IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN L. CHAPMAN,
CASE NO. 2:17-CV-1031
Petitioner, CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Chelsey M. Vascura

Vv.

WARDEN, BELMONT
COUNTY JAIL,

Respondent.

OPINION AND ORDER

On December 5, 2017, the Magistrate Judge issued a Report and Recommendation
pursuant to Rule 4 of the Rules Governing Section Cases in the United States District Courts
recommending that this action be dismissed. (ECF No. 3.) Petitioner has filed an Objection to
the Magistrate Judge’s Report and Recommendation. (ECF No. 6.) 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. 6) is OVERRULED. The Report and Recommendation (ECF No. 3) is
ADOPTED and AFFIRMED. This action is hereby DISMISSED.

The Court DECLINES to issue a certificate of appealability.

Petitioner challenges his December 5, 2017, convictions pursuant to his plea of no contest
in the Belmont County Court of Common Pleas on charges of possession of heroin, possession of
cocaine, and trafficking in drugs. Although at the time Petitioner filed this habeas corpus
petition the case was scheduled for a jury trial, and the Magistrate Judge therefore recommended
dismissal of this action as premature, the docket of the Belmont County Court of Common Pleas
now indicates that Petitioner subsequently entered a plea of no contest to the charges, and on

December 18, 2017, the trial court imposed eleven years incarceration, to be followed by a term


of three years post release control. As his sole claim for federal habeas corpus relief, Petitioner
asserts that his convictions violate the Fourth Amendment and due process.

However, plainly this action remains unexhausted and is subject to dismissal on that
basis. Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner must
first exhaust his claims in the state courts before presenting them in federal court. 28 U.S.C. §
2254(b); see Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000). A state prisoner must
exhaust his available remedies in the state courts before a federal habeas court may grant relief.
Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993). If a habeas petitioner has the right under
state law to raise a claim by any available procedure, the claim is not exhausted. 28 U.S.C. §
2254(b), (c). Additionally, a constitutional claim for relief must be presented to the state's
highest court in order to satisfy the exhaustion requirement. O'Sullivan v. Boerckel, 526 U.S.
838, 844 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). A habeas petitioner
bears the burden of demonstrating that exhaustion of the available state court remedies with
respect to the claims presented for federal habeas review. Prather v. Rees, 822 F.2d 1418, 1420
n.3 (6th Cir. 1987). Petitioner has yet to file a direct appeal. Therefore, his claim(s) remain
unexhausted. Moreover, Petitioner raises a claim regarding the alleged violation of the Fourth
Amendment. As discussed by the Magistrate Judge, such a claim does not ordinarily provide a
basis for federal habeas corpus relief. See Stone v. Powell, 428 U.S. 465, 482 (1976); Riley v.
Gray, 674 F.2d 522, 526 (6th Cir. 1982).

Therefore, Petitioner’s Objection (ECF No. 6) is OVERRULED. The Order and Report

and Recommendation (ECF No. 3) 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 §. 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.

This Court is not persuaded that reasonable jurists would debate the dismissal of this
case. Therefore, the Court DECLINES to issue a certificate of appealability.

The Clerk is DIRECTED to enter final JUDGMENT.

IT IS SO ORDERED.

PYNZ7 1-2 -d018

EDMUND(A)SARGUS, JR.
Chief United States District Judge