Connally v. Warden, Noble Correctional Institution, No. 2:2017cv00729 - Document 13 (S.D. Ohio 2018)

Court Description: OPINION and ORDER adopting and affirming 11 the Report and Recommendation. Signed by Judge Michael H. Watson on 7/26/18. (jk)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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Connally v. Warden, Noble Correctional Institution Doc. 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION JAHMEZ L. CONNALLY, Case No. 2:17-cv-729 Petitioner, Judge Michael H. Watson Magistrate Judge Vascura V. WARDEN, TIM BUCHANAN, Respondent. OPINION AND ORDER On April 16, 2018, the Magistrate Judge issued a Report and Recommendation recommending that this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. EOF No. 11. Petitioner has filed an Objection to the Magistrate Judge's Report and Recommendation. EOF No. 12. Petitioner challenges his underlying convictions after a jury trial in the Franklin County Court of Common Pleas on charges of aggravated burglary, aggravated robbery, robbery, and kidnapping with firearm specifications. Petitioner asserts that he was denied the effective assistance of appellate counsel, because his attorney failed to consult with him and failed to raise on appeal issues demonstrating Petitioner's actual innocence. The Magistrate Judge recommended dismissal of this claim as without merit and procedurally defaulted. Petitioner objects to that recommendation. Petitioner again argues that evidence establishes that he is actually innocent of the charges against him; that Dockets.Justia.com he was convicted on the basis of unreiiabie testimony and witness identifications; and that his brother has admitted his guiit to the charges. Pursuant to 28 U.S.C, § 636(b), this Court has conducted a de novo review. For the reasons aiready detaiied in the Magistrate Judge's Report and Recommendation, Petitioner's arguments are not persuasive. As the Magistrate Judge expiained, he has failed to establish the denial of the effective assistance of appellate counsel, and his claim that his attorney failed to consult is waived. Moreover, Petitioner has failed to establish his actual innocence. See Souter V. Jones, 395 F.3d 577, 589-90 (6th Cir. 2004). in any event, a free standing claim of actual innocence does not provide Petitioner a basis for relief. See Muntaser v. Bradshaw, 429 F. App'x 515, 521 (6th Cir. 2011). Petitioner's Objection, ECF No. 12, therefore is OVERRULED. The Report and Recommendation, ECF No. 11, is ADOPTED and AFFIRMED. This action is hereby DISMISSED. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court now considers whether to issue a certificate of appeaiabiiity. A state prisoner who seeks a writ of habeas corpus in federal court does not have an automatic right to appeal a district court's adverse decision unless the court issues a certificate of appeaiabiiity. 28 U.S.C. § 2253(c). Case No. 17-cv-729 Page 2 of 3 When a claim has been denied on the merits, a certificate of appeaiability may be issued only ifthe petitioner "has made a substantiai showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). 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.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). When a claim has been denied on procedural grounds, a certificate of appeaiability may be issued if the petitioner establishes that jurists of reason would find it debatabie whether the petition states a valid claim of the deniai of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Id. The Court is not persuaded that reasonable jurists would debate the dismissal of Petitioner's claims as procedurally defaulted and without merit. The Court therefore DECLINES to issue a certificate of appeaiability. The Clerk is DIRECTED to enter final JUDGMENT. IT IS SO ORDERED. (CHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT Case No. 17-cv-729 Page 3 of 3

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