Pickens v. Warden, Ross Correctional Institution
OPINION AND ORDER denying 13 Motion for Certificate of Appealability. Signed by Judge James L. Graham on 2/27/2017. (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
DANNY A. PICKENS,
CASE NO. 2:15-CV-02305
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth A. Preston Deavers
OPINION AND ORDER
On January 24, 2017, Judgment was entered dismissing the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 11.) This matter is before the Court on
Petitioner’s February 24, 2017, Notice of Appeal and Motion for Certificate of Appealability.
(ECF Nos. 12, 13.)
For the reasons that follow, Petitioner’s Motion for Certificate of
Appealability (ECF No. 13) is DENIED.
Petitioner challenges his convictions after a jury trial in the Franklin County Court of
Common Pleas on aggravated burglary, violation of a protection order, and domestic violence.
He asserts that he was denied the effective assistance of appellate counsel because his attorney
failed to raise on appeal a claim that his sentences for aggravated burglary and violation of a
protection should have been merged, and that he was denied the effective assistance of trial
counsel because his attorney failed to raise the issue at sentencing. The Court dismissed these
claims on the merits.
“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).
Petitioner has failed to meet this standard here. His claims plainly fail to warrant relief.
The Court is not persuaded that reasonable jurists would debate whether the Court properly
dismissed Petitioner’s claims on the merits.
Therefore, Petitioner’s Motion for Certificate of Appealability (ECF No. 13) therefore is
IT IS SO ORDERED.
Date: February 27, 2017
______s/James L. Graham______
JAMES L. GRAHAM
United States District Judge
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