REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

GEORGE J. LIMBERT, Magistrate Judge.

On April 10, 20142, James D. Guy ("Petitioner"), acting pro se, executed a petition for a writ of federal habeas corpus in this Court pursuant to 28 U.S.C. § 2254. ECF Dkt. #1. Petitioner seeks relief from convictions following the entry of guilty pleas entered by the Sandusky County Court of Common Pleas, Ohio to two counts of felonious assault in violation of Ohio Revised Code ("ORC") § 2903.11(A)(1).

On July 28, 2014, then Respondent, Maggie Bradshaw ("Respondent"), Warden at Richland Correctional Institution, filed the Return of Writ. ECF Dkt. #6. Although three extensions of the filing deadline for the Traverse were granted, no traverse was filed. Instead, Petitioner filed an Application for Stay of Execution and/or Abeyance on November 14, 2014, ECF Dkt. #10, which was amended with leave of the Court on December 4, 2014. ECF Dkt. #13. For the following reasons, the undersigned recommends that the Court DENY the Application for Stay of Execution and/or Abeyance and DISMISS the instant petition, in its entirety, with prejudice:

I. PROCEDURAL BACKGROUND

A. State Trial Court

The 2011 term of the Sandusky County Grand Jury issued an indictment charging Petitioner with four counts of felonious assault — two counts in violation of R.C. 2903.11(A)(1) (Counts 1-2) and two count in violation of R.C. 2903.11 (A) (2) (Counts 3-4); and two counts of attempted murder in violation of R.C. 2903.02 and R.C. 2923.02 (Counts 5-6) (Exhibit 1, Case No. 11CR215). Petitioner pled not guilty to the counts in the indictments. (Exhibit 2).

Petitioner entered into a plea agreement, in which he pled guilty to two counts of felonious assault on two victims (Counts 3 & 4) and the remaining counts were dismissed. (Exhibit 3). The trial court accepted his guilty plea. (Exhibit 4). Petitioner filed a sentencing memorandum, in which he asserted that he did not initiate the altercation, and for that reason he sought concurrent sentences. (Exhibit 5). On July 11, 2011, the trial court sentenced Guy to eight years in prison for each of the felonious assault convictions, to be served consecutively, for an aggregate sentence of sixteen years. (Exhibit 6).

B. Direct Appeal

On August 10, 2011, Petitioner, through trial counsel, filed a notice of appeal with the Sixth District Court of Appeals, Sandusky County, Ohio. (Exhibit 8). In his brief filed on June 13, 2012, Guy raised the following assignments of error:

(Exhibit 9). The State filed a brief in response. (Exhibit 10). On January 4, 2013, the Court of Appeals affirmed the judgment of the trial court. (Exhibits 11).

C. Supreme Court of Ohio

On February 15, 2013, Petitioner, acting pro se, filed a notice of appeal with the Ohio Supreme Court under Case No. 2013-0305. (Exhibit 13). In his memorandum in support of jurisdiction, Petitioner set forth the following propositions of law:

(Exhibit 13). The State waived a memorandum in response. (Exhibit 14). On April 24, 2013, the Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to S.Ct.Prac.R. 7.08(B)(4). (Exhibit 15, Case No. 2013-0305).

II. FEDERAL HABEAS CORPUS PETITION

Petitioner filed a federal petition for writ of habeas corpus under 28 U.S.C. § 2254 in this Court on April 11, 2014. Petitioner alleged the following grounds in support of the petition:

ECF Dkt. #1.

III. PROCEDURAL BARRIERS TO REVIEW

A petitioner must overcome several procedural barriers before a court will review the merits of a petition for a writ of federal habeas corpus. As Justice O'Connor noted in Daniels v. United States, "Procedural barriers, such as statutes of limitations and rules concerning procedural default and exhaustion of remedies, operate to limit access to review on the merits of a constitutional claim." 532 U.S. 374, 381 (2001); see also United States v. Olano, 507 U.S. 725, 731 (1993).

A. Statute of Limitations

In general, a state prisoner seeking habeas corpus relief pursuant to 28 U.S.C. § 2254 must comply with the statute of limitations period set forth in 28 U.S.C. § 2244, which provides:

28 U.S.C. § 2244(d).

The statute of limitations is tolled for any period of time in which a properly filed petition for post-conviction relief is pending before the state courts. Jurado v. Burt, 337 F.3d 638, 640 (6th Cir. 2003); see 28 U.S.C. §2244(d)(2). To determine if a state proceeding will toll the statute of limitations, the Sixth Circuit has held that:

Austin v. Mitchell, 200 F.3d 391, 395 (6th Cir. 1999). Further, the "tolling provision does not . . . `revive' the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations." Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (quoting Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998)).

The one-year statute of limitations under Section 2244 is subject to equitable tolling when a petitioner's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond the petitioner's control. Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir. 2001); Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000). The Sixth Circuit has stated that "federal courts sparingly bestow equitable tolling." Graham-Humphreys, 209 F.3d at 560-61; Jurado, 337 F.3d at 642. When determining whether equitable tolling is appropriate, the court must consider: "(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing [his] claim." Dunlap, 250 F.3d at 1008; Miller v. Collins, 305 F.3d 491, 495 (6th Cir. 2002). These factors are not comprehensive and not all of the factors are relevant in all cases. Cook, 295 F.3d at 521. Whether equitable tolling is appropriate is a case-by-case analysis. Id. "Absence of prejudice is a factor to be considered only after a factor that might justify tolling is identified." Allen v. Yukins, 366 F.3d 396, 401-02, 404 (6th Cir. 2004). The petitioner bears the ultimate burden of persuading the court that he is entitled to equitable tolling. Vroman, 346 F.3d at 605.

B. Exhaustion of State Remedies

As a general rule, a state prisoner must exhaust all possible state remedies or have no remaining state remedies before a federal court will review a petition for a writ of habeas corpus. 28 U.S.C. § 2254(b) and (c); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004). The exhaustion requirement is satisfied "once the federal claim has been fairly presented to the state courts." Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987). To exhaust a claim, a petitioner must present it "to the state courts under the same theory in which it is later presented in federal court." Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); see also McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). General allegations of the denial of rights to a "fair trial" and "due process" do not "fairly present" claims that specific constitutional rights were violated. McMeans, 228 F.3d at 681 citing Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984).

In order to have fairly presented the substance of each of his federal constitutional claims to the state courts, the petitioner must have given the highest court in the state in which he was convicted a full and fair opportunity to rule on his claims. Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). A petitioner fairly presents the substance of his federal constitutional claim to the state courts by: (1) relying upon federal cases that use a constitutional analysis; (2) relying upon state cases using a federal constitutional analysis; (3) phrasing his claim in terms of constitutional law or in terms sufficiently particular to allege the denial of a specific constitutional right; or (4) alleging facts that are obviously within the mainstream of constitutional law. Clinkscale v. Carter, 375 F.3d 430, 437 (6th Cir. 2004), quoting Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003); see also Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993) cert. denied, 509 U.S. 907 (1993)(quotation omitted). In Harris v. Lafler, the Sixth Circuit laid out the options that a district court may pursue in dealing with a petition that contains unexhausted claims:

553 F.3d 1028, 1031-32 (6th Cir. 2009). The Supreme Court has held that "the petitioner has the burden . . . of showing that other available remedies have been exhausted or that circumstances of peculiar urgency exist." Darr v. Burford, 339 U.S. 200, 218-19 (1950), overruled in part on other grounds, Fay v. Noia, 372 U.S. 391 (1963). A petitioner will not be allowed to present claims never before presented in the state courts unless he can show cause to excuse his failure to present the claims in the state courts and actual prejudice to his defense at trial or on appeal, or that he is actually innocent of the crime for which he was convicted. Coleman v. Thompson, 501 U.S. 722, 748 (1991).

C. Procedural Default

The procedural default doctrine serves to bar review of federal claims that a state court has declined to address when a petitioner does not comply with a state procedural requirement. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In these cases, "the state judgment rests on independent and adequate state procedural grounds." Coleman at 730. For purposes of procedural default, the state ruling with which the federal court is concerned is the "last explained state court judgment." Munson v. Kapture, 384 F.3d 310, 314 (6th Cir. 2004), citing Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991) (emphasis removed). When the last explained state court decision rests upon procedural default as an "alternative ground," a federal district court is not required to reach the merits of a habeas petition. McBee v. Abramajtys, 929 F.2d 264, 265 (6th Cir. 1991). In determining whether a state court has addressed the merits of a petitioner's claim, federal courts must rely upon the presumption that there is no independent and adequate state grounds for a state court decision absent a clear statement to the contrary. Coleman, 501 U.S. at 735.

Applying this presumption, the Sixth Circuit Court of Appeals established a four-pronged analysis to determine whether a claim has been procedurally defaulted. Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986). Under the Maupin test, a reviewing court must decide:

Id. at 138.

Under the first prong of Maupin, there must be a firmly established state procedural rule applicable to the petitioner's claim and the petitioner must not have complied with the rule. Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (state procedural bar that is not "firmly established and regularly followed" cannot serve to bar federal judicial review); Franklin v. Anderson, 434 F.3d 412, 418 (6th Cir. 2006). The question of whether a state procedural rule was "firmly established and regularly followed" is determined as of the time at which it was to be applied. Richey v. Mitchell, 395 F.3d 660, 680 (6th Cir. 2005).

Under the second prong, the last state court to which the petitioner sought review must have invoked the procedural rule as a basis for its decision to reject review of the prisoner's federal claims. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991) (appeal dismissed for lack of jurisdiction); Richey, 395 F.3d at 678 ("a lapsed claim survives if the state court overlooked the default and decided the claim anyway"); Baze v. Parker, 371 F.3d 310, 320 (6th Cir. 2004) (if a state court does not expressly rely on a procedural deficiency, then a federal court may conduct habeas review); Gall v. Parker, 231 F.3d 265, 310 (6th Cir. 2000) (even if issue is not raised below, where state supreme court clearly addresses the claim, no procedural bar arises); Boyle v. Million, 201 F.3d 711, 716-17 (6th Cir. 2000) (where a state appellate court characterizes its earlier decision as substantive, the earlier decision did not rely on a procedural bar; therefore, the cause and prejudice test does not apply).

Under the third prong, a state judgment invoking the procedural bar must rest on a state law ground that is both independent of the merits of the federal claim and is an adequate basis for the state court's decision. Munson v. Kapture, 384 F.3d 310, 313-14 (6th Cir. 2004).

Under the fourth prong, a claim that is procedurally defaulted in state court will not be reviewable in federal habeas corpus unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 751. "Cause" is a legitimate excuse for the default, and "prejudice" is actual harm resulting from the alleged constitutional violation. Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984), cert. denied, 490 U.S. 1068 (1985). If a petitioner fails to show cause for his procedural default, the reviewing court need not address the issue of prejudice. Smith v. Murray, 477 U.S. 527 (1986).

Bonnell v. Mitchel, 301 F.Supp.2d 698, 722 (N.D. Ohio 2004). A petitioner who is unable to show cause and prejudice may obtain habeas review only if denying such review would produce a fundamental miscarriage of justice, such as when new evidence suggests actual innocence. Dretke v. Haley, 541 U.S. 386, 393, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004).

IV. STANDARD OF REVIEW

The undersigned further recommends that the Court find that the AEDPA governs this Court's review of the instant case because Petitioner filed his petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 17, 2012, well after the act's effective date of April 26, 1996. Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997), cert. denied, 522 U.S. 1112 (1998). Under Section 2254, a state prisoner is entitled to relief if he is held in custody in violation of the United States Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(d).

The AEDPA sets forth the standard of review for the merits of a petition for a writ of habeas corpus. The AEDPA provides:

28 U.S.C. § 2254(d) (emphasis added). In Williams v. Taylor, the Supreme Court clarified the language of 28 U.S.C. § 2254(d) and stated:

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Further, the Supreme Court declared that "a federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. Elaborating on the term "objectively unreasonable," the Court stated that "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.; see also Bailey v. Mitchell, 271 F.3d 652, 655-56 (6th Cir. 2001).

The Sixth Circuit Court of Appeals offers the following guidelines for applying the AEDPA limitations:

Bailey v. Mitchell, 271 F.3d 652, 655-56 (6th Cir. 2001) (internal citations omitted).

Finally, a reviewing federal court is bound by the presumption of correctness, under which the federal court is obligated to "accept a state court's interpretation of the state's statutes and rules of practice." Hutchinson v. Marshall, 744 F.2d 44, 46 (6th Cir. 1984), cert. denied, 469 U.S. 1221 (1985); see also Duffel v. Duttion, 785 F.2d 131, 133 (6th Cir. 1986). The presumption of correctness is set forth in 28 U.S.C. § 2254(e), which provides:

28 U.S.C. § 2254(e). The presumption of correctness applies to basic primary facts, and not to mixed questions of law and fact. Levine v. Torvik, 986 F.2d 1506, 1514 (6th Cir. 1993), cert. denied, 509 U.S. 907 (1993). The presumption also applies to "implicit findings of fact, logically deduced because of the trial court's ability to adjudge the witnesses' demeanor and credibility." McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997). Furthermore, a reviewing federal court is not free to ignore the pronouncement of a state appellate court on matters of law. See Central States, Southeast & Southwest Areas Pension Fund v. Howell, 227 F.3d 672, 676, n.4 (6th Cir. 2000). Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

The United States Supreme Court has observed:

Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786-787 (2011).

V. ANALYSIS

A. Application for Stay and/or Abeyance

Petitioner seeks a stay in order to exhaust ineffective assistance of counsel claims. In his state post-conviction petition, filed with the state court on November 6, 2014, Petitioner asserts that his counsel was deficient because he provided "erroneous, faulty, and inaccurate legal advice that induced [Petitioner's] decision to plead guilty," and also "failed to advise [Petitioner] of the record being filed in his direct appeal process, depriving [Petitioner] of the opportunity to timely file his post-conviction petition to Redress his claim of ineffective assistance in the courts." ECF Dkt. #10 at p. 3. Petitioner cites Gunner v. Welch, 749 F.3d 511 (6th Cir.2014), for the proposition that the failure of appellate counsel to advise a defendant when the record in the direct appeal is filed, which triggers the 180-day statute of limitations for filing a post-conviction petition in Ohio, constitutes ineffective assistance of appellate counsel and is a basis for establishing cause for procedural default of a federal habeas claim. Petitioner further asserts that he would "like to take his allied offense claim to the trial court for the first time, because of how his counsel improperly raised the allied offense argument and never federalized the claim by vaguely using the words `due process' & `double jeopardy' unsupported with any incorporations into the federal constitution and/or case law." ECF Dkt. #10 at p. 2.

A district court has discretion to stay a habeas corpus proceeding when a petitioner presents a "mixed petition," that is, one presenting both exhausted and unexhausted claims. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.2002). In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), the Supreme Court recognized the district court's discretion to stay a mixed petition pending prompt exhaustion of state remedies, but imposed two procedural limitations upon the granting of a stay. First, the petitioner must show "good cause" for his failure to exhaust remedies on direct appeal. Second, petitioner must demonstrate that the unexhausted claims are not "plainly meritless." 544 U.S. at 277-78; accord Hodge v. Haeberlin, 579 F.3d 627, 638 (6th Cir.2009).

The petition in this case does not assert the ineffective assistance of counsel claims that are currently being pursued in state court. Only if the court were to grant a future motion to amend would this case involve a "mixed petition" qualifying for the possibility of a stay under Rhines. A stay and abatement of this proceeding, however, is not warranted, because Petitioner does not and cannot meet the requirement of Rhines that the unexhausted claims have facial merit. Petitioner's unexhausted claims are plainly meritless, as they are barred by AEDPA's statute of limitations. Consequently, a stay of these proceedings to exhaust plainly time-barred claims would be pointless.

Although Petitioner has not sought leave to amend his federal petition to include his proposed ineffective assistance of counsel claims, he must seek leave to do so at this stage of the proceedings. Motions to amend a habeas corpus petition are governed by Rule 15(a) of the Federal Rules of Civil Procedure. See Shank v. Mitchell, 2013 WL 3208554 at *3 (S.D.Ohio June 24, 2013) ("Amendments to habeas corpus petitions were contemplated by the habeas corpus statute and are governed by Rule 15 of the Federal Rules of Civil Procedure"). See also Hughley v. Reid, 2010 WL 610765 at *2 (N.D.Ohio Feb. 18, 2010); see also Lanton v. Lafler, 2007 WL 858722 at *1 (E.D.Mich. March 16, 2007). Under Rule 15(a), a party may amend his or her pleadings once as a matter of course at any time before a responsive pleading is served. Id. Otherwise, the party may amend only with the opposing party's written consent or by leave of court. Id. citing Fed.R.Civ.P. 15(a); see Mayle v. Felix, 545 U.S. 644, 655, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005).

As Respondent herein has already filed a Return and opposes Petitioner's application for stay, leave of court is required. As the Sixth Circuit has explained:

Coe v. Bell, 161 F.3d 320, 341-42 (6th Cir.1998) (quoting Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir.1994)).

28 U.S.C. § 2244 provides a one-year statute of limitations for filing habeas corpus petitions. Any amendment, however, would be barred by the statute of limitations unless the amendment related back to the original filing date. "An amended habeas petition . . . does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Mayle v. Felix, 545 U.S. 644, 650, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005).

Even prior to Mayle, the Sixth Circuit had held that a motion to amend a habeas corpus petition to include "entirely new arguments" filed after the expiration of the statute of limitations was futile and such claims did not relate back to the date that the initial petition was filed. See, e.g., Oleson v. United States, 27 F. App'x 566, 570 (6th Cir.2001). Following the Sixth Circuit, the district court for the Western District of Tennessee explained in Taylor v. Myers, 345 F.Supp.2d 855 (W.D.Tenn.2003):

Id. at 860.

Respondent correctly argues that Petitioner's conviction became final under Section 2244(d)(1)(A) on July 24, 2013, ninety days after the Ohio Supreme Court rendered the decision in the direct appeal, because Petitioner failed to file a timely appeal to the United States Supreme Court. Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 653, 181 L.Ed.2d 619 (2012) (stating that a conviction becomes final when the time for filing a certiorari petition expires). Petitioner then had one year from that date, or until July 24, 2014, barring any tolling of the statute of limitations, in which to file his habeas petition.

Petitioner did not properly file any actions before July 24, 2014 that served to toll the one-year statutory period. He filed the currently-pending state court post-conviction action on November 11, 2014. A post-conviction petition can toll the statute of limitations, but it cannot re-set a clock that has already expired. Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003)("Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations.") Moreover, the time period during which a federal habeas corpus petition is pending does not toll the running of the statute of limitations. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

Petitioner's ineffective assistance of counsel claims are only timely if they relate back to the claims in the original petition. However, the ineffective assistance of counsel claims are predicated upon the voluntary nature of the plea and are not related to the sentence imposed in this case. Accordingly, the ineffective assistance of counsel claims do not relate back under Mayle, supra.

Of course, the United States Supreme Court has held that the AEDPA statute of limitations is "subject to equitable tolling in appropriate cases." Holland v. Florida, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010). Equitable tolling allows a federal habeas court to review a time-barred habeas petition "provided that `a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control.'" Robinson v. Easterling, 424 F. App'x 439, 442 (6th Cir.), cert. denied, ___ U.S. ___, 132 S.Ct. 456, 181 L.Ed.2d 297 (2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir.2010)).

In order to be entitled to equitable tolling, a petitioner must show "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.'" Holland, 130 S.Ct. at 2562, quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). A petitioner must show that he exercised reasonable diligence in pursuing his rights, not maximum diligence. Holland, 130 S.Ct. at 2565.

Here, Petitioner has offered no argument in favor of equitable tolling. Although he asserts that his counsel failed to inform him the date that his trial transcript was filed in the direct appeal, in order to excuse his procedural default should the state court dismiss his post-conviction petition as untimely, he has offered no explanation for the considerable delay in pursing his ineffective assistance of counsel claims. Petitioner's direct appeal was final on July 24, 2013. However, Petitioner did not seek a stay to pursue his state post-petition conviction until after the Return of Writ was filed in this case.

Petitioner's decision to pursue his ineffective assistance of counsel claim appears to be a reaction to Respondent's unopposed argument that all of the grounds for relief asserted in the current petition are not cognizable on federal habeas corpus review. Equitable tolling is typically used "only when a litigant's failure to meet a legally mandated deadline unavoidably arose from circumstances beyond the litigant's control." Vroman v. Brigano, 346 F.3d 598, 604 (6th Cir.2003). The facts in this case suggest that Petitioner's failure to pursue his ineffective assistance of counsel claims prior to the expiration of the AEDPA statute of limitations is the product of a lack of reasonable diligence rather than circumstances beyond his control. Accordingly, the undersigned recommends that the Court find that Petitioner failed to establish that he is entitled to equitable tolling.

The Sixth Circuit Court of Appeals has also held that the Constitution requires an actual innocence exception to AEDPA's statute of limitations. Souter v. Jones, 395 F.3d 577, 599 (6th Cir. 2005). But "actual innocence means factual innocence, not mere legal insufficiency." Id. at 590 (quoting Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). Normally, in order to obtain collateral review of a defaulted claim upon a showing of actual innocence, a petitioner must establish that he is not only actually innocent of the charge which he seeks to attack, he must also demonstrate that he is actually innocent of all other more serious charges which the government had foregone during the plea bargaining process. See Bousley at 1611-12; Luster v. United States, 168 F.3d 913, 915 (6th Cir.1999).

To succeed on this theory, Petitioner must show that "it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 324, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Petitioner must "support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Id. at 324. The United States Supreme Court has cautioned that the actual innocence exception should "remain rare" and should "only be applied in the "extraordinary case." Id. at 321.

Here, Petitioner has offered no argument or evidence in support of an argument that he is actually innocent of the offenses for which he was convicted. For this reason, the undersigned recommends that the Court find that the actual innocence exception does not apply to allow consideration of Petitioner's federal habeas corpus petition despite his untimely filing.

In summary, the undersigned recommends that the Court deny Petitioner's application for stay because his prospective claims, which are the subject of his currently-pending state post-conviction petition, would be filed beyond AEDPA's statute of limitations. In addition, as the ineffective assistance of counsel claims assert "a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth," they would not relate back to the original petition. See Mayle, supra. Petitioner has failed to establish that he has exercised reasonable diligence in pursuing his ineffective assistance of counsel claims, due to the fact that he raised them almost a year and a half after the conclusion of his direct appeal, and Petitioner has not asserted or offered any evidence that he is actually innocent of the criminal conduct for which he was convicted.

B. Merits

ECF Dkt. #1.

The Sixth District provided the following analysis of Petitioner's state law challenges to his sentence:

A federal court may review a state prisoner's habeas petition only on the ground that the challenged confinement violates the Constitution, laws or treaties of the United States, and not "on the basis of a perceived error of state law." 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41 (1984); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal court to reexamine state-court determinations on state-law questions"). A state court's interpretation, or misinterpretation, of its own sentencing laws and guidelines constitutes a matter of state concern only. Howard v. White, 76 Fed. Appx. 52, unpublished, 2003 WL 22146139, at *2 (6th Cir.2003) (citations omitted).

The computation of a prisoner's term involves a matter of state law that is not cognizable in § 2254 proceedings. Haskell v. Berghuis, 511 Fed.Appx. 539, unpublished, 2013 WL 163965, at *11 (6th Cir. Jan.16, 2013)(citing Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The record fails to reflect that Petitioner is being held beyond the maximum expiration date of the sentence. Under O.R.C. § 2929.41(B), the state courts have determined that state law required a probationer or parolee to serve his sentence consecutively to another sentence upon commission of a new felony offense. Thus, state law required imposition of consecutive terms at the time of sentencing. State and federal courts have the power to impose consecutive sentences for multiple offenses, and the Supreme Court has called the practice of giving trial judges "unfettered discretion" to determine whether sentences for discrete offenses shall be served consecutively or concurrently a common-law tradition. Oregon v. Ice, 555 U.S. 160, 163, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). Imposition of consecutive terms of incarceration does not violate clearly established federal law construing the Due Process Clause, or make the state court proceedings fundamentally unfair.

Therefore, this federal court should consider Petitioner's claim that the facts of his case did not fit the criteria of the Ohio statute for imposition of the maximum sentences, but only whether the alleged error violated Petitioner's federal constitutional right to due process. Furthermore, Petitioner has waived any such constitutional claim because he failed to present it as a federal issue to the Ohio courts.

A set of four guidelines has been developed for determining whether a claim was presented in such a way as to alert the court of the claim's federal nature. McMeans, 228 F.3d at 681. Under these guidelines, a petitioner may fairly present to the state courts the constitutional nature of his claim by (1) relying on federal cases employing constitutional analysis; (2) relying on state cases employing constitutional analysis in similar factual contexts; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the mainstream of constitutional law. Id.; Franklin, 811 F.2d at 326. The use of a "generalized catch-all phrase," which merely alleges the denial of a fair trial under the United States Constitution, does not adequately alert the state courts of the constitutional nature of the claim where the "only legal theory presented to the state courts was predicated entirely upon state evidentiary law." Franklin, 811 F.2d at 326. General statements that the petitioner was denied a "fair trial" and "due process" are not sufficient to put state courts on notice of a specific federal constitutional claim in the absence of citation to case law employing federal constitutional analysis. McMeans, 228 F.3d at 681.

Here, Petitioner's challenges to his consecutive maximum sentences were both asserted and analyzed under Ohio law. Petitioner failed to articulate federal constitutional claims before the Sixth District Court of Appeals. Accordingly, the undersigned recommends that the Court find that Grounds One through Three are without merit.

VI. CONCLUSION

For the foregoing reasons, the undersigned recommends that the Court deny Petitioner's Application for Stay of Execution and/or Abeyance, ECF Dkt. #10, and dismiss the petition, in its entirety, with prejudice.

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within fourteen (14) days of service of this notice. Fed. R. Civ. P. 72; L.R. 72.3. Failure to file objections within the specified time WAIVES the right to appeal the Magistrate Judge's recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).