Harris v. Koehane et al

Filing 11

MEMORANDUM OPINION AND ORDER re 10 Notice of Appeal filed by Robert Lee Harris, Jr. Signed by Senior Judge Peter C. Economus on 9/11/2014. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT LEE HARRIS JR.,
Petitioner,
v.
F. MCANINCH, WARDEN,
Respondent.

Case No. 2:14-CV-0982
Judge Peter C. Economus
Magistrate Judge Abel
MEMORANDUM OPINION AND ORDER

This matter is before the Court for consideration of Petitioner’s Notice of Appeal, filed
September 8, 2014. (Dkt. 10.) The Court will construe this notice as a request for a certificate of
appealability (“COA”). For the reasons that follow, the Court DENIES Petitioner’s request for a
COA. (Dkt. 10.)
Petitioner asserts that he was illegally extradited from Canada to Maine, held in Maine
beyond expiration of his sentence, and then illegally extradited from Maine to Ohio.
On August 22, 2014, this Court entered a final judgment dismissing the instant petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. 9.) The Court dismissed this
action as time-barred and, alternatively, for failure to state a claim. (Dkt. 8.)
As provided in 28 U.S.C. § 2253, a petitioner seeking to appeal an adverse ruling in the
district court on a petition for writ of habeas corpus must obtain a COA before proceeding. The
statute does contemplate issuance by a circuit judge, but Rule 11(a) of the Rules Governing
Section 2254 Cases provides:
The district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant. Before entering the final order, the court may
direct the parties to submit arguments on whether a certificate should issue. If the
court issues a certificate, the court must state the specific issue or issues that
satisfy the showing required by 28 U.S.C. § 2253(c)(2). If the court denies a
certificate, the parties may not appeal the denial but may seek a certificate from

the court of appeals under Federal Rule of Appellate Procedure 22. A motion to
reconsider a denial does not extend the time to appeal.
“When the district court denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a COA 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Thus, “[d]etermining whether a COA should issue where the petition was dismissed on
procedural grounds has two components, one directed at the underlying constitutional claims and
one directed at the district court's procedural holding.” Id. at 485. “Each component of the
§ 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the
application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is
more apparent from the record and arguments.” Id. The Court in Slack acknowledged that this
rule meant the district court may deny a COA without reaching the underlying constitutional
issues, but noted that Ashwander v. TVA, 297 U.S. 288, 347 (1936), allowed and even
encouraged the district court to decide the procedural issues first. Id. at 484.
Here, the Court dismissed the petition on procedural grounds. Therefore, the Court first
looks to the procedural part of the inquiry to determine whether it should issue a COA. Petitioner
has failed to assert that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling. Petitioner only states that he “seeks [a] Certificate of
Appealability in this matter to address the issues Stated by the Court.” (Dkt. 10.)
Even if the Court construed the Petitioner’s statement as a challenge to the Court’s
procedural holding, the Petitioner still does not meet the requirement to obtain a COA. In the
instant action, a clear procedural bar exists. Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir. 2001)
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(“Where a plain procedural bar is present and the district court is correct to invoke it to dispose
of the case, a reasonable jurist could not conclude either that the district court erred in dismissing
the petition or that the petitioner should be allowed to proceed further”) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). Petitioner was extradited to the United States from
Canada in 1991. He was extradited from Maine to Ohio on April 7, 2011. He waited until July
21, 2014, to file his habeas corpus petition. The basis for his claims arose many years prior to the
filing of the instant habeas corpus petition. The Petitioner provided no reason for the filing delay.
The Petitioner’s delay is unreasonable. See, e.g., Craven v. United States, 26 F. App’x 417, 419
(6th Cir. 2001) (seven-year delay is unreasonable when Petitioner does not offer any reason for
the delay and a delay of this length does not constitute an exercise of reasonable diligence);
Haddad v. United States, 07-cv-12540, 2007 WL 7230219 (E.D. Mich. Oct. 26, 2007) (ten-year
delay is unreasonable); United States v. Dyer, 136 F.3d 417, 429 (5th Cir.1998) (nine-year delay
is unreasonable); Telink v. United States, 24 F.3d 42, 48 (9th Cir.1994) (nearly five years is
unreasonable). Plainly, his claims are time-barred and no reasonable jurist could conclude that
the Court erred.
For the reasons discussed above, the Court hereby DENIES Petitioner’s request for a
COA. (Dkt. 10.)
IT IS SO ORDERED.

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