IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ERIC E. SUBER, 

 Case No. 2:17-cv-863 

 Petitioner, Judge Algenon L. Marbley 

 Magistrate Judge Chelsey M. Vascura 

 v. 

WARDEN, MANSFIELD 

CORRECTIONAL INSTITUTION, 

 Respondent. 

OPINION AND ORDER 

 On May 3, 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. 18.) Petitioner has filed an Objection to the Magistrate Judge’s Report and 

Recommendation. (ECF No. 19.) 

Petitioner challenges his conviction after a jury trial in the Licking County Court of 

Common Pleas on one count of aggravated trafficking in methamphetamine. He asserts that he 

was denied the effective assistance of appellate counsel because his attorney failed to raise a 

claim on appeal challenging his conviction as obtained in violation of the Fourth Amendment 

due to the use of a monitoring device by the confidential informant, and failed to raise a claim 

that he was denied the effective assistance of trial counsel when his attorney stipulated to the 

contents of a laboratory report. The Magistrate Judge recommended dismissal of these claims on 

the merits. Petitioner again raises all of the arguments he previously presented. 

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

reasons discussed in the Magistrate Judge’s Report and Recommendation, Petitioner’s arguments 

are not well-taken. His claims plainly lack merit. The record fails to reflect either that Petitioner 
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had any potentially meritorious claim under the Fourth Amendment, or under the test set forth in 

Strickland v. Washington, 466 U.S. 668 (1984). Therefore, Petitioner’s Objection (ECF No. 19) 

is OVERRULED. The Report and Recommendation (ECF No. 18) is ADOPTED and 

AFFIRMED. 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 

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. 
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The Court is not persuaded that reasonable jurists would debate the dismissal of 

Petitioner’s claims as without merit. The Court therefore DECLINES to issue a certificate of 

appealability. 

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. 

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY 

 United States District Judge 

DATED: July 12, 2018