UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TIMOTHY WOOGERD,

CASE NO. 2:18-CV-104

Petitioner, JUDGE MICHAEL H. WATSON

MAGISTRATE JUDGE MICHAEL R. MERZ

V.

LYNEAL WAINRIGHT, WARDEN,

MARION CORRECTIONAL INST.,

Respondent.

OPINION AND ORDER

On October 30,2018, the Magistrate Judge Issued a Supplemental Report

and Recommendation upon recommittal to the Magistrate Judge In response to

Petitioner's prior Objection, EOF 24, to the Initial Report and Recommendation of

the Magistrate Judge, EOF 21, again recommending that the Petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. EOF 27. Petitioner

has filed an Objection to the Supplemental Report and Recommendation. EOF

28. Petitioner argues at length that he was denied a fair trial based on the

admission of false testimony by Firefighter Frank DeFranclsco regarding the

cause of the fire. He also again asserts that he Is actually Innocent and the

victim of a manifest miscarriage of justice, such that this Court should address

the merits of his claims. Petitioner refers to his prior pleadings In this case, and

again raises all of the same arguments he previously presented.
However, for the reasons well detailed in the Magistrate Judge's Report

and Recommendation and Supplemental Report and Recommendation, this

action plainly Istime-barred, and Petitioner has procedurally defaulted his claims

by falling to file a timely appeal to the Ohio Supreme Court. Moreover, the record

does not Indicate that Petitioner has presented any new evidence supporting his

actual Innocence of the charges or that he can establish a basis for relief. See

Souter V. Jones, 395 F.3d 577, 590 (6th CIr. 2005) ("To establish actual

Innocence, 'a petitioner must show that It Is more likely than not that no

reasonable juror would have found petitioner guilty beyond a reasonable doubt.'

(citing Schlup v. Delo, 513 U.S. 298, 327 (1995)).

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

review. For these reasons and for the reasons detailed In the Magistrate Judge's

Report and Recommendation and Supplemental Report and Recommendation,

ECF 21, 27. Petitioner's Objection, ECF 28. Is OVERRULED. The Report and

Recommendation and Supplemental Report and Recommendation, ECF 21,27,

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 appealablllty. See 28 U.S.C. § 2255(d). When a claim has been

denied on the merits, a certificate of appealablllty may Issue only Ifthe 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

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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

appealablllty may Issue Ifthe 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 this

Court's dismissal of this action. Therefore, the Court DECLINES to Issue a

certificate of appealablllty.

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 pauperls

on appeal should be DENIED.

IT IS SO ORDERED.

ICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT