Dennison v. Warden, Ross Correctional Institution
Filing
21
OPINION AND ORDER re 19 Notice of Appeal filed by Arthur Dennison: The Court construes the Notice as a request for a certificate of appealability, which the Court DENIES. Signed by Judge George C. Smith on 11/17/2016. (kk)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification [Arthur Dennison, 667-007 @ Ross Correctional Institution, PO Box 7010, Chillicothe OH 45601])
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ARTHUR DENNISON,
Petitioner,
CASE NO. 2:15-CV-1344
JUDGE GEORGE C. SMITH
MAGISTRATE JUDGE KEMP
v.
WARDEN, ROSS
CORRECTIONAL INSTITUTION,
Respondent.
OPINION AND ORDER
On October 20, 2016, Judgment was entered dismissing the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 18). This matter is before the Court on
Petitioner’s November 14, 2016, Notice of Appeal, (ECF No. 19), 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 in the Franklin County Court of
Common Pleas on charges related to a home invasion robbery that occurred on March 15, 2009.
He asserts that he was denied his right to a speedy trial, denied a fair trial based on jury
instructions on accomplice testimony and admission of allegedly perjured testimony, and on the
basis of cumulative error. The Court dismissed Petitioner’s claims as procedurally defaulted or
without merit.
“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 waived his right to appeal all of his claims with the exception of his claim
that he was denied his right to a speedy trial, based on his failure to file any objection to the
Magistrate Judge’s recommendation of dismissal of such claims as procedurally defaulted and
failing to provide a basis for federal habeas corpus relief. See United States v. Waltman, 529
Fed.Appx. 680, 681 (6th Cir. 2013)(citing Thomas v. Arn, 474 U.S. 140, 155 (1985); United
States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981)). Although the Court explicitly advised
2
Petitioner that the failure to file objections to the Magistrate Judge’s recommendations would
result in the waiver of the right to appeal, he objected solely to the Magistrate Judge’s
recommendation of dismissal on the merits of his claim regarding the denial of the right to a
speedy trial.
Moreover, even had Petitioner not waived his right to appeal, the Court is not persuaded
that reasonable jurists would debate whether the Court correctly dismissed such claims as
procedurally defaulted and without merit. Petitioner did not present his jury instruction claim to
any state court, and it does not appear from the record that his attorney raised this objection.
Petitioner likewise did not present to the state appellate court any claim regarding perjured
testimony. Further, even if the Court assumes that his claim regarding eyewitness identification
is a sufficiently related issue so as to avoid procedural default at the court of appeals level,
Petitioner nonetheless did not raise such claim in the Ohio Supreme Court. Petitioner has
presented nothing to excuse his procedural defaults, nor has he made a showing of actual
innocence. Further, the United States Court of Appeals for the Sixth Circuit has held that a claim
of cumulative error will not provide a basis for federal habeas corpus relief. Moore v. Parker,
425 F.3d 250, 256 (6th Cir. 2005).
As to Petitioner’s claim that he was denied his right to a speedy trial, the Court remains
unpersuaded that reasonable jurists would debate whether the Court correctly dismissed the
claim on the merits. As previously detailed, the record simply fails to reflect that the state
appellate court unreasonably applied or contravened federal law, or based its decision on an
unreasonable determination of the facts in light of the evidence presented so as to warrant federal
habeas corpus relief. See 28 U.S.C. § 2254(d).
3
Therefore, Petitioner’s request for a certificate of appealability is DENIED.
IT IS SO ORDERED.
s/ George C. Smith
___________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?