Raymond v. Warden of Ross Correctional Institute

Filing 27

ORDER AFFIRMING the Original Report AND Recommendation 18 and the Supplemental Report and Recommendation 23 ; This action is DISMISSED; The Court denies any request for a Certificate of Appealability and certifies that an appeal would not be taken in objective good faith. Signed by Judge Gregory L Frost on 2/20/13. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JACK RAYMOND, JR.,
CASE NO. 2:10-CV-187
JUDGE GREGORY L. FROST

Petitioner,
v.
MICHAEL SHEETS, WARDEN,
Respondent.

OPINION AND ORDER
On January 8, 2013, the Magistrate Judge filed a Supplemental Report and
Recommendation denying Petitioner’s Objections to the Magistrate Judge’s November 18, 2012,
Report and Recommendation. In the Supplemental Report and Recommendation, the Magistrate
Judge recommended that the instant petition for a writ of habeas corpus be dismissed with
prejudice and that Petitioner be denied a certificate of appealability. (ECF No. 23.) Petitioner
has filed Objections to the Magistrate Judge’s Supplemental Report and Recommendation, to
which Respondent has responded. For the reasons that follow, Petitioner’s Objections to the
Supplemental Report and Recommendation are OVERRULED. The Supplemental Report and
Recommendation and original Report and Recommendation are AFFIRMED.

This action

hereby is DISMISSED. The Court denies any request for a certificate of appealability and
certifies that an appeal would not be taken in objective good faith.
In his most recent filing objecting to the Supplemental Report, Petitioner renews his prior
objections. Specifically, Petitioner contends that under Apprendi v. New Jersey, 530 U.S. 466
(2000), the State failed to introduce constitutionally sufficient evidence to sustain his violent
offender specifications, and that, liberally construing his objections, he did not file an unduly
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vague or general objection to the Magistrate Judge’s recommendation of dismissal of his claim
of actual innocence. Petitioner additionally objects to the Magistrate Judge’s recommendation
that a request for certificate of appealability be denied on his claims.
In his federal habeas corpus petition, Petitioner asserts that the evidence was
constitutionally insufficient to establish the elements of his repeat violent offender specification
(claim one); and that he is actually innocent (claim two). The Magistrate Judge recommended
dismissal of both of these claims on the merits.
When a claim has been denied on the merits, a certificate of appealability may issue only
if the petitioner “has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983).
See Slack v. McDaniel, 529 U.S. 473, 484 (2000)(recognizing codification of Barefoot in 28
U.S.C. § 2253(c)(2)). To make a substantial showing of the denial of a constitutional right, a
petitioner must show “that reasonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further.’” Id. 484 (quoting Barefoot, 463 U.S. at
893 & n.4).
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the
reasons already detailed by the Magistrate Judge, this Court likewise concludes that reasonable
jurists would not debate whether Petitioner’s claims should have been resolved differently. As
noted by the Magistrate Judge, the United States Supreme Court does not proscribe a finding of
sufficiency of the evidence on the basis of judicial notice of an adjudicative fact. Moreover,
nothing in the Constitution forbids a State from allowing its appellate courts to take judicial
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notice of adjudicative facts. Furthermore, as previously discussed, Petitioner failed to indicate
any specific basis for his objection to the Magistrate Judge’s recommendation of dismissal of his
claim of actual innocence on the merits. He thereby has waived his right to appeal this claim.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Finally, the Court is not persuaded that
reasonable jurists would debate whether the Magistrate Judge properly recommended the denial
of Petitioner’s argument that the Antiterrorism and Effective Death Penalty Act violates the
Constitution, as no federal court to date has reached such a conclusion.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal would not be taken
in good faith.
In sum, Petitioner’s Objections to the Supplemental Report and Recommendation (ECF
No. 24) are OVERRULED. The Supplemental Report and Recommendation (ECF No. 23) and
Report and Recommendation (ECF No. 18) are AFFIRMED.

This action hereby is

DISMISSED. The Court denies any request for a certificate of appealability and certifies that an
appeal would not be taken in objective good faith.
IT IS SO ORDERED.
/s/ Gregory L. Frost

GREGORY L. FROST
United States District Judge

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