Brusiter v. LaRose

Filing 15

Memorandum of Opinion and Order: For the reasons set forth herein and for the reasons set forth in the Magistrate Judge's Report and Recommendation, the Petition for Writ of Habeas Corpus is dismissed. Furthermore, the Court certifies, p ursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b). Judge Patricia A. Gaughan on 3/2/17. (LC,S) re 12 , 1

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Darin Brusiter,
Petitioner,
vs.
Christopher LaRose, Warden
Respondent.

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CASE NO. 1:15 CV 2194
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Introduction
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge Knepp (Doc. 12) which recommends dismissal of the Petition for Writ of Habeas
Corpus pending before the Court. Petitioner filed objections to the recommendation. For the
following reasons, the Report and Recommendation is ACCEPTED.
Standard of Review
Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District
Courts provides, “The judge must determine de novo any proposed finding or
recommendation to which objection is made. The judge may accept, reject, or modify any

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proposed finding or recommendation.”
Discussion
Petitioner is incarcerated following a guilty plea in connection with the murder of
Samuel Wilson’s wife for insurance money. Prior to the guilty plea, the trial court denied a
motion to suppress statements petitioner had made to police. Petitioner sets forth three
grounds for relief in his habeas petition: 1) The trial court erred in overruling his motion to
suppress. 2) Trial counsel was ineffective for failing to perform proper research for the
suppression hearing. 3) Trial counsel was ineffective for inducing petitioner to enter into the
guilty plea. The Magistrate Judge concluded that all claims were procedurally barred. This
Court agrees.
As to Ground One, petitioner raised this claim on direct appeal but the court of
appeals found it to be waived as a result of the plea. Petitioner failed to timely appeal that
ruling. Therefore, the claim was not properly exhausted. As to Ground Two, petitioner failed
to present this issue on direct appeal and, thus, the claim is procedurally defaulted. As to
Ground Three, petitioner did not present this argument to the state courts. It is procedurally
defaulted as well.
For these reasons, the Court agrees with the Report and Recommendation, which is
incorporated herein, and the Petition is dismissed.
Conclusion
For the reasons set forth herein and for the reasons set forth in the Magistrate Judge’s
Report and Recommendation, the Petition for Writ of Habeas Corpus is dismissed.
Furthermore, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this

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decision could not be taken in good faith, and that there is no basis upon which to issue a
certificate of appealability. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 3/2/17

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