IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JOSEPH L. CONVERSE, 

CASE NO. 2:20-CV-1283

Petitioner, CRIM. NO. 2:18-CR-29

JUDGE EDMUND A. SARGUS, JR.

v. Chief Magistrate Judge Elizabeth P. Deavers

UNITED STATES OF AMERICA, 

Respondent.

ORDER

On March 12, 2020, the Magistrate Judge issued a Report and Recommendation pursuant 

to Rule 4 of the Rules Governing § 2255 Proceedings in the United States District Courts 

recommending that the Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 34) be dismissed as 

time-barred. (ECF No. 35.) Petitioner has filed an Objection to the Magistrate Judge’s Report 

and Recommendation. (ECF No. 38.) 

Petitioner objects to the dismissal of this action as time-barred. He argues that “tardiness 

is irrelevant where a constitutional issue is raised and where the prisoner is still confined.” 

McKinney v. United States, 208 F.2d 844, 847 (C.A.D.C. 1953). However, McKinney, referred 

to by Petitioner, was decided in 1953, prior to the Antiterrorism and Effective Death Penalty Act 

of 1996, which imposed a one-year statute of limitations on the filing of federal habeas corpus 

petitions. 28 U.S.C. § 2255(f). Moreover, as discussed by the Magistrate Judge, this action 

plainly is time-barred. Petitioner does not dispute that determination. 

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

foregoing reasons and for the reasons detailed in the Magistrate Judge’s Report and 

Recommendation, Petitioner’s Objection (ECF No. 38) is OVERRULED. The Report and 

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Recommendation (ECF No. 35) is ADOPTED and AFFIRMED. The Motion to Vacate under 

28 U.S.C. 2255 (ECF No. 34) is DENIED.

Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings 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.) The petitioner must 

establish the 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). 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, 463 U.S., at 893 

n. 4). 

Where the Court dismisses a claim on procedural grounds, however, a certificate of 

appealability “should issue when the prisoner shows, at least, 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. Thus, there are two components to determining whether a certificate of appealability

should issue when a claim is dismissed on procedural grounds: “one directed at the underlying 

constitutional claims and one directed at the district court's procedural holding.” Id. at 485. The 

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court may first “resolve the issue whose answer is more apparent from the record and 

arguments.” Id.

The Court is not persuaded that Petitioner has established that reasonable jurists would 

debate the dismissal of this action as time-barred. The Court therefore DECLINES to issue a 

certificate of appealability. 

The Court certifies that the appeal would not be in good faith and that an application to 

proceed in forma pauperis on appeal should be denied.

IT IS SO ORDERED. 

4/17/2020 s/Edmund A. Sargus, Jr.

Date EDMUND A. SARGUS, JR. 

UNITED STATES DISTRICT JUDGE

 

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