Davidson v. Warden, Warren Correctional Institution

Filing 37

ORDER adopting and affirming the Report and Recommendation re 33 Report and Recommendations; OVERRULLING Petitioner's Objection; denying 36 Motion to Supplement the Record; DECLINING to issue a certificate of appealability. The Court cert ifies that the appeal would not be in good faith and that an application to proceed in forma pauperis on appeal should be DENIED. This case is hereby DISMISSED. Signed by Judge Algenon L. Marbley on 5/21/2019. (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
RICHARD A. DAVIDSON,
CASE NO. 2:18-CV-00495
JUDGE ALGENON L. MARBLEY
Chief Magistrate Judge Elizabeth P. Deavers

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

OPINION AND ORDER
On April 25, 2019, the Magistrate Judge issued a Report and Recommendation
recommending that Petitioner’s sole remaining claim of ineffective assistance of appellate
counsel be denied and that this action be dismissed. (ECF No. 33.) Petitioner has filed an
Objection and Supplemental Objection to the Magistrate Judge’s Report and Recommendation.
(ECF Nos. 34, 35.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review.
For the reasons that follow, Petitioner’s objections (ECF Nos. 34, 35) are OVERRULED. The
Report and Recommendation (ECF No. 33) is ADOPTED and AFFIRMED. This action is
hereby DISMISSED.
Petitioner’s Motion to Supplement the Record (ECF No. 36) is DENIED.1
The Court DECLINES to issue a certificate of appealability.
Petitioner seeks consideration of the merits of additional claims of the denial of the
effective assistance of trial counsel, as well as his claim of the denial of the effective assistance

In the Motion to Supplement the Record, Petitioner again raises arguments regarding the
Court’s prior dismissal of his other claims for relief. This Court already has rejected those
arguments, and will not now again do so here. (See Opinion and Order, ECF No. 25.)
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of appellate counsel. He maintains that the deferential standard of review set forth under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) does not apply, because the state
appellate court refused to permit further development of his claim of the denial of the effective
assistance of appellate counsel. He again argues that the state appellate court contravened or
failed to apply Strickland v. Washington, 466 U.S. 668 (1984), and that he was denied due
process because he lacked criminal intent. Referring to Lakewood v. All Structures, Inc. 13 Ohio
App. 3d 115 (1983), Petitioner argues that his claim regarding the unconstitutionality of O.R.C. §
2907.04(A) would have been addressed on appeal, despite his failure to raise the issue in the
state trial court. He asserts that he was denied the effective assistance of trial counsel due to his
attorney’s failure to raise the issue. He again argues at length that the statute is
unconstitutionally void. He again raises all of the same arguments he previously presented in
this regard. Petitioner insists that he did not act recklessly in determining the age of the alleged
victim. He maintains that his conviction for unlawful sexual conduct with a minor constitutes a
fundamental miscarriage of justice and that the Court therefore should address his claim of the
denial of the effective assistance of trial counsel.
Petitioner’s arguments are not persuasive. As discussed, “free-standing” claims of actual
innocence do not provide a basis for federal habeas corpus relief. See Legrone v. Birkett, 571 F.
App’x 417, 421 (6th Cir. 2014) (citing Herrera v. Collins, 506 U.S. 390, 400 (1993)). Moreover,
the sole issue presently before the Court involves Petitioner’s claim of ineffective assistance of
appellate counsel. Petitioner cannot now amend the Petition to include yet additional claims.
Further, the Ohio Supreme Court has repudiated the holding in Lakewood, to which Petitioner
refers, that a claim of unconstitutionality of legislation is never waived. State v. 1981 Dodge
Ram Van, 36 Ohio St.3d 168, 171 (Ohio 1988) (citing State v. Awan, 22 Ohio St.3d 120 (Ohio

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1986) (applying the doctrine of waiver to claims regarding the unconstitutionality of a statute).
Moreover, and for the reasons discussed in the Magistrate Judge’s Report and Recommendation,
Petitioner’s arguments regarding the unconstitutionality of the statute at issue would not have
assisted him. His attorneys’ failure to raise such an issue does not survive the Strickland test.
The state appellate court did not need to permit further development of Petitioner’s claim of the
denial of the effective assistance of appellate counsel for application of the AEDPA in these
proceedings. The state appellate court held that Petitioner acted recklessly in determining the
true age of the alleged victim prior to engaging in sexual conduct with her. See State v.
Davidson, 12th Dist. Nos. CA2017-08-015, CA2017-08-016, 2018 WL 2095706, at *2-3 (Ohio
Ct. App. May 7, 2018). This was not an unreasonable determination in light of the evidence
presented.
For these reasons and for the reasons set forth in the Magistrate Judge’s Report and
Recommendation, Petitioner’s objections (ECF No. 34, 35) are OVERRULED. The Report and
Recommendation (ECF No. 33) is ADOPTED and AFFIRMED. This action is hereby
DISMISSED.
Petitioner’s Motion to Supplement the Record (ECF No. 36) is DENIED.
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).

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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.
The Court is not persuaded that reasonable jurists would debate the dismissal of this
action. The Court therefore DECLINES to issue a certificate of appealability.
The Court certifies that the appeal would not be in good faith and that an application to
proceed in forma pauperis on appeal should be DENIED.
IT IS SO ORDERED.

s/Algenon L. Marbley________________
ALGENON L. MARBLEY
UNITED STATES DISTRICT COURT

DATED: May 21, 2019

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