Dunlap v. Warden Franklin Medical Center

Filing 7

ORDER granting 3 Report and Recommendations. The Court declines to issue a certificate of appealability. Signed by Judge Gregory L. Frost on 11/21/14. (kn)(This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ERIC W. DUNLAP,
Petitioner,

Civil Action 2:14-cv-1991
Judge Frost
Magistrate Judge King

vs.
WARDEN, FRANKLIN MEDICAL CENTER,
Respondent.
ORDER

Petitioner, a state prisoner who was convicted in March 1992 for
felonious sexual penetration, filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254. Petition, ECF 2. On October 20, 2014,
the United States Magistrate Judge recommended that the Petition be
dismissed, pursuant to the provisions of Rule 4 of the Rules Governing
Section 2254 Cases in United States District Courts, for failure to
state a claim for habeas corpus relief. Order and Report and
Recommendation, ECF 3.

This matter is now before the Court on

petitioner’s objection to that recommendation. Objection, ECF 5. The
Court will consider the matter de novo.

See 28 U.S.C. § 636(b); Fed.

R. Civ. P. 72(b).
The Petition alleges simply,
No substantive law filed in this case or otherwise invoked.
No record or substantive law for state or federal
jurisdiction. There is no due process of law for a
criminal state conviction. Nor any public record of any
state offense.
Id. at PAGEID# 8. As noted by the Magistrate Judge, the Petition
contains no facts in support of petitioner’s claim that he is in

1

custody in violation of the Constitution or laws of the United States.
In his objections, petitioner contends that “no substantive law
was invoked, or shown by the Respondents.”

Objection, PageID# 41.

Accordingly, petitioner argues, “It is a fact of record it [sic] is a
real possibility of Fourth and Fourteenth Amendment constitutional
error of record.”

Id. (emphasis in original). Petitioner argues that

“it is upon the Respondent to prove or disprove the State of Ohio’s
lawful interest.”

Id.

The Petition, even liberally construed, alleges no facts in
support of a claim that petitioner was convicted in violation of the
Constitution or laws of the United States. See Rule 2(c) of the Rules
Governing Section 2254 Cases in the United States District Courts (A
habeas corpus petition must, among other things, “state the facts
supporting each ground. . . .”). Simply put, the Petition does allege
a basis for concluding that petitioner is entitled to relief, nor does
it present a “‘real possibility of constitutional error.’”

Blackledge

v. Allison, 431 U.S. 63, 75 n. 7 (1977)(quoting Advisory Committee
Note to Rule 4, Rules Governing Habeas Corpus Cases).
Petitioner’s objection to the Report and Recommendation is
DENIED.
AFFIRMED.

The Report and Recommendation, ECF 3, is ADOPTED AND
This action is DISMISSED.

The Clerk is DIRECTED to enter FINAL JUDGMENT.
Moreover, the Court DECLINES to issue a certificate of
appealability.
/s/

Gregory L. Frost
Gregory L. Frost
United States District Judge

2