The opinion of the court was delivered by: Judge Frost
This matter is before the Court pursuant to a remand from the United States Court of Appeals for the Sixth Circuit to determine whether a certificate of appealability should issue. See Doc. No. 26. On June 29, 2006, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. Doc. Nos. 21, 22. On July 10, 2006, petitioner filed a notice of appeal, which this Court construes as a request for a certificate of appealability. Doc. No. 23. For the reasons that follow, petitioner's request for a certificate of appealability is DENIED.
In this federal habeas corpus petition, petitioner asserts the following claims:
1. The trial court's sentencing of petitioner to non-minimum and consecutive sentences, based on facts not found by a jury or admitted by him, violates petitioner's rights of due process and trial by jury contra the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution.
2. Petitioner was denied his right to effective assistance of counsel in his direct appeal to the Franklin County Court of Appeals and to the Ohio Supreme Court, in violation of the Sixth and Fourteenth Amendment to the U.S. Constitution.
3. Petitioner was denied his rights of due process and confrontation when the court based its sentence on numerous out-of-court testimonial statements in violation of the Fifth, Sixth, and Fourteenth Amendment to the U.S. Constitution.
On June 29, 2006, claims one and three were dismissed due to petitioner's failure to establish cause and prejudice for his failure to present such claims to the state courts as federal constitutional issues or as procedurally defaulted; claim two was dismissed on the merits.
When a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. §2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529 U.S. 473 (2000). To make a substantial showing of the denial of a constitutional right, a petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "'adequate to deserve encouragement to proceed further.'" Barefoot, 463 U.S., at 893, and n.4 . . . .
Where the Court dismisses a claim on procedural grounds, a certificate of appealability should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.
Slack v. McDaniel, supra, 529 U.S. at 483. Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id.
Upon review of the record, the Court concludes that petitioner has failed to establish that reasonable jurists would find it debatable whether claim two should have been resolved in a different manner, or whether the Court was ...