Petaway v. Warden Warren Correctional Instituton

Filing 28

ORDER DENYING Petioner's request for a certificate of appealability re 27 Notice of Appeal filed by DeVonne L. Petaway. Signed by Judge Algenon L. Marbley on 12/16/2011. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEVONNE PETAWAY,
Petitioner,

CASE NO. 2:10-CV-533
JUDGE MARBLEY
MAGISTRATE JUDGE KING

v.
WANZA JACKSON, WARDEN,
WARREN CORRECTIONAL INSTITUTION,
Respondent.

ORDER
Petitioner in this habeas corpus action under 28 U.S.C. §2254 alleges that his speedy trial
rights were denied him because he was not tried within 90 days as required by Ohio law and that his
trial and appellate counsel were ineffective for failing to pursue this issue at trial and on appeal. On
November 16, 2011 this Court dismissed the action, reasoning that the claims either had been
waived or were without merit. Order, Doc. No. 25; Judgment, Doc. No. 26. This matter is now
before the Court on petitioner’s notice of appeal, which the Court receives as including a request for
a certificate of appealability. Notice of Appeal, Doc. No. 27.
When a claim has been denied on the merits, a certificate of appealability may issue “only
if the applicant 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, 893 (1983). Slack
v. McDaniel, 529 U.S.473, 483 (2000). 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.'" Barefoot, 463 U.S.,
at 893, and n.4 . . . .

529 U.S. at 484.
When the Court dismisses a claim on procedural grounds, a certificate of appealability
should issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.
Id. Thus, there are two components to determining whether a certificate of appealability should
issue when a claim is dismissed on procedural grounds: "one directed at the underlying
constitutional claims and one directed at the district court's procedural holding." The court may first
"resolve the issue whose answer is more apparent from the record and arguments." Id.
For the reasons set out in the September 22, 2011 Report and Recommendation, Doc. No.
20, and the Court’s November 16, 2011 Order, Doc. No. 25, the Court concludes that petitioner has
failed to make a substantial showing that he has been denied a constitutional right.
Accordingly, petitioner’s request for a certificate of appealability is DENIED.

s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge

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