UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAHMEZ L. CONNALLY,

Case No. 2:17-cv-729

Petitioner, Judge Michael H. Watson

Magistrate Judge Vascura

V.

WARDEN, TIM BUCHANAN,

Respondent.

OPINION AND ORDER

On April 16, 2018, the Magistrate Judge issued a Report and

Recommendation recommending that this Petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 be dismissed. EOF No. 11. Petitioner has filed an

Objection to the Magistrate Judge's Report and Recommendation. EOF No. 12.

Petitioner challenges his underlying convictions after a jury trial in the

Franklin County Court of Common Pleas on charges of aggravated burglary,

aggravated robbery, robbery, and kidnapping with firearm specifications.

Petitioner asserts that he was denied the effective assistance of appellate

counsel, because his attorney failed to consult with him and failed to raise on

appeal issues demonstrating Petitioner's actual innocence. The Magistrate

Judge recommended dismissal of this claim as without meritand procedurally

defaulted.

Petitioner objects to that recommendation. Petitioner again argues that

evidence establishes that he is actually innocent of the charges against him; that
he was convicted on the basis of unreiiabie testimony and witness identifications;

and that his brother has admitted his guiit to the charges.

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

review. For the reasons aiready detaiied in the Magistrate Judge's Report and

Recommendation, Petitioner's arguments are not persuasive.

As the Magistrate Judge expiained, he has failed to establish the denial of

the effective assistance of appellate counsel, and his claim that his attorney

failed to consult is waived.

Moreover, Petitioner has failed to establish his actual innocence. See

Souter V. Jones, 395 F.3d 577, 589-90 (6th Cir. 2004). in any event, a free

standing claim of actual innocence does not provide Petitioner a basis for relief.

See Muntaser v. Bradshaw, 429 F. App'x 515, 521 (6th Cir. 2011). Petitioner's

Objection, ECF No. 12, therefore is OVERRULED. The Report and

Recommendation, ECF No. 11, 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 appeaiabiiity. Astate prisoner who seeks a writ of habeas corpus in

federal court does not have an automatic right to appeal a district court's adverse

decision unless the court issues a certificate of appeaiabiiity. 28

U.S.C. § 2253(c).

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When a claim has been denied on the merits, a certificate of appeaiability

may be issued only ifthe petitioner "has made a substantiai 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

appeaiability may be issued ifthe petitioner establishes that jurists of reason

would find it debatabie whether the petition states a valid claim of the deniai 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 and without merit. The

Court therefore DECLINES to issue a certificate of appeaiability.

The Clerk is DIRECTED to enter final JUDGMENT.

IT IS SO ORDERED.

(CHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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