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Full Opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JESSE MAURICE STINSON,
Petitioner, : Case No. 3:25-cv-129
- vs - District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
WARDEN, Madison Correctional
Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Jesse Stinson pursuant to 28 U.S.C.
§ 2254, is before the Court on Respondentâs Motion to Dismiss (ECF No. 13). Respondent asserts
Stinsonâs Petition is barred by the statute of limitations and his claims are procedurally defaulted.
Petitioner opposes dismissal, asserting he is entitled to statutory tolling on several grounds and
equitable tolling as to the others (Motion in Opposition, ECF No. 18). Respondent has not filed
a reply memorandum in support and the time for doing so under S. D. Ohio Civ. R. 7.2 has expired.
Thus the Motion is ripe for decision.
Because a motion to dismiss is a dispositive motion under 28 U.S.C. § 636(b), the
Magistrate Judge offers the following report and recommendations.
Litigation History
On February 21, 2013, a Montgomery County Grand Jury returned an indictment charging
Stinson with four counts of murder/proximate result with a firearm specification (counts one, two,
three and four); two counts of aggravated robbery with a firearm specification (counts five and
six); one count of aggravated burglary with a firearm specification (count seven); and one count
of having weapons while under disability (count eight)(Indictment, State Court Record, ECF No.
12, Ex. 1).
The case was tried to a jury in September 2014 with Common Pleas Judge Barbara P.
Gorman presiding. Stinson was found guilty on all counts and sentenced to thirty-two years to life
imprisonment. He appealed to the Ohio Court of Appeals for the Second District, raising as
assignments of error that the verdicts were not supported by sufficient evidence and were against
the manifest weight of the evidence, that his motion for a new trial should have been granted, and
that the murder and aggravated robbery counts should have been merged under Ohio Revised Code
§ 2941.25. That court affirmed, making the following findings of fact:
{¶ 6} According to the State's evidence at trial, on October 10, 2012,
Tyree North was shot in his home, located at 8180 Mount Charles
Drive in Huber Heights, Ohio. The shooter, Stinson, was in North's
home to discuss Stinson's claim that North had âfleecedâ him, i.e.,
sold him bad drugs. After North was killed, Stinson and another man
took several items from North's home and transported them to
another residence on Garfield Street. North's friend, James
Demmons (aka âBowâ), had introduced Stinson to North and
witnessed both the shooting and the robbery.
{¶ 7} In October 2012, North resided at the Mount Charles residence
with his girlfriend, Chiaki Takahashi. The residence was a small
ranch home with a kitchen to the left of the front door, a living room
to the right of the front door, and two bedrooms along the rear wall
of the house. The couple used one bedroom as a master bedroom,
and North used the second bedroom (behind the living room) as a
music studio, where he recorded, mixed, and remastered music.
North both rented out the music studio to others and produced music
there himself.
{¶ 8} North considered Demmons, who was 20 years old in October
2012, to be like a little brother. Demmons would come over to
North's home every other day to record music with North. Demmons
lived with his girlfriend, but he often stayed at the home of Cynthia
Poole, who lived at 8143 Mount Charles Drive, approximately five
houses south of North's home; Demmons grew up with Poole's
children and had known Poole his âwhole life.â
{¶ 9} Stinson was Poole's then-boyfriend, and Demmons had met
Stinson at Poole's home a couple of months before North's murder.
In September 2012, Stinson had asked Demmons if he knew anyone
from whom Stinson could buy powder cocaine (âgirlâ). Demmons
was aware that North used marijuana and sold both marijuana and
cocaine. Demmons had called North and asked if he would sell
drugs to Stinson. North had agreed and Demmons had taken Stinson
to North's home, where North and Demmons completed the
transaction. North sold drugs to Stinson two or three other times;
Demmons was always with Stinson when Stinson was at North's
residence.
{¶ 10} On the morning of Wednesday, October 10, 2012, Takahashi
drove North to a drive thru, where North purchased two cans of beer.
Takahashi indicated that North typically bought only one can for
himself, and she asked him if were expecting someone. North
responded to her that he was âjust stress[ed] out.â Takahashi
dropped North off at their home and then proceeded to work.
{¶ 11} Demmons testified that, at approximately 10:00 a.m. or 11:00
a.m. on October 10, Stinson called him and told him that North had
sold Stinson fake cocaine (âfleeceâ); Stinson had made a similar
allegation to Demmons a couple of days before. Stinson told
Demmons that he wanted his money back. Demmons called North
to tell North that he and Stinson were coming to North's house.
Demmons testified that Stinson brought a satchel with clothing and
other items with him.
{¶ 12} Once there, Stinson confronted North about North's
âsupposedly fleecing him.â North denied the allegation, and the men
argued. Demmons apologized to North for âbringing trouble to his
[North's] house,â grabbed Stinson, and led Stinson to the front door.
North headed down the hallway to his studio. As Demmons and
Stinson got to the front door, Stinson turned around and shot North
in the back of the head with a silver and black semiautomatic
weapon. The shot was fatal.
{¶ 13} Demmons testified that Stinson pulled on âdoctor gloves.â
Stinson's friend, who Demmons identified as âWallsâ, drove up to
North's house in a blue Ford Explorer, came inside, and also put on
gloves. The two men then began to put North's music equipment and
other items in bags. Demmons testified that âWallsâ also disabled a
smoke detector, because it had started to go off.
{¶ 14} Demmons testified that Stinson wore an earring in one ear
and that Stinson took an earring from North's ear. Takahashi and
Demmons both testified that North wore the same earrings in both
ears every day; they described the earrings as âbox shape, black
diamondsâ and âblack flame with black diamond like a square.â The
coroner testified that North had only one earring when his body
arrived at the coroner's office.
{¶ 15} Stinson, Demmons, and âWallsâ remained at North's house
approximately 10â15 minutes. Stinson told Demmons to carry some
of North's possessions, in a duffle bag, out to Walls's truck;
Demmons complied. They then drove to the home of Gerry Stinson,
Jesse Stinson's cousin, at 130 Garfield Street. While they were
driving, Jesse Stinson mentioned that he had forgotten his bag of
clothes at North's house; Demmons had last seen the bag in the
studio. After arriving at the Garfield residence, Demmons saw
North's studio equipment and other items being taken into the
residence.
{¶ 16} Gerry Stinson testified that, on October 10, he woke up to
find Jesse Stinson and âJimmyâ talking with Gerry's roommate,
Dujuan Patton, in Patton's bedroom. At some point, Jesse Stinson
and âJimmyâ went out to the front porch. Gerry Stinson overheard
Jesse Stinson and âJimmyâ discussing a robbery. From the living
room, Gerry heard Jesse say something about somebody âfreezing
upâ and Jesse asked Jimmy about why Jimmy âdidn't ring the
doorbell.â Gerry did not hear a response to the question. Gerry next
heard Jimmy ask Jesse, âWhy'd you shoot him?â Gerry Stinson
testified on redirect examination that Jesse Stinson did not say
anything in response to the question. The next day, Gerry Stinson
noticed that there was recording equipment in the house that he had
not seen before.
{¶ 17} Takahashi returned home from work around 5:00 p.m. on
October 10. She went in the front door using her key, but it appeared
to her that the door was already unlocked. When she walked in, she
found North lying on the floor, face down near the end of the
hallway and unresponsive. One of his earrings was missing. While
checking on North, she could see into the studio and immediately
saw that items were missing and the room was in disarray. She also
noticed that the smoke detector was also removed. Takahashi called
the police.
{¶ 18} At trial, Takahashi testified that a laptop, keyboard, a music
device, a television, a microphone, and an Xbox were missing from
the studio. Takahashi's iPod and iPod dock were missing from her
bedroom. A DVD player was taken from the living room. Takahashi
had told a detective that two pairs of boots were also stolen. A
broken Xbox and the television in the living room were not taken.
{¶ 19} Officer Michael Reckner, an evidence technician, responded
to Takahashi's call. Other officers and paramedics responded soon
afterward. Officer Reckner checked on North, informed the
paramedics what was going on, took Takahashi outside, and began
to photograph the scene. When the paramedics were done, the
officers went outside while a search warrant was obtained.
{¶ 20} Officer Phillip Green was called to North's Mount Charles
residence as part of a critical incident response team. (The
paramedics had already left when Green arrived.) Neither Reckner
nor Green saw indications that the house had been broken into.
Detective James Gebhart, the lead detective, testified that several
items were collected for fingerprinting and that some cameras and a
voice recorder were also collected. One of the cameras, a Bell &
Howell Take 1 digital video recorder, was found under a âpile of
clothingâ in the studio; a plastic bag with a toothbrush and other
items was next to the pile.
{¶ 21} On October 12, 2012, Takahashi located items in the studio
that did not belong with North. The items consisted of a t-shirt,
jeans, underwear, sunglasses, a toothbrush, deodorant, and shaver;
some items were located in a plastic bag and others were lying
nearby. Takahashi also found a glass with white powder inside. She
took all of the items to the Huber Heights police station and gave
them to Detective Gebhart.
{¶ 22} On October 17, 2012, Officer Bradley Reaman went to 8180
Mount Charles to photograph empty merchandise boxes for some of
the items that were stolen, including boxes for a MXL V53M
condenser microphone, Sylvania wireless headphones, Oxygen 25
24âkey USB MIDI controller, and a MSi laptop. He also
photographed the smoke alarm that had been removed from the
ceiling.
{¶ 23} The Huber Heights police conducted interviews with
Demmons on three separate days: October 12, November 9, and
November 21. Demmons originally told the police that he had last
seen North on the Sunday or Monday before the homicide (which
occurred on a Wednesday); he had denied being at North's house on
October 10 and knowing who had shot North. Demmons had told
the police that Stinson had a .380 caliber gun. On November 9, after
the police mentioned to Demmons the possibility of a reward for
information, Demmons suggested to the police that Stinson was
involved in the homicide.
{¶ 24} Detective Gebhart testified that the police began to focus on
Stinson on November 9, 2012, after a conversation with Demmons.
On November 16, a search warrant was executed at Poole's home,
1843 Mount Charles. A box of .380 caliber ammunition was found
in a filing cabinet. Detectives also found medical records related to
Stinson's child and vinyl surgical gloves; Poole was a nurse and used
gloves for her employment.
{¶ 25} On November 19, 2012, Detective Greg Stose, using the alias
Lindsey Stark, sent a Facebook friend request to Jesse Maurice
Stinson; the request was accepted. Stinson's Facebook page
advertised certain items for sale, including two flat screen
televisions and a laptop computer. Stose, as Stark, communicated
several times with Stinson through Facebook messaging about
Stark's desire to purchase the laptop. At approximately 10:00 a.m.
on November 20, 2012, they arranged to meet at the McDonalds on
South Main Street in Dayton. Stose coordinated with Dayton police
officers and the United States Marshals' Southern Ohio Fugitive
Apprehension Strike Team (SOFAST) to cover that location.
{¶ 26} Shortly after noon on November 20, Stinson arrived at the
McDonalds in a white vehicle, driven by a woman; Gerry Stinson
was also in the vehicle. Gerry Stinson testified that Jesse Stinson
had a gun with him. At the McDonalds, Stinson and Stose (who was
observing Stinson from another vehicle) continued to communicate
via Facebook. At one point, Stinson sent a message asking for
Stark's phone number. Detective Stose had a female detective pose
as Stark, and Stinson arranged with âStarkâ to meet at the 111
Building, located at 111 West First Street in downtown Dayton.
Dayton police and SOFAST officers relocated to that area.
{¶ 27} Stinson and his companions drove to the 111 Building, and
Stinson got out of the white vehicle. Detective Joey Myers, a
uniformed Dayton police officer assigned to SOFAST, saw the
white vehicle in the road behind the 111 Building and Stinson
walking towards it. Myers jumped out of his vehicle and ordered
Stinson to stop. Stinson ran, and Myers pursued him on foot. As
Stinson went over a chain link fence near the building, Myers saw
Stinson âviolently slamâ a laptop into the ground and then continue
to run. Myers lost sight of Stinson for seven to ten seconds, and then
relocated him. Stinson was apprehended on Ludlow Street after
other officers in vehicles cut him off. Detective Myers asked another
officer to retrieve the laptop Stinson had thrown down. The laptop's
serial number matched the laptop stolen from North's residence.
{¶ 28} At approximately 2:00 p.m. on November 20, a salon
customer went to the Talbot Tower, located at 131 Ludlow Street in
downtown Dayton, for an appointment. The customer saw a gun in
a large planter outside the building and informed salon employees,
who contacted the police. Dayton Police Officer Steven Bryant, an
evidence technician, collected the firearm, a Jimenez Arms .380
semiautomatic pistol; the magazine had four .380 caliber bullets
inside. Bryant swabbed the pistol for DNA.
{¶ 29} Later on November 20, police officers executed a search
warrant at 130 South Garfield. The officers recovered a microphone,
stand, headphones, keyboard, mixer, game controller, Xbox 360 and
power supply, a security door brace, two pairs of Coogi-brand boots,
and two additional microphones and cables. Several of the items
correlated to the merchandise boxes at North's residence.
{¶ 30} On November 21, the police interviewed Demmons again,
after he was arrested for possible involvement in the homicide. Jesse
Stinson and Gerry Stinson were under arrest at that time. Demmons
implicated Stinson in the homicide and explained what he had
witnessed on October 10, 2012.
{¶ 31} Still photographs from the Bell & Howell camera (found in
the studio) were processed. Several of the photographs had been
posted to Stinson's Facebook page, including several âselfiesâ of
Stinson.
{¶ 32} Amy Dallaire, a forensic scientist at MVRCL, tested the
DNA from the firearm that Officer Bryant collected. Her tests
revealed a partial mixture of DNA, meaning it contained DNA from
multiple people, and four (out of 15) areas of the DNA profile were
found in the sample. Stinson could not be excluded as a possible
contributor to the DNA. Dallaire testified that 1 in 132 people could
also be possible contributors. Neither Demmons's nor Gerry
Stinson's DNA was compared to the sample.
{¶ 33} Chris Monturo, firearm and tool mark examiner for MVRCL,
tested the gun. The gun was found to be operable. Monturo
compared a bullet fired from the Jimenez Arms .380 semiautomatic
pistol to the bullet removed from North's head during the autopsy.
Monturo opined that the bullet that killed North was fired from the
Jimenez Arms .380 pistol.
{¶ 34} Ervin Burnham, a computer forensic examiner, examined the
laptop at Detective Gebhart's request. Gebhart had asked Burnham
to determine ownership of the computer and also look for
information on North, Stinson, Takahashi, and Lindsey Stark;
Burnham did not look for any other names. He got 7,415 âhitsâ on
North, 992 hits on Takahashi, 665 hits on Stinson, and 66 hits on
Stark. It appeared that Stinson had used the computer, and many of
the active files involved Stinson. The hits for North, Takahashi and
Stark were in the computer's unallocated space. He testified that the
operating system had been reinstalled on November 20, 2012, and
that it would appear to the average user that the information
regarding Takahashi and North had been deleted. Burnham was able
to recover the information. Burham concluded that the laptop
belonged to North and/or Takahashi.
{¶ 35} For purposes of the weapons under disability charge, the
State submitted two judgment entries for Jesse Stinson in Case
No.2007âCRâ3323, which showed a conviction for possession of
cocaine, a fourth-degree felony. The first judgment entry imposed a
sentence of community control for the offense, and the second
imposed an eight-month sentence for Stinson's violation of
community control. Defense counsel stipulated that Stinson was the
defendant in that case.
{¶ 36} The defense called six witnesses on Stinson's behalf. Huber
Heights Police Officer Robert Hartman, an evidence technician,
testified that he responded to 8180 Mount Charles on October 10,
2012 as part of the critical response team. Hartman dusted for
fingerprints on all of the doors and anything that appeared to have
been touched inside the studio. Hartman could not dust the beer can,
because it was cold and had condensation on it, but he was able to
lift latent prints from the drinking glass in the studio.
{¶ 37} Jennifer Yoak, a forensic scientist in the fingerprint section
of MVRCL, testified that she received fingerprint and palm prints
of North, a latent print card, a partially empty water bottle, and a
U.S. Polo shoebox. She obtained sets of fingerprints of Stinson and
of Demmons from the fingerprint database. Several latent prints that
had been taken from the drinking glass were identified as belonging
to Demmons.
{¶ 38} Cynthia Poole testified that she was Stinson's girlfriend in
October 2012 and that Stinson stayed with her at her residence. She
recognized the Bell & Howell video camera found at North's house
as belonging to Stinson, but she testified that Stinson had loaned the
video camera to Demmons in September 2012. A couple of weeks
later, Demmons had told Stinson that he had lost it. Poole also
testified that she recognized State's Exhibit 91 as gloves she used for
work. She testified that they were size small, too small for Stinson's
hands. Poole indicated that the ammunition found in her room
belonged to her, but she did not own or possess a firearm when her
home was searched. Poole acknowledged that State's Exhibit 105, a
pair of jeans, belonged to Stinson, but she suggested that Demmons
might have borrowed them. Poole did not know Stinson to use
drugs, but indicated he drank âquite a bit.â
{¶ 39} Aaron Ballard, who is known as âWalls,â testified that he
became friends with Jesse Stinson through Gerry Stinson. Ballard
denied being friends with Demmons, but knew who Demmons was.
Ballard also denied being involved with the events of October 10,
2012. He specifically denied going to 8180 Mount Charles Street,
picking up Demmons in a vehicle, and transporting Demmons to
Garfield Street. Ballard stated that he did not know where Mount
Charles Street was, that his license was suspended then, that he had
a cast on his arm around that time, and his girlfriend drove him
around.
{¶ 40} Dujuan Patton testified that he was friends with Stinson and
slightly knew Demmons. In the fall of 2012, Patton lived at 130
Garfield and Jesse Stinson sometimes stayed there. Patton saw
Demmons at the Garfield residence âprobably every day, every
other night.â Patton indicated that Demmons would wear other
people's clothes. Patton testified that, in October 2012, Demmons
called him and, based on that call, Patton drove Demmons to
Demmons's girlfriend's home in Vandalia, where Demmons picked
up some duffle bags, and then Patton drove Demmons back to the
Garfield residence. When Patton returned home later that night, a
studio was set up at the house. Patton described the studio equipment
as microphones, a microphone stand, laptops, and a keyboard.
Patton acknowledged that he did not provide this information to the
police.
{¶ 41} Clarence Sampson, an investigator for the Public Defender's
Office, stated that he had interviewed Gerry Stinson about two
weeks before trial and asked Gerry about the statement he (Gerry)
had provided to the police; Gerry Stinson told Sampson that he
(Gerry) had lied in his police statement. Gerry told Sampson that he
(Gerry) had not heard Demmons ask Jesse Stinson, âWhy did you
shoot him?â
{¶ 42} Detective Gebhart testified again for the State as a rebuttal
witness. He stated that he had met with Poole in preparation for trial,
and Poole had told him that Stinson had lost the video camera only
after Gebhart told Poole that the camera was found at the scene of a
homicide. Poole did not say that the camera had been given to
Demmons. Gebhart further testified that he introduced himself to
Patton when the search warrant was executed at 130 Garfield in
November 2012; Patton did not get in touch with Gebhart after that
date.
State v. Stinson, 2015-Ohio-4405 (Ohio App. 2d Dist. Oct. 23, 2015). Stinson took no direct appeal
to the Ohio Supreme Court from the judgment of conviction; his pre-sentence motion for new trial
was denied October 7, 2014, and the denial was not appealed.
To litigate constitutional claims which depend on evidence outside the direct appeal record,
Ohio provides a post-conviction relief remedy in Ohio Revised Code § 2953.21. On May 18,
2015, Stinson moved pro se for post-conviction relief under that statute, but without including any
actual claims (State Court Record, ECF No. 12, Ex. 13). On June 4, 2015, Stinson moved to amend
to state as claims
(1)âStatement of witness as to the ownership of said murder
weapon,â
(2) Misconduct of detectives[â] techniques of information gaining,
(3) Misconduct of Detective Gebhardt at trial by helping witness
with questioning,
(4) Petitionerâs request for change of venue which biased him by
refusal.
(State Court Record, ECF No. 12, Ex. 17).
The trial court denied the Petition November 16, 2017, including a claim that defense
counsel had provided ineffective assistance (Decision, State Court Record, ECF No. 12, Ex. 22).
Stinson did not appeal.
On February 27, 2018, Stinson filed two motions for new trial (State Court Record, ECF
No. 12, Exs. 26 & 27). He again claimed prosecutorial misconduct, ineffective assistance of trial
counsel, and new evidence. In his own supporting affidavit, he relates hearsay from Reginald
Langford, but provides no affidavit from Langford himself. The second of these motions has an
attached Affidavit from Langford which says he told Stinsonâs lawyer that âJimmyâ brought the
gun to the house. Id., Ex. 27, at PageID 478.
Judge Gorman denied the Motions, noting that ownership of the gun was irrelevant and the
ineffective assistance of trial counsel claim was barred by res judicata under State v. Perry, 10
Ohio St. 2d 175 (1967). The Second District Court of Appeals affirmed in State v. Stinson, 2019-
Ohio-3400 (Ohio App. 2d Dist. Aug. 23, 2019), and the Ohio Supreme Court dismissed Stinsonâs
untimely appeal (Entry, State Court Record, ECF No. 12, Ex. 43).
Stinsonâs subsequent direct attacks by motion for new trial or collateral attacks on his
conviction have all been unsuccessful. Stinson asserts he placed his Petition in this case in the
prison mail system on April 18, 2025, which counts as the date of filing under Houston v. Lack,
487 U.S. 266 (1988).
Petitioner pleads the following grounds for relief:
Ground One: The State Of Ohio Violated Petitionerâs Sixth
Amendment To The United States Constitution, Right To A Public
Trial, As Applied Through The 14th Amendment, By Excluding A
Portion Of The Public From The Petitioners Trial.
Ground Two: The State Denied Petitioners Sixth Amendment To
The United States Constitutional Right To A Fair And Impartial Jury
When A Juror Failed To Answer A Question On Voir Dire, That
Had A Correct Response Been Provided, Would Have Provided A
Valid Basis For A Challenge For Cause.
Ground Three: The State Deprived Petitioner Of His Right To Due
Process Of Law As Required By The Fifth And Fourteenth
Amendments To The United States Constitution, And His Right To
Be Present At Every Stage Of The Proceedings, When The Trial
Court Engaged In Substantive Communication, In Writing, With
The Jury, In Spite Of Counsels Objections.
Ground Four: The State Violated Petitioners Fourteenth
Amendment Right To Due Process When It Failed To Disclose That
It Had Made An Implied Agreement With An Accomplice Witness.
Ground Five: The State of Ohio Deprived The Petitioner of His
Sixth Amendment to The United States Constitution Right to A Fair
Trial and Effective Assistance of Counsel when his Attorney Failed
To Object To The Seating Of A Bias Juror.
Ground Six: The State Deprived Petitioner Of His Sixth
Amendment To The Constitution Of The United States Right To
Effective Assistance Of Counsel When Counsel Failed To Prepare
for Trial by Reviewing Discovery, Investigate And Interview A Key
Witness.
(Petition, ECF 1, PageID 9-29).
Statute of Limitations Analysis
The Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat.
1214)(the "AEDPA") enacted the applicable statute of limitations which is codified at 28 U.S.C.
§ 2244(d) and 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 â
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through
the exercise of due diligence.
(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.
Respondent calculates that Stinsonâs conviction became final on December 7, 2015, the
last day on which he could have timely appealed on direct review to the Supreme Court of Ohio,
but did not do so (Motion, ECF No. 13, PageID 1040). Respondent concedes the statutory time
was tolled under § 2244(d)(2) during the pendency of Stinsonâs timely-filed petition for post-
conviction relief from May 18, 2015, until dismissal by the Court of Appeals on November 17,
2017. It also concedes time was again statutorily tolled during the pendency of Stinsonâs motion
for new trial from February 27, 2018, until August 23, 2019. Respondent further concedes
statutory tolling during the pendency of Stinsonâs application to the Second District for
reconsideration from September 16, 2019, until December 6, 2019. Assuming for the sake of
argument that all these actions provided statutory tolling, Respondent asserts the AEDPA
limitations period resumed running on December 7, 2019, until it expired 239 days later on August
2, 2020. Because August 2, 2020, was a Sunday, Stinson had until Monday, August 3, 2020, to
timely file his instant petition, per Fed.R.Civ.P. 6. His actual filing date here â April 18, 2025 â
is more than four and one-half years later.
Petitioner responds by claiming the benefit of 28 U.S.C. § 2244(d)(1)(B) under which the
statute of limitations would not begin to run until [1] removal of an impediment to filing [2] created
by unconstitutional or federally unlawful state action was removed [3] if that state action prevented
the filing of the habeas petition. He ârequests this court to find that the date on which the
impediment to filing an application was removed, commenced in either 2019 when he received the
transcripts or at the later date in 2022 when he was able to review them.â (Memo in Opp. ECF No.
18, PageID 1089).
Stinson acknowledges that most federal courts considering the issue have held that failure
of the state to provide a transcript does not constitute an impediment to filing (Memo in Opp., ECF
No. 18, citing, inter alia, Lloyd v. Van Natta, 296 F.3d 630 (7th Cir. 2002), and Howard v. Tibbals
2013 U.S. Dist. LEXIS 183768 (N.D. Ohio 2013)). In Lloyd the Seventh Circuit held failure of
the State to furnish a complete trial transcript would support neither statutory tolling under
§2244(d(1)(B) nor equitable tolling.
Stinson, however,
contend[s] that when the privation of transcripts involves a
breakdown in the enforcement of a state rule, which in turn denied
him a fair opportunity to seek relief in the state courts, then it should
be sufficient to meet the tolling mechanism of Sec. 2244 (d)(l)(B),
[c]ontrary to the Circuit[â]s previous findings.
(Memo. In Opp., ECF No. 18, PageID 1091). He asserts failure of the State to furnish him with a
transcript interfered with his ability to seek a new trial and to seek reopening of his direct appeal.
Stinsonâs February 27, 2018, motion for new trial evinces no need to consult the trial
transcript nor any reference to the transcript. Judge Gorman denied the motion on the basis of res
judicata because the issues could have been raised on direct appeal many years earlier and lack of
any new evidence justifying a new trial (Decision, State Court Record, ECF No. 12, Ex. 32).
Stinson has not shown this Court that he needed to consult the transcript to file this motion for new
trial.
On February 7, 2023, Stinson filed another motion for leave to file a delayed motion for
new trial (Motion, State Court Record, ECF No. 12, Ex. 51). He attempted to excuse his late filing
by reporting that he had received the transcript in February, 2019, but shortly thereafter became
involved in a fight with other inmates which resulted in his transfer to another institution and
subjection to medication. Id. at PageID 657. His claim in the Motion for New Trial is that a juror
was biased against him because she was the third cousin of a Stateâs witness. In denying the
Motion, Judge Solle, who had succeeded Judge Gorman, found that Stinson had not shown by
clear and convincing evidence that he was prevented from discovering the factual basis of this
claim much earlier than when he filed (Decision, State Court Record, ECF No. 12, Ex. 59, PageID
825). That finding of fact is entitled to deference under 28 U.S.C. § 2254(d)(2). In addition,
Stinson has made no showing of how this claim depended on his having the transcript.
In sum, Stinson has not shown that he needed the transcript to file the underlying state
requests for relief. It follows logically that he did not need the transcript to file his petition in this
Court.
Even if consulting the transcript were necessary either here or in the state courts, Stinson
cannot plausibly blame his lack of the transcript on unlawful conduct by the State of Ohio. States
have an equal protection obligation to provide a trial transcript to an indigent appellant if the state
appeals courts require such a transcript. Griffin v. Illinois, 351 U.S. 12 (1956). But Ohio fulfilled
that obligation by providing the trial transcript for direct appeal. Stinson recounts (without
documenting) his effort to obtain the transcript from his appellate counsel. But counsel was not
acting on behalf of the State in withholding the transcript.
Aside from his argument about the transcript, Petitioner claims a later start date for
Grounds One, Four, and Six as to which he claims he only discovered the factual predicates
âsometime around December 15th, 2021.â (Memo in Opp., ECF No. 18, PageID 1098). He claims
he did not learn of the predicates âuntil his family hired a private investigator to interview the
victim's mother after she contacted his family with complaints about her treatment at trial.â Id. at
PageID 1099-1100).
Attached to Stinsonâs Successive Petition to Vacate starting at PageID 762 is the October
2021 Affidavit of Vanessa Postway-Dewberry. She avers that she came to Stinsonâs trial
On September 9th, 2014, when the State's main witness was going
to testify, I drove my truck to the Montgomery County Courthouse,
and I was seated in the back of the courtroom. I had recently
undergone knee replacement surgery on my right knee.
I was there for the first part of the proceedings that day. I was there
when the judge walked in and everybody stood up. While the court
was in recess·, I saw the judge and Miss Sandy Hunt, Director
Victim/Witness Division, Montgomery County Prosecutor's Office,
speaking at the front of the courtroom. Then Miss Sandy approached
me at the back of the courtroom and told me to go home and take
care of my leg. Since she was telling me to go home; I asked her for
a copy of the trial CD. She asked me how many I would need, and I
told her four (4) or five (5). I don't remember the exact number I
asked for. After the trial was over, I had to go to the courthouse to
pick up the copies of the trial CD, but I did not have to pay for them.
(State Court Record, ECF No. 12, Ex. 54, PageID 762). Stinson offered this Affidavit in support
of his claim that he was denied a public trial, but it simply says nothing of the sort. The victim-
witness coordinator would have known Ms. Postway-Dewberry because she was the mother of the
deceased victim. Her compassionate suggestion to this lady that she go home to take care of her
knee in no way proves she was excluded from the trial. It is widely known how painful recovery
from knee replacement surgery can be and that it is best to keep the affected leg elevated. In any
event the witness does not say she understood she was excluded. The Affidavit does not include
a statement that this witness had âspoken to petitioners Co-Defendant and he stated he was
provided immunity and money for his role in petitioner's trial,â although Stinson asserts it does
(Memo in Opp., ECF No. 18, PageID 1100).
Stinson also filed his own Affidavit about his observations during trial that witnesses were
told to remain in the hallway at the courthouse. This is a common measure to facilitate separation
of witnesses under the Ohio Rules of Evidence. Stinson cites no precedent and none is known to
the Court holding that the right to a public trial overrides the necessity of separating witnesses.
And in any event, Stinson observed these persons in the hallway during trial, not years later, so he
knew of this predicate for a public trial claim during trial and it could have been raised on direct
appeal, but was not. As Stinson himself points out, learning the predicate is far different from
having all the evidence needed to support a claim.
In Ground Four Stinson asserts a claim under Brady v. Maryland, 373 U.S. 83 (1963), that
the State had an implied agreement with an âaccomplice witnessâ for immunity from prosecution
and to pay him for his testimony which the State did not reveal. Based on this claim, Stinson asks
the Court to find the âtriggering dateâ for Ground Four to be December 17, 2021 (Memo in Opp.,
ECF No. 18, PageID 1101). But he is unclear what it is that he learned on December 17, 2021,
that was a factual predicate for this claim. He certainly knew that the referenced person testified
at trial, but the Court is not told, at least at this point in the Memorandum (PageID 1103, labeled
as page 21 of 52), what Stinson learned December 17, 2021.1
Turning to his argument that his asserted mental incompetence excuses his late filing,
Stinson relies on Ata v. Scott, 662 F.3d 736 (6th Cir. Nov. 28, 2011). In that case the Sixth Circuit
held that a serious and protracted mental illness could support a case for equitable tolling of the
statute of limitations. The court found he was entitled to an evidentiary hearing on that issue,
based on âspecific allegations of his long history of severe mental illness and the effect on his
mental capacity of this illness and of the medications he took for it.â Id. at 738.
The facts of Ataâs case are substantially different from this case. Ata shot and killed
someone after a verbal confrontation about his spending money ($20) which had been given
to him to buy items for a neighbor. Already at arraignment his competency to stand trial was
raised as an issue and he spent a year in a Michigan psychiatric hospital being restored to
competence. Despite this he was convicted of intentional murder in a bench trial and sentenced
to life imprisonment.
The record developed in Ata's post-conviction proceedings included
medical documents reflecting a history of mental illness, including
numerous hospitalizations prior to incarceration and a diagnosis
of paranoid schizophrenia. Documents, which dated from the 1970s,
show that Ata had once threatened to kill his family, that he was
delusional and paranoid, and that, while at times cooperative and
friendly, he could also quickly become agitated and hostile.
Against this factual background, the Sixth Circuit held
a petitioner's mental incompetence, which prevents the timely filing
of a habeas petition, is an extraordinary circumstance that may
equitably toll AEDPA's one-year statute of limitations. To obtain
equitable tolling of AEDPA's statute of limitations on the basis of
mental incompetence, a petitioner must demonstrate that (1) he is
mentally incompetent and (2) his mental incompetence caused his
failure to comply with AEDPA's statute of limitations.
1 The Memorandum in Opposition is fifty-two pages long and is not easy to follow.
Id. at 742. The court noted that whether to hold an evidentiary hearing continued to be committed
to the sound discretion of the district court and equitable tolling should be granted sparingly. Id. at
741, citing Solomon v. United States, 467 F.3d 928, 933 (6th Cir. 2006), and decided on a âcase-
by-case basis,â Id.., citing Keenan v. Bagley, 400 F.3d 417, 421 (6th Cir. 2005). The district court
must review the state court record in order to establish whether petitioner's assertions are refuted
by the record or otherwise without merit. Id. at 742.
Stinson asserts he
had until roughly August 4th, 2020 to file his habeas petition.
Petitioner, however, offers that he was incapacitated during this
period until roughly between August 21st, 2022 or upon the filing
of his post-conviction Motions and Petitions on April 18th, 2023.
Petitioner would humbly request this court to equitably toll his time
for filing the petition either due to the dangerous use of
neurotechnology on him during his time in ODRC's Custody or due
to a severe breakdown in his mental faculties, as is supported by
ODRC's Mental Health Departments and other collateral evidence
of a pattern of mis-use of the technology on other prisoners.
(Memo in Opp., ECF No. 18, PageID 1111-12).
Shortly after the quoted language, Stinson begins a lengthy discussion of the science of
neurotechnology. This section of the Memorandum in Opposition includes such sections as
Establishing Forced Incompetence Through The Exploits Of ODRC and/or Unauthorized
Organizations (PageID 1112), Understanding Emerging Neurological Science (PageID 1113),
Understanding Neuronal Technologies and Their Weaponization (PageID 1117), Constitutional
Approach to Weaponized Impairment Neurotechnologies (PageID 1120), and Making A Causal
Connection To Petitioner Missing His AEDPA Statutory Deadline (PageID 1125). Stinson asserts
he can interpret all this for the Court, claiming to be âa radiation scientist myself,â (PageID 1115).
In discussing the weaponization of neurological devices, he claims âour country is under
neurological attack at the hands of terrorist[s].â (PageID 1120). Judges do not understand the
problem because they are scientifically illiterate (Memo in Opp., ECF No. 18, PageID 1125-26)2.
Having finished this scientific disquisition, Stinson returns to his own situation.
Around August of 2010 petitioner was physically attacked by
intruders, who had broken into his investment property in Dayton,
Ohio, and Tortured him via repeated blows to his skull and other
extremities, with a hammer, as well as firing a single shot into his
body. He was left with severe brain trauma, that left him in a
yearlong attempt to cling to consciousness. Sometime later,
petitioner overcame temporary paralysis by learning how to walk
again.
(Memo in Opp. ECF No. 18, PageID 1126). From 2010, the text skips ahead to 2019, five years
after the trial of this case and well into Stinsonâs imprisonment.
Though there were very few recorded complaints during the early
years of petitioner's incarceration, in respects to neurological issues.
That changed around July 1st, 2019 while he was at North Central
Correctional Institution in Marion, Ohio Just as full recovery
seemed possible. At which time the severe headaches he
experienced in November 2012 restarted, this time with auditory
hallucinations, dizziness and intermittent pains, focused mostly on
the spinal cord.
Correctional Officers and the "bad actors", armed with information
from some unknown source, began directing attacks by other
prisoners. Eventually by November of 2019 petitioner was placed in
segregation upon which the medical staff subjected petitioner to
small amounts of radiation through an X-Ray machine, without
standard protection vest, see E006, fed him feces and other
neurophannacuticals that maximized the devices influence and
impairment ability, See Dismissal Request ECF 12 PageID 754-757.
By the time petitioner arrived at London Correctional Institution
(LOCI), his condition was unmanageable. Once he was placed in
segregation, the auditory/visual hallucination, caused by
nuerofeedback, modulatory and directed energy delivery systems,
amplified dramatically. See Exhibit E003 Prism: P. 50 . E006
Kensler Email . E016 Stinson Affidavit '21 . E017 Stinson Affidavit
2 On the subject of judicial illiteracy, Stinson cites David L. Faigman Prof. Of Law Symposium: The Role Of The
Judge in the Twenty-First Century: Judges as Amateur Scientist, 86 B.U.L. Rev. 1207 (2006). Stinson asserts:
âProfessor Faigman's final proclamation to the judicial community, is a sentiment shared by hundreds of thousands of
citizens across the United States and one that will have an immense effect on the outcome of this case. He states
"Judges' illiteracy in science means that they are ignorant regarding certain premises that are essential to modem
judicial discourse. Judges no longer have any choice: their failure to become amateur scientists means their failure as
professional judges." (PageID 1124).
Petitioner was not the only Prisoner suffering from identical
symptoms at LOCI, nor was he the only prisoner with similar, if not
the matching, diagnosis by Dr. De Silva. Considering this
information, there are some questions as to if the Institution was
using this technology on other prisoners, at the same time.
Regardless, Petitioner was transferred to a Mental Health/Medical
Health facility where the actions, such as "Sensory Decoding" and
Nervous System tampering, by "Bad Actors" and ODRC Staff
continued, until he was transferred back to Minimum Security
Institution, at LOCI on June 5th, 2021.
Based on this account of his purported mental incompetence and relying on Ata, supra,
Stinson seeks an evidentiary hearing on this portion of his equitable tolling argument. The
Magistrate Judge denies the request for an evidentiary hearing for the following reasons.
First of all, Stinson does not claim to be currently mentally incompetent. Rather, his
supposed incompetence is said to exist for some unspecified period of time after he got the
transcript and before he filed here. He offers no evidence of incompetence prior to his conviction
or at the time of his trial. His account of home invasion with beating leading to severe mental
trauma is not supported by any evidence. There was no claim of mental incompetence at the time
for trial nor for many years thereafter, during which Stinson filed many pro se pleadings. If
competent for those, why not competent to file a habeas corpus petition?
Second, his lengthy account of neurotechnology is all based on publicly-available
academic writing. He offers no evidence that any competent scientist has examined him and
diagnosed incapacitating mental illness for the relevant period. Mindful of Stinsonâs references to
judicial scientific illiteracy, the Court relies on Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). In that case the Supreme Court cautioned against accepting purportedly
scientific opinions without considering 1) whether the expert's scientific technique or theory can
be, or has been, tested; 2) whether the technique or theory has been subject to peer review and
publication; 3) the known or potential rate of error of the technique or theory when applied; 4) the
existence and maintenance of standards and controls; and 5) whether the technique or theory has
been generally accepted in the scientific community. Daubert, 509 U.S. at 592-95; Hardyman v.
Norfolk & W. Ry., 243 F.3d 255, 260 (6th Cir. 2001).
Third, even accepting Stinsonâs broadest claims for equitable tolling by mental
incapacitation, the period of tolling ended more than a year before he filed.
Petitioner has not demonstrated that his Petition was timely when it was filed on April 18,
2025. The Petition should be dismissed as barred by the statute of limitations.
Procedural Default Analysis
Respondent also asserts Stinsonâs claims are âall barred from merit review by his
unexcused failure to fairly present his claims to the state courtsâ (Motion, ECF No. 13, PageID
1048).
Stinson begins his response by correctly citing the governing standard. 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).
Ohio has a rule that requires all claims which can be presented on direct appeal to be
presented there or be barred by res judicata in subsequent proceedings. State v. Perry, 10 Ohio
St. 2d 175 (1967); State v. Davis, 119 Ohio St.3d 422, ¶ 6 (2008), citing State v. Hutton, 100 Ohio
St.3d 176, 2003-Ohio-5607, 797 N.E.2d 948, ¶ 37; State v. D'Ambrosio (1995), 73 Ohio St.3d 141,
143, 652 N.E.2d 710 (1995). Ohio courts have consistently applied this rule. State v. Cole, 2 Ohio
St. 3d 112 (1982); State v. Ishmail, 67 Ohio St. 2d 16 (1981).
Judge Gorman applied res judicata to the claims raised by Stinson in his February, 2018,
motion for new trial. (Decision, State Court Record, ECF No. 12, Ex. 32). The Second District
affirmed that decision. Id. at Ex. 39. Judge Solle again applied the doctrine in denying Stinsonâs
later motion for new trial. Id. at Ex. 59.
The Sixth Circuit has repeatedly held the Perry res judicata doctrine is an adequate and
independent state ground of decision. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell
v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd
v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir.
1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001).
Other procedural bars in Ohio law which are applicable include the time limits on motions
for new trial, on petitions for post-conviction relief (one year from completion of the record on
appeal), and on applications for reopening of direct appeal to litigate claims of ineffective
assistance of appellate counsel (ninety days). Ohio also limits a defendant to one petition for post-
conviction relief, depriving trial courts of jurisdiction to entertain subsequent petitions unless the
petitioner satisfies Ohio Revised Code § 2953.23. Finally, Ohio appellate courts will entertain
only one application for reopening under Rule 26(B).
At one point in his Memorandum in Opposition, Stinson asserts:
Respondent makes a valid complaint in its dismissal request
concerning petitioner's socalled fault in not filing an application to
re-open his appeal, under Ohio's App. R. 26 (B), but, it does so
laggardly. It is clear that respondents are referring to the grievances
that were record reliant. Though the state failed to argue such in the
trial court or on appeal, they are only partially correct. Petitioner was
not limited to a request to reopen his appeal but could also move the
state to address his grievances through the New Trial mechanism
under Ohio's Criminal Rules, thus, procedural default is not an
adequate defense.
(Memo in Opp., ECF No. 18, PageID 1104). However, the Ohio Supreme Court has held that an
application for reopening is the only remedy provided in Ohio law for ineffective assistance of
appellate counsel. State v. Murnahan, 63 Ohio St. 3d 60 (1992).
Stinson argues for an exception to res judicata for facts of which a petitioner was not aware:
The next exception is claims that are premised on factual allegations
in which petitioner was unaware, the doctrine of res judicata does
not apply. See State v. Jackson 2025-0hio-2363 21 (8th App. Dist.
Cuyahoga). Petitioner's grounds Two, Three and Five, whose factual
allegations were, for the most part, evidenced by the record were not
discovered until roughly August 1st, 2022.
(Memo in Opp., ECF No. 18, PageID 1107). Even assuming the relevance of this argument, the
Magistrate Judge notes Stinson admits having knowledge of these facts in August 2022, more than
two years before he filed.
In very confusing language3 Stinson argues against the Second Districtâs application of
Ohio Revised Code § 2953.23 to his case (Memo in Opp., ECF No. 18, PageID 1109). He does
not cite where in the almost one thousand page State Court Record this occurs. The Magistrate
Judge assumes he is referring to the Second Districtâs decision affirming denial of his second post-
conviction petition which cites Ohio Revised Code § 2953.23 for the jurisdictional bar it applied
to second or successive post-conviction petitions (Final Entry and Opinion, State Court Record,
ECF No. 12, Ex. 66, ¶¶ 16-22). Ohio Revised Code § 2953.23 closely parallels 28 U.S.C. §
2244(b) which precludes second or successive habeas corpus petitions in federal court without
permission of the circuit court of appeals. That demonstrates the rule is reasonable but independent
of federal law. Likewise the Second Districtâs conclusion that Stinson showed no prejudice
because conviction would likely have occurred regardless of the error is a completely reasonable
conclusion.
Entirely apart from his failure to meet the statute of limitations, Stinsonâs claims are barred
by his numerous procedural defaults in presenting his claims to the Ohio courts. Those defaults
are all pursuant to well-established Ohio procedural requirements with which Stinson did not
comply and on which the Ohio courts held his non-compliance against him. The Petition should
be dismissed with prejudice because all its claims are procedurally defaulted.
3 âFirst the States reasoning relies wholly on the final thorn of the procedure, which must turn on the facts of the case
and requires an application of fact finding thru the merits of the compliant.â What does this mean?
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.
October 7, 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
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 partyâs
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. Case Information
- Court
- S.D. Ohio
- Decision Date
- October 7, 2025
- Status
- Precedential