Burrell v. Warden, London Correctional Institution

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION; OVERRULING Petitioner's Objection. This action is DISMISSED. The Court DECLINES to issue a certificate of appealability. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal woul d not be in good faith and that an application to proceed in forma pauperis on appeal should be DENIED. Signed by Judge Algenon L. Marbley on 6/29/2018. (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
ANTONIO BURRELL,
Case No. 2:17-cv-659
Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura

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

OPINION AND ORDER
On April 16, 2018, the Magistrate Judge issued a Report and Recommendation
recommending that the Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be
dismissed. (ECF No. 9.) Petitioner has filed an Objection to the Magistrate Judge’s Report and
Recommendation. (ECF No. 14.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de
novo review.
Petitioner objects to the Magistrate Judge’s recommendation of dismissal of his claims
that the evidence is constitutionally insufficient to sustain his conviction on aggravated murder
and that he was denied a fair trial based on improper jury instructions. Petitioner asserts that the
prosecution was relieved of its burden of proving all of the elements of the charge against him
based on improper jury instructions and argues that these errors constitute structural defects and
raise colorable issues regarding his actual innocence. (Objection, ECF No. 14, PAGEID # 547.)
The Court disagrees. As the Magistrate Judge explained, Petitioner waived his claim
regarding an error in jury instructions by failing to object. Moreover, the record does not reflect
that the state appellate court unreasonably concluded that the evidence is constitutionally
sufficient to sustain Petitioner’s conviction. See Brown v. Konteh, 567 F.3d 191, 205 (6th Cir.

2009), cert. denied, 558 U.S. 1114 (2010); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The
record likewise fails to reflect that Petitioner can establish a credible claim of actual innocence
that will excuse his procedural default. Schlup v. Delo, 513 U.S. 298, 327 (1995) (holding that a
petitioner must “support his allegations of constitutional error with new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial”)
For the reasons set forth above, Petitioner’s Objection (ECF No. 14) is OVERRULED,
the Report and Recommendation (ECF No. 9) is ADOPTED and AFFIRMED, and 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

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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.
Applied here, the Court is not persuaded that reasonable jurists would debate this Court’s
denial of Petitioner’s claims as procedurally defaulted and without merit. The Court therefore
DECLINES to issue a certificate of appealability. In addition, the Court 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
in forma pauperis on appeal should be DENIED.
The Clerk is DIRECTED to enter final JUDGMENT.
IT IS SO ORDERED.

DATED: June 29, 2018

s/Algenon L. Marbley
______
ALGENON L. MARBLEY
UNITED STATES DISTRICT COURT

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