Comer v. Warden Ohio State Penitentiary

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 5/10/13. (lvw1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT S. COMER,
CASE NO. 2:13-CV-0003
JUDGE GEORGE C. SMITH
Magistrate Judge Norah McCann King

Petitioner,
v.
WARDEN, Ohio State Penitentiary,
Respondent.

OPINION AND ORDER
On April 22, 2013, the Magistrate Judge recommended that the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. 1 Order and Report and
Recommendation, Doc. No. 13. Petitioner filed objections to the Report and Recommendation,
Objection, Doc. No. 14, and respondent has filed a response to those objections. Response to
Petitioner’s Objections, Doc. No. 15. For the reasons that follow, Petitioner’s Objection, Doc.
No. 14, is OVERRULED. The Report and Recommendation, Doc. No. 13, is ADOPTED and
AFFIRMED. This action is hereby DISMISSED.
In her Report and Recommendation, the Magistrate Judge concluded that petitioner’s
claims of ineffective assistance of counsel were without merit. Specifically, the Magistrate
Judge reasoned that the state appellate court’s factual findings and legal conclusions were
supported by the record, see 28 U.S.C. § 2254(d), and that, in any event, petitioner failed to
establish that he had been prejudiced by any deficiency in his counsel’s performance at trial. See
Strickland v. Washington, 466 U.S. 668 (1984).

Petitioner’s objections present the same

arguments presented to and rejected by the Magistrate Judge. He again complains that his trial
counsel should have objected to the trial court’s jury instructions regarding Ohio’s “Castle
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The Magistrate Judge also denied petitioner’s Motion to Complete the Record, Doc. No. 8, as moot.

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doctrine” and the duty to retreat and alleges that his attorney performed in a constitutionally
ineffective manner when he failed to make a proper motion for judgment of acquittal under Ohio
Criminal Rule 29 and when he failed to request that the trial court instruct the jury on the issue of
fault in connection with the death of another.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the
reasons detailed in the Magistrate Judge’s Report and Recommendation, this Court agrees that
petitioner’s claims do not warrant federal habeas corpus relief. Petitioner’s Objection, Doc. No.
14, is therefore OVERRULED. The Report and Recommendation, Doc. No. 13, is ADOPTED
and AFFIRMED. This action is hereby DISMISSED.
The Clerk is DIRECTED to enter FINAL JUDGMENT in this action.
Petitioner also requests a certificate of appealability; respondent opposes that request.
Where, as here, a claim is 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.'" Slack, 529 U.S. at 484 (quoting
Barefoot, at 893 n.4).
The Court concludes that reasonable jurists could debate whether petitioner’s claims
should have been resolved differently. Petitioner’s request for a certificate of appealability is
therefore GRANTED. The Court CERTIFIES the following issue for appeal:

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Was Petitioner denied the effective assistance of counsel?
Petitioner’s request to proceed in forma pauperis on appeal is DENIED without
prejudice to renewal in a separate motion that complies with Fed. R. App. P. 24(a)(1).

s/ George C. Smith
GEORGE C. SMITH
United States District Judge

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