Opinion
Case No. C-2-99-1242
July 2, 2002
OPINION AND ORDER
Final judgment dismissing petitioner's habeas corpus action was entered on May 9, 2002. Petitioner has filed a notice of appeal, and a request for a certificate of appealability. For the following reasons, petitioner's motion for a certificate of appealability is DENIED.
On July 9, 1997, after a jury trial, petitioner was convicted in the Franklin County Court of Common Pleas on charges of kidnapping, felonious assault, felonious sexual penetration, and rape. On May 19, 1998, the Tenth District Court of Appeals affirmed the judgment of the trial court, and on December 2, 1998, the Ohio Supreme Court dismissed petitioner's subsequent appeal. Petitioner filed a pro se motion for new trial and a petition for post conviction relief with the trial court, both of which were denied. On November 8, 2000, again proceeding pro se, petitioner also filed a delayed application for reopening of his appeal pursuant to Ohio Appellate Rule 26(B). On March 27, 2001, the appellate court denied the application, and on June 27, 2001, the Ohio Supreme Court dismissed the appeal as not involving any substantial constitutional question.
On November 16, 1999, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds:
On August 7, 2000, the petition originally filed in this action was dismissed for failure to exhaust state court remedies; petitioner's request to reconsider and to hold the action in abeyance was denied on November 6, 2000. On August 29, 2001, petitioner filed a motion to amend the petition to reflect the completion of state court proceedings. On October 9, 2001, that motion was granted, and the judgment dismissing this case was vacated.
1. Denial of effective assistance of counsel.
2. Juror misconduct.
3. Wrongfully labeled as a sexual predator.
4. My Fourteenth Amendment right to due process and my Sixth Amendment right to an impartial jury were violated by the court placing on the record in open court before the media, defense counsel's earlier statement in a sidebar conference that counsel would have to withdraw from representing me if I were not allowed to testify in a narrative format, and by the publication of counsel's statement in television and newspaper reports.
5. Prosecutorial misconduct.
6. Insufficient evidence to support the conviction[s].
7. Judicial misconduct.
On May 9, 2002, this Court dismissed the petition. Claim four was dismissed on the merits; the remainder of petitioner's claims were dismissed due to an unexcused procedural default.
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, 529 U.S. 473, 483 (2000). 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.
As to claims one and two, petitioner failed to object to the alleged errors in a timely manner, and the claims were therefore reviewed on appeal for plain error only. As to claims three, five, six and seven, petitioner never presented these claims on direct appeal although he was at that time represented by new counsel. Additionally, petitioner failed to establish cause for these procedural defaults. Petitioner's claim of ineffective assistance of appellate counsel did not constitute cause for the failure to assert claims five, six, and seven on direct appeal, because appellate counsel was not ineffective in failing to assert these claims. The ineffective assistance of appellate counsel could not serve as cause for the procedural default of claim three because that claim was never presented to the state courts. See Edwards v. Carpenter, 529 U.S. 446, 451-53 (2000). The Court concludes that petitioner has failed to establish either that reasonable jurists would find it debatable whether this Court was correct in its procedural rulings, or that reasonable jurists would find it debatable whether the petition states a valid claim of the denial of a constitutional right as to all of these claims. Slack v. McDaniel, supra.
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, supra. 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. Upon review of the record, the Court likewise concludes that petitioner has failed to show that reasonable jurists could debate whether claim four should have been resolved in a different manner.
Based upon the foregoing, petitioner's request for a certificate of appealability is DENIED.