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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION 

ROBERT S. COMER, 

CASE NO. 2:13-CV-0003

Petitioner, JUDGE GEORGE C. SMITH

Magistrate Judge Norah McCann King

v. 

WARDEN, Ohio State Penitentiary, 

Respondent.

OPINION AND ORDER

On April 22, 2013, the Magistrate Judge recommended that the petition for a writ of 

habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed.

1 Order and Report and 

Recommendation, Doc. No. 13. Petitioner filed objections to the Report and Recommendation, 

Objection, Doc. No. 14, and respondent has filed a response to those objections. Response to 

Petitioner’s Objections, Doc. No. 15. For the reasons that follow, Petitioner’s Objection, Doc. 

No. 14, is OVERRULED. The Report and Recommendation, Doc. No. 13, is ADOPTED and 

AFFIRMED. This action is hereby DISMISSED. 

In her Report and Recommendation, the Magistrate Judge concluded that petitioner’s 

claims of ineffective assistance of counsel were without merit. Specifically, the Magistrate 

Judge reasoned that the state appellate court’s factual findings and legal conclusions were 

supported by the record, see 28 U.S.C. § 2254(d), and that, in any event, petitioner failed to 

establish that he had been prejudiced by any deficiency in his counsel’s performance at trial. See 

Strickland v. Washington, 466 U.S. 668 (1984). Petitioner’s objections present the same 

arguments presented to and rejected by the Magistrate Judge. He again complains that his trial 

counsel should have objected to the trial court’s jury instructions regarding Ohio’s “Castle 

 1 The Magistrate Judge also denied petitioner’s Motion to Complete the Record, Doc. No. 8, as moot. 

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doctrine” and the duty to retreat and alleges that his attorney performed in a constitutionally 

ineffective manner when he failed to make a proper motion for judgment of acquittal under Ohio 

Criminal Rule 29 and when he failed to request that the trial court instruct the jury on the issue of 

fault in connection with the death of another. 

Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the 

reasons detailed in the Magistrate Judge’s Report and Recommendation, this Court agrees that 

petitioner’s claims do not warrant federal habeas corpus relief. Petitioner’s Objection, Doc. No. 

14, is therefore OVERRULED. The Report and Recommendation, Doc. No. 13, is ADOPTED

and AFFIRMED. This action is hereby DISMISSED. 

The Clerk is DIRECTED to enter FINAL JUDGMENT in this action.

Petitioner also requests a certificate of appealability; respondent opposes that request. 

Where, as here, a claim is 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). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). See 

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (recognizing codification of Barefoot in 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, 529 U.S. at 484 (quoting 

Barefoot, at 893 n.4).

The Court concludes that reasonable jurists could debate whether petitioner’s claims

should have been resolved differently. Petitioner’s request for a certificate of appealability is 

therefore GRANTED. The Court CERTIFIES the following issue for appeal: 

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Was Petitioner denied the effective assistance of counsel? 

Petitioner’s request to proceed in forma pauperis on appeal is DENIED without 

prejudice to renewal in a separate motion that complies with Fed. R. App. P. 24(a)(1).

 s/ George C. Smith 

GEORGE C. SMITH

United States District Judge

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