(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
Petitioner’s claims as procedurally defaulted or 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.

PNc 8-15 018

EDMUND A) SARGUS, JR.
CHIEF UNITED STATES DISTRICT JUDGE



IN THE UNITED STATES DISTRICT COURT | f
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION <91g RUG 15 PR 3:45

DALE P. FIELD, JR.,
Case No. 2:17-ev-751

Petitioner, Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

ve

OHIO ADULT PAROLE
AUTHORITY, et al.,

Respondents.

OPINION AND ORDER

On July 17, 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. 34.) Petitioner has filed an Objection to the Magistrate Judge’s Report and
Recommendation. (ECF No. 35.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de
novo review. For the reasons that follow, Petitioner’s Objection (ECF No. 35) is
OVERRULED. The Report and Recommendation (ECF No. 34) is ADOPTED and
AFFIRMED. This action is hereby DISMISSED.

The Court DECLINES to issue a certificate of appealability.

Petitioner challenges the actions of the Ohio Adult Parole Authority (“OAPA”) in
refusing to give him credit for his time served on a sentence in West Virginia, or while he was
being held on detainer in that State, for his five year sentence on a violation of the terms of his
post-release control. Petitioner asserts that the OAPA thereby violated his right to equal
protection, the Eight Amendment, and the Double Jeopardy Clause. The Magistrate Judge

recommended dismissal of the latter two claims as procedurally defaulted, due to Petitioner’s


failure to present such issues to the Ohio Supreme Court in his state habeas corpus petition, and
his remaining claim as without merit.

Petitioner objects to that recommendation. He seeks a liberal construction of his
pleadings, and argues that he preserved his double jeopardy claim for review by referring to the
Fourteenth Amendment in state habeas corpus proceedings. Petitioner also objects to the
dismissal of his claim as raising an issue regarding the alleged violation of State law. Referring
to Plumley v. Austin, -- U.S. --, 135 S.Ct. 828 (2015), Petitioner maintains that the OAPA’s
refusal to grant him credit for time served amounts to a violation of federal constitutional law,
thus warranting him relief under 28 U.S.C. § 2254(d).

This Court liberally construes the pleadings of pro se prisoners. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (“[A] pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers[.]”) (citing Estelle v. Gamble, 429
US. 97, 106 (1976)). But even a liberal construction of pleadings does not indicate that
Petitioner has established a basis for relief. As noted by the Magistrate Judge, this Court is not
aware of any Supreme Court holding that requires a State to provide credit against post-release
control time for time spent incarcerated in another state on a detainer. Therefore, this claim does
not provide Petitioner a basis for relief. “To analyze whether a state court decision is contrary to
or an unreasonable application of clearly established Supreme Court precedent, courts look only
to the holdings of the Supreme Court's decisions as of the time of the relevant state court
decision.” Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013) (citing Lockyer v. Andrade, 538
U.S. 63, 71-72 (2003). Petitioner’s reference to Plumley does not assist him. Plumley addresses
the issue of whether the presumption of judicial vindictiveness applied when a trial court issued

an amended sentencing order that increased the terms of the defendant’s sentence upon the filing


of a motion for corrected sentence. Plumley, 135 S.Ct. at 830, That issue is not before this
Court. Additionally, this Court has reviewed the record, and it does not indicate that Petitioner
ever presented to the state courts a claim under the Double Jeopardy Clause. His brief references
to the Fourteenth Amendment did not do so. See Baldwin v. Reese, 541 U.S. 27, 32 (2004)
(“[O]rdinarily a state prisoner does not ‘fairly present’ a claim to a state court if that court must
read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a
federal claim[.]”)

For these reasons, and for the reasons discussed in the Magistrate Judge’s Report and
Recommendation, Petitioner’s Objection (ECF No. 35) is OVERRULED. The Report and
Recommendation (ECF No. 34) 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 8.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