contested evidentiary issue. Rather, the state appellate court cited to Ohio cases
finding that as a matter of Ohio law, a normal occupant’s presence or absence is
immaterial because they do not impact whether a home is maintained as a
dwelling—abandonment and residential purpose do. ECF No. 8-1, at PAGE ID
## 85-86. Although Petitioner insists that he challenges the sufficiency of the
evidence used to convict him, he actually asks this Court to disturb that
determination of Ohio law.® It is well-settled, however, that a federal habeas
court is bound by the state court’s interpretation of state law that was “announced
on direct appeal of the challenged conviction.” Bradshaw v. Richey, 546 U.S. 74,
76 (2005) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (explaining that
“[i]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions”)); Coole v. Coyle, 289 F.3d 882, 901-02
(6th Cir. 2002) (holding that a claim that “Ohio court did not apply Ohio law
correctly . . . is not justiciable in federal habeas proceedings”). For that reason,
state law claims like this one, that are “disguised” as sufficiency of the evidence
claims brought under Jackson, are not cognizable under § 2254. Thorne v.
Lester, 641 F. App’x. 541, 54 (6th Cir. 2016) (finding that a claim was not

cognizable where a petitioner asserted that state merger rules were misapplied;

3 In his objections, Petitioner asserts, for the first time, that there is also insufficient
evidence that he entered the home that he burglarized. ECF No. 11, at PAGE ID # 150.
This claim is clearly barred because it was never presented to the state court in
Petitioner's direct appeal. ECF No. 8-1, at PAGE ID ## 62-68. In any event, the
record contains excerpts from trial transcripts that belie this assertion. /d. at PAGE ID
#71.

Case No. 2:17-cv-828 Page 5 of 8


have an automatic right to appeal a district court's adverse decision unless the
court issues a COA. 28 U.S.C. § 2253(c). When a claim has been denied on the
merits, a COA may be issued 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 be issued 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. /d.

The Court DECLINES to issue a COA. The Court is not persuaded that
reasonable jurists could debate whether Petitioner's allegations raise only a state
law claim that is not subject to habeas review.

The Clerk is DIRECTED to enter final JUDGMENT.

IT IS SO ORDERED. .

MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:17-cv-828 Page 8 of 8


dedicated to residential use, and 2) has not been abandoned, is “maintained” as
a dwelling even if its usual occupant is absent for a prolonged period or is
receiving long-term care in a nursing home. /d. at PAGE ID ## 85-86. The state
appellate court explained that Ohio courts have held that “the relevant inquiry in
determining whether a structure is occupied concerns the residential purpose of
the dwelling, rather than the presence or absence of an occupant.” /d., at PAGE
ID # 86. It then concluded that the house at issue constituted an occupied
structure even though the normal occupant was not living in it. /d. The state
appellate court found that the house was not abandoned and that it retained its
residential purpose— there was evidence that the normal occupant’s belongings
remained in the house, and although there was evidence that her health
problems made it unlikely, there was also evidence that she intended to move
back into the house. /d.

Petitioner does not challenge the sufficiency of the evidence used to show
that the house had not been abandoned or the evidence used to show that the
house had retained its residential purpose.” Instead, Petitioner insists that the
house was not an occupied structure as defined by Ohio law because its normal
occupant was living in long-term care. ECF No. 11, at PAGE ID # 150. The

normal occupant’s living situation does not, however, appear to have been a

2 The record contains excerpts from trial transcripts of testimony to these facts. ECF
No. 8-1, at PAGE ID # 72.

Case No. 2:17-cv-828 Page 4 of 8


claim was a state law claim disguised as a sufficiency of the evidence claim
brought under Jackson); Jenkins v. Dailey, 348 F. App’x. 114, 118-19 (6th Cir.
2009) (finding that petitioner was “impermissibly attempting to use a petition for
habeas corpus to press his preferred interpretation of state law” even though he
“recast” his claim as a sufficiency of the evidence claim brought under Jackson).
The opinion in Powell v. Berghuis, is instructive. 560 F. App’x. 442, 449
(6th Cir. 2013). In that case, a habeas petitioner purportedly challenged the
sufficiency of the evidence used to support his conviction under Michigan law for
second-degree home invasion. Michigan law required a showing that an
accused entered a “dwelling,” which was statutorily defined as “a structure or
shelter that is used permanently or temporarily as a place of abode.” /d. (citing
Mich. Comp. Laws. § 750.110a(1)(a)). The petitioner claimed that the house that
he had entered had been condemned and no one was living in it at the time of
his entry; thus, it could not constitute a dwelling. /d. The Powell court found that
the Michigan appellate court had, however, rejected that argument because
under Michigan law, an inhabitant’s intent to use a structure as a place of abode
was the primary factor in determining whether a structure constituted a dwelling.
Id. The Powell court explained that the petitioner's conviction had been affirmed
because the homeowner testified that fire damage had caused him to be absent
from the home, that he intended to live in the house, and that he was living in it at

the time of trial. /d. The Powell court concluded that the petitioner’s claim— that

Case No. 2:17-cv-828 Page 6 of 8


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

DEANO MCCORT,
CASE NO. 2:17-CV-828
Petitioner,
JUDGE MICHAEL H. WATSON
v. Magistrate Judge Kimberly A. Jolson

WARDEN, BELMONT
CORRECTIONAL INSTITUTE,

Respondent.
OPINION AND ORDER

Petitioner, a state prisoner, filed a petition seeking a writ of habeas corpus
under 28 U.S.C. § 2254. ECF No. 3. On April 18, 2018, the Magistrate Judge
issued a Report and Recommendation (“R&R”) recommending that the petition
be denied and that this action be dismissed. ECF No. 10. Petitioner objects to
the R&R. ECF No. 11. Pursuant to 28 U.S.C. § 636(B), this Court has
conducted a de novo review. For the reasons that follow, Petitioner’s objections
are OVERRULED and the R&R is ADOPTED and AFFIRMED. This action is
hereby DISMISSED.

The Court further DECLINES to issue a certificate of appealability (‘COA’).

Petitioner challenges his February 23, 2016, conviction in the Muskingham
County Court of Common Pleas for burglary in violation of Ohio Revised Code
§ 2911.12(A)(3). On February 6, 2017, the state appellate court affirmed that

conviction, and on March 23, 2017, it issued a nunc pro tunc Order correcting a


the state appellate court erred by finding intent determinative instead of
presence—constituted an inappropriate invitation to the federal court to
“superintend the Michigan courts in determining what is essential to establish the
element of a dwelling under state law.” /d. The Powell court further concluded
that such a claim was a “state law claim disguised as a [sufficiency of the
evidence claim brought under] Jackson” which “is not cognizable on federal
habeas review.” /d.

Such are the circumstances here. Petitioner does not claim that the state
court did not receive evidence to support the elements of his conviction as those
elements were defined by the state court. See Jackson, 443 U.S. at 324, n.16
(explaining that the sufficiency standard “must be applied with explicit reference
to the substantive elements of the criminal offense as defined by state law.”)
(emphasis added). Rather, Petitioner advances his interpretation of Ohio law as
to the definition of an occupied structure and then argues that the evidence was
insufficient to prove that element as he has defined it. Such a claim is a state law
claim disguised as a sufficiency of the evidence claim under Jackson.
Accordingly, it fails to raise a claim of Constitutional dimensions, and it is not
cognizable under § 2254.

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 COA.

A state prisoner who seeks a writ of habeas corpus in federal court does not

Case No. 2:17-cv-828 Page 7 of 8


typographical error in its original determination. ECF No. 8-1, at PAGE ID

## 81-87. Petitioner failed to timely appeal the March 23, 2017, nunc pro tunc
Order to the Ohio Supreme Court by or before May 8, 2017." Instead, on March
31, 2017, Petitioner filed an unsuccessful motion to re-open his direct appeal
pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure, and on June 6,
2017, filed an unsuccessful motion for a delayed appeal in the Ohio Supreme
Court. /d. at PAGE ID ## 89-95, 103-18. Because the Ohio Supreme Court
denied Petitioner's motion for a delayed appeal, the Magistrate Judge correctly
concluded in this case that Petitioner's habeas claim is procedurally barred.

In his objections, Petitioner alleges that his procedural default should be
excused because his failure to file a timely direct appeal to the Ohio Supreme
Court was caused, in part, by the state appellate court, which failed to provide
him with a copy of the March 23, 2017, nunc pro tunc Order. ECF No. 11, at
PAGE ID # 144. Alternatively, he asserts that his default should be excused
because he is “actually innocent.” /d. at PAGE ID # 151.

Regardless of whether Petitioner has established that his default should be
excused, the Magistrate Judge correctly concluded that Petitioner's claim is

based solely on state law. ECF No. 10, at PAGE ID # 137. Accordingly, the

1 The parties operate under the shared belief that Petitioner was required to appeal the
nunc pro tunc Order to the Ohio Supreme Court instead of the original determination.
The Court does the same.

Case No. 2:17-cv-828 Page 2 of 8


Court finds that Petitioner fails to raise a claim of Constitutional dimension, and,
thus, it is not cognizable under federal habeas review.

Specifically, in his sole claim for relief, Petitioner alleges that he was
convicted of violating Ohio’s burglary statute, which, in relevant part, criminalizes
entry into an “occupied structure” with the intent to commit a criminal offense.
O.R.C. § 2911.12(A)(3). Petitioner contends that he raises a Constitutional claim
because he challenges the sufficiency of the evidence used to demonstrate that
he entered an occupied structure given that the victim who normally resided in
the home that he burglarized had been living in a nursing home for several years.
ECF No. 11, at PAGE ID #150. Allegations that the evidence used to support a
conviction are insufficient to allow a rational trier of fact to find guilt beyond a
reasonable doubt do state a claim under the Due Process Clause of the
Fourteenth Amendment pursuant to Jackson v. Virginia, 443 U.S. 307, 324
(1979). Nevertheless, the Court finds that Petitioner does not allege a Jackson
sufficiency claim but instead attempts to use a petition for habeas corpus to
advance his preferred interpretation of state law.

The state appellate court noted that under Ohio law, an occupied structure
is statutorily defined as “any house . . . maintained as a permanent or temporary
dwelling, even though it is temporarily unoccupied and whether or not any person
is present.” ECF No. 8—1, at PAGE ID ## 84-85 (citing O.R.C. § 2909.01(C)). It

then cited to opinions from Ohio courts finding that a structure that: 1) is

Case No. 2:17-cv-828 Page 3 of 8