United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
MICHAEL H. WATSON, JUDGE.
April 7, 2017, the Magistrate Judge recommended that this
action for a writ of habeas corpus pursuant to 28 U.S.C.
§2254 be dismissed. Report and Recommendation,
ECF No. 14. Petitioner objects to that recommendation.
Ob}., ECF No. 21. Pursuant to 28 U.S.C. § 636(b),
this Court has conducted a de novo review of the
Report and Recommendation ("R&R"). For the
reasons that follow, Petitioner's objection, ECF No. 21,
is OVERRULED. The R&R is ADOPTED and AFFIRMED, and this
action is hereby DISMISSED. Moreover, the Court DECLINES to
issue a certificate of appealability.
challenges his convictions, following a jury trial in the
Franklin County Court of Common Pleas, on one count of
engaging in a pattern of corrupt activity, eight counts of
aggravated trafficking in drugs, three counts of aggravated
possession of drugs, and six counts of aggravated funding of
drug trafficking. Petitioner claims that the trial court
improperly permitted the State to call one Robert Amiet as an
expert witness without providing the expert's report to
the defense or allowing defense counsel to question the
expert (claim one); that he was denied the effective
assistance of trial counsel due to his attorney's failure
to move for a judgment of acquittal after the jury's
verdict and failure to request a continuance after the State
announced its intent to call Amiet as an expert witness
(claim two); that his convictions constitute allied offenses
of similar import that should have been merged at sentencing
(claim three); and that he was denied a fair trial based on
cumulative error (claim four). The Magistrate Judge
recommended the dismissal of claims one through three as
procedurally defaulted and the dismissal of claim four as
objects to the Magistrate Judge's recommendations.
Petitioner again argues that he could not comply with the
state procedural rules governing claims one through three
because no valid judgment of sentence was entered. He refers
to Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016),
in support of this argument. He also alleges improper
collusion in connection with the state appellate process in
arguments are not well-taken. Claims one through three were
properly raised by Petitioner in his direct appeal, but
Petitioner procedurally defaulted these claims by failing to
file a timely appeal to the Ohio Supreme Court from the state
appellate court's May 29, 2014, decision. The Ohio
Supreme Court denied Petitioner's subsequent motion for a
delayed appeal, and Petitioner can now no longer properly
present claims one through three to the state courts by
operation of Ohio's doctrine of res judicata. See
State v. Cole, 2 Ohio St.3d (1982); State v.
Ishmail, 67 Ohio St. 2d 16 (1981); State v.
Perry, 10 Ohio St. 2d 175 (1967).
claim that there was no valid judgment from which to file an
appeal to the Ohio Supreme Court is not supported by the
record. As discussed by the Magistrate Judge, see
R&R, ECF No. 14, PAGEID # 609, the trial court's
issuance of corrected entries pursuant to the order of remand
of the Ohio Court of Appeals (for the limited purpose of
merging Petitioner's convictions on the charges of drug
possession and drug trafficking) did not serve to
"resurrect" the other claims raised in
Petitioner's initial direct appeal, nor does the record
reflect collusion in connection with that appeal.
Crangle, referred to by the Petitioner, addressed
only the effect of a state court's resentencing entry on
the one-year statute of limitations governing federal habeas
corpus actions. See 28 U.S.C. § 2244(d).
Crangie does not assist Petitioner on the issue of
his procedural default. Further, Petitioner has failed to
establish cause and prejudice for his failure to file a
timely appeal to the Ohio Supreme Court.
foregoing reasons and for the reasons detailed in the
Magistrate Judge's R&R, Petitioner's objection,
ECF No. 21, is OVERRULED. The R&R, ECF No. 14, is ADOPTED
and AFFIRMED. This action is hereby DISMISSED.
to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court now considers
whether to issue a certificate of appealability. "In
contrast to an ordinary civil litigant, a state prisoner who
seeks a writ of habeas corpus in federal court holds no
automatic right to appeal from an adverse decision by a
district court." Jordan v. Fisher, ___U.S. ___,
___, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1)
(requiring a habeas petitioner to obtain a certificate of
appealability in order to appeal.) 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). 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.'" Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quoting Barefoot v. Estelie, 463 U.S.
880, 893, n. 4 (1983)).
claim has been denied on procedural grounds, a certificate of
appealability may issue if the petitioner establishes 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. Id.
review of the record, this Court is not persuaded that
reasonable jurists could debate whether petitioner's
claims should have been resolved differently or that jurists
of reasons would find it debatable whether this Court was
correct in its procedural rulings. Therefore, the Court
DECLINES to issue a certificate of appealability.
Clerk is DIRECTED to enter FINAL JUDGMENT and terminate this