Davis v. Warden, Allen Oakwood Correctional Institution

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS, OVERRULING Petitioner's Objection. This action is hereby DISMISSED as untimely. DENYING Petitioner's request for a certificate of appealability. Signed by Judge Algenon L. Marbley on 1/13/2016. (cw)(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
ANTHONY S. DAVIS,
Petitioner,
Case No. 2:15-cv-02935
Judge Marbley
Magistrate Judge King

v.
ALLEN/OAKWOOD
CORRECTIONAL INSTITUTION,
Respondent.

ORDER
On November 6, 2015, the Magistrate Judge recommended that the Petition be dismissed
as barred by the one-year statute of limitations established by 28 U.S.C. § 2244(d). Report and
Recommendation (ECF No. 7). Petitioner objects to that recommendation. Objection (ECF No.
10). Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons
that follow, Petitioner’s Objection (ECF No. 10) is OVERRULED.
Recommendation (ECF No. 7) is ADOPTED and AFFIRMED.

The Report and

This action is hereby

DISMISSED as untimely.
Petitioner’s request for a certificate of appealability is DENIED.
This case was originally filed in the Northern District of Ohio and was thereafter
transferred to this Court. Order (ECF No. 3). Following that transfer, the Magistrate Judge
reviewed the Petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts and recommended dismissal of the action as untimely. In his
objections, Petitioner argues that the Magistrate Judge improperly reviewed the Petition under
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts because
the District Court for the Northern District Ohio had previously directed the Respondent to
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answer the Petition. Objection, PageID# 48-49. Petitioner also insists that the action is timely
because he exercised diligence in discovering the factual basis for his claim.
Petitioner’s arguments are not persuasive.

Petitioner cites no authority for the

proposition that this Court may not conduct its own Rule 4 preliminary review of the Petition.
Further, none of the documents provided by Petitioner even suggest that he could not have, years
before filing this action, discovered the factual basis for his claim that he is being illegally held
beyond the one and one half year sentence imposed by the Franklin County Court of Common
Pleas in 1985. For these reasons, and those discussed in the Magistrate Judge’s Report and
Recommendation, Petitioner’s Objection (ECF No. 10) is OVERRULED.
Petitioner also requests a certificate of appealability. “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 a 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

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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. This Court is not persuaded that Petitioner has met this standard and the Court
declines to issue a certificate of appealability.
Petitioner’s

Objection

(ECF

No.

10)

is

OVERRULED.

Recommendation (ECF No. 7) is ADOPTED and AFFIRMED.

The

Petitioner’s request for a certificate of appealability is DENIED.
The Clerk is DIRECTED to enter FINAL JUDGMENT in this action.

s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge

and

This action is hereby

DISMISSED as untimely.

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Report