Opinion
Case No. 2:05-cv-0097.
April 10, 2006
OPINION AND ORDER
On November 17, 2005, final judgment was entered dismissing the instant habeas corpus petition pursuant to 28 U.S.C. § 2254. This matter is before the Court on petitioner's December 1, 2005, notice of appeal, and request for a certificate of appealability. Doc. Nos. 27, 28. For the reasons that follow, petitioner's request for a certificate of appealability is DENIED. His request for the appointment of counsel, Doc. No. 29, likewise is DENIED.
In his habeas corpus petition, petitioner asserts:
1. Ineffective assistance of trial/appellate counsel pursuant to Section 10 and 16, Article I of Ohio Constitution and the Sixth and Fourteenth Amendments to the U.S. Constitution.
2. Ineffective assistance of trial/appellate counsel pursuant to Section 10 and 16, Article I of the Ohio Constitution and Sixth and Fourteenth Amendments to the U.S. Constitution.
3. Trial court committed prejudicial error by failing to sustain defendant-appellant's motion to cause Ross County prosecutor's [office] to disqualify itself for conflict of interest.
4. Trial court committed prejudicial error violating defendant's right to due process and equal protection of law by not sustaining defendant-appellant's motion to suppress search warrant and items seized.
5. Petitioner was denied the effective assistance of counsel guaranteed under the Sixth Amendment to the United States Constitution when he was represented by the same counsel at trial and on direct appeal and upon death of counsel caused deprivation of right to due process and equal protection of laws.
6. Trial court committed prejudicial error to the deprivation of petitioner's 5th, 6th, [and] 14th Amendment rights to due process and equal protection of laws by permitting the jury to consider crack cocaine and powder cocaine which were not properly qualified and quantified.
7. The trial court committed prejudicial error when it would not allow the defense to introduce the felony record of a witness who was present at the search warrant location.
8. The trial court committed prejudicial error and denied Remy due process and equal protection of laws when it failed to follow the articulated process as to statutory requirements and when it failed to sentence defendant-appellant to the minimum sentence.
9. The prosecutor committed prejudicial error to the deprivation of defendant-appellant's right to due process and equal protection of laws by misleading the jury in final argument.
On November 17, 2005, claims three, four and six through nine were dismissed as procedurally defaulted; claims one, two and five were dismissed as without merit.
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, 529 U.S. 473 (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 483. 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.
Upon review of the record, the Court concludes that petitioner has failed to establish that reasonable jurists would find it debatable whether any of his claims state a valid claim of the denial of a constitutional right or should have been resolved in a different manner. See id.
Petitioner's request for a certificate of appealability therefore is DENIED. Petitioner's request for the appointment of counsel, Doc. No. 29, likewise is DENIED.
IT IS SO ORDERED.