Nian v. Warden, North Central Corectional Complex

Filing 10

ORDER adopting Report and Recommendations re 8 Report and Recommendations.. Signed by Judge James L. Graham on 9/7/2018. (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
EASTERN DIVISION
ABULAY NIAN,
Petitioner,
v.

Case No. 2:17-cv-313
JUDGE JAMES L. GRAHAM
Magistrate Judge King

WARDEN, NORTH CENTRAL
CORRECTIONAL COMPLEX,
Respondent.
ORDER
This is an action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August
16, 2018, the United States Magistrate Judge recommended that Petitioner’s claims be dismissed,
as either without merit or as procedurally defaulted. Report and Recommendation, ECF No. 8.
Petitioner has objected to that recommendation. Objection, ECF No. 9. The Court will consider
the matter de novo. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b).
Petitioner challenges his conviction, following a jury trial in the Franklin County Court of
Common Pleas, on a charge of rape. He asserts in this action that his conviction is against the
manifest weight of the evidence and that the evidence is constitutionally insufficient to sustain
his conviction (claim one); that he was denied a fair trial due to prosecutorial misconduct during
closing argument (claim two); that he was denied the right to a fair and impartial jury (claim
three); that he was denied the effective assistance of trial counsel (claim four); that the trial court
erred in instructing jurors to disregard statements by defense counsel regarding Petitioner’s
citizenship (claim five); and that the trial court erred in instructing jurors regarding the offense of
rape (claim six). As noted, the Magistrate Judge recommended dismissal of Petitioner’s claims
as either procedurally defaulted or without merit. In his objections, Petitioner presents only the

same arguments that he previously presented and which the Magistrate Judge found
unpersuasive.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the
reasons already addressed in the Magistrate Judge’s Report and Recommendation, Petitioner’s
Objection (ECF No. 9) is OVERRULED. The Report and Recommendation (ECF No. 8) is
ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts, the Court now considers whether to issue 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).
When a claim has been denied on the merits, a certificate of appealability may issue only
if the petitioner “has made a substantial showing of the denial of a constitutional right.” 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 v. McDaniel, 529 U.S. 473, 484
(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). When a claim has been
denied on procedural grounds, a certificate of appealability may issue if the petitioner establishes
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.

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The Court is not persuaded that reasonable jurists would debate the dismissal of
Petitioner’s claims as procedurally defaulted or without merit. The Court therefore DECLINES
to issue a certificate of appealability.
The Court also CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that the appeal would
not be in good faith and that an application to proceed on appeal in forma pauperis would be
DENIED.
The Clerk is DIRECTED to enter final JUDGMENT.
IT IS SO ORDERED.

Date: September 7, 2018

_____s/James L. Graham_____
JAMES L. GRAHAM
United States District Judge

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