Collins v. Eberlin, No. 5:2007cv01669 - Document 15 (N.D. Ohio 2008)
Court Description: Memorandum of Opinion and Order: This matter is before the Court upon the Report and Recommendation of Magistrate Judge Limbert (Doc. 13 ) which recommends dismissal of the Petition for Writ of Habeas Corpus pending before the Court. The Report and Recommendation is ACCEPTED. Furthermore, the Court declines to issue a certificate of appealability. Judge Patricia A. Gaughan on 7/21/08. (LC,S)
Download PDF
<![CDATA[
Collins v. Eberlin Doc. 15 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION Granville C. Collins, Petitioner, vs. Michelle Eberlin, Warden, Respondent. ) ) ) ) ) ) ) ) ) CASE NO. 5:07 CV 1669 JUDGE PATRICIA A. GAUGHAN Memorandum of Opinion and Order This matter is before the Court upon the Report and Recommendation of Magistrate Judge Limbert (Doc. 13) which recommends dismissal of the Petition for Writ of Habeas Corpus pending before the Court. For the following reasons, the Report and Recommendation is ACCEPTED. Introduction Petitioner, Granville C. Collins, commenced this action with the filing of a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The Magistrate Judge issued his Report and Recommendation recommending that the Petition be dismissed. Petitioner filed Objections to the Report and Recommendation. 1 Dockets.Justia.com Standard of Review Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts provides, “The judge must determine de novo any proposed finding or recommendation to which objection is made. The judge may accept, reject, or modify any proposed finding or recommendation.” Discussion Petitioner was sentenced to an aggregate term of 13 years of imprisonment after a jury found him guilty of two counts of cocaine possession, illegal use or possession of drug paraphernalia and resisting arrest. Additionally, a trial to the court resulted in a guilty verdict on a marijuana possession charge. The Magistrate Judge determined that petitioner procedurally defaulted on all grounds presented in the Petition due to petitioner’s failure to present a timely appeal to the Ohio Supreme Court and the latter’s denial of a motion for delayed appeal. This Court agrees with this conclusion. The Magistrate Judge correctly applied the four-part Maupin test and concluded that each prong was satisfied. Petitioner’s objections fail to show an error in this determination. In particular, petitioner does not address the Maupin test but only objects to the Magistrate Judge’s denial of his motion for leave to amend the Petition. The Magistrate’s ruling in this regard, however, was not a recommendation but a denial of the motion. In any event, to the extent the Court construes petitioner’s argument as a request to reconsider the Magistrate Judge’s determination pursuant to 28 U.S.C. § 636, the Court finds that the order is not clearly erroneous or contrary to law. For the foregoing reasons, petitioner has not demonstrated that the Petition for Writ of Habeas Corpus should be granted. 2 Conclusion For the reasons set forth herein and for the reasons set forth in the Magistrate Judge’s Report and Recommendation, the Petition for Writ of Habeas Corpus is dismissed. Further, this Court hereby fully incorporates the Report and Recommendation by reference herein. Furthermore, the Court declines to issue a certificate of appealability. 28 U.S.C. § 2253(c) provides: (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). (emphasis added). In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court determined that [t]o obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing 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.’ Id. at 483-4 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). If the claim is not procedurally defaulted, then a habeas court need only determine whether reasonable jurists would find the district court’s decision “debatable or wrong.” Id. at 3 484. In instances where a claim is procedurally defaulted, a COA should only issue if “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. (emphasis supplied). For the reasons stated herein and in the Report and Recommendation, the Court does not find that petitioner has satisfied this showing. Accordingly, the Court declines to issue a certificate of appealability. IT IS SO ORDERED. /s/ Patricia A. Gaughan PATRICIA A. GAUGHAN United States District Judge Dated: 7/21/08 4
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
