Opinion
CASE NO. 2:07-cv-00375.
June 11, 2009
OPINION AND ORDER
On April 14, 2009, final judgment was entered dismissing the instant habeas corpus petition pursuant to 28 U.S.C. § 2254. This matter now is before the Court on petitioner's April 22, 2009, notice of appeal, which this Court construes as a request for a certificate of appealability. Doc. No. 58. For the reasons that follow, petitioner's request for a certificate of appealability, Doc. No. 58, is DENIED.
In this habeas corpus petition, petitioner asserts as follows:
1. Evidence was insufficient to sustain a conviction, due process.
2. Due process and fair trial violation of defendant-petitioner's rights.
3. Due process fair trial violations.
4. Due process and right to remain silent were violated when the petitioner invoked his right to an attorney at questioning.
5. Defendant-petitioner was denied his right to effective assistance of trial counsel during trial and subsequent proceedings.
6. Defendant-petitioner was denied due process-fair trial by the State of Ohio's withholding of exculpatory evidence, being a Brady v. Maryland, supra, violation.
7. Trial counsel was ineffective to the prejudice of the defendant-petitioner by a failure to investigate the charges/discovery/witnesses/alibi witnesses, and for failure to adequately confront the witnesses of the State of Ohio and impeach same.
8. The petitioner is actually innocent of the charges.
9. Ineffective assistance of trial counsel for lack of representing the petitioner during the adversarial process, confronting witnesses, presenting witnesses and alibi witnesses, impeaching witnesses, lack of researching the law and charges against the petitioner and preparing for trial with adequate investigation into the known evidence that the State of Ohio possessed.
On April 14, 2009, this Court dismissed petitioner's claims as lacking merit or procedurally defaulted.
Where the Court dismisses a claim 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, 483-44 (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. . . .Id.
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 484. 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." Id., at 485. The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id.
Petitioner has failed to establish either that reasonable jurists would debate whether the Court was correct in its dismissal of petitioner's claims as procedurally defaulted, or whether the petition states a valid claim of the denial of a constitutional right. See id. Therefore, petitioner's request for a certificate of appealability, Doc. No. 58 is DENIED. IT IS SO ORDERED.