Rankin v. Dick

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
BRYAN RANKIN,
Petitioner, 	: 	Case No. 1:25-cv-00612
- vs - 	District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
KENNETH W. DICK,
Sheriff, Adams County, Ohio,
:
Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Bryan Rankin pursuant to 28 U.S.C.
§ 2254, is before the Court on Petitioner’s Objections (ECF No. 31) to the Magistrate Judge’s
Report and Recommendations recommending denial of Petitioner’s Motion for Injunction and
dismissal of the Petition (the “Report,” ECF No. 30). 	District Judge Dlott has recommitted the
case for reconsideration in light of the Objections (ECF No. 32).
The Magistrate Judge reference in this case was transferred to the undersigned December
19, 2025, and the Report was filed December 31, 2025. Petitioner hypothesizes “it is reasonable
to believe the Magistrate Judge did not thoroughly review the entire record or read the traverse.”
(Objections, ECF No. 31, PageID 1005). To the contrary, for the last twelve years of service on
recall, the undersigned has, at the Court’s request, spent his entire work time on habeas corpus
cases and thus developed some expertise in analyzing these cases. Transfer of habeas corpus cases
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from other Magistrate Judges is entirely at the discretion of the Court’s Supervisory Death Penalty
Law Clerk who closely monitors the habeas corpus workload of the Court and only transfers cases
when she believes the undersigned has the “bandwidth” to deal with them promptly. So that the
record is complete, I affirm that I did review the entire record and read the Traverse before filing
the Report.
Injunctive Relief
The Objections add nothing to the Report’s analysis on injunctive relief, although
Respondent has now filed a timely Memorandum in Opposition (ECF No. 33). 	The Magistrate
Judge adheres to his prior recommendation that an injunction prohibiting further incarceration
should be denied.
Procedural Default
The Report recommends dismissal of the Petition upon a finding that Mr. Rankin’s claims
are procedurally defaulted because he did not properly present them to the Fourth District Court
of Appeals in appellate brief in the form required by Ohio law. Petitioner does not dispute this
finding, but says his procedural default is excused by a showing of cause and prejudice or a
showing of actual innocence.
Cause and Prejudice
Petitioner asserts he has shown good cause for failing to file an appropriate
appellate brief because the Fourth District refused to appoint counsel. The Report considered this
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excuse and found it was not good cause in that Mr. Rankin refused to complete the standard form
to show indigence. In his Objections Petitioner does not dispute that fact but claims he had already
shown indigence in the trial court and the Ohio Supreme Court had allowed him to file for
mandamus in forma pauperis. But the federal constitutional law requiring appointment of counsel
for indigent appellants does not require any individual court to accept another court’s finding of
indigence at a different time and in a different proceeding or stage of the same proceeding.
Petitioner does not dispute that he failed to file an appellate brief. He does not dispute the
lawfulness of the appellate brief requirement. He does not dispute his failure to fill out the required
proof of indigence. 	He does not dispute that the rule requiring an appellate brief was enforced
against him. The original Report contains findings, undisputed by Petitioner, of all the elements
required for procedural default by Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Petitioner
has not shown excusing cause and prejudice to overcome his procedural default.
Actual Innocence
As an alternative to excusing cause and prejudice, a habeas petitioner may prove
that he is actually innocent of the offense of which he has been convicted. Schlup v. Delo, 513
U.S. 298, 316 (1995); Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). As proof of actual innocence,
however, a habeas petitioner must present new evidence that was not heard by the jury. Schlup,
supra.
"To be credible, such a claim requires petitioner to support his
allegations of constitutional error with new reliable evidence --
whether 	it 	be 	exculpatory 	scientific 	evidence, 	trustworthy
eyewitness accounts, or critical physical evidence -- that was not
presented at trial."
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Souter at 590, quoting Schlup, 513 U.S. at 324.
To fulfill this requirement, Mr. Rankin relies on the Affidavit of Karla Rankin, a purported
eyewitness to the exchange between Petitioner and the complaining witness that Rankin claims
supports his understanding of their agreement about the child remaining an extra day with Mr.
Rankin. 	Ms. Rankin’s affidavit was excluded at trial because it is hearsay and therefore
inadmissible in evidence under Ohio R. Evid. 802. It is not new in the sense intended in Schlup
because Ms. Rankin’s perception of what happened existed and was known to Petitioner at the
time of trial, but was not presented to the jury because of an alleged hardship for Ms. Rankin to
get from Kentucky to Adams County.
In sum, Petitioner has not proven his actual innocence to the degree required by Schlup.
Conclusion
Having reviewed the case in light of the Objections, the Magistrate Judge again 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.
January 16, 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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