Irwin v. Trim

Filing 9

Order Adopting Report and Recommendation re 8 in toto. In addition, for the reasons stated in the same Report, a reasonable jurist could not conclude that dismissal of the Petition is in error or that Petitioner should be permitted to proceed further. Accordingly, 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 there is no basis upon which to issue a certificate of appealability. Judge Donald C. Nugent(C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SHANNON RAE IRWIN,
Plaintiff,
v.

GININE TRIM,
Warden,
Defendant.

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CASE NO. 4:12 CV 0420
JUDGE DONALD C. NUGENT
ORDER ADOPTING
MAGISTRATE’S REPORT AND
RECOMMENDATION

This matter comes before the Court upon the Report and Recommendation of Magistrate
Judge Kenneth S. McHargh. The Report and Recommendation, issued on October 3, 2013, is
hereby ADOPTED by this Court. Petitioner filed this action requesting a writ of habeus corpus
pursuant to 28 U.S.C. § 2254, challenging – inter alia – the constitutionality of her judgment of
conviction.
On September 2, 2004, Shannon Rae Irwin was indicted on one count of felonious
assault. A superseding indictment was filed on December 16, 2004, adding two counts of
felonious assault. All are second-degree felonies. See O.R.C. § 2903.11(A)(1). Following a
bench trial, Irwin was convicted and the trial court imposed maximum, consecutive sentences.

Petitioner perfected a notice of appeal of her conviction and sentence, raising five
assignments of error. The Ohio Court of Appeals rejected all five and affirmed the judgment of
the trial court. Irwin subsequently moved for leave to file a delayed appeal, which was granted
by the Ohio Supreme Court. Irwin set forth propositions of law that were ultimately rejected by
the Supreme Court. On September 21, 2011, the Supreme Court denied leave to appeal, and
dismissed the appeal as not involving any substantial constitutional question.
Irwin has filed the instant Petition for Writ of Habeus Corpus. Magistrate Judge
McHargh, considering all four of her arguments in turn, recommends that her petition be denied.
Irwin did not file any objections to the Magistrate Judge’s Report and Recommendation, which
the Court has reviewed de novo. The Court concludes that the Magistrate Judge’s Report
properly addresses the parties’ arguments and treats them wholly consistently with applicable
law. The Court therefore adopts the Magistrate Judge’s Report in toto. In addition, for the
reasons stated in the same Report, a reasonable jurist could not conclude that dismissal of the
Petition is in error or that Petitioner should be permitted to proceed further. Accordingly, 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 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/Donald C. Nugent
DONALD C. NUGENT
United States District Judge
DATED: January 17, 2014

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