Bell v. Warden, Chillicothe Correctional Institution
OPINION AND ORDER adopting Report and Recommendations re 5 Report and Recommendations.. Signed by Judge James L. Graham on 3/31/21. (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
DARRELL LAMONT BELL,
CASE NO. 2:21-CV-796
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth P. Deavers
OPINION AND ORDER
On March 10, 2021, the Magistrate Judge issued a Report and Recommendation pursuant
to Rule 4 of the Rules Governing Section 2254 Cases recommending that this action be
transferred to the United States Court of Appeals for the Sixth Circuit as successive. (ECF No.
5.) Petitioner has filed an Objection to the Magistrate Judge’s Report and Recommendation.
(ECF No. 6.) Petitioner argues that the ends of justice should permit this Court’s consideration
of this successive action, as he did not deliberately withhold his claims earlier from review or
engage in abuse of the writ. The state courts found, however, that nothing prevented Petitioner
previously from discovering the basis for his claims now raised and res judicata barred review of
those claims presented in an untimely state post-conviction petition. State v. Bell, 10th Dist. No.
19AP-627, 2020 WL 1814835, at *1 (Ohio Ct. App. April 9, 2020).
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the
discussed in the Magistrate Judge’s Report and Recommendation, Petitioner’s Objection (ECF
No. 6) is OVERRULED. The Report and Recommendation (ECF No. 5) is ADOPTED and
AFFIRMED. This action hereby is TRANSFERRED to the Sixth Circuit as a successive
habeas corpus petition.
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, 576 U.S. 1071, --, 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.
The Court is not persuaded that reasonable jurists would debate the transfer of this action
to the Sixth Circuit as a second or successive petition. 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.
Date: March 31, 2021
______s/James L. Graham
JAMES L. GRAHAM
UNITED STATES DISTRICT JUDGE
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