Ohlinger, John v. Meisner, Michael

Filing 113

Transmission of Notice of Appeal, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 111 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Docket sheet) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JOHN DAVID OHLINGER,
Petitioner,

OPINION and ORDER

v.
11-cv-799-wmc
WILLIAM POLLARD, Warden,
Dodge Correctional Institution,
Respondent.

Petitioner John David Ohlinger filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, challenging a judgment of conviction in Racine County Case No.
02CF224 for attempted first-degree sexual assault of a child and child enticement, each as
a persistent child sex offender. The state filed an answer, along with records from the
relevant state court proceedings, and both parties have submitted briefing, making the
petition ripe for decision. Having reviewed the petition, the parties’ arguments and the
relevant state court decisions, the court concludes that Ohlinger’s petition must be
denied.
BACKGROUND1
A.

Investigation and Charges
A sting operation by law enforcement caught Ohlinger using the internet to solicit

sex with what he thought was a twelve-year-old girl.

In fact, Ohlinger had been

The following facts are taken from the petition and the state court records provided by petitioner
and the state.
1

1

communicating by internet and phone with two police officers, one posing as an adult
woman with a 12-year old daughter, and the other posing as the daughter. Ohlinger was
originally charged with conspiracy to commit first-degree sexual assault of a child,
conspiracy to commit child enticement by sexual contact, attempted first-degree sexual
assault of a child, and child enticement, each as a persistent child sex offender.

See

Wisconsin v. Ohlinger, Racine County Case No. 2002CF224.
After

cycling

representing himself.

through

several

appointed

attorneys,

Ohlinger

insisted

on

He then moved to dismiss all charges on grounds that the

warrantless recording of his conversations with the officers posing as mother and daughter
violated Wisconsin’s Electronic Surveillance Control Act. He also moved to dismiss the
conspiracy charges on ground that the undercover officers were merely feigning
participation in a criminal scheme. The court rejected Ohlinger’s arguments regarding
the surveillance, concluding that the recording was not an “intercept” subject to the
surveillance statute. However, the state agreed to drop the conspiracy charges, and the
court granted Ohlinger’s motion to dismiss those charges.

The state then filed an

amended complaint, which included only the attempt charges.
B.

Court Trial
Shortly before the scheduled trial date, Ohlinger asserted that he was no longer

competent to represent himself, and the court appointed Attorney Richard Hart, who had
been acting as his stand-by counsel, to represent him. At the defense’s request, the court
also ordered that Ohlinger undergo a psychological evaluation to determine if he was

2

competent to stand trial.
During a June 27, 2006 hearing, the court determined that Ohlinger was
competent to stand trial. At the same hearing, Ohlinger waived his right to have his case
heard by a jury.
The court then conducted a three-day bench trial beginning on June 28, 2006. In
a 16-page written decision issued July 3, 2006, the court summarized the facts adduced at
trial, including that Ohlinger had created a web page discussing his interests in pedophilia
and in finding other people with whom he could share his interest. (See dkt. #28-2 at
48-72.) After learning about the website, the Wisconsin Department of Justice contacted
Ohlinger, with two DOJ agents posing as a mother and minor daughter. Ohlinger had
numerous telephone, email and instant messaging conversations with the agents, which
were recorded and presented at trial. During the conversations, the agents and Ohlinger
made a plan to meet at a truck stop in Racine, where Ohlinger would take them to New
Orleans in his truck. At the truck stop, Ohlinger was arrested by DOJ agents.
The state court found Ohlinger guilty of attempted first-degree sexual assault of a
child and child enticement, each as a persistent child sex offender. He was sentenced on
July 25, 2006.
The charge of child enticement as a persistent child sex offender carried a
mandatory sentence of life without possibility of supervised release. The court imposed
the life sentence, as well as a concurrent sentence of 40 years’ initial confinement and 20
years’ extended supervision on the attempted first-degree sexual assault charge. (See dkt.
#28-1.)
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C.

Post-conviction Motion and Direct Appeal.
Ohlinger filed a motion for post-conviction relief, reasserting his claims that the

interception of his internet and telephone communications with law enforcement officers
violated the Wisconsin Electronic Surveillance Control Act (“WESCA”). (Dkt. #28-2 at
64.) The trial court denied that motion, concluding it was not error to admit evidence of
the recordings because they were obtained in compliance with WESCA. Even if obtained
in violation of WESCA, the court found other, overwhelming evidence supporting the
conviction, such as the officers’ testimony of their communications with Ohlinger. (Id. at
64-69.)
Represented by a state public defender, Ohlinger appealed that judgment and the
order denying postconviction relief. In his opening brief, he again raised the argument
that the government’s acquisition of the communications between Ohlinger and the
agents violated WESCA, requiring suppression under that statute and the Fourth
Amendment.

(See dkt. #28-2 at 16.)

The Wisconsin Court of Appeals rejected

Ohlinger’s arguments, affirming his conviction on both counts after concluding that the
circuit court properly denied Ohlinger’s motion to suppress because the interceptions of
the communications did not violate state law. See State v. Ohlinger, 2009 WI App 44, 317
Wis. 2d 445, 767 N.W.2d 336.

The Wisconsin Supreme Court denied Ohlinger’s

petition for review on September 11, 2009.

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D.

Petition for Writ of Habeas Corpus Pursuant to Knight.
Ohlinger next filed a pro se petition for a writ of habeas corpus in the Wisconsin

Court of Appeals under State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1991),
alleging ineffective assistance of counsel on three grounds: (1) his trial and appellate
attorneys should have sought dismissal of the attempt charges on preclusion grounds after
the conspiracy charges were dismissed; (2) appellate counsel should have argued that the
intercept was unlawful under provisions of the federal wiretap law limiting the crimes for
which an intercept may be authorized, as well as failing to make additional arguments for
exclusion under Wisconsin’s surveillance laws; and (3) appellate counsel should have
argued that the investigation and prosecution of his crime resulted in denial of his right to
equal protection because law enforcement was not required to get a warrant before
intercepting his communications. (See dkt. #28-9.)
The Court of Appeals again rejected Ohlinger’s arguments, concluding that counsel
did not err by pursuing the arguments identified by Ohlinger because each argument
would have failed. See State v. Ohlinger, 2010AP1413-W (Wis. Ct. App. Feb. 10, 2011)
(dkt. #28-12). Ohlinger filed a petition for review with the Wisconsin Supreme Court,
which was denied on September 1, 2011.
E.

Motion for Post-conviction Relief under Wis. Stat. § 974.06.
On October 6, 2011, Ohlinger then filed a second, pro se motion for postconviction

relief in state court pursuant to Wis. Stat. § 974.06. (Dkt. #28-17 at 33, 45.) Ohlinger
argued that trial counsel was ineffective for failing to seek dismissal of the attempted child

5

enticement and child enticement charges on issue preclusion grounds, as well as for failing
to seek suppression of the communications between Ohlinger and the agents under
federal law.

The state trial court denied Ohlinger’s § 974.06 motion on January 27,

2012, which Ohlinger appealed.
While that appeal was pending, Ohlinger also filed his habeas corpus petition
under 28 U.S.C. § 2254 in this court, along with a motion to stay proceedings while he
finished exhausting the claims he had raised in his § 974.06 motion. This court granted
that motion on August 22, 2012. (Dkt. #4.)
On February 27, 2013, the Wisconsin Court of Appeals affirmed the state trial
court’s order on grounds that Ohlinger’s § 974.06 motion was procedurally barred by State
v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), because Ohlinger had
failed to raise his claims on direct appeal or in his Knight petition. See State v. Ohlinger,
2012AP448 (Wis. Ct. App. Feb. 27, 2013) (unpub.) (dkt. #28-20). Additionally, the
court concluded that even if the claims were not barred, they lacked merit. Ohlinger’s
petition for review of that decision in the Wisconsin Supreme Court was denied on
October 21, 2013.
Ohlinger next filed a motion to reinstate his habeas case in this court, which was
granted on November 13, 2013. Ohlinger further filed a supplemental memorandum in
support of his petition on December 23, 2013 (dkt. #11), and an addendum to the
supplemental memorandum on April 10, 2015. (Dkt. #92.) In the interim, however,
Ohlinger requested a second order to stay and abate proceedings to allow him to exhaust
additional claims in state court (dkt. ##80, 85), which this court denied on January 15,
6

2015. (Dkt. #88.)
OPINION
In his § 2254 petition, Ohlinger contends that he is entitled to habeas relief for
four reasons: (1) the circuit court lacked jurisdiction over his criminal case because the
intercept of his communications with the officers violated federal and state electronic
surveillance statutes; (2) the circuit court erred by failing to seal recordings and transcripts
used as evidence in his case, as required by federal wiretap law; (3) the circuit court erred
by failing to exclude evidence related to the dismissed conspiracy charges; and (4) trial
and postconviction counsel rendered ineffective assistance by failing to argue certain
grounds on which the recordings and transcripts should have been suppressed. (Petition,
dkt. # 1, at 6-11). He has provided a memorandum and supplemental memorandum in
support of these claims (dkts. #2, #11), to which defendant has responded (dkt. #99).
For the reasons that follow, the court rejects each of the grounds advanced by petitioner
for relief.
I.

Exhaustion Requirement and Standard of Review
A federal court may not entertain a petition from a prisoner being held in state

custody unless the petitioner has exhausted his available state remedies prior to seeking
federal habeas relief. See 28 U.S.C. § 2254(b); Malone v. Walls, 538 F.3d 744, 753 (7th
Cir. 2008). “This so-called exhaustion-of-state-remedies doctrine serves the interests of
federal-state comity by giving states the first opportunity to address and correct alleged

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violations of a petitioner’s federal rights.” Lieberman v. Thomas, 505 F.3d 665, 669 (7th
Cir. 2007). To satisfy the exhaustion requirement, a petitioner is required to present his
federal claims fairly to the state courts first in accordance with the state’s procedural
requirements so that the state courts have a meaningful opportunity to correct any
mistakes.

See Martin v. Evans, 384 F.3d 848, 854 (7th Cir. 2004); Chambers v.

McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001).
To “fairly present” a claim, a petitioner must raise the same operative facts and
controlling legal principles before the state courts in a procedurally proper manner. See
Picard v. Connor, 404 U.S. 270, 275 (1971); see also Baldwin v. Reese, 541 U.S. 27, 29
(2004). In other words, a petitioner is required to present the state courts with “the
same [substantive] claim that he urges upon the federal courts.”

Picard, 404 U.S. at

275-76. If the petitioner misses the opportunity to present a claim to the state courts
properly, then the claims are procedurally defaulted and federal review of the claim is
forfeited. See Lieberman, 505 F.3d at 669.
If a claim was fairly presented to the state courts, however, federal courts will
review the merits of the claim under the guidelines of 28 U.S.C. § 2254(d). To prevail
under that provision, a petitioner must show that the state court’s adjudication of the
federal claim “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1).

Alternatively, a petitioner must show that the

adjudication “resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
8

§ 2254(d)(2). Moreover, the standard outlined in § 2254(d)(1) is exacting and “highly
deferential,” Burt v. Titlow, — U.S. —, 134 S. Ct. 10, 15 (2013), demanding that state
courts be given “the benefit of the doubt.”

Harrington v. Richter, 562 U.S. 86, 102

(2011).
A state court’s decision is deemed contrary to clearly established federal law if it
reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or
reaches

a

different conclusion than the

Supreme

Court based

on materially

indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 404-08 (2000). Similarly,
a state court unreasonably applies clearly established precedent if it identifies the correct
governing legal principle but unreasonably applies that principle to the facts of the case.
See Brown v. Payton, 544 U.S. 133, 141 (2005).

This demanding standard authorizes

relief only in cases “where there is no possibility fairminded jurists could disagree that the
state court’s decision conflicts with [Supreme Court] precedents.” Harrington, 562 U.S.
at 102.
As for § 2254(d)(2), a federal court may conclude that a state court decision was
based on an unreasonable determination of the facts only “if it rests upon factfinding that
ignores the clear and convincing weight of the evidence.” Taylor v. Grounds, 721 F.3d
809, 817 (7th Cir. 2013) (citing 28 U.S.C. § 2254(e)(1) (quotation and citation omitted).
In addition to the “formidable barrier” posed by this standard, Titlow, 134 S. Ct. at 16, a
federal habeas corpus court reviewing a claim under § 2254(d)(1) must “presume that the
[state] courts’ factual determinations are correct unless the petitioner rebuts the
presumption by clear and convincing evidence.” Id. While demanding, these standards
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are not insurmountable. Id. Unfortunately for petitioner, none of his arguments satisfy
the standard.
II.

State Circuit Court’s Jurisdiction Over the Criminal Case
Petitioner argues that the intercept of his internet and telephone communications

with the undercover agents violated certain provisions of the federal wiretap law, 18
U.S.C. § 2516(2) and 18 U.S.C. § 2518, as well as Wisconsin’s Electronic Surveillance
Control Act. Petitioner argues further that these violations deprived the state court of
subject matter jurisdiction over the criminal complaint.

Thus, petitioner asserts, the

criminal proceeding violated his right to due process.
This claim fails for multiple reasons. First, although petitioner argued in the trial
court and on appeal that the electronic communications should have been suppressed
based on electronic surveillance laws, he never fairly presented a claim in state court that
it lacked subject matter jurisdiction over the criminal complaint based on violations of
federal and state electronic surveillance law.

Instead, he made the jurisdictional

argument for the first time in his petition for review from the court of appeals’ February
27, 2013, summary order affirming denial of his § 974.06 motion. (See dkt. #28-23 at
6-7.)
Petitioner appears to concede as much in his supplemental memorandum in
support of his habeas petition, but argues that he was unfairly denied the opportunity to
make a jurisdictional argument when the state court of appeals denied his motion for an
extension of time to file a motion for reconsideration of the denial of his § 974.06 motion.

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(See dkt. #11 at 1.) Rather than bolstering petitioner’s position, however, this assertion
merely confirms that petitioner failed to preserve his argument on direct appeal, in his
Knight petition or even in his initial § 974.06 motion.

Because petitioner failed to

present his subject matter jurisdiction claim clearly to the state courts, it is now barred by
the doctrine of procedural default.
Even if petitioner had exhausted this claim, it would fail on the merits as well.
Indeed, petitioner argued several times in state court that interception of his electronic
communications violated federal and state surveillance laws, albeit not as an issue of
subject matter jurisdiction. As the Wisconsin Court of Appeals correctly found, however,
these intercepts were not illegal under state or federal wiretap laws. Ohlinger, 2009 WI
App 44, ¶ 14 (collecting cases).

Both the federal and state laws contain a one-party

consent exception, which provides that it is not unlawful for “a person acting under color
of law” to intercept a communication when one of the parties to the communication
consents. 18 U.S.C. § 2511(2)(c); Wis. Stat. § 968.31(2)(b).
Here, law enforcement officers are considered “person[s] acting under color of
law.”

Ohlinger, 767 N.W.2d 336, ¶ 14.

Moreover, because the intercept was lawful

under both the state and federal laws’ one-party consent exception, judicial authorization
of the intercept was not necessary. As a result, § 2516(2), which lists the offenses for
which investigating authorities must seek authorization for an intercept, does not apply;
and

likewise,

§

2518,

which

addresses

various

requirements

pertaining

to

judicially-authorized intercepts, does not apply.
Finally, even if the intercept violated the federal or state surveillance laws, the trial
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court would still have jurisdiction over the criminal complaint after granting a motion to
suppress the evidence. The jurisdiction of Wisconsin circuit courts is established by Wis.
Stat. § 753.03, which grants circuit courts the broad authority to “hear and determine,
within their respective circuits, all civil and criminal actions and proceedings unless exclusive
jurisdiction is given to some other court.” (Emphasis added). Petitioner has cited no
authority suggesting that the legality of a search or seizure could affect a trial court’s
subject matter jurisdiction over a criminal complaint. For these reasons, his jurisdictional
claim fails.
III.

Sealing Intercepted Communications
Petitioner next argues that the recordings and transcripts of the communications

between himself and the agents were not sealed by the trial court in violation of federal
and state electronic surveillance laws, 18 U.S.C. § 2518(1)(a) and Wis. Stat.
§ 968.30(7)(a), respectively, as well as his constitutional right to due process. Section
2518(8)(a) requires that “[t]he contents of any wire, oral, or electronic communication
intercepted by any means authorized by this chapter shall, if possible, be recorded on tape
or wire or other comparable device” and that recording “shall be done in such a way as
will protect the recording from editing or other alterations.”

That section further

provides that “[i]mmediately upon the expiration of the period of the order, or extensions
thereof, such recordings shall be made available to the judge issuing such order and sealed
under his directions.”

Section 2518 further has an explicit exclusionary remedy for

noncompliance with the sealing requirement, which states that “[t]he presence of the seal

12

provided for by this subsection, or a satisfactory explanation for the absence thereof, shall
be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic
communication or evidence derived therefrom under subsection (3) of section 2517.” See
also United States v. Ojeda Rios, 495 U.S. 257, 260 (1990). Wisconsin has a substantially
similar counterpart in § 968.30(7)(a).
As an initial matter, petitioner’s claim for relief is again barred by the doctrine of
procedural default because he never presented it clearly in state court. While petitioner
claims that he raised this claim in his Knight petition by citing 18 U.S.C. § 2518(8)(a), a
review of that petition reveals only a broad allegation that the communications were
intercepted “in absolute violation of 18 U.S.C. § 2518(7)(b), (8)(a), (9), (10)(a)(1).”
(Dkt. #28-9 at 13.) To satisfy the “fair presentment,” it is not enough to merely cite a
statutory provision.

Petitioner must at least develop an argument regarding how an

alleged error implicated petitioner’s constitutional rights.

Indeed, fair presentment in

state court requires that a petitioner present “both the operative facts and controlling law”
relevant to his claim, as well as an analysis of the “constitutional nature of the claim.”
Anderson v. Benik, 471 F.3d 811, 815 (7th Cir. 2006). Nowhere in his Knight petition did
petitioner develop any argument regarding the court’s failure to place communications
under seal, let alone that that failure violated his constitutional right to due process.
Instead, his Knight petition focused on arguments that the communications should have
been suppressed because the recordings were warrantless and made without his consent.
Thus, petitioner failed to properly present his “failure to seal” claim to the Wisconsin
Court of Appeals.
13

Petitioner did claim a violation of § 2518(8)(a) in his petition for review to the
Wisconsin Supreme Court, but only after the court of appeals had already issued a
decision on his Knight petition. (See dkt. #28-13 at 12-13.) By that stage, it was too
late. Wilson v. Briley, 243 F.3d 325, 328 (7th Cir. 2001) (“Presenting a federal claim for
the first time in a petition for discretionary review by a state’s highest court will not
satisfy the fair presentment requirement.”) (citing Castille v. Peoples, 489 U.S. 349, 351
(1989)). Accordingly, this claim is barred by the doctrine of procedural default.2
IV.

Evidence Relevant to the Conspiracy and Attempt Charges
Petitioner contends that after the state circuit court dismissed the conspiracy

charges against him, the court should then have excluded all of the evidence related to the
conspiracy charges, which should have then resulted in the remaining attempt charges
being dismissed. He further argues that the circuit court’s failure to exclude evidence or
dismiss the attempt charges violated his due process rights.
This claim, too, is barred by the doctrine of procedural default. Petitioner never
filed a motion in circuit court seeking dismissal of the attempt charges on the grounds he
now argues. The only motion he filed for dismissal of the attempt charges was based on
the argument that the interception of his communications with the agents violated

2

Even if this claim were not procedurally defaulted, it, too, would fail on the merits, as the
Seventh Circuit has concluded that the requirements for sealing under 18 U.S.C. § 2518(8)(a) do
not apply to recordings of communications intercepted with consent of one of the parties. See
United States v. Craig, 573 F.2d 455, 479-80 (7th Cir. 1977) (“[C]onsensual interceptions are
significantly different from non-consensual interceptions, and [] nothing in the Act or its
legislative history indicates that the recordings of consensual interceptions were intended by
Congress to be subject to 18 U.S.C. s 2518(8)(a).”) Additionally, petitioner failed to develop any

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Wisconsin’s Electronic Surveillance Control Act.

After that motion was denied,

petitioner never revisited his motion to dismiss the attempt charges, nor did he ever move
to suppress any evidence on alternative grounds.

Petitioner also never raised the

argument on appeal or in his post-conviction motions. Thus, petitioner has defaulted
this claim.
To the extent petitioner is actually attempting to raise an ineffective assistance of
counsel claim based on his trial counsel’s failure to seek dismissal of the attempt charges
on preclusion grounds, petitioner did raise that claim in his Knight petition. (See dkt.
#28-9 at 3.)

However, the Wisconsin Court of Appeals rejected that ineffective

assistance claim after concluding that a motion to dismiss the attempt charges on
preclusion grounds would have been meritless. See Ohlinger, 2010AP1413-W (Wis. Ct.
App. Feb. 10, 2011) (dkt. #28-12).

The court further explained that preclusion

principles did not apply because the conspiracy and attempt charges were based on
distinct theories of criminal liability. Thus, unlike in the cases cited by petitioner, he had
not been acquitted of conspiracy charges that were based on the same actions and theories
as the attempt charges. Id.
In conducting this analysis, the court of appeals’ correctly applied the relevant
standard for ineffective assistance claims set forth in Strickland v. Washington, 466 U.S.
668 (1984).

To prevail under the Strickland standard, a defendant must demonstrate

both constitutionally deficient performance by counsel and actual prejudice as a result of
the alleged deficiency. See Williams v. Taylor, 529 U.S. 362, 390-91 (2000). “Unless a

argument as to how a failure to seal the recordings deprived him of due process.
15

defendant makes both showings, it cannot be said that the conviction . . . resulted from
a breakdown in the adversary process that renders the result unreliable.” Strickland, 466
U.S. at 687.
Here, the court of appeals reasonably concluded that counsel’s performance was
not deficient, nor had petitioner suffered any prejudice in light of the fact that the
argument petitioner faulted his counsel for omitting would have been meritless. Because
the Wisconsin Court of Appeals reasonably applied the correct constitutional standard,
petitioner’s claim of ineffective assistance fails.

V.

Ineffective Assistance of Counsel
Petitioner’s final claim is that his trial and postconviction counsel were ineffective

in failing to argue that the recordings and transcripts of his conversations with the
undercover agents, as well as other evidence, should be suppressed based on hearsay and
other rules of evidence. As with his other claims, this claim is barred by the doctrine of
procedural default because petitioner failed to raise it on direct appeal or in his Knight
petition. Indeed, even when raising it for the first time in his § 974.06 motion, petitioner
provided no adequate explanation for his failure to raise the arguments sooner. Both the
circuit court and court of appeals, therefore, correctly concluded that the claims were
procedurally defaulted under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157
(1994).

Because there is an independent and adequate state procedure that resolves

petitioner’s claim, petitioner cannot obtain relief in a federal habeas petition. See Warren

16

v. Baenen, 712 F.3d 1090, 1104 (7th Cir. 2013).
Petitioner’s ineffective assistance claim also fails on the merits. After concluding
that petitioner’s claim was barred by Escalona-Naranjo, the Wisconsin Court of Appeals
went on to explain that the recordings and transcripts were not inadmissible hearsay or
inadmissible co-conspirator statements because they were non-hearsay admissions by
petitioner used to show intent and were independently relevant to the non-dismissed
charges.

See Ohlinger, No. 2012AP448 (Wis. Ct. App. Feb. 27, 2013) (dkt. #28-20).

The court of appeals concluded that because a motion to suppress the statements on the
grounds pressed by petitioner would have been meritless, counsel was not ineffective for
failing to make such a motion.
This court agrees with the Wisconsin Court of Appeals’ analysis.

More

importantly, the court of appeals reasonably applied the correct standard set forth in
Strickland, 466 U.S. 668, concluding that petitioner had failed to show deficient
performance or prejudice. For all of these reasons, petitioner’s final claim of ineffective
assistance fails.

VI.

Certificate of Appealability.
Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue or

deny a certificate of appealability when entering a final order adverse to petitioner. A
certificate of appealability will not issue unless the petitioner makes “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires a

17

petitioner to demonstrate “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Under the

controlling standard, this requires a petitioner to 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.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations
and citations omitted).

Where denial of relief is based on procedural grounds, the

petitioner must show not only that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right,” but also that they
“would find it debatable whether the district court was correct in its procedural ruling.”
Slack, 529 U.S. at 484.
Although the rule allows a court to ask the parties to submit arguments on whether
a certificate should issue, it is not necessary to do so in this case for the reasons already
stated.

Instead, the court concludes that petitioner’s claims are barred by procedural

default and petitioner has not made a showing, substantial or otherwise, that his
conviction was obtained in violation of clearly established federal law as decided by the
Supreme Court.

Because reasonable jurists would not otherwise debate whether a

different result was required, no certificate of appealability will issue.

ORDER
IT IS ORDERED that petitioner John David Ohlinger’s habeas corpus petition is
18

DENIED and this matter is DISMISSED. A certificate of appealability is DENIED.

If

petitioner wishes he may seek a certificate from the court of appeals under Fed. R. App. P.
22.
Entered this 6th day of April, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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