IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT LYTLE, JR.,
CASE NO. 2:17-CV-1146
Petitioner, CHIEF JUDGE EDMUND A. SARGUS, JR.
MAGISTRATE JUDGE MICHAEL R. MERZ

ve

TIM BUCHANAN, WARDEN,
NOBLE CORRECTIONAL INSTITUTION,

Respondent.
OPINION AND ORDER

On November 6, 2018, the Magistrate Judge issued a Second Supplemental Report and
Recommendation recommending that the Petition for a writ of habeas corpus pursuant to 28
U.S.C. 2254 be dismissed. (ECF No. 23.) Petitioner has filed an Amended Objection to the
Second Supplemental Report and Recommendation. (ECF No. 29.)' Pursuant to 28 U.S.C.
636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner’s
objections (ECF Nos. 16, 21), and Amended Objection (ECF No. 29) are OVERRULED. The
Report and Recommendation, Supplemental Report and Recommendation, and Second
Supplemental Report and Recommendation (ECF Nos. 12, 18, 23) are ADOPTED and
AFFIRMED. This action is hereby DISMISSED.

The Court DECLINES to issue a certificate of appealability.

Petitioner now again objects to the Magistrate Judge’s recommendation of dismissal of
his claim of the denial of the effective assistance of trial counsel based on his attorney’s failure

to call defense witnesses as procedurally defaulted. He again argues that, applying Martinez v.

' Petitioner filed an Amended Objection to correct a typographical error contained in the initial
Objection to the Magistrate Judge’s Report and Recommendation. (See ECF No. 29, PAGEID #
1154.)


Ryan, 556 U.S. 1, 13 (2012), and Trevino v. Thaler, 569 U.S. 413, 424-25 (2013), he has
established cause for his procedural default in failing to file an appellate brief in post conviction
proceedings. He maintains that none of the holdings of the Sixth Circuit suggest otherwise.

This argument fails. Petitioner’s procedural default of his claim of the denial of the
effective assistance of trial counsel does not lie in the initial collateral review proceedings, but in
the post conviction appeal. As noted by the Magistrate Judge, the Sixth Circuit has expressly
held that Martinez thus does not apply to those proceedings, “because those proceedings are not
the ‘first occasion’ at which an inmate could meaningfully raise an ineffective-assistance-of-
trial-counsel claim.” Onunwor v. Moore, 655 F. App’x 369, 375 (6th Cir. 2016) (citing Atkins v.
Holloway, 792 F.3d 654, 661 (6th Cir. 2015) (quoting West v. Carpenter, 790 F.3d 693, 698 (6th
Cir. 2015); Williams v. Mitchell, 792 F.3d 606, 615 (6th Cir. 2015).

Therefore, and for the reasons previously well detailed in the Magistrate Judge’s Report
and Recommendation, Supplemental Report and Recommendation, and Second Supplemental
Report and Recommendation (ECF Nos. 12, 18, 23), Petitioner’s objections (ECF Nos. 16, 21)
and Amended Objection (ECF No. 29) are OVERRULED. The Report and Recommendation,
Supplemental Report and Recommendation, and Second Supplemental Report and
Recommendation (ECF Nos. 12, 18, 23) are ADOPTED and AFFIRMED. This action is
hereby DISMISSED.

Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United
States District Courts, the Court now considers whether to issue a certificate of appealability.
See 28 U.S.C. § 2255(d). 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. Jd.

This Court is not persuaded that reasonable jurists would debate this Court’s dismissal of
this action. Therefore, the Court 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.

IT IS SO ORDERED.

Fe 5-15-2014

ED) ID A. SARGUS, JR.
CHIEF UNITED STATES DISTRICT JUDGE