The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ARNON COLLINS, ) Case No. 3:19-cv-00150
)
Petitioner, ) Judge J. Philip Calabrese
)
v. ) Magistrate Judge Thomas M. Parker
)
NEIL TURNER, Warden, )
)
Respondent. )
)
OPINION AND ORDER
Petitioner Arnon Collins, Jr. pled guilty in State court to drug charges and to
failure to comply with the order of a police officer—offenses for which he received a
total sentence of 12 years in prison. In his petition for a writ of habeas corpus,
Petitioner contends that his conviction violates his Sixth Amendment right to the
effective assistance of counsel, his Fourth Amendment right against unreasonable
searches, and his due-process right against conviction except upon a knowing,
intelligent, and voluntary plea—each as incorporated in the Fourteenth
Amendment’s Due Process Clause.
The Magistrate Judge recommends that the Court deny a writ on various
grounds. Petitioner objects. For the reasons that follow, the Court OVERRULES
Petitioner’s objections and ADOPTS the Magistrate Judge’s report and
recommendation. Further, the Court determines that Petitioner has not made a
substantial showing of the denial of a constitutional right. That is, in the Court’s
view, Petitioner has not shown that reasonable jurists would conclude that this
assessment is debatable or wrong. Therefore, the Court DECLINES to issue a
certificate of appealability under 28 U.S.C. § 2253(c).
FACTUAL AND PROCEDURAL BACKGROUND
On July 14, 2015, Deputy Shane Hatfield of the Preble County Sheriff’s Office
saw Arnon Collins riding a motorcycle without a license plate. (ECF No. 7-1,
PageID #84.) Deputy Hatfield knew there were multiple outstanding warrants for
Mr. Collins’s arrest, so he attempted to initiate a traffic stop by activating his lights
and siren. (Id.) Mr. Collins fled, resulting in a high-speed chase that ended in pursuit
on foot. (Id.) Upon his eventual arrest, Deputy Hatfield searched a backpack that
Mr. Collins wore throughout the chase. (Id.) Inside the backpack, Deputy Hatfield
found a container of 4.9 ounces of “wet” methamphetamine, a glass smoking pipe, a
container of marijuana, pills, a digital scale, and a cell phone. (Id.)
Deputy Hatfield and Detective Robert Schneider then searched Mr. Collins’s
home. (Id.) Mr. Collins’s mother, Phyllis Collins, also lives in the residence and
consented to a search. (Id., PageID #85.) Mr. Collins and Respondent disagree about
the scope of the consent his mother gave. Mr. Collins claims that his mother only
gave the officers permission to search his bedroom. (Id., PageID #77.) In contrast,
Respondent maintains Ms. Collins gave the officers permission “to search the
property,” not just Mr. Collins’s bedroom. (Id., PageID #85.) While searching the
exterior of the property, officers found Mr. Collins’s car, in which they could see empty
gallon jugs, a torch connected to a propane tank, a different backpack than the one
Deputy Hatfield had already searched, an unidentified item wrapped in a tarp, and
a small safe. (Id.) Mr. Collins states that the car was not in plain sight because it
was located behind “a LARGE brown pole barn.” (Id., PageID #77.)
Officers suspected that Mr. Collins was manufacturing methamphetamine
based on the items they found in his backpack and in his car in addition to other
evidence they previously had and Mr. Collins’s criminal history. (Id., PageID #84.)
That history includes criminal convictions for illegally manufacturing drugs,
attempted illegal assembly or possession of chemicals for the manufacture of drugs,
and aggravated possession of drugs. (Id., PageID #84–85.) Further, four days before
the search, Deputy Hatfield attempted to serve warrants on Mr. Collins at his home
and professed he could smell a slight odor of anhydrous ammonia coming from a trash
can behind Mr. Collins’s residence. (Id., PageID #85.) Police also knew that
Mr. Collins previously attempted to buy pseudoephedrine sixteen times in the
previous five months. (Id.) Mr. Collins successfully made twelve of those purchases.
(Id.) Based on these circumstances, Deputy Hatfield obtained a search warrant for
Mr. Collins’s car. (Id.) The search produced more items associated with the
manufacture of methamphetamine, including several containers with small amounts
of anhydrous ammonia. (Id.)
On August 3, 2015, a grand jury returned an indictment charging Petitioner
with illegally manufacturing drugs, illegal assembly or possession of chemicals for
the manufacture of drugs, one count of failure to comply with an order or signal of a
police officer, and one count of illegal use or possession of drug paraphernalia.
(ECF No. 7-1, PageID #66–67.) On October 15, 2015, a superseding indictment was
filed adding one count of aggravated possession of drugs. (Id., PageID #69–70.)
A. Motions to Suppress and Change in Counsel
On January 29, 2016, Petitioner filed a motion to suppress the evidence seized
in the warrantless searches. (Id., PageID #74.) Later, on February 23, 2016,
Petitioner filed a supplemental motion to suppress and a motion for a Franks hearing
to challenge the search of his car pursuant to a warrant. (Id., PageID #133). On
April 15, 2016, the trial court denied the motions. (Id, PageID #147.) At that point,
the matter was set for trial on May 9, 2016. (Id., PageID #148.)
One week before the scheduled trial date, on May 2, 2016, Petitioner’s defense
attorney moved to withdraw as counsel. (Id., PageID #149.) In the same motion,
Petitioner also moved for a continuance of the trial. (Id.) On May 6, 2016, the State
trial court granted the motion to withdraw, appointed new defense counsel, and
continued the matter until June 27, 2016. (Id., PageID #151.)
B. Petitioner’s Plea
On June 17, 2016, Petitioner moved to compel the prosecution to reinstate a
plea offer that expired on October 2, 2015. (Id., PageID #152–153.) On
August 1, 2016, the State trial court denied the request, stating that such a motion
can only be granted “when it is established that counsel was ineffective.”
(Id., PageID #156.) Petitioner then pleaded no contest to all five charges on
September 12, 2016. (Id., PageID #157–58.) The same day, the State trial court made
a finding of guilt and sentenced Petitioner to three years in prison for illegally
manufacturing drugs and 11 years for aggravated possession of drugs, to be served
concurrently, and one year for failure to comply with an order or signal of a police
officer, to be served consecutively, for a total of 12 years. (Id., PageID #163–64.) The
State trial court did not impose a penalty for a major drug offender specification and
waived the mandatory fines. (Id.)
C. Direct Appeal
With different appellate counsel, Petitioner appealed and assigned as error the
denial of his motions for a Franks hearing and to compel the prosecution to reinstate
its previous plea offer. (Id., PageID #167, 170 & 172.) On June 19, 2017, the
intermediate appellate court affirmed the State trial court’s judgment.
(Id., PageID #201.) Petitioner timely sought discretionary review at the Ohio
Supreme Court. (Id., PageID #212.) He appealed based on the State trial court’s
claimed failure to apply a subjective standard to determine if a plea is knowing,
intelligent, and voluntary as well as based on the search warrant issued for his car.
(Id., PageID #218 & 220.) On January 31, 2018, the Ohio Supreme Court declined to
hear the appeal. (Id., PageID #233.)
D. Collateral Attacks on Petitioner’s Plea in State Court
On June 19, 2018, Petitioner moved to withdraw his plea of no contest on the
grounds that his plea was not knowingly, intelligently, and voluntarily made, as he
had argued in his brief to the Ohio Supreme Court. (Id., PageID #234 & 236.) The
State trial court denied the motion on July 18, 2018. (Id., PageID #259.)
Petitioner appealed this ruling. (Id., PageID #260 & 264.) On March 4, 2019,
the intermediate appellate court dismissed the appeal for lack of jurisdiction, stating
that the courts could not issue another judgment because Mr. Collins sought to
withdraw his plea after his conviction was affirmed on appeal. (Id., PageID #285–86.)
For this reason, the Court determined that the lower judgment was void and declined
jurisdiction. (Id.)
E. Habeas Petition and Objections to the R&R
On January 21, 2019, Petitioner filed a petition for a writ of habeas corpus.
(ECF No. 1, PageID #17.) In his petition, Petitioner asserts that he did not receive
effective assistance of trial counsel in plea negotiations (Ground One), the warrant
for the search of Petitioner’s car was improperly based on prior bad acts evidence
(Ground Two), and his plea was not knowing, intelligent, and voluntary (Ground
Three). (Id., PageID #7–9, 19–21.)
On July 27, 2020, the Magistrate Judge issued a report and recommendation,
recommending that the Court dismiss Ground One in part as procedurally defaulted
and in part on the merits, dismiss Grounds Two and Three as noncognizable. (Id.,
PageID #409, 430–37.) Petitioner filed objections to the report and recommendation.
(ECF No. 10, PageID #445.) Petitioner first objects that the Magistrate Judge
improperly failed to consider Petitioner’s psychosis as an external factor with respect
to Ground One regarding ineffective assistance of counsel. Next, Petitioner objects
that the Magistrate Judge erred in his determination of his Fourth Amendment claim
and that there was no fair or adequate procedure available to Petitioner to resolve
this issue. (Id., PageID #443–44.) Finally, Petitioner objects that the Magistrate
Judge improperly failed to consider Petitioner’s psychosis when evaluating the
voluntariness of his plea. (Id., PageID #444–45).
STANDARD OF REVIEW
A district court judge may designate a magistrate judge to submit “proposed
findings of fact and recommendations for the disposition, by a judge of the court,” 28
U.S.C. § 636(b)(1)(B), of a petition for a writ of habeas corpus, which the Court does
by local rule, see LR 72.2. When reviewing a report and recommendation, if a party
objects within the allotted time, the district court is required to “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); United
States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981). “Objections must be specific,
not general” and should direct the Court’s attention to a particular dispute. Howard
v. Secretary of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). “The filing
of objections to a magistrate’s report enables the district judge to focus attention on
those issues—factual and legal—that are at the heart of the parties’ dispute.”
Thomas v. Arn, 474 U.S. 140, 147 (1985).
Upon review, the court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). Importantly, the Court’s job is not to conduct a free-
wheeling examination of the entire report and recommendation, but only to address
any specific objections that a party has advanced to some identified portion of it.
Accordingly, it is the Court’s task in this matter to review the Magistrate Judge’s
report and recommendation de novo, based on the specific objections Petitioner raises.
ANALYSIS
Before a petition for habeas corpus can be evaluated on the merits, a petitioner
must establish that the claim is not procedurally defaulted. To do this, a petitioner
must demonstrate that he has “exhaust[ed] all available opportunities to pursue his
claim in state court.” Gerth v. Warden, Allen Oakwood Corr. Inst., 938 F.3d 821,
826–27 (6th Cir. 2019). A petitioner’s failure to meet State procedural requirements
to raise and preserve a claim for relief in State court will bar consideration of the
claim on a habeas petition. Id. at 827. Therefore, the Court may not review a claim
where the petitioner failed to (1) comply with a State procedural rule that prevented
the State courts from reaching the merits of the petitioner’s claim, or (2) fairly present
the claim before the State courts while State remedies were still available.
Wainwright v. Sykes, 433 U.S. 72, 80, 84–87 (1977); Engle v. Isaac, 456 U.S. 107,
125 n.28 (1982); Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Procedural
default may be excused where a petitioner can show that an external factor prevented
him from complying with the procedural rule at issue, through no fault of his own,
and that the alleged constitutional violation resulted in actual prejudice.
Coleman v. Thompson, 501 U.S. 722, 753 (1991).
Where a petitioner has properly raised and preserved an issue for review on
the merits, the district court cannot grant a writ of habeas corpus unless the
adjudication in the State courts “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States[,] or resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.S. § 2254(d).
I. Ineffective Assistance of Counsel (Ground One)
The Sixth and Fourteenth Amendments to the Constitution afford criminal
defendants the right to “reasonably effective assistance” of counsel. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Yarborough v. Gentry, 540 U.S. 1, 8 (2003).
This right extends to the plea negotiation stage. Lafler v. Cooper, 566 U.S. 156,
162–63 (2012). To succeed on a claim of ineffective assistance of counsel, a petitioner
must show that (1) the performance of counsel fell below an objective standard of
reasonableness, such that counsel was not functioning as the counsel guaranteed by
the Sixth Amendment, and (2) the ineffectiveness of the counsel prejudiced the
petitioner’s defense. Strickland, 466 U.S. at 687–88. Counsel enjoy the presumption
that they discharge their duties in a sufficiently effective manner and exercise
reasonable professional judgment based on the circumstances at the time. Id. at 690.
To establish prejudice, a petitioner must “show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
In his habeas petition, Petitioner argues that his first attorney provided
representation so deficient it violated the Sixth Amendment. (ECF No. 1,
PageID #19–20.) According to Petitioner, this lawyer’s representation was ineffective
in three ways. First, Petitioner argues that counsel did not consult with him
sufficiently in advance of the deadline to accept the State’s plea offer so as to advise
Petitioner of his options adequately. (Id., PageID #20.) Second, Petitioner points to
counsel’s motion to withdraw as evidence that he provided ineffective assistance. (Id.)
Third, Petitioner argues that counsel should have been aware of Petitioner’s
psychosis and should have advocated application of a subjective test to determine
whether a plea is knowing, voluntary, and intelligent. (Id.)
In his report and recommendation, the Magistrate Judge explained that two of
the three claims asserted in Ground One, the second and third, are procedurally
defaulted because Petitioner did not raise the issues in any State court proceedings.
(ECF No. 9, PageID #429.) Further, the Magistrate Judge held that res judicata bars
those two claims because Petitioner had counsel on appeal and the claims could have
been resolved on direct appeal based on the trial record. (Id.) The Magistrate Judge
concluded this analysis by noting that Petitioner could not overcome the procedural
default. (Id., PageID #430.)
I.A. Motion to Withdraw and Voluntariness of Plea
Petitioner objects to the report and recommendation with respect to the second
and third claims in Ground One because, according to Petitioner, he raised the issue
of psychosis and confusion regarding the plea deal in State court proceedings and
because the Magistrate Judge did not adequately consider his psychosis as an
“external factor” to excuse the procedural default. (ECF No. 10, PageID #442.)
The Court agrees with the Magistrate Judge that those two bases for this claim
are procedurally defaulted. Petitioner did not present these grounds to the State
courts. Because he did not fairly present these arguments to avail himself of State
remedies, he has failed to preserve them for federal habeas review. Wainwright, 433
U.S. at 84–87; Engle, 456 U.S. at 125 n.28; Williams, 460 F.3d at 806. Nor can he
overcome this default. Petitioner has failed to prove that his mental condition or any
other external factor prevented him from raising these issues through no fault of his
own. See Coleman, 501 U.S. at 753. Additionally, these claims do not rest on new
evidence of actual innocence. See id. at 748.
I.B. Consultation and Advice
As for the claim that was not procedurally defaulted, the Magistrate Judge
held that the claim should fail on the merits because the State appellate court
determined that Petitioner’s confusion about the proposed plea deal did not result
from deficient counsel. (Id., PageID #431.) Further, the Magistrate Judge explained
that Petitioner “has not demonstrated that the Ohio Court of Appeals’ determination
was contrary to or an unreasonable application of clearly established federal law or
an unreasonable determination of the facts.” (Id., PageID #432.)
On this ground, Petitioner objects that it is “patently absurd” to argue that
counsel’s representation was not deficient. (ECF No. 10, PageID #442.) According to
Petitioner, counsel should have known that he suffered from psychosis and
consequently could not understand counsel’s advice regarding the plea offer. (Id.,
PageID #442-43.) Apparently, Petitioner contends counsel did not spend enough time
consulting with him about the plea offer in light of his psychosis. (Id.)
The Court agrees with the Magistrate Judge’s finding that Petitioner did not
specifically raise the issue of ineffective assistance of counsel before the Ohio Court
of Appeals or the Ohio Supreme Court, but that he did argue counsel’s performance
as one reason for reinstatement of the State’s original plea offer. (ECF No. 7-1,
PageID #177–78, #218–19.) In that argument, Petitioner maintained that his
original counsel had not spent enough time on his case and had not adequately
explained the plea agreement. (Id., PageID #177–78, #218–20.) Accordingly, the
State appellate court considered and ruled on whether counsel provided ineffective
assistance during the plea-bargaining phase of proceedings in the State trial court—
the first argument Petitioner advances in support of his claim of ineffective assistance
of counsel. Although the State courts did not agree with Petitioner’s argument, the
intermediate appellate court considered on its merits the first argument Petitioner
raises in support of his ineffective assistance of counsel claim. (Id., PageID #210.)
Though preserved for habeas review, the argument fails under the standard
for relief in 28 U.S.C. § 2254(d). In rejecting this argument, the State appellate court
discussed the hearing at the State trial court on the issue. (ECF No. 7-1, PageID
#210.) At the hearing, the State trial court took testimony and evidence showing that
trial counsel advised Petitioner of the plea offer shortly after the prosecution made
it, notified Petitioner of the deadline to accept the offer, and recommended that
Petitioner accept the offer. (Id.) Further, the State trial court found that trial counsel
spent an hour with his client the day before the deadline to accept or reject the plea
offer, during which time the offer and the consequences for rejecting it were discussed
thoroughly. (Id.) Rather than accept the offer, Petitioner rejected it, moved to
suppress, and requested a Franks hearing. (Id., PageID #210–11.) In rejecting
Petitioner’s argument, the State appellate court identified and applied the governing
decision of the Supreme Court. (Id.) This adjudication is not contrary to, or “an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States”; nor did it result “in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented.”
28 U.S.C.S. § 2254(d).
The errors Petitioner ascribes to his trial counsel fall far below the standard of
necessary to make a colorable showing of ineffective assistance of counsel, even
without the deference the law affords counsel’s strategic judgments. According to the
record, trial counsel met with Petitioner on four different occasions to discuss the
possibility of either accepting the plea bargain the State offered or moving on to other
options, such as filing a motion to suppress. (ECF No. 7-3, PageID #355.) Counsel
also encouraged Petitioner to take the plea bargain while maintaining that the choice
belonged to Petitioner. (ECF No. 1, PageID #20.) Contrary to Petitioner’s claim, the
record does not show that his trial counsel failed appropriately to advise Petitioner of
his options or to spend enough time discussing the matter with Petitioner.
For these reasons, Ground One is procedurally defaulted in part and denied in
part on the merits.
II. The Fourth Amendment (Ground Two)
The Fourth Amendment protects against unreasonable searches and seizures.
U.S. Const. amend IV. To ensure that protection, criminal defendants can move to
suppress evidence obtained in violation of the Fourth Amendment, such as evidence
obtained from an improperly issued warrant. Stone v. Powell, 428 U.S. 465, 482–83
(1976). However, where a defendant has had a full and fair opportunity to litigate a
Fourth Amendment claim in State court, a federal court may not grant habeas relief
on the ground that evidence obtained in violation of the Fourth Amendment was
introduced at trial. Id. at 494. A defendant had a full and fair opportunity to litigate
a Fourth Amendment claim where there was an available procedural avenue for
making the claim in State court, regardless of the adequacy of that procedure.
Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013). This means that Fourth
Amendment claims are cognizable on federal habeas review only where (1) the State
did not have any available corrective procedure to address Fourth Amendment
violations, or (2) the defendant was precluded from using any available procedure.
Id. at 638 (citing Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992)).
In the report and recommendation, the Magistrate Judge explained that
Ground Two should be dismissed as noncognizable. (ECF No. 9, PageID #435.)
According to the Magistrate Judge, because Ohio provides an adequate procedure to
raise Fourth Amendment claims, Petitioner could not satisfy the first prong of the
test laid out in Good. (Id., PageID #434.) Further, the Magistrate Judge states that
Petitioner could not satisfy the second prong of the Good test because nothing
prevented him from availing himself of Ohio’s corrective procedures. (Id.,
PageID #434–35.)
Petitioner objects to the report and recommendation on this ground, arguing
that there was no fair or adequate procedure available to Petitioner to raise his
Fourth Amendment claim. (ECF No. 10, PageID #444.) Petitioner maintains that
only prior bad acts evidence was considered in issuing the search warrant and later
evaluating its validity. (Id., PageID #443–44.) Further, Petitioner maintains that
the State trial court should have sustained his motion to suppress evidence obtained
pursuant to a search warrant that Petitioner contends was issued based solely on
prior bad acts evidence. (ECF No. 1, PageID #22–23.)
The Court agrees with the Magistrate Judge’s recommendation regarding
disposition of this ground. Ohio has an available procedure for resolving claims of
Fourth Amendment violations, which the Sixth Circuit has expressly approved as
adequate in the past. See, e.g., Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982).
Nothing precluded Petitioner from using this procedure. In fact, the State trial court
held a suppression hearing in which it considered Petitioner’s claim. (ECF No. 7-2,
PageID #322.) At this hearing, Petitioner’s counsel questioned witnesses and argued
on behalf of his client, but the State trial court nonetheless declined to suppress the
evidence. (Id., PageID #326–33.)
Under the standard that controls habeas review of a Fourth Amendment claim,
Petitioner’s claim is not cognizable. He had a full and fair opportunity to litigate
through the corrective procedure available to him, and actually did so. Therefore, his
Fourth Amendment claim cannot be considered in federal habeas review. See Good,
729 F.3d at 639.
III. Voluntariness of Plea (Ground Three)
The Fourteenth Amendment’s Due Process Clause requires that a plea of guilty
be made knowingly, voluntarily, and intelligently. In other words, “only when it
develops that the defendant was not fairly apprised of [a plea’s] consequences can his
plea be challenged under the Due Process Clause.” Mabry v. Johnson, 467 U.S. 504,
509 (1984). States may apply their own procedures to ensure that defendants’ pleas
meet this constitutional standard. See Boykin v. Alabama, 395 U.S. 238, 240 (1969).
In the report and recommendation, the Magistrate Judge explained that
Ground Three is procedurally defaulted because Petitioner did not raise the issue on
direct appeal. (ECF No. 9, PageID #436.) According to the Magistrate Judge,
Petitioner’s subsequent attempts to litigate the issue procedurally failed because the
Ohio Supreme Court, had it heard the case, cannot consider claims not raised in an
appellate court and because res judicata precluded raising the issue in later
proceedings. (Id.) The Magistrate Judge concludes that Petitioner cannot overcome
the procedural default because he did not argue and could not prove that a factor
external to his defense prevented him from following the applicable procedure or that
the claim rested on new evidence of actual innocence. (Id.)
Petitioner objects to this part of the report and recommendation, arguing that
his psychosis was an external factor that prevented him from following the procedure.
(ECF No. 10, PageID #445.) Additionally, Petitioner claims that the State courts
applied an incorrect standard to determine the voluntariness of his plea. In his view,
the State courts failed to consider his state of mind given his psychosis and mental
condition (ECF No. 1, PageID #21), which also make his plea objectively involuntary
in violation of due process (ECF No. 10, PageID #444). Respondent maintains that
Petitioner’s claim presents a noncognizable ground for relief because he bases it on
State law. (ECF No. 7, PageID #60.)
The Court need not determine whether Ground Three is cognizable because it
is procedurally defaulted. The Ohio Supreme Court will not hear constitutional
claims not presented to an intermediate appellate court. Leroy v. Marshall, 757 F.2d
94, 99 (6th Cir. 1985). Petitioner did not raise his claim about the voluntariness of
his plea—on State or federal constitutional grounds—on direct appeal. (See ECF
No. 7-1, PageID #174–78.) Because the Ohio Supreme Court did not provide a reason
for declining to review Petitioner’s case, the Court assumes it applied a procedural
bar. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004) (citing Simpson v.
Sparkman, 94 F.3d 199, 203 (6th Cir. 1996)). By the time Petitioner raised this claim,
res judicata barred it. (ECF No. 7-1, PageID #258.)
Further, Petitioner cannot overcome this procedural default. He has not
shown that a factor external to his defense, which cannot be attributed to him, caused
the failure to raise the issue on direct appeal or that his claim rests on new evidence
of actual innocence. See Coleman, 501 U.S. at 750. Without such a showing, the third
ground in Petitioner’s habeas petition is procedurally defaulted.
CERTIFICATE OF APPEALABILITY
Without a certificate of appealability, a habeas petitioner cannot appeal a final
order in a habeas proceeding. 28 U.S.C.S. § 2253(c)(1). Issuance of a certificate of
appealability requires a petitioner to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C.S. § 2253(c)(2). This means that the petitioner must
show that reasonable jurists would find the district court’s determination of the
relevant constitutional claims debatable or incorrect. Tennard v. Dretke, 542 U.S.
274, 282 (2004). The petitioner need not show that the appeal would succeed to be
eligible for a certificate of appealability. Miller-El v. Cockrell, 537 U.S. 322, 337
(2003).
Based on this standard, Petitioner does not qualify for a certificate of
appealability. “Where a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not conclude either
that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In these
cases, judges should not issue certificates of appealability. Id. at 486. Because the
majority of Petitioner’s claims are procedurally defaulted, and because the remaining
claims do not merit federal habeas relief, Petitioner is not entitled to a certificate of
appealability.
CONCLUSION
For the foregoing reasons, the Court the Court OVERRULES Petitioner’s
objections (ECF No. 10) and ADOPTS the Magistrate Judge’s report and
recommendation (ECF No. 9). Further, the Court DECLINES to issue a certificate
of appealability under 28 U.S.C. § 2253(c). Based on the disposition of his habeas
petition, the Court DENIES AS MOOT Petitioner’s motion requesting a ruling on
his objections. (ECF No. 11.)
SO ORDERED.
Dated: June 29, 2021
J. Philip Calabrese
United States District Judge
Northern District of Ohio
19