Macksyn v. Bunting

Filing 4

Memorandum of Opinion and Order Petitioner's motion to proceed in forma pauperis, ECF No. 2 , is granted. For the reasons set forth herein, Petitioner's petition for a writ of habeas corpus is dismissed pursuant to 28 U.S.C. §1915A. The Court certifies, pursuant 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; Fed. R. App. P. 22(b). Judge Benita Y. Pearson on 11/7/2014. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DELANOR L. MACKSYN,
Petitioner,
v.
JASON BUNTING,
Respondent.

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CASE NO. 3:14cv2320

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF Nos. 1; 2]

Pro se petitioner Delanor L. Macksyn filed the pending petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner has also filed a motion to proceed
in forma pauperis. ECF No. 2. Petitioner’s motion to proceed in forma pauperis is granted. For
the reasons stated below, however, the petition is denied and this action is dismissed upon initial
review.
I. Background
Petitioner is incarcerated in an Ohio penal institution, having been convicted by a jury of
three counts of unlawful sexual conduct with a minor. He asserts multiple grounds for relief in
his petition: (1) “5th, 6th, and 14th Amendment Double Jeopardy, Due Process, and Fair trial
violations” based on being “charged with a 5 [count] multiple identically worded indictment with
no differentiation in any of the counts”; (2) “5th, 6th, and 14th Amendment Due Process & fair
trial violations” based on the state’s expert’s testimony as to sexual abuse; (3) “6th, 8th, and 14th
Amendments [sic] due process, cruel and unusual punishment and equal protection” violations

(3:14cv2320)
based on the trial judge sentencing him to consecutive and maximum sentences “without
following the Ohio sentencing scheme”; and (4) constitutional violations based on “private
communications” between the trial judge and impaneled jurors outside of the presence of the
parties. ECF No. 1 at 4–5.
II. Legal Standard
The district court must examine a habeas petition to determine whether “it plainly appears
from the petition and any attached exhibits that the petitioner is not entitled to relief in the district
court.” Rule 4 of the Rules Governing Section 2254 and Section 2255 Proceedings; see also 28
U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424
F.2d 134, 141 (6th Cir. 1970) (noting that “the District Court has a duty to screen out a habeas
corpus petition which should be dismissed for lack of merit on its face”).
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365 (1982) (per curiam), a district court is required to dismiss an in forma pauperis action under
28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an
arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Sistrunk v. City of
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996); Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir.
1990).
Before a court may grant habeas relief to a state prisoner, the prisoner must exhaust
remedies available in the state courts. 28 U.S.C. § 2254(b); Hannah v. Conley, 49 F.3d 1193,
1195 (6th Cir. 1995); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). “The exhaustion
requirement is satisfied when the highest court in the state in which the petitioner was convicted

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has been given a full and fair opportunity to rule on the petitioner’s claims.” Manning v.
Alexander, 912 F.2d 878, 881 (6th Cir. 1990) (citations omitted).
III. Discussion
The petitioner raised only two grounds for relief on direct appeal in the Ohio Court of
Appeals, ineffective assistance of his trial counsel in failing to object to and request a hearing on
the victim’s interview at the child advocacy center, and that the trial court erred in failing to grant
his motion for acquittal as to incidents occurring during Christmas 2010 and the Spring of 2011.
ECF No. 1 at 2. The petition indicates that he had been denied a delayed appeal to the Ohio
Supreme Court, but is silent as to the reason for the denial. ECF No. 1 at 2. The Court must
assume the motion was denied because petitioner failed to make the requisite showing of
adequate reasons for the delay. See Simpson v. Sparkman, 94 F.3d 199, 203 (6th Cir. 1996).
Furthermore, the petition indicates the Ohio Court of Appeals denied as untimely a motion the
petitioner filed to reopen his direct appeal.
Petitioner was procedurally barred from raising the grounds he seeks to raise in his
present petition in the Ohio state courts. If a procedural bar in the state court exists, this Court
will not consider the claims unless petitioner establishes adequate cause to excuse the failure to
raise the claims and actual prejudice to him. Riggins v. McMackin, 935 F.2d 790, 793 (6th Cir.
1991) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)); see also Coleman v. Thompson, 501
U.S. 722, 735 n.1 (1990). No such showing is reasonably suggested by the petition.
Accordingly, Petitioner’s action is dismissed pursuant to 28 U.S.C. §1915A.

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IV. Conclusion
Petitioner’s petition for a writ of habeas corpus is dismissed pursuant to 28 U.S.C.
§1915A. The Court certifies, pursuant 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; Fed. R. App. P. 22(b).

IT IS SO ORDERED.

November 7, 2014
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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