The opinion of the court was delivered by: Michael R. Merz Chief United States Magistrate Judge
District Judge Thomas M. Rose
Chief Magistrate Judge Michael R. Merz
SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON CERTIFICATE OF APPEALABILITY
This habeas corpus case is before the Court on Petitioner's Objections (Doc. No. 35) to the Magistrate Judge's Report and Recommendations recommending that the Court grant in part and deny in part Petitioner's application for a certificate of appealability. The General Order of Reference for the Dayton location of court permits the Magistrate Judge to reconsider decisions or reports and recommendations when objections are filed.
In his first ground for relief, Petitioner claimed that he was tried by a biased judge. This ground for relief was dismissed as procedurally defaulted and the Magistrate Judge recommended no certificate of appealability on this ground because Petitioner cited no law suggesting reasonable jurists would disagree with that conclusion.
Petitioner objects that it would have been futile to object in the state court system because that system is only interested in defending itself. To the contrary, Ohio has a well-established system for disqualifying biased judges by application to the Chief Justice. Just this month Chief Justice Moyer issued an opinion disqualifying all of the sitting judges of one of the counties on grounds of bias. Applying for recusal under Ohio's judicial disqualification system is not a futile gesture.
Petitioner also objects that plain error can always be noticed on appeal, but this Court does not sit to conduct plain error review of Ohio trial court decisions.
Petitioner claims he raised the issue of judicial bias in his other pending case, Inskeep v. Peoples' Savings Bank, 3:03-cv-139, which is true. He goes on to claim that Judge Rice in that case has found Judge Wilson's trial behavior to be "most egregious." Judge Rice has made no such finding.
Ground Two: Insufficient Evidence
Although the Report recommends granting a certificate of appealability on Ground Two, Petitioner uses his Objections as an occasion to complain that the Magistrate Judge "for unexplained reasons"did not conduct the investigation of Champaign County requested by Petitioner. That decision was in fact explained. See Doc. No. 15.
Grounds Three, Four, Five, Six, and Seven
Judge Rose found these five grounds for relief procedurally defaulted on the following analysis:
Grounds Three, Four, Five, Six and Seven are all issues regarding Inskeep's trial and do not pertain to ineffective assistance of appellate counsel. [footnote omitted] However, Rule 26(B) is for bringing ineffective-assistance-of-appellate-counsel claims. "The Ohio Supreme Court has expressly held that a 26(B) application is not intended to give a criminal defendant a new appeal or a chance to add assignments of error not previously raised." (Report and Recommendations Doc. #20 p. 8 (citing State v. Reddick, 647 N.E.2d 784, 786 (1995)). (Entry and ...