Opinion
Case No. 2:99-CV-1127.
October 23, 2006
OPINION AND ORDER
On August 22, 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 the Court on petitioner's September 20, 2006, notice of appeal and October 13, 2006, motion for a certificate of appealability. Doc. Nos. 92, 94. For the reasons that follow, petitioner's motion for a certificate of appealability is DENIED.
In this habeas corpus petition, petitioner asserts as follows:
1. Griffin's agreement to waive a three judge panel and jury, when her case contained a capital specification, is void. The "agreement" or waiver was neither intelligent nor informed, but was rather an illegal arrangement that resulted in a total deprivation of her constitutional right to a jury trial, which must be condemned under the due process clause of the Fourteenth Amendment to the United States Constitution.
2. Ms. Griffin has a protected liberty interests in not receiving a punishment greater than what is authorized by statute. Ms. Griffin's sentence runs afoul of Ohio Revised Code Section 2929.03(C)(2) and violates her liberty interests protected by the Fourteenth Amendment to the United States Constitution.
3. Ms. Griffin was deprived of the effective assistance of trial counsel in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.
4. Ms. Griffin was deprived of the effective assistance of appellate counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution. Appellate counsel failed to raise significant issues on appeal that, if raised, would likely have resulted in reversal.
On August 22, 2006, claims one through three were dismissed as procedurally defaulted. Such claims should have been raised on direct appeal, but were not. As cause for her procedural default and in claim four, petitioner asserts the ineffective assistance of appellate counsel; however, such claim also was dismissed as procedurally defaulted, and therefore could not constitute cause for petitioner's procedural default. Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000). Petitioner failed to present her ineffective assistance of appellate counsel claim to the state courts until April 19, 1999, approximately seven years after the Ohio Supreme Court dismissed her appeal on July 15, 1992, and the state appellate court denied her delayed application to reopen the appeal pursuant to Ohio Appellate Rule 26(B) for failure to show good cause for the untimely filing. Alternatively, the Court dismissed on the merits petitioner's allegation in claim one that her waiver of a three judge panel and a jury was void under Ohio law and that the trial court therefore was without jurisdiction, and that she was denied due process because her consent to be tried by a single judge violated Ohio law.
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, 120 S.Ct. 1595 (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.
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.
Petitioner requests a certificate of appealability on the issue of whether Ohio's Appellate Rule 26(B) constituted an effective remedy to bar federal habeas corpus review in 1999, when she filed her delayed Rule 26(B) application; on whether she properly presented to the state court her claim that her consent to be tried and sentenced by a single judge was not knowing, intelligent, or voluntary; on whether Ohio appellate courts consider the merits of underlying claims in Rule 26(B) proceedings; and on whether this Court was correct in its dismissal of claim one on the merits.
Upon review of the record, the Court concludes that petitioner has failed to establish either that reasonable jurists could debate whether the Court was correct in its procedural rulings, or that any of her claims should have been resolved differently. See Slack v. McDaniel, supra. Petitioner's request for a certificate of appealability is therefore DENIED.
IT IS SO ORDERED.