IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

DENNIS WHITE,
CASE NO. 2:18-CV-193

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

Vv.

WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,

Respondent.
OPINION AND ORDER

On July 12, 2018, 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. 10.) Petitioner has filed an Objection to the Magistrate Judge’s Report and
Recommendation. (ECF No. 11)

Petitioner challenges his May 6, 2015, convictions in the Franklin County Court of
Common Pleas on two counts of kidnapping and four counts of rape. As his sole ground for relief,
Petitioner asserts that he was denied the effective assistance of trial counsel, because his attorney
failed to file a motion to dismiss the Indictment based on excessive pre-indictment delay. The
Magistrate Judge recommended dismissal of this claim on the merits. Petitioner objects to the
recommendations of the Magistrate Judge. He again raises the same arguments he previously
presented. However, as discussed by the Magistrate Judge, the record does not indicate that a
motion to dismiss the Indictment based on excessive pre-indictment delay would have been
potentially meritorious, either based on a violation of State or federal law. Therefore, Petitioner
cannot establish the denial of the effective assistance of counsel under Strickland v. Washington,

466 U.S. 668 (1984), on this basis. Moreover, he cannot establish that the state court’s decision


rejecting this claim contravened or unreasonably applied federal law, or based its decision on an
unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).

Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons
detailed in the Magistrate Judge’s Report and Recommendation, Petitioner’s Objection (ECF No.
11) is OVERRULED. The Report and Recommendation (ECF No. 10) is ADOPTED and
AFFIRMED. This action is hereby DISMISSED.

The Court DECLINES to issue a certificate of appealability.

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,
—USS. —_. —, 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 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.

The Court is not persuaded that reasonable jurists would debate the dismissal of this action
as unexhausted. The Court therefore DECLINES to issue a certificate of appealability.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal would not be in good
faith and that an application to proceed in forma pauperis on appeal should be DENIED.

The Clerk is DIRECTED to enter final JUDGMENT.

IT IS SO ORDERED.

LK 2-15-1018
EDMUND. SARGUS, JR.
CHIEF UNITED STATES DISTRICT JUDGE