Whitt v. Warden Lebanon Correctional Institution

Filing 58

ORDER adopting Report and Recommendations re 50 Report and Recommendations.; denying 57 Motion to Appoint Counsel. Signed by Judge James L Graham on 8/7/2014. (ds)

§ IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEPHEN WHITT,
CASE NO. 2:12-CV-731
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth P. Deavers

Petitioner,
v.
WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On June 26, 2014, the Magistrate Judge issued a Report and Recommendation
recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be dismissed on the grounds that Petitioner had failed to establish cause and prejudice for his
procedural defaults or that his claims otherwise failed to provide a basis for relief. Petitioner has
filed an objection to the Magistrate Judge’s Report and Recommendation and a motion to appoint
counsel. He objects to the Magistrate Judge’s recommendation of dismissal. He again asserts
that he is actually innocent and the victim of a manifest miscarriage of justice. The record,
however, fails to support this allegation.
Petitioner presents no new evidence not previously available indicating that this case is of
the “extraordinary nature” justifying a merits review of his otherwise procedurally defaulted
claims. Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005)(citing Schlup v. Delo, 513 U.S. 298,
316 (1995)). Further, to the extent that Petitioner raises an independent or free-standing claim of
actual innocence, such claim does not provide him relief. Herrera v. Collins, 506 U.S. 390, 401
(1993)(“Few rulings would be more disruptive of our federal system than to provide for federal

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habeas review of freestanding claims of actual innocence”); see also House v. Bell, 547 U.S. 518,
554-55 (2006)(declining to resolve the issue).
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. Petitioner’s
objection (Doc. 56) is OVERRULED. Petitioner’s motion for appointment of counsel (Doc. 57)
is DENIED. The Report and Recommendation (Doc. 50) is ADOPTED and AFFIRMED.
This action is hereby DISMISSED.
IT IS SO ORDERED.
Date: August 7, 2014

______s/James L. Graham __________
James L. Graham
United States District Judge

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