Potts v. Turner
Filing
15
Opinion and Order signed by Judge James S. Gwin on 7/21/21. The Court DENIES Petitioner Potts a Certificate of Appealability on his confrontation and double jeopardy claims but GRANTS Potts a Certificate of Appealability on his sufficiency of the evidence claim.(T,A)
Case: 3:18-cv-00451-JG Doc #: 15 Filed: 07/21/21 1 of 3. PageID #: 845
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------------------KEVIN J. POTTS,
:
:
Petitioner,
:
:
vs.
:
:
WARDEN NEIL TURNER,
:
:
Respondent.
:
-----------------------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Case No. 3:18-cv-451
OPINION & ORDER
On February 26, 2018, Petitioner Kevin J. Potts, an Ohio inmate serving a 17-year
felonious assault and aggravated burglary sentence, petitioned this Court for habeas corpus
relief under 28 U.S.C. § 2254.1 On February 22, 2021, the Court denied Potts’s petition.2
Petitioner Potts has appealed this Court’s habeas petition ruling3 and now requests a
Certificate of Appealability. For the reasons stated below, the Court DENIES Petitioner Potts
a Certificate of Appealability on his confrontation and double jeopardy claims but GRANTS
Potts a Certificate of Appealability on his sufficiency of the evidence claim.
I.
LEGAL STANDARD
Habeas corpus petitioners are not entitled to appeal this Court’s decision by right.4
Rather, the Antiterrorism and Effective Death Penalty Act first requires a § 2254 petitioner to
request and obtain a Certificate of Appealability before proceeding with an appeal.5
1
Doc. 1.
Doc. 13.
3
Doc. 14.
2
4
5
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Id.
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Case No. 3:18-cv-451
Gwin, J.
To obtain a Certificate of Appealability, a petitioner must show that “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.”6
II.
DISCUSSION
A. Confrontation Claim
As the Court explained in the initial petition denial order, Potts indisputably defaulted
his confrontation claim by entirely omitting it from his Ohio Supreme Court notice of appeal
and failing to present a timely ineffective assistance of appellate counsel claim under Ohio
Appellate Rule 26(B).7
Potts was not entitled to counsel at either the discretionary direct appeal or Rule 26(B)
motion stage.8
Therefore, Potts’s confrontation claim default cannot be excused by
ineffective assistance of counsel.9 Reasonable jurists would not debate this outcome, and
Potts is not entitled to a Certificate of Appealability on this claim.10
B. Double Jeopardy Claim
Similarly, this Court is bound by the Ohio courts’ interpretation of Ohio law in
assessing a double jeopardy violation.11
Because the Ohio Court of Appeals decision
affirming Potts’s sentence was not based on an unreasonable determination of the facts
6
7
Id. at 338 (citing Slack v. McDaniel, 529 U.S. 473, 483 (2000)).
Doc. 13 at 14–15.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to appointed counsel extends
to the first appeal of right, and no further.”); Coleman v. Thompson, 501 U.S. 722, 757
8
(1991) (“Because Coleman had no right to counsel to pursue his appeal in state habeas, any
attorney error that led to the default of Coleman's claims in state court cannot constitute
cause to excuse the default in federal habeas.”).
9
Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (“[A]n ineffective-assistance-of-counsel
claim asserted as cause for the procedural default of another claim can itself be procedurally
defaulted.”).
10
Miller-El, 537 U.S. at 338 (citing Slack, 529 U.S. at 484).
11
Volpe v. Trim, 708 F.3d 688, 696–97 (6th Cir. 2013).
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Case: 3:18-cv-00451-JG Doc #: 15 Filed: 07/21/21 3 of 3. PageID #: 847
Case No. 3:18-cv-451
Gwin, J.
rebutted by clear and convincing evidence,12 no double jeopardy violation occurred in
Potts’s state court proceedings.13 Reasonable jurists would not debate this outcome, and
Potts is not entitled to a Certificate of Appealability on this claim.14
C. Sufficiency of the Evidence Claim
The Court, however, will grant a Certificate of Appealability for Potts’s sufficiency of
the evidence claim. Although the Court continues to believe that Potts’s habeas petition is
distinguishable from the successful petition in Nash v. Eberlin15 for the reasons stated in the
habeas petition denial order, reasonable jurists might nevertheless debate this outcome,
given the similarities between this case and Nash.
III.
CONCLUSION
For these reasons, the Court DENIES Petitioner Potts a Certificate of Appealability on
his confrontation and double jeopardy claims but GRANTS Potts a Certificate of
Appealability on his sufficiency of the evidence claim.
IT IS SO ORDERED
Dated: July 21, 2021
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
12
28 U.S.C. § 2254(d)(2), (e)(1).
13
Jackson v. Smith, 745 F.3d 206, 214 (6th Cir. 2014) (“At worst, the state court incorrectly
applied Ohio’s allied offenses statute to determine the legislature’s intent. Habeas relief,
especially when circumscribed by § 2254(d)(1), is not available for such alleged errors.”)
(footnote omitted).
14
Miller-El, 537 U.S. at 338 (citing Slack, 529 U.S. at 484).
15
Nash v. Eberlin, 258 F. App’x 761 (6th Cir. 2007).
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