Washington v. Cool

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DARIUS WASHINGTON, ) Case No. 3:22-cv-1634

)

Petitioner, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge

) Jennifer D. Armstrong

WILLIAM COOL, Warden, )

)

Respondent. )

)

OPINION AND ORDER

Petitioner Darius Washington, a prisoner in State custody, filed a petition for

a writ of habeas corpus under 28 U.S.C. § 2254. The Magistrate Judge recommends

denying and dismissing Petitioner’s claims. Petitioner objects to that

recommendation. For the following reasons, the Court OVERRULES Petitioner’s

objections, ADOPTS the Magistrate Judge’s Report and Recommendation, and

DENIES and DISMISSES the petition for a writ of habeas corpus. Further, the

Court DECLINES to issue a certificate of appealability.

FACTUAL AND PROCEDURAL BACKGROUND

This petition for writ of habeas corpus arises from a conviction in State court.

Unless the habeas petitioner demonstrates otherwise with clear and convincing

evidence, federal courts presume that a State court’s findings of fact are correct.

Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013).

A. Indictment, Trial, and Conviction.

On March 28, 2019, a grand jury indicted Darius Washington on the following

charges: two first-degree felony counts of rape under Sections 2907.02(A)(2) and

2907.02(B) of the Ohio Revised Code; two second-degree felony counts of felonious

assault with a sexual motivation specification under Sections 2907.02(A)(2),

2907.02(B), and 2941.147; and two first-degree felony counts of kidnapping with a

sexual motivation specification under Sections 2905.01(A)(4), 2905.01(C), and

2941.147. (ECF No. 7-1, PageID #105–08.) The charges account for

Mr. Washington’s actions with two different women on two separate days. (Id.)

At a pre-trial hearing in the State trial court on June 6, 2019, Petitioner made

an oral motion for substitution of counsel, which was denied. (Id., PageID #464.) At

another pre-trial hearing on July 12, 2019, Mr. Washington made another oral

motion for substitution of counsel. (Id., PageID #113.) Mr. Washington repeatedly

interrupted the judge, his own counsel, and prosecutors during the hearing. (Id.,

PageID #402.) The deputy sheriff forced Mr. Washington to sit in a chair “for safety

and security reasons,” and he “was warned that obstreperous conduct would result in

his removal from the courtroom.” (Id.) Eventually, he was escorted out of the

courtroom. (ECF No. 7-2, PageID #492.) On July 15, 2019, the State trial court

denied the motion for substitution of counsel because of appointed counsel’s “vast

experience in handling criminal trials.” (ECF No. 7-1, PageID #121.)

At the beginning of the trial on July 16, 2019, the State trial court asked

Mr. Washington if he would behave in a manner more conducive to courtroom

decorum. (ECF No. 7-2, PageID #493–95.) Mr. Washington responded to these

questions by stating that he did not want his attorney to represent him, which

resulted in a prolonged discussion about the issue. (Id., PageID #494–500.) The State

trial court stated that it had already addressed the matter. (Id., PageID #500.)

Eventually, because Mr. Washington did not agree to comply with courtroom

decorum and did not drop the issue regarding substitution of counsel, the State trial

court forced Mr. Washington to view the first day of trial from his holding cell, where

he was able to hear the proceedings and communicate with his lawyer by phone. (Id.,

PageID #500, #683, & #940–41.) Mr. Washington was present in the courtroom for

the rest of the trial. (Id., PageID #719.)

On July 19, 2019, the jury found Mr. Washington guilty on all counts. (ECF

No. 7-1, PageID #122.) At his sentencing hearing, counsel for Mr. Washington argued

that the State trial court should merge his counts. (Id., PageID #123; ECF No. 7-2,

PageID #1026.) The court rejected this argument and sentenced him to twenty-eight

years in prison. (ECF No. 7-1, PageID #123–24.)

B. Direct Appeal

Through new appellate counsel, Mr. Washington raised one assignment of

error on appeal: “The trial court erred in failing to merge Counts 2 and 3 with Count 1

and Counts 5 and 6 with Count 4.” (Id., PageID #139.) On the basis of conduct on

June 25, 2018 with one of the victims, Counts 1, 2, and 3 charged Mr. Washington

with, respectively: rape, felonious assault with a specification of sexual motivation,

and kidnapping with a specification of sexual motivation. (Id., PageID #105–06.) On

the basis of conduct on August 17, 2018 involving a different victim, Counts 4, 5,

and 6 charge Mr. Washington with the same offenses: rape, felonious assault with a

specification of sexual motivation, and kidnapping with a specification of sexual

motivation. (Id., PageID #106–08.)

After the State responded to his brief, Mr. Washington replied and raised three

new assignments of error: (1) “The trial court erred in barring appellant from the

courtroom during critical stages of appellant’s jury trial thereby violating appellant’s

right to due process and right to confront witnesses”; (2) the “Appellant was denied

effective assistance of counsel at all critical stages of his trial”; and (3) “The jury’s

verdict was against the manifest weight of evidence.” (Id., PageID #173.)

On March 12, 2021, the State appellate court determined that the trial court

did not err in failing to merge Counts 2 and 3 with Count 1 or Counts 5 and 6 with

Count 4. (Id., PageID #185 & #195–96.) The court reasoned that Counts 2 and 3

should not merge with Count 1 because they were of a dissimilar import, meeting the

requirement for a conviction of distinct offenses under Section 2941.25(B) of the Ohio

Revised Code. (Id., ¶¶ 23–26, PageID #192–93; see State v. Ruff, 143 Ohio St. 3d 114,

2015-Ohio-995, 34 N.E.3d 892, ¶ 13.) Similarly, the State appellate court determined

that Counts 5 and 6 should not merge with Count 4 because they were committed by

separate acts. (Id., ¶ 33, PageID #195–96.) If offenses are committed separately,

Section 2941.25(B) permits a conviction a defendant for multiple, distinct offenses.

(Id., PageID #191.) Also, the appelate court struck Mr. Washington’s reply brief

because the Ohio Rules of Appellate Procedure do not permit appellants to present

assignments of error in a reply brief. (Id., PageID #190 n.1.)

On April 22, 2021, Mr. Washington, proceeding pro se, filed a notice of appeal

to the Ohio Supreme Court. (Id., PageID #197.) In his memorandum in support of

jurisdiction, Mr. Washington raised one issue, relating to the merger of the counts at

sentencing:

The Trial Court violated Appellant’s rights against Double Jeopardy, as

codified in O.R.C. 2941.25, as well as violated his rights to due process

of the law by convicting and punishing him based on conduct and a set

of offenses determined to be allied to support enhanced punishment

under one Ohio statute; then, in the same case, punished him based on

the same conduct and same set of offenses determined to NOT be allied

to support enhanced punishment under another Ohio statute.

Furthermore, the two statutes are in conflict and do not harmonize.

(Id., PageID #200 (emphasis in original).) The Ohio Supreme Court declined review.

(Id., PageID #220.)

C. Application to Reopen

On September 15, 2021, Mr. Washington filed an application to reopen his

direct appeal. (Id., PageID #221.) He asserted five assignments of error, each

claiming that his previous appellate counsel was ineffective. (Id., PageID #229.)

Later, Mr. Washington sought to amend his application, alleging that his appellate

counsel failed to mention that he was unable to view the courtroom proceedings

through a contemporaneous video proceeding. (Id., PageID #394.)

However, Mr. Washington’s application was untimely. (Id., PageID #396.)

Under Rule 26(B)(1) of the Ohio Rules of Appellate Procedure, an application for

reopening must be “filed in the court of appeals where the appeal was decided within

ninety days from journalization of the appellate judgment unless the applicant shows

good cause for filing at a later time.” The State appellate court released its decision

on March 12, 2021. (ECF No. 7-1, PageID #185.) Therefore, Mr. Washington’s

application for reopening was due no later than June 10, 2021, some two months

before it was filed.

In a memorandum in support of his application to reopen, Mr. Washington

attempted to show good cause for his untimely filing. (Id., PageID #230–32.) He

argued that he mailed his application to the courthouse of the State appellate court

on June 2, 2021 and pointed to statutory language in Rule 26(B) of the Ohio Rules of

Appellate Procedure, which states that the application must be “filed in the court of

appeals where the appeal was decided.” (Id., PageID #230.) However, the State

appellate court does not have a clerk’s office at the address to which Mr. Washington

mailed his application. (Id., PageID #235.) The court notified him of this error during

a phone call on June 25, 2021 and in a letter on June 29, 2021. (Id., PageID #231 &

#235.) Two months after this notice, Mr. Washington properly filed his application.

(Id., PageID #397.)

The State appellate court determined that Mr. Washington’s two-month delay

undermined his good cause argument. (Id.) Also, it noted that good cause is generally

not found in cases involving one’s ignorance of appellate law and procedure. (Id.)

Because Mr. Washington could not show good cause for his delay and the time frame

to file an application to reopen is strictly enforced, the State appellate court denied

his application due to its untimeliness. (Id., PageID #396–97.) Additionally, the court

determined that Mr. Washington failed to demonstrate ineffective assistance of

appellate counsel even on review of his claims. (Id., PageID #398–406.)

On November 19, 2021, after his application for reopening was denied,

Mr. Washington filed a motion for reconsideration in the State appellate court. (Id.,

PageID #407.) Again, he asserted that he misinterpreted the language in Rule 26(B),

requiring him to “file[] in the court of appeals where the appeal was decided” and

argued that this confusion was “something out of Appellant’s control.” (Id., PageID

#409.) On December 17, 2021, the State appellate court denied this motion because

Mr. Washington “failed to present an issue that was not fully considered by this court”

and noted that, despite its determination of untimeliness, the “court did, in fact,

consider and reject the merits of appellant’s arguments.” (Id., PageID #419–20.)

On January 27, 2022, Mr. Washington filed a notice of appeal and

memorandum in support of jurisdiction in the Ohio Supreme Court. (Id., PageID

#421 & #423.) Mr. Washington raised two claims of error: (1) the “Appellate Court

erred by not filing Appellant’s timely 26(B) Application for Reopening his Direct

Appeal,” and (2) denial of reopening the direct appeal due to ineffective assistance of

appellate counsel. (Id., PageID #424.) The Ohio Supreme Court declined review. (Id.,

PageID #459.)

D. Habeas Petition

On September 1, 2022, Mr. Washington filed a petition for a writ of habeas

corpus in federal court, requesting a new trial and sentencing. (ECF No. 1, PageID

#23.) Petitioner asserts seven grounds for relief. (Id., PageID #9–17.)

Under Local Rule 72.2, the case was referred to a Magistrate Judge, who issued

a Report and Recommendation. (ECF No. 11.) The Magistrate Judge recommends

that the Court deny the petition because Ground One is non-cognizable in a federal

habeas proceeding (id., PageID #1096–97), and Grounds Two through Seven are

procedurally defaulted and also fail on the merits. (Id., PageID #1097–1114) Also,

the Magistrate Judge recommends that the Court not grant a certificate of

appealability. (Id., PageID #1115–16.) Petitioner timely objected to the Report and

Recommendation. (ECF No. 16.)

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 L.R. 72.2. When reviewing a report and recommendation, if a party

timely objects, 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. See 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).

On 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, a 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, the Court’s task is to review the Magistrate Judge’s Report and

Recommendation de novo, based on the specific objections Petitioner raises.

ANALYSIS

Where a petitioner “is in custody in violation of the Constitution or laws or

treaties of the United States,” he is entitled to a writ of habeas corpus. 28 U.S.C.

§§ 2241(c)(3) & 2254(a). At bottom, the writ tests the fundamental fairness of the

State court proceedings resulting in the deprivation of the petitioner’s liberty. See,

e.g., Brown v. Allen, 344 U.S. 443, 463 (1953); Powell v. Collins, 332 F.3d 376, 388

(6th Cir. 2003) (citing Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)); Skaggs v.

Parker, 235 F.3d 261, 266 (6th Cir. 2000).

28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim –

(1) 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

(2) 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.

“With the AEDPA, Congress limited the source of law for habeas relief to cases

decided by the United States Supreme Court.” Herbert v. Billy, 160 F.3d 1131, 1135

(6th Cir. 1998); see also Williams v. Taylor, 529 U.S. 362, 412 (2000).

A State court adjudication is “contrary to” Supreme Court precedent under

Section 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached

by this Court on a question of law,” or “if the state court confronts facts that are

materially indistinguishable from a relevant Supreme Court precedent” and arrives

at a different result. Williams, 529 U.S. at 405. “Avoiding these pitfalls does not

require citation of [Supreme Court] cases—indeed, it does not even require awareness

of [the] cases, so long as neither the reasoning nor the result of the state-court

decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002).

Under Section 2254(d)(1), an unreasonable application of federal law is

different from an incorrect application of federal law. See Harrington v. Richter, 562

U.S. 86, 101 (2011) (citing Williams, 529 U.S. at 410). A State court adjudication

involves “an unreasonable application of” Supreme Court precedent under Section

2254(d)(1) if: (1) the State court identifies the correct governing legal rule from the

Supreme Court’s cases but unreasonably applies it to the facts of the particular State

prisoner’s case; or (2) the State court either unreasonably extends a legal principle

from the Court’s precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context where it should apply.

See Williams, 529 U.S. at 407.

I. Failure to Merge Counts (Ground One)

In his first ground for relief, Petitioner maintains that the “trial court failed to

merge [C]ounts 2 and 3 with [C]ount 1, and [C]ounts 5 and 6 with [C]ount 4.” (ECF

No. 1, PageID #9.) Petitioner states that the trial court “knowingly merged [C]ount[s]

2 and 3 but failed to merge [C]ount 1. As well as [C]ount 5 and 6 were merged[,] but

not with [C]ount 4.” (Id.) Petitioner alleges this failure to merge the counts violated

his rights under the Due Process Clause and the Double Jeopardy Clause. (Id.)

The Magistrate Judge recommends that the Court dismiss Ground One

because it is not cognizable in a federal habeas proceeding. (ECF No. 11, PageID

#1096–97.) As the Magistrate Judge noted (id., PageID #1096), the State appellate

court held that Ohio law authorized cumulative punishments for Petitioner’s crimes.

(ECF No. 7-1, PageID ¶¶ 23–33, PageID #192–96). Specifically, the State appellate

court determined that each charge was associated with a separate and identifiable

harm; therefore, sentencing on each charge separately was appropriate. (ECF

No. 7-1, PageID #192–96.)

Petitioner objects to the Report and Recommendation on Ground One. (ECF

No. 16, PageID #1129.) He maintains that he committed the relevant offenses at the

same time, with the same conduct and intent. (Id., PageID #1130.) Further, he

argues that the sexual motivation specifications attached to Counts 2, 3, 5, and 6

“demonstrate that they were driven by the same purpose [as Counts 1 and 4,

respectively], which should require merger for sentencing purposes.” (Id.)

The Double Jeopardy Clause of the Fifth Amendment guarantees that “no

person shall . . . be subject for the same offence to be twice put in jeopardy.” U.S.

Const. amend V. The Double Jeopardy Clause “protects against multiple

punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165 (1977) (quoting

North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). “With respect to cumulative

sentences imposed in a single trial, the Double Jeopardy Clause does no more than

prevent the sentencing court from prescribing greater punishment than the

legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). Therefore, to

determine whether a sentence entails multiple punishments for the same offense, the

Court must look to the intent of the State legislature that enacted the statute. Banner

v. Davis, 886 F.2d 777, 779–80 (6th Cir. 1989).

“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.” Estelle, 502 U.S. 62, 67–68 (1991).

Accordingly, federal habeas courts defer to State courts’ constructions of State

statutes regarding cumulative sentencing. See O'Brien v. Skinner, 414 U.S. 524, 531

(1974). If a State court has found that its State legislature intended cumulative

punishments, “a federal court is bound by a state court's construction of that state's

own statutes,” and must defer to that construction. Banner, 886 F.2d at 780.

Therefore, the interpretation of State sentencing laws is not cognizable on federal

habeas review. See Randle v. Turner, No. 3:19-cv-1166, 2021 WL 3239447, at *1–2

(N.D. Ohio July 30, 2021).

Here, the State appellate court relied on a decision from the Ohio Supreme

Court regarding Section 2941.25(B) of the Ohio Revised Code, the State statute

governing multiple counts, to determine whether the counts in Petitioner’s case

should merge. (ECF No. 7-1, ¶ 20, PageID #191.) Based on its application of Section

2941.25(B) to the circumstances of Petitioner’s case, the State appellate court

determined that the sentences should not merge under the statute. (Id., ¶¶ 23–33,

PageID #192–96.) The Court must defer to this determination. See Banner, 886 F.2d

at 780.

For these reasons, the Court ADOPTS the Magistrate Judge’s Report and

Recommendation and OVERRULES Petitioner’s objections as to Ground One.

II. Grounds Two Through Seven

Petitioner’s remaining grounds for relief relate to his absence from the

courtroom on the first day of the trial and the effectiveness of his counsel’s assistance.

The Magistrate Judge recommends that the Court dismiss these grounds based on

procedural default and failure on the merits. For the following reasons, the Court

ADOPTS the Magistrate Judge’s Report and Recommendation as to Grounds Two

through Seven and OVERRULES Petitioner’s objections.

II.A. Procedural Default

Before the Court can evaluate the merits of a claim raised in a habeas petition,

a petitioner must establish that the claim was not procedurally defaulted. Generally,

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 (6th Cir. 2019). Further, a federal court may not consider a habeas

petition unless a State prisoner has presented his claim to the State courts in

accordance with the State’s procedural rules. See Shinn v. Ramirez, 596 U.S. 366,

371 (2022).

A petitioner may procedurally default a claim by failing to raise it in State

court and pursue it through the State’s appellate review procedures. Williams v.

Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Where the petitioner has failed to do so,

and State courts would dismiss or deny the claim on that basis, the federal court must

do the same because the petitioner has procedurally defaulted the claim. Shinn, 596

U.S. at 371. If State law no longer allows the petitioner to raise or appeal the claim

at the time of the habeas petition, the claim is procedurally defaulted. Id. 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. See

Coleman v. Thompson, 501 U.S. 722, 753 (1991).

II.B. Report and Recommendation

In her Report and Recommendation, the Magistrate Judge explained that

Grounds Two through Seven are procedurally defaulted because Petitioner did not

properly raise them in State court proceedings. (ECF No. 11, PageID #1098–1113.)

Petitioner objects to these findings and argues that his procedural default should be

excused because of his efforts to timely file, external factors beyond his control,

prejudice to him, and fundamental fairness. (ECF No. 16, PageID #1140–41.) He

maintains that he timely mailed his application for reopening, but “due to an

addressing issue and a failure in mail delivery beyond his control, his filing was not

accepted.” (Id., PageID #1140.) He argues that he made a good faith effort to file his

application to reopen his direct appeal and that “[f]undamental fairness requires a

review” of his claims because his rights would be unjustly denied if the Court strictly

enforced procedural requirements. (Id., PageID #1143.) Additionally, Petitioner

contends that there was prejudice to him because if the State appellate court had

accepted his application to reopen, “his claims would have been properly reviewed,

and he would not have been procedurally barred.” (Id., PageID #1141.)

II.C. The State-Court Record

Petitioner did not raise Grounds Two through Seven in his direct appeal in the

State appellate court—he only raised the failure-to-merge issue discussed in Ground

One. (ECF No. 7-1, PageID #139.) On direct appeal, Petitioner attempted to raise

Grounds Two and Five in his reply brief. (Id., PageID #173.) But the State appellate

court struck these claims because the Ohio Rules of Appelate Procedure do not allow

appellants to raise new claims in a reply brief. (Id., PageID #190 n.1.) Then,

Petitioner only pursued his failure-to-merge claim before the Ohio Supreme Court.

(Id., PageID #200.) “[I]f an unexhausted claim would be procedurally barred under

state law, that claim is procedurally defaulted for purposes of federal habeas review.”

Alley v. Bell, 307 F.3d 380, 385 (6th Cir. 2002); see also Seymour v. Walker, 224 F.3d

542, 550 (6th Cir. 2000) (noting that a claim is procedurally defaulted when a

petitioner does not exhaust available State remedies or when a State court does not

consider a claim because of its procedural rules).

After the close of his direct appeal, Petitioner filed an application to reopen

under Rule 26(B) of the Ohio Rules of Appellate Procedure, claiming that his

appellate counsel failed to raise issues that correspond to Grounds Two through Six

in this habeas petition. (ECF No. 7-1, PageID #229.) Also, he sought to amend his

application to include an issue corresponding to Ground Seven in this petition. (Id.,

PageID #394.) However, the State appellate court found the application untimely.

(Id., PageID #396.) Accordingly, Grounds Two through Seven are procedurally

defaulted because he did not properly raise them in his direct appeal.

II.D. Petitioner’s Objections

Here, as he did in his application to reopen, Petitioner objects that he had good

cause for his delay in filing the application because he sent his application to the

wrong address. (ECF No. 16, PageID #1140–43.) The State appellate court

considered and rejected this argument. The State appellate court held that

Petitioner’s application was untimely and rejected his good-cause argument because

he waited two months to resend his application. (ECF No. 7-1, PageID #397.)

Additionally, the court noted that “good cause is not found in an individual’s

ignorance in appellate law and procedure.” (Id.) Later, the Ohio Supreme Court

declined to accept jurisdiction over the application to reopen. (Id., PageID #459.)

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)). Because Petitioner’s application for reopening was procedurally

defaulted in State court, “that procedural default carries over to federal court and

precludes habeas review of that claim in federal court.” Simpson v. Jones, 238 F.3d

399, 406 (6th Cir. 2000).

Federal courts “must defer to a state court's interpretation of its own rules of

evidence and procedure.” Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988) (quoting

Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)). Therefore, the Court

must defer to the State appellate court's determination that his application was

untimely under Rule 26(B), an Ohio Rule of Appellate Procedure. Untimeliness

under Rule 26(B) results in a procedural default of a habeas claim. See Parker v.

Bagley, 543 F.3d 859, 862 (6th Cir. 2008). Accordingly, Petitioner’s arguments in

Grounds Two through Seven are procedurally defaulted, and the Court has no

occasion to consider the merits of Petitioner’s remaining grounds for relief.

CERTIFICATE OF APPEALABILITY

Without a certificate of appealability, a habeas petitioner cannot appeal a final

order in a habeas proceeding. 28 U.S.C. § 2253(c)(1)(A). A court may issue a

certificate of appealability only if the petitioner makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This means that the

petitioner must show that reasonable jurists could 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 will

succeed. 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 [cannot] conclude either

that the district court erred in dismissing the petition or that the petitioner should

be allowed to proceed further. In such a circumstance, no appeal would be

warranted.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because the majority of

Petitioner’s claims are procedurally defaulted, and because the remaining claim is

not cognizable on federal habeas review, Petitioner is not entitled to a certificate of

appealability.

CONCLUSION

For the foregoing reasons, the Court OVERRULES Petitioner’s objections

(ECF No. 16), ADOPTS the Magistrate Judge’s Report and Recommendation (ECF

No. 11), and DENIES and DISMISSES the petition for a writ of habeas corpus (ECF

No. 1). Further, the Court DECLINES to issue a certificate of appealability under

28 U.S.C. § 2253(c).

SO ORDERED.

Dated: August 29, 2025

J.PhilipCalabrese

United States District Judge

Northern District of Ohio

18