UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DANIEL L. BARNES, III,

CASE NO. 2:18-cv-948

Petitioner, JUDGE MICHAEL H. WATSON

MAGISTRATE JUDGE MICHAEL R. MERZ

V.

MARK HOOKS, WARDEN,

ROSS CORRECTIONAL INST.,

Respondent.

OPINION AND ORDER

On February 6,2019, the Magistrate Judge Issued a Report and

Recommendation ("R&R") recommending that the Petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 be dismissed. EOF 18. Petitioner has filed

an Objection to the Magistrate Judge's R&R. EOF 23. Pursuant to 28 U.S.C.

§ 636(b), this Court has conducted a de novo review. For the reasons that

follow. Petitioner's Objection, EOF 23, is OVERRULED. The R&R, EOF 18, is

ADOPTED and AFFIRMED. This action is hereby DISMISSED,

the CourtDECLINES to issue a certificate of appealability.

Petitioner challenges his convictions after a jury trial in the Muskingum

County Court of Common Pleas on charges of aggravated robbery, felonious

assault, and having weapons while under disability, with firearm specifications.

He asserts that he was denied the effective assistance of counsel (claim one);

that he was denied a fair trial because the trial court improperly responded to a
question from the jury during deiiberations without his presence (ciaim two); and

that he was denied due process based on false statements made by the trial

court at sentencing (claim three). The Magistrate Judge recommended dismissal

of Petitioner's claims on the merits.

Petitioner objects to those recommendations. He states that he had no

intent to abandon any of his claims of the denial of the effective assistance of trial

counsel and raises all of the same issues that he presented in the Ohio Court of

Appeals, although he makes no further argument regarding those claims here.

He asserts that the state appellate court improperly applied Strickland v.

Washington, 466 U.S. 668 (1984), in rejecting his ciaim that his attorney

improperly waived his right to be present during the trial court's response to a

question from the jury during deliberations. He maintains that, had defense

counsel conducted proper investigation, counsel would have cross-examined

George Guy in order to establish that the events charged took place at 1 a.m.,

and not at 11 p.m.. Petitioner also generally argues that defense counsel's

failure to object to purported hearsay statements denied him a fair trial. He

objects to the application United States Supreme Court precedent not addressed

by the state appellate court in the rejection of his ciaim that he unconstitutionally

was denied his right to be present and argues that his attorney should have

asked for the tape to be transcribed and provided to the jury, or that the tape be

played for the jury, rather than agree to the trial court's instruction that the jury

must rely upon its collective memory. Finally, Petitioner objects to the

Case No. 2:18-cv-948 Page 2 of 6
recommended dismissal of his ciaim of judicial bias based on a statement made

by the trial court at sentencing falsely Indicating that Petitioner had been

convicted as a juvenile of a felonious assault in the shooting of Deon Draughn.

referring to the Affidavit of Deon Draughn, ECF 6-1, PAGEiD # 572.^

Petitioner's arguments are not well taken. As discussed by the state

appellate court, the record does not indicate that Petitioner can establish the

denial of the effective assistance of counsel under the two-prong test set forth in

Strickland v. Washington, 466 U.S. 668 (1984), based on his attorney's

performance during trial. "\J]he Strickland standard must be applied with

scrupulous care, lest 'intrusive post-trial Inquiry' threaten the Integrity of the very

adversary process the right to counsel Is meant to serve." Harrington v. Richter,

562 U.S. 66,105 (2011) (citing Strickland, 466 U.S. at 689-690). Further, he

plainly has failed to establish that relief Is warranted under the standards set forth

by the Antlterrorism and Effective Death Penalty Act ("AEDPA"):

Establishing that a state court's application of Strickland was

unreasonable under § 2254(d) Is all the more difficult. The standards

created by Strickland and § 2254(d) are both "highly deferential," id.,

at 689,104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n. 7.117

S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply In

tandem, review Is "doubly" so, Knowies, 556 U.S., at 123, 129 S.Ct.

at 1420. The Strickland standard Is a general one, so the range of

reasonable applications Is substantial. 556 U.S., at 123,129 S.Ct. at

1420. Federal habeas courts must guard against the danger of

equating unreasonableness under Strickland with unreasonableness

under § 2254(d). When § 2254(d) applies, the question Is not whether

^ Draughn Indicated In an Affidavit that he appears to have signed on December 5,

2016, that Petitioner never shot him or shot at him and that he never had any conflict

with the Petitioner. Affidavit of Deon Draughn, ECF No. 6-1, PAGEID # 572.

Case No. 2:18-cv-948 Page 3 of 6
Id.

counsel's actions were reasonable. The question is whether there is

any reasonable argument that counsel satisfied Strickland's

deferential standard.

Additionally, this Court must look to "clearly established federal law,"

specifically the holdings of the United States Supreme Court at the time of the

decision of the state appellate court, in order to determine if Petitioner is entitled

to relief. See 28 U.S.C. § 2254(d); Carey v. Musladin, 549 U.S. 70, 74 (2006).

When so doing, and for the reasons that have already been well detailed, the

record does not reflect that the state appellate court contravened or

unreasonably applied federal law, or that its decision was based on an

unreasonable determination of the facts in light of the evidence that was

presented, such that relief is warranted. 28 U.S.C. § 2254(d). The record

entirelyfails to support Petitioner's claim ofjudicial bias.^

2 Petitioner attached the Affidavit of Deon Draughn to his Reply in Response to State's

Opposition to his November 1,2016, Delayed Application to Reopen Appeal pursuant to

Ohio Appellate Rule 26(B). EOF 6-1, PAGEID # 572. However, the record indicates

that Petitionerfiled that Reply on December 8,2016, after the appellate court had

already issued its December 5,2016, Judgment Entry denying the Rule 26(B)

application as untimely. EOF 6-1, PAGEID ## 562, 564. Thus, it does not appear that

the state courts ever considered Draughn's Affidavit in connection with his claim of

judicial bias. Under these circumstances, this Court also is precluded from

consideration of that document here. Cullen v. PInholster, 562 U.S. 170,181 (2011)

("[Rjeview under § 2254(d)(1) is limited to the record that was before the state court that

adjudicated the claim on the merits.") Nonetheless, even accepting as true Petitioner's

allegation that the trial judge falsely stated, in reliance on information presented in a

presentence investigation report, that Petitioner had a prior juvenile conviction involving

the shooting of Draughn, it does not support Petitioner's claim of judicial bias.

Case No. 2:18-cv-948 Page 4 of 6
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 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 appeaiability

may issue only ifthe petitioner "has made a substantial showing of the deniai 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. McDanlel, 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 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.

Case No. 2:18-cv-948 Page 5 of 6
The Court is not persuaded that reasonable jurists would debate the

dismissal of Petitioner's claims. The Court therefore DECLINES to Issue a

certificate of appealablllty.

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.

ITIS SO ORDERED.

Case No. 2:18-cv-948

IICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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