Davis v. Franklin County Corrections Center II

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAQUAN DAVIS,
Petitioner,
vs.
WARDEN, 	FRANKLIN 	COUNTY
CORRECTIONS CENTER II, et al.,
Respondents.
CASE NO. 5:25-cv-0154
DISTRICT JUDGE
DAVID A. RUIZ
MAGISTRATE JUDGE
JAMES E. GRIMES JR.
REPORT AND
RECOMMENDATION
DaQuan Davis filed a Petition under 28 U.S.C. § 2254 for a Writ of
Habeas 	Corpus. 	Doc. 	1. 	Davis 	is 	currently 	in 	custody 	at 	the 	Madison
Correctional Institution serving a sentence imposed by the Franklin County
Court of Common Pleas. His petition, however, relates to his aggregate
sentence to imprisonment for 14 years and 6 months imposed by the Summit
County Court of Common Pleas in State v. Davis, Case Nos. CR-2013-12-3484,
CR-2014-06-1723, and CR-2014-09-2832. The Court referred this matter to a
Magistrate Judge under Local Rule 72.2 for the preparation of a Report and
Recommendation. For the following reasons, I recommend that the Court
dismiss Davis’s petition.
Summary of underlying facts
In habeas corpus proceedings brought under 28 U.S.C. § 2254, factual
determinations made by state courts are presumed correct. 28 U.S.C. §
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2254(e)(1). “This presumption also applies to the factual findings that [a] state
appellate court makes on its review of the state trial record.” Johnson v. Bell,
525 F.3d 466, 474 (6th Cir. 2008). The petitioner has the burden of rebutting
that presumption by clear and convincing evidence. Id.
The 	Ohio 	Court 	of 	Appeals 	for 	the 	Eleventh 	Appellate 	District
summarized the underlying facts as follows:
{¶2} Appellant’s convictions resulted from guilty
pleas entered in three cases. On January 12, 2014,
an indictment was filed in Summit [County Court of
Commons Pleas]. No. CR–2013–12–3484 charging
appellant 	with 	numerous 	crimes 	involving 	drug
trafficking, felonious assault, and resisting arrest.
Appellant was assigned counsel and he pled not
guilty. While that case was pending, appellant was
released on bond and capias warrants were issued
twice for his failure to appear at pretrials. Also while
this case was pending, appellant was indicted in two
other cases. On June 26, 2014, an indictment was
filed in Summit [County Court of Commons Pleas].
No. 	CR–2014–06–1723 	charging 	appellant 	with
three counts involving drug possession. On October
2, 2014, an indictment was filed in Summit [County
Court of Commons Pleas]. No. CR–2014–09–2832
charging appellant with numerous counts involving
drug trafficking, felonious assault, and resisting
arrest. 	These 	cases 	resulted 	from 	criminal 	acts
committed while Davis was out on bond in the first
case.
{¶3} These three cases were consolidated for a single
trial. 	On 	October 	20, 	2014, 	appellant's 	newly
retained counsel entered a notice of appearance,
replacing appointed counsel. On November 19, 2014,
counsel filed a motion to continue the December 18,
2014 trial date. The trial court denied the motion on
December 1, 2014. Appellant’s counsel then filed a
motion to sever, which the trial court indicated was
still 	under 	consideration 	at 	the 	last 	pretrial
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conference. On December 17, 2014, the day before
trial, appellant agreed to retract his former not
guilty pleas and pled guilty to amended charges in
the three cases as part of a plea agreement offered
by 	the 	state. 	Specifically, 	in 	CR–2013–12–3484,
appellant pled guilty to one first-degree felony count
of drug trafficking, a violation of R.C. 2925.03(A) and
(C)(4); 	one 	first-degree 	felony 	count 	of 	felonious
assault, a violation R.C. 2903.11(A)(2); one third-
degree felony count of failure to comply with the
order or signal of a police officer, a violation of R.C.
2921.13(F); one fifth-degree felony count of drug
possession, a violation of R.C. 2925.11(A) and (C)(6);
one 	fifth-degree 	felony 	count 	of 	receiving 	stolen
property, a violation of R.C.2913.51(A); and one
second-degree 	misdemeanor 	count 	of 	resisting
arrest, a violation of R.C. 2921.33(A).
{¶ 4} In CR–2014–06–1723, appellant pled guilty to
one fifth-degree felony count of deception to obtain a
dangerous drug, a violation of R.C. 2925.22. Finally,
in CR–2014–09–2832, appellant pled guilty to one
second-degree felony count of drug trafficking, a
violation of R.C. 2925.03(A) and (C)(6); one third-
degree felony count of failure to obey the order or
signal 	of 	a 	police 	officer, 	a 	violation 	of 	R.C.
2921.31(B); 	and 	one 	second-degree 	misdemeanor
count 	of 	resisting 	arrest, 	a 	violation 	of 	R.C.
2921.33(A). As part of a plea agreement multiple
charges 	were 	dismissed in 	each 	case. 	Appellant
received an aggregate prison sentence of 14 years, 6
months.
State v. Davis, 2016-Ohio-1521, 2016 WL 1449522, at *1 (Ohio Ct. App. 2016).
Procedural background
After the trial court entered judgment, Davis filed three notices of
appeal and a motion to consolidate his appeals. Doc. 15-1, at 43–48, 55. The
Ohio court of appeals granted Davis’s motion to consolidate, and his counsel
filed a single appellate brief. See id. at 57–85. Relying on Anders v. California,
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388 U.S. 924 (1967),1 counsel submitted that she could not “find a meritorious
claim to raise on … appeal.” Id. at 57–85. Davis filed a pro se response, id. at
156–57, and, on April 13, 2016, the court of appeals affirmed the trial court.
Davis, 2016 WL 1449522.
Davis did not seek review with the Ohio Supreme Court.
Davis’s motions
Meanwhile, in September 2015, Davis filed in the trial court a motion to
withdraw his guilty plea. Doc. 15-1, at 164–66. Within days, the trial court
issued a judgment denying the motion. Id. at 167–70. The court issued a
1 	In Anders, the Supreme Court held that:
if counsel finds his case to be wholly frivolous, after
a 	conscientious 	examination 	of 	it, 	he 	should 	so
advise 	the 	court 	and 	request 	permission 	to
withdraw. 	That 	request 	must, 	however, 	be
accompanied by a brief referring to anything in the
record that might arguably support the appeal. A
copy 	of 	counsel’s 	brief 	should 	be 	furnished 	the
indigent and time allowed him to raise any points
that 	he 	chooses; 	the 	court—not 	counsel—then
proceeds, 	after 	a 	full 	examination 	of 	all 	the
proceedings, to decide whether the case is wholly
frivolous. If it so finds it may grant counsel's request
to 	withdraw 	and 	dismiss 	the 	appeal 	insofar 	as
federal requirements are concerned, or proceed to a
decision on the merits, if state law so requires. On
the other hand, if it finds any of the legal points
arguable 	on 	their 	merits 	(and 	therefore 	not
frivolous) 	it 	must, 	prior 	to 	decision, 	afford 	the
indigent 	the 	assistance 	of 	counsel 	to 	argue 	the
appeal.
386 U.S. at 744.
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journal entry with respect to its judgment in November 2015. Id. at 171. Davis
did not appeal the trial court’s decision to the Ohio court of appeals.
In March 2018, Davis moved the trial court to reduce his sentence. Id.
at 172–74. The trial court denied the motion in March 2018. Id. at 176–79.
In March 2020, the trial court denied a motion that Davis apparently
filed for a “de novo sentencing hearing.” Id. at 180. The motion is not in the
record. Davis did not appeal the trial court’s decision.
In June 2020, Davis filed a “motion for final appealable order.” Id. at
181–86. The trial court denied this motion in April 2021. Id. at 231. Davis did
not appeal this order.
In May 2021, Davis filed in the trial court a motion to withdraw his
guilty plea. Doc. 15-1, at 232–42. Davis cited Rule 32.1 of the Ohio rules of
criminal procedure and the Fourteenth Amendment.2 Id. at 232. The trial court
granted this motion in November 2021. Id. at 310–15. In its ruling, the court
held that when moving “to withdraw a plea of guilty after the imposition of
sentence,” a movant must “establish[] the existence of manifest injustice.” Id.
at 314. The court also observed that “[a] motion made pursuant to Crim.R. 32.1
is addressed to the sound discretion of the trial court.” Id. at 314. Based on its
2 	Ohio rule of criminal procedure 32.1 provides:
A motion to withdraw a plea of guilty or no contest
may be made only before sentence is imposed; but to
correct manifest injustice the court after sentence
may set aside the judgment of conviction and permit
the defendant to withdraw his or her plea.
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review, the court determined that “Davis ha[d] demonstrated [that] a manifest
injustice occurred during his plea hearing and that he suffered prejudice as a
result.” Id. at 315.
In December 2021, the State sought review in the court of appeals and
moved to stay proceedings pending appeal. Id. at 316, 324–68. The court of
appeals granted the State leave to appeal. Id. at 370–72.
On March 22, 2023, the court of appeals reversed the trial court. See
State v. Davis, 2023-Ohio-910, 2023 WL 2593149 (Ohio Ct. App. 2023). It held:
{¶6} In its sole assignment of error, the State argues
the trial court lacked jurisdiction to consider Mr.
Davis’s motion to withdraw his guilty pleas because
Mr. Davis’s convictions and sentence had already
been affirmed on appeal by this Court. We agree.
{¶7} The Supreme Court of Ohio, in State ex rel.
Special Prosecutors v. Judges, Court of Common
Pleas, 55 Ohio St.2d 94, 97 (1978), determined a trial
court loses jurisdiction over a case when an appeal
is taken and, absent a remand, does not regain
jurisdiction 	subsequent 	to 	the 	court 	of 	appeal's
decision. 	Further, 	the 	Special 	Prosecutors 	Court
explained, 	even 	though 	the 	trial 	court 	retains
jurisdiction over issues not inconsistent with the
jurisdiction of the court of appeals, the granting of a
motion 	to 	withdraw 	is 	“inconsistent 	with 	the
judgment of the [c]ourt of [a]ppeals affirming the
trial court’s conviction premised upon the guilty
plea.” Id.
{¶8} Additionally, the Supreme Court of Ohio stated
Crim.R. 	32.1 	does 	not 	independently 	“vest
jurisdiction 	in 	the 	trial 	court 	to 	maintain 	and
determine a motion to withdraw the guilty plea
subsequent to an appeal and an affirmance by the
appellate court.” Id. Moreover “[r]es judicata bars
the 	assertion 	of 	claims 	against 	a 	valid, 	final
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judgment of conviction that have been raised or
could have been raised on appeal.” State v. Ketterer,
126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59, citing
State v. Perry, 10 Ohio St.2d 175 (1967), paragraph
nine 	of 	the 	syllabus. 	Thus, 	after 	a 	defendant’s
convictions have been affirmed on appeal, a trial
court has “no authority to consider [a] motion to
withdraw his guilty plea, let alone grant him a new
trial.” Ketterer at ¶ 62.
{¶9} 	Here, 	Mr. 	Davis 	filed 	a 	direct 	appeal, 	in
compliance with Anders, supra, wherein his counsel
brought to light a possible issue with allied offenses.
Additionally, Mr. Davis filed a pro se document
wherein he challenged the trial court's denial of a
motion for continuance. This Court independently
reviewed the record and, in so doing, concluded
“there are no appealable, non-frivolous issues in this
case.” Davis, 2016-Ohio-1521, at ¶ 10. The alleged
issues Mr. Davis now raises regarding the trial
court’s 	use 	of 	the 	word 	“required” 	instead 	of
“mandatory” in addressing his maximum sentence
during his plea colloquy could have been filed in his
direct 	appeal. 	Therefore, 	pursuant 	to 	Special
Prosecutors 	and 	Ketterer, 	the 	trial 	court 	lost
jurisdiction 	to 	consider 	Mr. 	Davis’s 	motion 	to
withdraw his guilty pleas after this Court affirmed
his convictions. Accordingly, the trial court erred in
granting Mr. Davis’s motion to withdraw his guilty
pleas.
{¶10} Accordingly, the State’s sole assignment of
error is sustained.
Id. at 2–3.
Davis later filed a notice of appeal with the Ohio Supreme Court. Doc.
15-1, at 460–61. Davis filed a memorandum in support of jurisdiction in which
he raised two propositions of law:
1. An indigent criminal defendant has the right to
the effective assistance of appellate counsel when
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the 	state 	appeals 	a 	judgment 	setting 	aside 	a
conviction. Sixth and Fourteenth Amendments to
the United States Constitution; Art. I, § 10 of the
Ohio Constitution.
2. Under State ex rel. Special Prosecutors v. Judges,
Belmont Cty. Court of Common Pleas, 55 Ohio. St.2d
94, 97-98, 378 N.E.2d 162 (1978), as explained in
State v. Roland Davis, 131 Ohio St. 3d 1, 2011-Ohio-
5028, 	an 	appellate 	affirmance 	does 	not
automatically deprive a trial court of jurisdiction to
vacate a guilty plea properly filed under Crim.R.
32.1.3
Id. at 462–80. Davis then filed with the Ohio Supreme Court a motion to stay
and for limited remand. Id. at 498–502. On July 12, 2023, the Ohio Supreme
Court denied the motion to stay and remand and declined under Rule
7.08(B)(4) of its rules of practice to accept jurisdiction over Davis’s appeal. Id.
at 671.
While Davis’s supreme court appeal was pending, he filed in the Ohio
court of appeals a delayed application under Ohio appellate rules 14(B) and
26(A) and State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992)4 “to reconsider and
reopen appeal based on ineffective assistance of appellate counsel.” Id. at 672–
691. In his application, Davis sought to reopen the State’s appeal of the trial
court’s order granting Davis’s motion to withdraw his guilty plea. See id. at
3 	In this report and recommendation, Davis’s claims before Ohio’s courts
and this Court are reproduced as written.
4 	In Murnahan, the Ohio Supreme Court held that “in cases that present
a colorable claim of ineffective assistance of appellate counsel and in which the
time to appeal or request reconsideration has expired, the defendant may apply
for delayed reconsideration.” State v. Clark, 271 N.E.3d 819, 824 (Ohio 2025).
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675. He asked the court of appeals to appoint him counsel so that he could “file
a merit brief responding to the state’s brief.” Id.
The court of appeals denied Davis’s delayed application in April 2024.
Id. at 871–72. In doing so, the court noted that in Murnahan, the Ohio
Supreme Court held that:
[I]n an individual case where a defendant has put
forth a colorable claim of ineffective assistance of
appellate counsel, where the circumstances render
the application of res judicata unjust, and the time
periods for reconsideration in courts of appeals and
direct appeal to this court have expired, he or she
must: (1) apply for delayed reconsideration in the
court of appeals where the alleged error took place
pursuant to App.R. 26 and 14(B), and if delayed
reconsideration is denied, then (2) file for delayed
appeal in this court pursuant to Section 8, Rule II of
the Rules of Practice of the Supreme Court.
Id. at 871 (emphasis added by court of appeals). The court of appeals then held
that by its terms, Murnahan did not apply to instances involving an appeal by
the State or to instances in which a petitioner had already filed a “timely
jurisdictional appeal with the Supreme Court of Ohio.” Id. at 872.
Davis filed a notice of appeal with the Ohio Supreme Court. Id. at 873–
74. In his memorandum in support of jurisdiction, he raised two propositions
of law:
1. A motion filed under State v. Murnahan and In re
T.A. is the appropriate remedy for raising claims of
ineffective assistance of appellate counsel where
App.R. 26(B) does not apply.
2. A decision by this court not to hear a discretionary
appeal does not preclude a court of appeals from its
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responsibility to adjudicate a claim of ineffective
assistance of appellate counsel filed pursuant to
State v. Murnahan.
Id. at 875–93. On August 7, 2024, the Ohio Supreme Court declined under Rule
7.08(B)(4) of its rules of practice to accept jurisdiction. Id. at 919.
Davis filed a motion to reconsider, id. at 920–31, which the Ohio
Supreme Court denied on December 6, 2024, id. at 1134.
Federal habeas proceedings
Davis filed a petition for writ of habeas corpus on December 9, 2024.
Doc. 1, at 15; see Houston v. Lack, 487 U.S. 266, 270 (1988) (holding that an
imprisoned petitioner’s petition is deemed filed when he places it in his prison’s
mailing system). He raises the following grounds for relief:
Ground one: Ohio courts violated Mr. Davis right to
due process when they appointed counsel so he can
defend against the state’s appeal, but failed to let an
attorney file a brief once the appointed counsel
disappeared from the appeal.
Supporting Facts: Mr. Davis was granted a plea
withdraw motion. The state appealed the trial court
ruling. The trial court appointed Mr. Davis counsel
for the state appeal. The appointed counsel signed a
affidavit stating he did not file a brief due to his
‘oversight.’ When this was brought to the appeal
court 	attention 	threw 	the 	Ohio 	public Defender
office the appeal court still neglected to let the Ohio
public defender office file a brief. In, other words the
appeal court denied Mr. Davis right to due process
by not letting him perfect the appeal.
Ground two: Just because the state filed an appeal
does not mean a U.S. citizen lose his 6th Amend.
right to have effective counsel in the states appeal.
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Supporting Facts: Ohio does not have a rule or
remedy to argue ineffective of appellate counsel in a
state appeal.
Ground three: Ohio Court of Appeals denied to hear
Mr. Davis claim of actual ineffective counsel claims
under Strickland v. Washington.
Supporting Facts: The ninth appeal district ruled
against Mr. Davis because his appointed counsel did
not file the superseded Ohio Supreme Court case
law. (The ninth district was not aware of this new
case law due to the fact they later used the same
Ohio Supreme Court case law that was available
when Mr. Davis counsel disappeared as law in there
district, after a different case was brought to there
court and argued the talked about Ohio Supreme
Court case.) In other words had counsel argued Ohio
Supreme Court new case law Mr. Davis would have
won (FACT!).
Doc. 1, at 5–9. The Warden filed a return, Doc. 15, and Davis filed a traverse,
Doc. 18.
Discussion
Davis’s Petition is time-barred.
In his return, Respondent argues that Davis’s petition is untimely. Doc.
15, at 13. I agree.
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104–132, 110 Stat. 1214, provides a one-year limitations period in a habeas
action brought by a person in custody from a state court judgment. Under 28
U.S.C. § 2244(d)(1), the limitation period 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;
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(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.
28 U.S.C. § 2244(d)(1). Davis does not claim that subparagraphs (B) or (C)
could apply.5 So only subparagraph (A) and subparagraph (D) are potentially
implicated.
Under subparagraph (A), a judgment becomes final at the “conclusion of
direct review or [on] the expiration of the time for seeking such review.” The
Ohio court of appeals issued its decision on direct review on April 13, 2016.
Davis, 2016 WL 1449522. From there, Davis had 45 days, until Tuesday, May
31, 2016, to seek review with the Ohio Supreme Court.6 See Ohio S.Ct.Prac.R.
7.01(A)(1)(a)(i) (“To perfect a jurisdictional appeal from a court of appeals to
5 	To be sure, there is no apparent basis that subparagraphs (B) or (C)
could apply—Davis doesn’t claim that there was an impediment that prevented
him from filing his petition and he does not rely on a newly recognized
constitutional right. See Doc. 18, at 2–3.
6 	Day 45 fell on a Saturday and Monday, May 30, 2016, was Memorial
Day. So Davis had until the next business day—Tuesday, May 31, 2016—to
seek review. See Ohio S.Ct.Prac.R. 3.03(A)(1).
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the Supreme Court … the appellant shall file a notice of appeal in the Supreme
Court within forty-five days from the entry of the judgment being appealed.”).
But Davis did not file an appeal with that court. So, unless an exception
applies, Davis’s conviction became final on June 1, 2016. See Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012) (“because Gonzalez did not appeal to the
State’s highest court, his judgment became final when his time for seeking
review with the State’s highest court expired”). Davis thus had until June 1,
2017, to file his habeas petition.
As noted, however, Davis did not file his petition until December 9, 2024.
See Doc. 1, at 15. This means that unless Davis’s time to file his petition was
tolled or a different calculation applies, his petition is untimely.
For his part, Davis argues that his conviction did not become final until
March 22, 2023, when the court of appeals reversed the trial court’s order
granting Davis’s motion to withdraw his guilty plea. Doc. 18, at 3. It is true
that “[w]hen [a] court[] engage[s] in a full resentencing, the resulting sentence
is 	a 	new 	‘judgment’ 	that 	restarts 	§ 	2244(d)(1)’s 	timeclock.” 	Freeman 	v.
Wainwright, 959 F.3d 226, 229 (6th Cir. 2020). But in applying this rule, it is
important to remember that “in a criminal case[,] … [t]he sentence is the
judgment.” Id. (quoting Burton v. Stewart, 549 U.S. 147, 156 (2007)). To benefit
from a new limitations period, therefore, a habeas petitioner must point to a
resentencing that results in a worse sentence than the one previously imposed.
Id. at 229–30; see Crangle v. Kelly, 838 F.3d 673, 678 (6th Cir. 2016). If “‘no
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resentencing hearing was held, no new sentencing entry was filed, and no new
judgment issued,’” the statute of limitations does not restart. Freeman, 959
F.3d at 230 (quoting Eberle v. Warden, Mansfield Correctional Institution, 532
F. App’x 605, 610 (6th Cir. 2013)).
Here, the court of appeals’ decision simply clarified that the trial court
lacked jurisdiction to grant Davis’s motion to withdraw his guilty plea. The
court of appeals’ decision did not alter “the judgment that authorizes [Davis’s]
current custody.” In re Stansell, 828 F.3d 412, 418 (6th Cir. 2016). Rather, it
left Davis in the same position as before the trial court issued the order that it
lacked the authority to issue. Davis is thus not entitled to a new timeclock based
on the fact that the court of appeals determined that the trial court lacked, in
the first instance, jurisdiction to grant his motion to withdraw his guilty plea.
See Freeman, 959 F.3d at 230; cf. Stansell, 828 F.3d at 419 (“hold[ing] … that
a partial resentencing that results in the imposition of post-release control is
the type of change that creates a new judgment … because this type of change
alters the sentence ‘pursuant to’ which the petitioner is ‘in custody’”) (emphasis
added).
Moreover, although “[d]irect review delays the start of the [habeas]
statute of limitations[,] [c]ollateral review merely tolls its running.” Lambert
v. Warden, Ross Corr., 81 F. App’x 1, 3 (6th Cir. 2003); see Lopez v. Wilson, 426
F.3d 339, 346 (6th Cir. 2005). And even a properly filed motion to withdraw a
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guilty plea is collateral.7 See Goodballet v. Mack, 266 F. Supp. 2d 702, 707
(N.D. Ohio 2003) (concluding that “the filing of a motion to withdraw a guilty
plea only tolls the limitations period and does not reset it” and that the filing
“also does not affect the final conviction date for purposes of federal habeas
petitions”); see also Ru Liu v. Kelly, No. 5:11-cv-2027, 2012 WL 3112401, at *6
(N.D. Ohio July 11, 2012) (citing cases), report and recommendation adopted,
2012 WL 3112397 (N.D. Ohio July 31, 2012). Given that the statute of
limitation for Davis’s federal habeas petition expired well before Davis filed his
motion to withdraw his plea, the motion’s filing did not affect the statute of
limitations’ expiration, even if the motion were properly filed. See Eberle, 532
F. App’x at 609 (“reject[ing] the view that a plea-withdrawal motion restarts
AEDPA’s one-year clock”).
For the sake of completeness, Davis also argues that the pendency of his
delayed motion to reconsider or reopen tolled the running of the statute of
limitations. Doc. 18, at 3. But the statute of limitations had expired years
before he filed that motion. And because collateral filings don’t restart an
expired limitations period, Vroman v. Brigano, 346 F.3d 598, 602 (6th 2003),
Davis’s motion did not toll the limitations period.
7 	Given that Davis filed his motion in a court that lacked jurisdiction to
consider it, the motion was not “properly filed.” See Artuz v. Bennett, 531 U.S.
4, 8 (2000) (stating that a state court post-conviction remedy is “properly filed”
for the purposes of § 2244(d)(2) “when its delivery and acceptance are in
compliance with the applicable laws and rules governing filings.”). So it could
not, in any event, have tolled the statute of limitations.
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With good reason, Davis does not argue that subparagraph (D) could
apply. Importantly, although subparagraph (A) is tied to when a judgment is
final, the subparagraph (D) gateway has to do with when the petitioner could
have, “through the exercise of due diligence,” discovered the “factual predicate”
for his “claim or claims.” See Eberle, 532 F. App’x at 610. Had he attempted to
rely on subparagraph (D), Davis would have had “‘the burden of proving that
he exercised due diligence’ in order for the statute of limitations to run from
the date he discovered the factual predicate of his claim.” Id. at 611 (quoting
DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir. 2006)). But the predicate for
Davis’s claims is the March 23, 2022 court of appeals’ decision holding that the
trial court lacked jurisdiction to consider Davis’s motion to withdraw his guilty
pleas. See Doc. 1, at 5–8. Davis, however, didn’t file his habeas petition until
December 2024, more than two years after the court of appeals’ decision.
To be clear, subparagraph (D) is self-evidently not subparagraph (A).
The simple fact, therefore, that a judicial decision is the basis for invoking
subparagraph (D)—as opposed to, for instance, the discovery of a Brady
violation—does not mean that a petitioner can import subparagraph (A)’s
finality analysis into the subparagraph (D) analysis.8 To rely on a judicial
8 	Even if there were a reason to think that, for subparagraph (D)
purposes, the factual predicate for Davis’s claims didn’t arise until the Ohio
Supreme Court declined to review the court of appeals’ decision, the result
would not change. The Ohio Supreme Court declined to exercise jurisdiction on
July 12, 2023, Doc. 15-1, at 671, well over a year before Davis filed his habeas
petition.
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decision, therefore, to demonstrate timeliness under subparagraph (D), a
petitioner must do what subparagraph (D) requires and file his habeas petition
within one year of that decision.
Another problem with trying to apply subparagraph (D) is that all of the
issues that Davis now raises arose in post-conviction proceedings having to do
with Davis’s extra-jurisdictional motion to withdraw his guilty plea. There
would be multiple additional difficulties with applying subparagraph (D) to
Davis’s situation, starting with the fact that Davis had no constitutional right
to withdraw his guilty plea. Hynes v. Birkett, 526 F. App’x 515, 521 (6th Cir.
2013). Moreover, the fact that the trial court lacked jurisdiction to grant
Davis’s motion is matter of state law, which is not cognizable in habeas. Estelle
v. McGuire, 502 U.S. 62, 67 (1991). Further, alleged errors in collateral
proceedings are not cognizable in habeas. Kirby v. Dutton, 794 F.2d 245, 247
(6th Cir. 1986). Finally, although Davis claims that his counsel was ineffective
in his post-conviction proceedings, there is no right to counsel in a post-
conviction action.9 Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
Given the above, Davis’s petition is untimely.
9 	All of the above helps show that even putting timeliness issues aside,
Davis’s claims are not cognizable in habeas.
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Conclusion
The Court should dismiss Davis’s petition.
Dated: February 2, 2026
/s/James E. Grimes Jr.
James E. Grimes Jr.
U.S. Magistrate Judge
OBJECTIONS
Any objections to this Report and Recommendation must be filed with
the Clerk of Court within 14 days after the party objecting has been served
with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure
to file objections within the specified time may forfeit the right to appeal the
District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th
Cir. 2019).
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