Clark v. Warden Chillicothe Correctional Institution

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
WILLIAM H. CLARK,
Petitioner, 	: 	Case No. 3:25-cv-00002
- vs - 	District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
WARDEN, Chillicothe Correctional
Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This is a habeas corpus case, brought pro se by Petitioner William Clark to obtain relief
from his conviction in the Darke County Court of Common Pleas on five counts of sexual battery
(Petition, ECF No. 1). It is ripe for decision on the Petition, the State Court Record (ECF No. 11,
11-1), Respondent’s Return of Writ (ECF No. 12), and Petitioner’s Traverse (ECF No. 13).
The Magistrate Judge reference in the case has recently been transferred to the undersigned
to help balance the Magistrate Judge workload in the District (ECF No. 14).
Litigation History
In November, 2014, a Darke County grand jury indicted Petitioner on eleven counts of rape
of his minor stepdaughter (Indictment, ECF No. 11, Ex. 1). At arraignment, the trial court entered
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a plea of not guilty for Petitioner because he had not yet had an opportunity to consult with an
attorney. After appointment of counsel and plea negotiations, Petitioner entered a plea of guilty
to five counts of sexual battery, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).
Petitioner was sentenced to twenty-five years imprisonment and took no appeal.
In August, 2015, Petitioner filed a motion for new trial (Motion, State Court Record, ECF
No. 11, Ex. 6). The Common Pleas Court denied the motion and Petitioner appealed to the Ohio
Second District Court of Appeals. That court remanded for reconsideration of the new trial motion
as if made under Ohio Revised Code § 2953.21. State v. Clark, 80 N.E.3d 1251 (Ohio App. 2d
Dist. Jan 13, 2017)
On remand the trial court denied the petition for post-conviction relief (Judgment Entry,
State Court Record ECF No. 11, Ex. 17). Petitioner again appealed and the Second District again
affirmed. State v. Clark, 2018 WL 4850081 (Ohio App. 2d Dist. Oct. 5, 2018). Petitioner did not
appeal to the Ohio Supreme Court, but filed a motion to withdraw his guilty plea in the Common
Pleas Court June 15, 2020 (Motion, State Court Record, ECF No. 11, Ex. 25). That court denied
relief and Petitioner again appealed. 	The Second District again affirmed and Petitioner did not
appeal to the Ohio Supreme Court.
Instead, on January 5, 2024, Petitioner moved to set aside the judgment (Motion, State
Court Record, ECF No. 11, Ex. 36). 	Judge Hein again denied relief. 	Id. at Ex. 39. 	Petitioner
again appealed to the Second District and that court again affirmed. State v. Clark, 2024-Ohio-
2646 (Ohio 2d Dist. Jul. 12, 2024). This time Petitioner did appeal to the Ohio Supreme Court,
but that court declined to exercise jurisdiction. State v. Clark, 175 Ohio St. 3d 1486 (2024).
The Petition was docketed January 2, 2025, but Petitioner’s Declaration asserts it was
deposited in the prison mailing system on December 11, 2024 (ECF No. 1, PageID 15). Petitioner
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pleads one ground for relief: 	equal protection and due process. 	As supporting facts, Petitioner
states:
In lieu of the Ohio Rules of Criminal Procedure which are intended
for the just determination of ever criminal proceeding, the lower
courts ignored the newly discovered evidence which supported the
factual innocence in this case. Moreover, the sentences imposed do
not fall within the statutory range as prescribed by the legislature.
(ECF No. 1, PageID 5).
Analysis
Respondent asserts Petitioner’s claims are barred by the one-year statute of limitations
enacted in 28 U.S.C. § 2244 and by Petitioner’s procedural defaults in presenting his claims to the
Ohio state courts (Return of Writ, ECF No. 12).
Statute of Limitations
The relevant statute of limitations, 28 U.S.C. § 2244(d), provides:
(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run 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
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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.
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.
Petitioner replies that Respondent has “droned on” about the 1,763 days since judgment
when Petitioner has had nothing pending (Traverse, ECF No. 13, PageID 609). 	Petitioner avers
that this should show that the factual predicate had not yet been discovered, thereby presumably
claiming the benefit of subsection (d)(1)(D).
As to his claim his guilty plea was coerced, the Magistrate Judge disagrees. If Petitioner
perceived he had been coerced by counsel into the plea agreement, he certainly knew that at the
time he pleaded guilty and it could have been included in his direct appeal. It was not. As to that
claim the statute must run from the date the conviction became final, thirty days after judgment
was entered, March 15, 2015.
If Petitioner is claiming the statute runs from when he discovered the victim’s supposed
recantation, the Magistrate Judge also disagrees. 	The victim’s recantations are not the factual
predicate of any claim made in the Petition.
Congress did not define “factual predicate” as that term is used in §
2244(d)(1)(D). 	But 	courts 	generally 	agree 	that 	“a 	factual
predicate” consists 	only 	of 	the 	‘vital 	facts’ 	underlying 	the
claim.” Rivas 	v. 	Fischer, 	687 	F.3d 	514, 	535 	(2d 	Cir.
2012) (quoting McAleese v. Brennan, 483 F.3d 206, 214 (3d Cir.
2007)); see also Smith v. Meko, 709 F. App'x 341, 344 (6th Cir.
2017); Cole v. Warden, Ga. State Prison, 768 F.3d 1150, 1155 (11th
Cir. 2014); Mathena v. United States, 577 F.3d 943, 946 (8th Cir.
2009); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000); Flanagan
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v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998). A fact is “vital” if it
is 	required 	for 	the 	habeas 	petition 	to 	overcome 	sua 	sponte
dismissal. Rivas, 687 F.3d at 535.
Ayers v. Ohio DRC, 113 F.4 th 665, 670 (6th Cir. 2024).
If Petitioner’s claim is that he is actually innocent; he knew the factual predicate for that
claim even before he was charged. Moreover, he does not make a claim of actual innocence in the
Petition. Even if he had, the Supreme Court has never recognized actual innocence as a basis for
habeas relief. Herrera v. Collins, 506 U.S. 390 (1993).
The Petition is barred by the statute of limitations and must be dismissed with prejudice on
that basis.
Procedural Default
Before coming to federal court on a petition for writ of habeas corpus, a petitioner must
have submitted his claims for a full round of state court proceedings. O'Sullivan v. Boerckel, 526
U.S. 838 (1999) . If he has not done so, his claims are procedurally defaulted unless he can show
excusing cause and prejudice. Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977).
Respondent asserts Petitioner has procedurally defaulted most if not all of his claims by
not taking them to the Ohio Supreme Court. 	Petitioner replies that he did appeal to the Ohio
Supreme Court (Traverse, ECF No. 13, PageID 609). The State Court Record shows Petitioner
only appealed once to the Ohio Supreme Court, to wit, an appeal from the Second District’s
affirmance of Judge Hein’s denial of his motion to set aside the judgment (State Court Record,
ECF No. 11, Ex. 46). 	In his Memorandum in Support of Jurisdiction, he only stated one
proposition of law, to wit, that the lower courts had deprived him of equal protection and due
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process (Memorandum, State Court Record, ECF No. 11, Ex. 47, PageID 510). While he recited
minimal facts from throughout the course of this litigation, the Ohio Supreme Court does not
exercise jurisdiction on appeal over issues that could have been but were not litigated before. To
put it another way, the only issues which Petitioner could have raised at that point were any errors
in the trial court’s denial of his motion to set aside judgment. 	Petitioner has not shown any
excusing cause for his failure to appeal to the Ohio Supreme Court when he had the opportunity
to do so before each time the Second District did not grant relief.
Respondent’s procedural default defense is well taken. The Petition should be dismissed
with prejudice on that basis as well.
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.
December 12, 2025.
s/ Michael R. Merz
United States Magistrate Judge
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
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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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