IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEVEN L. SMITH,

Case No. 2:18-cv-00841

Petitioner, Chief Judge Edmund A. Sargus, Jr.
Chief Magistrate Judge Elizabeth P. Deavers

ve

TIM BUCANAN, WARDEN,
NOBLE CORRECTIONAL INST.,

Respondent.
OPINION AND ORDER

On May 6, 2019, the Magistrate Judge issued a Report and Recommendation
recommending that the Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be
dismissed. (ECF No. 27.) Petitioner has filed an Objection to the Magistrate Judge’s Report and
Recommendation. (ECF No. 30.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de
novo review. For the reasons that follow, Petitioner’s Objection (ECF No. 30) is
OVERRULED. The Report and Recommendation (ECF No. 27) is ADOPTED and
AFFIRMED. This action is hereby DISMISSED.

The Court DECLINES to issue a certificate of appealability.

Petitioner challenges his convictions after a jury trial in the Licking County Court of
Common Pleas on trafficking and possession of cocaine. He raises seven claims for relief. The
Magistrate Judge recommended dismissal of all of these claims as procedurally defaulted or
otherwise failing to provide a basis for relief. Petitioner objects to the recommendations of the
Magistrate Judge. He objects to the reference to him as Steven L. Smith, instead referring to
himself as Steven Abdul-Azziz El Bey, and indicates that he did not initiate this action on a pro

se basis, but through “In Propria Persona Sui Juris, by the Natural Living, Flesh and Blood Man,


Human Being, Moorish American National, Aboriginal.” (ECF No. 30, PAGEID # 1197.) He
objects to the recommendation of dismissal of habeas corpus claims five, six and seven under
Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts for
failure to raise any intelligible claims, and attempts to clarify the basis for those claims. He
maintains that this Court should address the merits of his claim that the trial court lacked
jurisdiction, despite his prior failure to raise the issue.

Petitioner’s arguments, which are largely incoherent, are unavailing, Even assuming,
arguendo, that he can establish compliance with the provision of Rule 2, he nonetheless plainly
has waived his claims by failing to present these same issues to the Ohio courts, including his
claim that the trial court lacked jurisdiction. See Dew v. Pancake, No. 5:07CV-P37-R, 2007 WL
4302429, at *4 (W.D. Ky. Dec. 7, 2007) (citations omitted). For these reasons, and for the
reasons already well addressed in the Magistrate Judge’s Report and Recommendation,
Petitioner’s Objection (ECF No. 30) is OVERRULED. The Report and Recommendation (ECF
No. 27) 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, —U.S. —. —, 135 8. Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(¢)(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(¢)(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. Id.

The Court is not persuaded that reasonable jurists would debate the dismissal of this
action. 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.

fn. te 0M
EDMUND A. SARGUS, JR.
CHIEF UNITED STATES DISTRICT JUDGE