ORDER

JAMES G. CARR, Senior District Judge.

This is a state prisoner habeas corpus proceeding under 28 U.S.C. § 2254. Pending, following Magistrate Judge William H. Baughman, Jr.'s filing of his Report & Recommendation (Doc. 12), are the petitioner's motion to stay (Doc. 14), the respondent's opposition thereto (Doc. 15), and the petitioner's objection to the Report & Recommendation. (Doc. 13).

For the reasons that follow, overruled, the petitioner's objection, adopt the Report & Recommendation as this court's order, deny the motion to stay, and deny a certificate of appealability.

Petitioner pled guilty to charges, inter alia, of murder. In a decision that completed the state court proceedings, the state appellate court affirmed the conviction. That, in turn, began the running of the one-year Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d), limitations period for filing the instant petition.

Petitioner waited 397 days before filing the pending petition.

He seeks to avoid the time bar by arguing that newly discovered evidence establishes his actual innocence. While the Sixth Circuit has accepted that proposition as a basis for equitable tolling of the AEDA bar, Souter v. Jones 395 F.3d 577, 589-90 (6th Cir. 2005), Magistrate Judge Baughman found that petitioner had failed to explain why he had not uncovered that "new" evidence within the otherwise mandatory one-year period. Petitioner's objection, rather than offering any explanation for his delay, simply — and in conclusory generalities — asserts that he has eyewitness evidence that he did not strike the blow that caused the victim's death.

Magistrate Judge Baughman's finding that, given petitioner's lack of explanation for his delay, the time bar precludes consideration of the merits was entirely correct. Petitioner having left the reasons for taking so long unexpressed, there is no merit to his objection.

That being so, it is not necessary to grant the petitioner's motion to stay.

It is, accordingly, hereby

ORDERED THAT petitioner's objection (Doc. 13) to the Magistrate Judge's Report & Recommendation (Doc. 12) be, and the same hereby is overruled; the Report & Recommendation is adopted as this court's order; and the petitioner's motion for a stay (Doc. 14) is overruled.

No certificate of appealability shall issue as jurists of reason could not reasonably dispute the foregoing result or its rationale.

So ordered.

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Before me by referral1 is the pro se petition of Zaryl G. Bush for a writ of habeas corpus under 28 U.S.C. § 2254.2 Bush is now incarcerated by the State of Ohio at the Lake Erie Correctional Institution in Conneaut, Ohio.3 He is serving an aggregate sentence of 33 years in prison, imposed in 2013 by the Mahoning County Common Pleas Court after Bush pled guilty to multiple charges including murder, endangering children, intimidation, and tampering with evidence.4 The State has filed a return of the writ, claiming, inter alia, that the petition is untimely and should be dismissed.5 Bush has filed a traverse contesting the State's argument on timeliness, asserting that the one-year limitations period should be calculated from a different, and later, date than the one employed by the State.6

The relevant statute provides that the one-year limitations period shall run from the latest date various events might occur, including the date on which the direct appeal was concluded.7 It further states that the limitations period itself tolls during the pendency of any properly filed motions for post-conviction or collateral review.8

Bush's petition was filed on April 16, 2018.9 But direct review of Bush's conviction ended November 6, 2014 — 45 days after the Ohio court of appeals affirmed Bush's conviction and sentence10 — followed by an additional period for potential appeal to the Supreme Court of Ohio11 that was not taken here.

Bush moved to withdraw his guilty plea on December 8, 2015.12 In the traverse, he maintains that the federal habeas one-year limitations period should be calculated from the end of the appeals process related to the motion to withdraw the plea.13 Bush contends that the original 2104 appeal was the product of "confusion" and "inept legal services," such that "in reality Bush's first appeal as of right was his appeal of the denial of his motion to withdraw his guilty plea and the appeal process that followed therein."14 He asserts that a "manifest injustice" would occur if the State were permitted to "hide behind the procedural bars" of an argument on timeliness.15

More than one year elapsed between the conclusion of the direct appeal process, detailed above, and even the initial filing of the motion to withdraw the guilty plea.16 Specifically, the time between November 6, 2014 — the end of the direct appeal process — and December 8, 2015 — the filing of the motion to withdraw the plea — was 397 days, or in excess of the one-year limitations period. During these 397 days, nothing was filed or pending in the Ohio courts that would serve to statutorily toll the federal limitations period. Once expired, that period cannot be restarted or revived.17 Thus, the federal limitations period expired before the motion to withdraw the plea was filed.

That said, equitable tolling may serve to provide a basis for tolling the limitations period during those 397 days. A habeas petitioner is entitled to equitable tolling only where he shows that (1) he has been pursuing his rights diligently and (2) some extraordinary circumstance stood in his way and prevented timely filing.18 Bush bears the burden of showing he is entitled to equitable tolling19 and courts must be mindful that equitable tolling is to be used sparingly.20

Pro se representation is not of itself a basis for equitable tolling,21 nor is incarceration.22 Although the United States Supreme Court has not yet ruled on whether a showing of actual innocence may toll the limitations period, the Sixth Circuit has so held.23 Such a showing of actual innocence would require exculpatory scientific, eyewitness, or physical evidence not presented at trial.24

In this case, Bush has offered no explanation of why he took no action to pursue his rights for over a year between the end of his original appeal process and the filing of the motion to withdraw. Further, Bush presumably was aware of any ineffective assistance of counsel at the time of the original appeal and yet took no action to pursue that claim in the Ohio courts by means of a Rule 26(B) motion to reopen the appeal. Finally, although Bush makes a general assertion that a "manifest injustice" would occur if his habeas claim were not considered on the merits, he has provided no new evidence of actual innocence.

Bush's petition for habeas relief was untimely filed. No basis exists to equitably toll the limitations period in this matter. Accordingly, I recommend that the petition be dismissed.

IT IS SO RECOMMENDED.

Objections

Any objections to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court's order.25