Johnson v. Warden Chillicothe Correctional Institution
OPINION AND ORDER - Denying certificate of appealability. Signed by Judge James L. Graham on 9/26/2016. (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
CASE NO. 2:15-CV-00971
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth P. Deavers
OPINION AND ORDER
On September 15, 2016, Judgment was entered dismissing the instant petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 19.) This matter is before the Court
on Petitioner’s September 21, 2016, Notice of Appeal (ECF No. 20), which the Court construes
as a request for a certificate of appealability. For the reasons that follow, Petitioner’s request for
a certificate of appealability is DENIED.
Petitioner challenges his convictions after a jury trial on two counts of rape, one count of
attempted rape, one count of kidnapping, one count of abduction, and one count of domestic
violence, with specifications. He asserts that the trial court abused its discretion by permitting
admission of DNA evidence, and that he thereby was denied due process and equal protection
(claim one); and that he was denied his right to grand jury findings due to an improper
amendment of the indictment (claim two). The Court dismissed both of Petitioner’s claims on
“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
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).
Petitioner has failed to meet this standard here. His claims plainly fail to warrant relief,
and he never presented claim one to the state courts as a federal constitutional issue, thereby
precluding relief in these proceedings. Reasonable jurists would not debate whether the Court
properly dismissed Petitioner’s claims on this basis.
Therefore, Petitioner’s request for a certificate of appealability is DENIED.
IT IS SO ORDERED.
Date: September 26, 2016
________s/James L. Graham______
JAMES L. GRAHAM
United States District Judge
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