the Ohio Supreme Court within forty-five days of the date that he learned of the
appellate court’s decision) (additional citation omitted).

Therefore, for these reasons and for the reasons addressed in the
Magistrate Judge’s R&R, Petitioner's objection, ECF No. 6, is OVERRULED.
The R&R, 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,
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).

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

Case No. 2:17-cv-1023 Page 5 of 6


for relief. Additionally, the United States Court of Appeals for the Sixth Circuit
has held that the Ohio Supreme Court's unexplained decision denying leave to
file an untimely appeal is presumed to enforce any applicable procedural bar.
See Depinet v. Bunting, No. 3:14-cv-1366, 2015 WL 675076, at *6—7 (N.D. Ohio
Sept. 25, 2015) (citing Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004) (per
curiam) (other citations omitted). Therefore, Petitioner has also procedurally
defaulted his claims on this basis. He has failed to establish ineffective
assistance of counsel as cause for this procedural default. Appellate counsel did
not act unreasonably in advising him, in a letter sent three days after the decision
of the state appellate court denying the appeal, of the deadline for filing an
appeal with the Ohio Supreme Court. Moreover, the docket of the Ohio Supreme
Court indicates that Petitioner waited more than seven months, until May 23,
2017, after Petitioner states that he received notification from his attorney, to file
a notice of appeal and motion for a delayed appeal with the Ohio Supreme Court.
Under these circumstances, Petitioner cannot establish prejudice from his
attorney’s purported failure to timely notify him of the decision of the Ohio court of
appeals. See Johnson v. Turner, No. 2:14-cv-01908, 2016 WL 6963177, at *4
(S.D. Ohio Nov. 29, 2016) (citing Smith v. State of Ohio Dept. of Rehabilitation
and Corrections, 463 F.3d 426, 434 (6th Cir. 2006); Baker v. Bradshaw, 495
Fed.Appx. 560, unpublished, 2012 WL 3538585, at *5 (6th Cir. Aug. 17, 2012)

(no prejudice where the petitioner did not file a motion for delayed appeal with

Case No. 2:17-cv-1023 Page 4 of 6


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. /d.

This Court is not persuaded that reasonable jurists would debate the
dismissal of Petitioner's claim as procedurally defaulted. Therefore, the Court
DECLINES to issue a certificate of appealability.

The Clerk is DIRECTED to enter final judgment.

hall Mit

MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

IT IS SO ORDERED.

Case No. 2:17-cv-1023 Page 6 of 6


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JEFFREY S. MADISON, JR.,
Case No. 2:17-cv-1023
Petitioner,
Judge Michael H. Watson
Vv.
Magistrate Judge Chelsey M. Vascura
TIMOTHY BRADLEY, WARDEN,

PICKAWAY CORRECTIONAL
INSTITUTION,
Respondent.
OPINION AND ORDER

On November 30, 2017, the Magistrate Judge issued a Report and
Recommendation (“R&R”), ECF No. 3, pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts
recommending that the petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 be dismissed. Petitioner has filed an objection to the Magistrate Judge’s
R&R. 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 is
OVERRULED. The R&R is ADOPTED and AFFIRMED. This action is hereby
DISMISSED. Petitioner's request for an evidentiary hearing is DENIED.
Furthermore, the Court DECLINES to issue a certificate of appealability.

In September 2015, Petitioner pleaded guilty in the Franklin County Court
of Common Pleas to charges of vehicular assault and aggravated vehicular

assault. He asserts that the trial court's imposition of maximum consecutive


terms of incarceration is unsupported by the record, violates Ohio and federal
law, and that the trial court used improper findings to justify imposition of
consecutive terms of incarceration. The Magistrate Judge recommended
dismissal of these claims as waived based on Petitioner's failure to present his
claims to the state courts as issues of federal constitutional magnitude and his
failure to file a timely appeal to the Ohio Supreme Court.

Petitioner objects to that recommendation. Petitioner argues that the
Rules of Practice of the Ohio Supreme Court prevented him from presenting his
claims in a motion for a delayed appeal. in any event, he argues, the Ohio
Supreme Court’s summary dismissal of his motion for a delayed appeal did not
constitute an enforcement of any state procedural rule. Alternatively, Petitioner
asserts as cause for his procedural default that he was denied effective
assistance of counsel because his attorney failed to timely notify him of the state
appellate court’s September 30, 2016, decision denying his appeal. Petitioner
has attached a letter from his attorney, dated October 3, 2016, advising him of
the deadline for filing an appeal to the Ohio Supreme Court, and suggesting that
he contact the public defender’s office for assistance. ECF No. 6-1, PAGEID
# 36. However, Petitioner indicates that he did not receive the letter until October
12, 2016, and that he therefore had insufficient time to meet the filing deadline of
November 14, 2016, to file an appeal with the Ohio Supreme Court. He requests

an evidentiary hearing on the issue of procedural default.

Case No. 2:17-cv-1023 Page 2 of 6


Notably, however, to the extent that Petitioner presents a claim regarding
the alleged violation of state law, this issue does not provide him a basis for
relief. 28 U.S.C. § 2254(a). A federal court may review a state prisoner's habeas
petition only on the grounds that the challenged confinement is in violation of the
Constitution, laws or treaties of the United States. 18 U.S.C. § 2254(a). A
federal court may not issue a writ of habeas corpus “on the basis of a perceived
error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders,
848 F.2d 735, 738 (6th Cir. 1988). A federal habeas court does not function as
an additional state appellate court reviewing state courts’ decisions on state law
or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988). “[FJederal
courts must defer to a state court’s interpretation of its own rules of evidence and
procedure” in considering a habeas petition. /d. (quoting Machin v. Wainwright,
758 F.2d 1431, 1433 (11th Cir. 1985)).

Further, as discussed by the Magistrate Judge, Petitioner has waived any
federal claim he now presents for review, not only by failing to file a timely appeal
to the Ohio Supreme Court, but because he has failed to establish cause and
prejudice for his failure to present his claims to the state courts as issues of
federal constitutional magnitude. From review of the state appellate court's
decision denying his appeal, it is clear that Petitioner presented his claims to the
state courts solely as issues regarding the alleged violation of state law. See
State v. Madison, Nos. 15AP-994, 15AP-995, 2016 WL 5720378 (Ohio App. 10th
Dist. Sept. 30, 2016). As discussed above, such claims do not provide a basis

Case No. 2:17-cv-1023 Page 3 of 6