KIMBERLY A. JOLSON, Magistrate Judge.
Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Undersigned
Petitioner challenges his March 27, 2017, convictions after a jury trial in the Franklin County Court of Common Pleas on two counts of felonious assault with firearm specifications. The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:
State v. Fox, 106 N.E.3d 224, 226-28 (Ohio 2018). On February 8, 2018, the appellate court affirmed the judgment of the trial court. Id. On May 23, 2018, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Fox, 152 Ohio St.3d 1484 (Ohio 2018).
On March 23, 2018, Petitioner filed an application for reopening of the appeal pursuant to Ohio Appellate Rule 26(B). (Doc. 4, PAGEID # 225). On May 31, 2018, the appellate court denied the Rule 26(B) application based on Petitioner's failure to comply with the sworn statement requirement of Rule 26(B)(2)(d). (PAGEID # 263). Then, on August 7, 2018, the appellate court denied Petitioner's motion for reconsideration. (PAGEID # 280). Next, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Fox, 153 Ohio St.3d 1460 (Ohio 2018).
On November 16, 2017, Petitioner filed a Petition to Vacate or Set Aside Judgment of Conviction in the state trial court, asserting the denial of the effective assistance of trial counsel based on his attorney's failure to advise him to accept the government's plea offer, failure to investigate, call expert witnesses, argue for the lesser included offense of assault, prepare Petitioner or Elaine Robinson for trial, play portions of the statements of Petitioner and other witnesses, and failure to preserve Petitioner's right to a speedy trial. (PAGEID # 360-73). On September 5, 2019, the trial court issued a Decision and Entry denying Petitioner's claims. (Doc. 10-1, PAGEID # 1062). That appeal apparently remains pending.
On March 12, 2019, Petitioner filed this pro se habeas corpus petition. He asserts that the evidence is constitutionally insufficient to sustain his convictions and that his convictions are against the manifest weight of the evidence (claim one); that he was denied his right to a jury instruction on the lesser included offense of assault (claim two); that he was denied his right to the effective assistance of appellate counsel (claim three); and that he was denied the right to the effective assistance of trial and appellate counsel (claim four). Petitioner has withdrawn his unexhausted claim of the denial of the effective assistance of trial counsel. (Docs. 16, 17).
It is the position of the Respondent that Petitioner's remaining claims fail to provide a basis for relief.
Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this case. The United States Supreme Court has described AEDPA as "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court" and emphasized that courts must not "lightly conclude that a State's criminal justice system has experienced the `extreme malfunction' for which federal habeas relief is the remedy." Burt v. Titlow, 571 U.S. 12, 20 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) ("AEDPA. . .imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt.") (internal quotation marks, citations, and footnote omitted).
AEDPA limits the federal courts' authority to issue writs of habeas corpus and forbids a federal court from granting habeas relief with respect to a "claim that was adjudicated on the merits in State court proceedings" unless the state-court decision either:
28 U.S.C. § 2254(d).
The United States Court of Appeals for the Sixth Circuit has explained the meaning of the standards found in § 2254(d)(1) as follows:
Lang v. Bobby, 889 F.3d 803, 810 (6th Cir. 2018), cert. denied, 139 S.Ct. 798, (2019).
Moreover, under § 2254(d)(2), a state court's factual determination is not "unreasonable" merely because the federal habeas court would have reached a different conclusion. Wood v. Allen, 558 U.S. 290, 301 (2010). Instead, a state court's factual findings are "only unreasonable where they are `rebutted by clear and convincing evidence' and do not have support in the record." Moritz v. Woods, No. 16-1504, 2017 WL 2241814, at *5 (6th Cir. May 22, 2017) (quoting Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017)) (internal quotation marks omitted). Moreover, "[f]actual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding[.]" Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("Miller-El I").
The burden of satisfying AEDPA's standards rests with the petitioner. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
Petitioner has brought four claims.
In claim one, Petitioner asserts that the evidence is constitutionally insufficient to sustain his convictions on felonious assault and that his convictions are against the manifest weight of the evidence. This latter claim does not provide a basis for relief. See Williams v. Jenkins, No. 1:15cv00567, 2016 WL 2583803, at *7 (N.D. Ohio Feb. 22, 2016) (citing Nash v. Eberlin, 258 Fed. App'x. 761, 765, n.4 (6th Cir. 2007)); Norton v. Sloan, No. 1:16-cv-854, 2016 WL 525561, at *5 (N.D. Ohio Feb. 9, 2017) (citing Ross v. Pineda, No. 3:10-cv-391, 2011 WL 1337102, at *3 (S.D. Ohio)) ("Whether a conviction is against the manifest weight of the evidence is purely a question of Ohio law."); see also Taylor v. Warden, Lebanon Corr. Inst., No. 2:16-cv-237, 2017 WL 1163858, at *10-11 (S.D. Ohio March 29, 2017) (same) (citations omitted). Under Ohio law, a claim that a verdict was against the manifest weight of the evidence—as opposed to one based upon insufficient evidence—requires the appellate court to act as a "thirteenth juror" and review the entire record, weigh the evidence, and consider the credibility of witnesses to determine whether "the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1983); cf. Tibbs v. Florida, 457 U.S. 31 (1982). Because a federal habeas court does not function as an additional state appellate court, vested with the authority to conduct such an exhaustive review, Petitioner's claim that his convictions were against the manifest weight of the evidence is not cognizable in federal habeas corpus proceedings.
As for Petitioner's claim of insufficiency of the evidence, the state appellate court rejected the argument, reasoning as follows:
State v. Fox, 106 N.E.3d at 228-30.
The Fourteenth Amendment's Due Process clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). The question in a sufficiency of the evidence claim is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The Jackson standard must be applied "with explicit reference to the substantive elements of the criminal offense as defined by state law." Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16).
Additionally, when determining if the evidence was sufficient to support a petitioner's conviction, a federal habeas court must view the evidence in the light most favorable to the prosecution. Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, 443 U.S. at 319). The prosecution is not affirmatively required to "rule out every hypothesis except that of guilt." Id. (quoting Jackson, 443 U.S. at 326). Instead, "a reviewing court `faced with a record of historical facts that supports conflicting inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Id. at 296-97 (quoting Jackson, 443 U.S. at 326).
On top of all that, federal habeas courts must afford a "double layer" of deference to state court determinations of the sufficiency of the evidence. As explained in Brown v. Konteh, deference must be given, first, to the jury's finding of guilt because the standard, announced in Jackson, is whether "viewing the trial testimony and exhibits in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 567 F.3d 191, 205 (6th Cir. 2009). Second, even if a de novo review of the evidence leads to the conclusion that no rational trier of fact could have so found, a federal habeas court "must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable." Id.; see also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). This is a substantial hurdle, one that Petitioner has failed to surmount.
Here, Petitioner argues that the state appellate court unreasonably determined that he pointed a gun in Griffin's direction because Griffin testified that she never saw the gun and Robinson testified that she was standing in a grassy area off the porch, that Petitioner never made any threats, and that he did not point the firearm in her direction. (Reply, Doc. 19, PAGEID # 1156-57). Additionally, Petitioner again argues that the State failed to establish that he had any intent to shoot the firearm, as the evidence equally supports his defense that he lost his balance and fired accidentally. According to Petitioner, an evidentiary hearing may establish that both shell casings were ejected from the gun at the same time, discrediting the State's evidence that he fired twice. (PAGEID # 1158).
Petitioner's arguments are not persuasive. Mary Griffin, Robinson's granddaughter, testified about the incident. She had gone with her grandmother to pick up Elaine Robinson who had called her grandmother because she was having domestic issues with the Petitioner. (Transcript, Doc. 4-1, PAGEID # 562). Elaine came to the door. They did not enter the house. Petitioner came down. "He was in the front door of his apartment." They exchanged words. He said if they did not move off his porch he would shoot them. (PAGEID # 565). He said "If you don't get off my porch, I'm going to kill y'all." (PAGEID # 575). Petitioner held the gun in his right hand. She saw it after he shot her. (PAGEID # 572). Griffin stood on the step. Petitioner stood inside the doorway to the house. Griffin's grandmother stood right next to Griffin. (PAGEID # 573). Griffin heard the gunshot, moved off the porch, and realized that she had been shot. (PAGEID # 575). Petitioner raised his arm up to shoot her. (PAGEID # 582). Griffin and her grandmother were standing in close proximity when he pointed the gun. (PAGEID # 599). Griffin denied lunging at the Petitioner or making any aggressive movement towards him. (PAGEID # 612-13). Mary Robinson testified that when they arrived at the house, Elaine said that Petitioner would not let Elaine leave. (PAGEID # 617). When Petitioner came downstairs, he looked angry and drunk. He smelled of alcohol and became verbally abusive. (PAGEID # 618).
(Transcript, Doc. 4-1, PAGEID # 618).
(PAGEID # 626). Griffin never touched the Petitioner. (PAGEID # 628). Mary Robinson was standing "very close" to her granddaughter when Petitioner shot her. Neither of them ever entered the home. (PAGEID # 630).
In view of this record, Petitioner has failed to rebut the presumption of correctness afforded to the factual findings of the state appellate court. The record supports the conclusion that he acted intentionally. His claim that both bullets may have ejected from the gun at one time constitutes mere speculation and is without record support. Moreover, Petitioner has no right to an evidentiary hearing in order to attempt to further develop the factual basis for his claim here. "[A] federal court's review of a state court decision under 28 U.S.C. 2254(d)(1) is strictly limited to review of the state court record[.]" Campbell v. Warden, London Corr. Institution, No. 1:14-cv-13, 2015 WL 7710761, at *4 (S.D. Ohio Nov. 30, 2015) (citing Cullen v. Pinholster, 563 U.S. 170, 182 (2011)).
In sum, Petitioner has failed to establish that the state appellate court contravened or unreasonably applied federal law or based its decision on an unreasonable determination of the facts in rejecting his claim of insufficiency of the evidence. Upon review of the record, this Court agrees that, when viewing all of the evidence in the light most favorable to the prosecution, the evidence is constitutionally sufficient to sustain his convictions on felonious assault.
In claim two, Petitioner asserts that the trial court unconstitutionally refused to issue a jury instruction on the lesser-included offense of negligent assault. The state appellate court rejected this claim:
State v. Fox, 106 N.E.3d at 230-31.
This claim fails to provide Petitioner a basis for relief. "Under AEDPA, a threshold issue is to determine whether there is `clearly established' law governing the case." Belton v. Woods, No. 5:16-cv-10647, 2017 WL 2132245, at *3 (E.D. Mich. May 17, 2017) (citing Carey v. Musladin, 549 U.S. 70, 74-77 (2006)). "Law is `clearly established' when Supreme Court precedent unambiguously provides a `controlling legal standard.'" Id. (citing Panetti v. Quarterman, 551 U.S. 930, 953 (2007)). The Supreme Court has not held that the Constitution provides a criminal defendant in a non-death penalty case the right to a jury instruction on a lesser-included offense:
Belton v. Woods, 2017 WL 2132245, at *4. Thus, "[t]he failure of a state trial court to instruct a jury on a lesser included offense in a non-capital case is [] not an error cognizable in federal habeas review." Robinson v. Winn, No. 4:16-cv-11738, 2018 WL 1522437, at *7 (E.D. Mich. March 28, 2018) (citing Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir.), cert. denied, 496 U.S. 929 (1990); Scott v. Elo, 302 F.3d 598, 606 (6th Cir. 2002), cert. denied, 537 U.S. (2003)).
Howard v. Dewine, No. 5:14-cv-2587, 2016 WL 2637757, at *8 (N.D. Ohio April 6, 2016). Thus, any error in jury instructions will provide relief only where the ailing instruction so infected the entire trial that the resulting conviction violates due process. Henderson v. Kibbe, 431 U.S. 135, 154 (1977) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Such are not the circumstances here. "An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Id. at 155. The appellate court did not unreasonably conclude that the facts did not support an instruction on the lesser-included offense of negligent assault in view of undisputed evidence indicating that Petitioner had to pull the trigger of the gun twice in order to engage the firing mechanism with enough force to pull the hammer back, and therefore could not have fired the gun accidentally. And claim two is without merit.
In claims three and four, Petitioner asserts that he was denied the effective assistance of appellate counsel. As discussed, on November 4, 2019, the Court granted Petitioner's request to dismiss claim four, his unexhausted claim of the denial of the effective assistance of trial counsel. (Order, Doc. 17). As for claim three, Respondent argues that this claim is procedurally defaulted. (Doc. 18, PAGEID # 1142-45).
Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If the prisoner fails to do so, but still has an avenue open to present the claims, then the petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971). Where a petitioner has failed to exhaust claims but would find those claims barred if later presented to the state courts, "there is a procedural default for purposes of federal habeas." Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
The term "procedural default" has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the course of the trial or the appeal before a federal court intervenes in the state criminal process. This "requires the petitioner to present `the same claim under the same theory' to the state courts before raising it on federal habeas review." Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of "fairly presenting" a claim to the state courts is that a habeas petitioner must do so in a way that gives the state courts a fair opportunity to rule on the federal law claims being asserted. That means that if the claims are not presented to the state courts in the way in which state law requires, and the state courts therefore do not decide the claims on their merits, neither may a federal court do so. As the Supreme Court found in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), "contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure" also cannot be resolved on their merits in a federal habeas case—that is, they are "procedurally defaulted."
To determine whether procedural default bars a habeas petitioner's claim, courts in the Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); see also Scuba v. Brigano, 259 F. App'x 713, 718 (6th Cir. 2007) (following the four-part analysis of Maupin). First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule. Second, the court must determine whether the state courts actually enforced the state procedural sanction. Third, the court must determine whether the forfeiture is an adequate and independent state ground on which the state can rely to foreclose review of a federal constitutional claim. Maupin, 785 F.2d at 138. Finally, if "the court determines that a state procedural rule was not complied with and that the rule [has] an adequate and independent state ground, then the petitioner" may still obtain review of his or her claims on the merits if the petitioner establishes: (1) cause sufficient to excuse the default and (2) that he or she was actually prejudiced by the alleged constitutional error. Id.
Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Constitutionally ineffective counsel may constitute cause to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective assistance of counsel claim generally must "`be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.'" Edwards, 529 U.S. at 452 (quoting Murray v. Carrier, 477 U.S. 478, 479 (1986)). That is because, before counsel's ineffectiveness will constitute cause, "that ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore must be both exhausted and not procedurally defaulted." Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to "satisfy the `cause and prejudice' standard with respect to the ineffective-assistance claim itself." Edwards v. Carpenter, 529 U.S. 446, 450-51 (2000). The Supreme Court explained the importance of this requirement:
Edwards, 529 U.S. at 452-53.
If, after considering all four factors of the Maupin test, the court concludes that a procedural default occurred, it must not consider the procedurally defaulted claim on the merits unless "review is needed to prevent a fundamental miscarriage of justice, such as when the petitioner submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent." Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)).
The state appellate court refused to address the merits of claims three and four, dismissed Petitioner's Rule 26(B) application due to his failure to comply with Rule 26(B)(2)(d), and required him to submit a sworn statement:
Accordingly, we deny Fox's application to reopen his appeal.
(Memorandum Decision, Doc. 4, PAGEID # 262-3).
Time and again, District Courts have held that a petitioner's failure to comply with Rule 26(B)(2)(d) results in procedural default of a claim. See Jackson v. Sloan, No. 1:17-cv-01081, 2019 WL 2234597, at *8-9 (N.D. Ohio April 24, 2019) ("Petitioner's failure to comply with Ohio App. R. 26(B)(2)(d), and the state appellate court's enforcement of the procedural rule, results in a procedural default foreclosing consideration of any grounds for relief that Petitioner attempted to raise therein.") (citations omitted); see also Burke v. Turner, No. 2:16-cv-01076, 2017 WL 5157701, at *4 (S.D. Ohio Nov. 7, 2017) (citing Gooden v. Bradshaw, No. 5:12-cv-2139, 2014 WL 4245951, at *10 (N.D. Ohio Aug. 25, 2014); Belcher v. Smith, No. 1:09-cv-627, 2010 WL 256501, at *5-6 (N.D. Ohio Jan. 21, 2010)).
Petitioner argues that that the state appellate court erroneously or vindictively enforced the sworn statement requirement of Rule 26(B)(2)(d), because it did not want to address his claim. (Reply, Doc. 19, PAGEID # 1154-55). This assertion has no record support, and the Undersigned rejects it.
Petitioner may still secure review of this claim on the merits if he demonstrates cause for his failure to follow the state procedural rules, as well as actual prejudice from the constitutional violation that he alleges. "`[C]ause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him[,] `. . . some objective factor external to the defense [that] impeded. . . efforts to comply with the State's procedural rule.'" Coleman v. Thompson, 501 U.S. 722, 753 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). It is Petitioner's burden to show cause and prejudice. Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001) (citing Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999) (internal citation omitted)). A petitioner's pro se status, ignorance of the law, or ignorance of procedural requirements are insufficient bases to excuse a procedural default. Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir.), cert. denied, 543 U.S. 989 (2004). Instead, in order to establish cause, a petitioner "must present a substantial reason that is external to himself and cannot be fairly attributed to him." Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007), cert. denied sub nom. Hartman v. Bobby, 554 U.S. 924 (2008). Petitioner has failed to establish cause for his procedural default.
Likewise, Petitioner has failed to establish that his claims may avoid the procedural bar under the actual innocence exception. The United States Supreme Court has held that a claim of actual innocence may be raised "to avoid a procedural bar to the consideration of the merits of [the petitioner's] constitutional claims." Schlup v. Delo, 513 U.S. 298, 326-27 (1995). "[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray, 477 U.S. at 496. In Schlup, the Supreme Court held that a credible showing of actual innocence was sufficient to enable a court to reach the merits of an otherwise procedurally-barred habeas petition. Schlup, 513 U.S. at 317. The actual innocence claim in Schlup is "`not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'" Id. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)). Nothing in the record shows that Petitioner can satisfy this standard, and the actual innocence exception does not operate to save his otherwise procedurally defaulted claims.
For the foregoing reasons it is
If any party objects to this Report and Recommendation, that party may, within fourteen days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
