Whitt v. Warden Lebanon Correctional Institution

Filing 29

OPINION AND ORDER denying 28 Motion for Certificate of Appealability. Signed by Judge James L. Graham on 4/15/2016. (ds)(This document has been sent 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
STEPHEN H. WHITT,
CASE NO. 2:15-CV-00560
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth A. Preston Deavers

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

OPINION AND ORDER
On March 30, 2016, the Court denied Petitioner’s Motion for Judgment as a Matter of
Law. (ECF No. 26.) Petitioner has filed a Motion for Certificate of Appealability. (ECF No.
28.) For the reasons that follow, Petitioner’s Motion for Certificate of Appealability (ECF No.
28) is DENIED.
Petitioner challenges his April 2010 convictions in the Coshocton County Court of
Common Pleas on rape and gross sexual imposition. Petitioner seeks reconsideration of the
Court’s June 1, 2015 Opinion and Order granting Respondent’s Motion to Transfer the case to
the United States Court of Appeals for the Sixth Circuit as a successive petition. The Court
denied Petitioner’s request.
“In contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas
corpus in federal court holds no automatic right to appeal from an adverse decision by a district
court.”

Jordan v. Fisher, -- U.S. --. --, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. §

2253(c)(1)(requiring a habeas petitioner to obtain a certificate of appealability in order to
appeal.) The petitioner must establish the 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). 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, 463 U.S., at 893 n. 4).
Where the Court dismisses a claim on procedural grounds, however, 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.” Id. at 485. The
court may first “resolve the issue whose answer is more apparent from the record and
arguments.” Id.
Petitioner has failed to establish that reasonable jurists would debate whether the Court
was correct in denying Petitioner’s motion. Petitioner’s February 2015 petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 plainly constitutes a successive petition for which
Petitioner must obtain authorization for filing from the United States Court of Appeals.
Petitioner’s Motion for Certificate of Appealability (ECF No. 28) therefore is DENIED.

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IT IS SO ORDERED.
Date: April 15, 2016

_______s/James L. Graham______
JAMES L. GRAHAM
United States District Judge

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