McCall v. Hook

Filing 19

Order: Petitioner's objections 18 be, and the same hereby are overruled; The Magistrate Judge's Report & Recommendation 17 be, and the same hereby is adopted as the order of this Court; and the petition for a writ of habeas cor pus ( 1 be, and the same hereby is denied and dismissed with prejudice. Jurists of reason could not rationally disagree with this decision or the rationale thereof, or that of the Magistrate Judge. I therefore decline to issue a Certificate of Appealability. Judge James G. Carr on 9/29/2020. (D,TM)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Mikell McCall

Case No. 1:17-cv-01678
Petitioner,

v.

ORDER

Mark Hooks
Defendant.

This is a state prisoner habeas case under 28 U.S.C. § 2244. (Doc. 1-1). Following
referral to Hon. William H. Baughman, United States Magistrate Judge, and the filing of his
Report & Recommendation that the petition be dismissed (Doc. 17), the petitioner has filed
timely objections. (Doc. 18). The Ohio Attorney General has not responded to the petitioner’s
objections, but rests on his response to the order to show cause. (Doc. 12).
On de novo review, I find the Magistrate Judge’s Report & Recommendation well taken.
Accordingly, I adopt it as the order of this Court, and dismiss the petition. There plainly being no
merit to the petitioner’s objections, I decline to issue a Certificate of Appealability.
Discussion
The petitioner raises three three grounds for relief: 1) denial of the right to a speedy trial;
2) denial of the right to face his accusers; and 3) ineffective assistance of counsel on direct
appeal.
The Magistrate Judge correctly determined that the petitioner had failed to raise the first
two grounds on direct appeal or otherwise present them appropriately to the Ohio courts. He

correctly found that the petitioner’s procedural default barred consideration of those grounds in
this court.
That failure to include his current contentions about a speedy trial and confrontation led
to the petitioner’s third ground here. As to that ground, the Magistrate Judge also correctly found
that that ground – ineffective assistance of appellate counsel - likewise not properly before this
Court. This was so, he concluded, because petitioner has never raised that claim in the courts of
Ohio.
All the Magistrate Judge’s findings and rulings are in complete accord with prevailing
habeas doctrine as he cogently set forth that doctrine.
That being so, it is hereby
ORDERED THAT:
1. Petitioner’s objections (Doc.18) be, and the same hereby are overruled;
2. The Magistrate Judge’s Report & Recommendation (Doc.17) be, and the same hereby
is adopted as the order of this Court; and
3. The petition for a writ of habeas corpus (Doc. 1-1) be, and the same hereby is denied
and dismissed with prejudice.
Jurists of reason could not rationally disagree with this decision or the rationale thereof,
or that of the Magistrate Judge. I therefor decline to issue a Certificate of Appealability.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge