial court allowed in evidence what he refers to as an unauthenticated and
unauthorized video. In Ground Nine, he complains again about admission of these two pieces of
evidence.
As noted above, federal habeas courts sit only to consider federal constitutional claims. A

petitioner cannot convert a state law evidentiary claim to a federal claim by placing a Due Process
label on it. State criminal discovery rules have been constitutionalized to the extent of requiring
the prosecution to reveal evidence favorable to a defendant. Brady v. Maryland, 373 U.S. 83
(1963). But the “surprise” witness was certainly not favorable to Petitioner. As Respondent points
out, the Ohio courts considered and overruled Petitioner’s authentication and authorization claims
on the basis of Ohio law. As such those rulings are not reviewable in this Court.
Grounds Two, Three, and Nine should be dismissed for failure to state a claim upon which
habeas corpus relief can be granted.

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Ground Four: Improper Maximum and Consecutive Sentences
To the extent this claim asserts the trial court did not follow Ohio standards for choosing
to impose maximum and consecutive sentences, this Ground for Relief fails to state a claim upon

which habeas corpus relief can be granted. The States do not have a federal due process obligation,
enforceable in habeas corpus, to even mandated state procedures. Levine, supra.
To the extent Petitioner is raising a direct claim of constitutional violation the Petition fails
to state a claim upon which relief can be granted. The sentences imposed are within the statutory
maximums for the offenses of conviction, which satisfies the Cruel and Unusual Punishment
Clause. And the Constitution does not provide a set of standards for deciding when sentences can
be ordered to be served consecutively. Oregon v. Ice, 555 U.S. 160 (2009).

Ground Eleven: Failure to Merge Aggravated Robbery and Kidnapping Counts
In his Eleventh Ground for Relief, Petitioner asserts his aggravated robbery and kidnapping

convictions should have been merged at sentencing.
Under Ohio law, convictions for allied offenses of similar import are required to be merged
at sentencing. Ohio Revised Code § 2941.25. That statute is not binding as a matter of
constitutional law. The Double Jeopardy Clause is related, but there was not any double jeopardy
violation here because the elements of the two crimes of conviction are different.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
affords a defendant three basic protections:

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It protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same
offense after conviction. And it protects against multiple
punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717
(1969). The Double Jeopardy Clause was held to be applicable to the States through the Fourteenth
Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969). If two offenses are the same
offense for Double Jeopardy purposes, a defendant cannot be separately punished for both of them.
But Petitioner presented no Double Jeopardy claim to the Ohio courts and separate punishments
for aggravated robbery and kidnapping do not violate the Double Jeopardy Clause.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
August 3, 2026.
s/ Michael R. Merz
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11417844. Public record. Not legal advice.