Hawkins v. Warden Ross Correctional Institution

Filing 16

OPINION AND ORDER - re 15 Notice of Appeal filed by Lee A. Hawkins, Petitioner's request for a certificate of appealability is DENIED. Signed by Judge James L. Graham on 11/30/2016. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified on 11/30/2016 (kk).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LEE HAWKINS,
CASE NO. 2:15-CV-02743
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth A. Preston Deaverse

Petitioner,
v.
WARDEN, ROSS
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On November 2, 2016, Judgment was entered dismissing the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 and denying Petitioner’s Motion for Leave to
Conduct Discovery and to Expand Record. This matter is before the Court on Petitioner’s
November 22, 2016, Notice of Appeal (ECF No. 15), 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 Gallia County Court of
Common Pleas on aggravated murder, tampering with evidence, and abuse of a corpse. He
asserts that he was denied the effective assistance of counsel because his attorney failed to object
to admission of photographs of the decedent’s body (claim one), and that he denied the effective
assistance of appellate counsel based on his attorneys failure to raise the issue on appeal (claim
two). He requested expansion of the record to include a copy of all the photographs admitted
against him at trial.

The Court denied that request, and dismissed Petitioner’s claims as

procedurally defaulted and without merit.

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“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 waived his claim of the denial of the effective assistance of counsel by failing
to raise the claim on direct appeal, where he was represented by new counsel. Petitioner failed to

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establish cause for his procedural default on the basis of the denial of the effective assistance of
appellate counsel, as the record failed to indicate that any evidence, including photographs of the
alleged victim, were admitted in violation of Ohio law. This Court defers to a state court’s
interpretation of its own rules of evidence and procedure. See Miskel v. Karnes, 397 F.3d 446,
453 (6th Cir. 2005) (citations omitted).
Therefore, this Court is not persuaded that reasonable jurists would debate whether the
Court properly dismissed Petitioner’s claims as procedurally defaulted or as lacking in merit, or
improperly denied his request for expansion of the record. Petitioner’s request for a certificate of
appealability therefore is DENIED.
IT IS SO ORDERED.
Date: November 30, 2016

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

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