Gerald v. Warden, Ross Correctional Institution

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 20 Report and Recommendations. Signed by Judge Susan J. Dlott on 5/25/2017. (jlw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

David Keith Gerald,
Petitioner(s),
vs.
Warden, Ross Correctional Institution,
Respondent(s).

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Case Number: 1:15cv493
Judge Susan J. Dlott

ORDER
The Court has reviewed the Report and Recommendation of United States Magistrate
Judge Stephanie K. Bowman filed on February 27, 2017 (Doc. 20), to whom this case was
referred pursuant to 28 U.S.C. §636(b), and noting that no objections have been filed thereto and
that the time for filing such objections under Fed. R. Civ. P. 72(b) expired March 13, 2017,
hereby ADOPTS said Report and Recommendation.
Accordingly, petitioner’s pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.
§2254 (Doc. 1) is DENIED with prejudice.
A certificate of appealability will issue for the following claims alleged in the petition,
which are addressed on the merits herein:
a.

the claim in Ground Five challenging the admission of petitioner’s videotaped
police interview into evidence on the ground that it is contained impermissible
hearsay statements by petitioner’s co-defendants in violation of the Confrontation
Clause;

b.

the claim in Ground Six that petitioner’s trial counsel was ineffective for failing
to file a motion to suppress statements made by petitioner in his police interview
after he invoked his right to counsel.

A certificate of appealability will not issue with respect to petitioner’s remaining grounds

for relief that have been considered on the merits herein because petitioner has not stated a
“viable claim of the denial of a constitutional right,” nor are the issues presented in those
remaining grounds “adequate to deserve encouragement to proceed further.” See Slack v.
McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4
(1983)); see also 28 U.S.C. §2253( c ); Fed. R. App. P. 22(b). In addition, to the extent that
petitioner has raised claims in the petition which this Court has concluded are waived and thus
procedurally barred from review in the petition, a certificate of appealability will not issue
because, under the first of the applicable two-part standard enunciated in Slack, 529 U.S. at 48485, “jurists of reason” will not find it debatable whether the Court is correct in its procedural
rulings.
With respect to any application by petitioner to proceed on appeal in forma pauperis, the
Court will certify pursuant to 28 U.S.C. §1915(a) that an appeal of any Order adopting the
Report and Recommendation will be taken in “good faith,” and therefore GRANTS petitioner
leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R. App. P.
24(a); Kincade v. Sparkman, 177 F.3d 949, 952 (6th Cir. 1997).
IT IS SO ORDERED.

___s/Susan J. Dlott___________
Judge Susan J. Dlott
United States District Court