The opinion of the court was delivered by: Judge Smith
On September 8, 2006, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before Court on petitioner's September 29, 2006, notice of appeal, which the Court construes as a request for a certificate of appealability. For the reasons that follow, petitioner's request for a certificate of appealability is DENIED, in part, and GRANTED, in part.
In his federal habeas corpus petition, petitioner asserts:
1. Petitioner was unconstitutionally sentenced to 15 years to life, after a jury erroneously returned a verdict of guilty on two factually different and two inherently contradictory theories in the death of one individual, thus forcing the trial court to elect which of the two theories to render a sentence on. This resulted in the denial of petitioner's rights to due process, a fair trial, a jury trial, the effective assistance of counsel, equal protection and the right to be free from cruel and unusual punishment as guaranteed by the U.S. Constitution.
2. Petitioner was deprived of the effective assistance of counsel on direct appeal, where counsel failed to address the fact that petitioner, through an erroneous jury instruction, was found guilty on two factually, inherently contradictory theories in the death of one individual, which thereby forced the trial court to elect between one of the two competing theories for purposes of sentencing.*fn1
3. A conviction upon insufficient evidence denies due process under Fifth, Sixth, Eighth, and Fourteenth Amendments.
On September 8, 2006, petitioner's request for a stay pending exhaustion of claim one in the state courts was denied; claim one was dismissed as unexhausted; petitioner's ineffective assistance of trial counsel claim was dismissed as procedurally defaulted; the remainder of petitioner's claims were dismissed on the merits.
Petitioner did not file any objections to the Magistrate Judge's recommendation that claim three and the Blakely claim asserted in claim two be dismissed on the merits. He has therefore waived the right to appeal such claims. See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991).
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, 120 S.Ct. 1595 (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. 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.
Claim one was dismissed as unexhausted. Petitioner first presented claim one to the state courts in his March 17, 2005, motion for re-sentencing and correction of sentence. The state courts construed such action as an untimely petition for post conviction relief, and concluded that the claim was barred under Ohio's doctrine of res judicata. Thus, the claim appeared to be procedurally defaulted. Petitioner's request for a stay of proceedings pending exhaustion ...