Elder v State of Ohio

Filing 10

Order: Petitioner's Application to Proceed In Forma Pauperis (Doc No. 2 ) is granted, the Petition (Doc. No. 1 ) is denied and this action is dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Further, the Court certifies, pursuant to 28 U.S.C. §1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253; Fed.R.App.P. 22(b). Judge James G. Carr on 7/8/15. (C,D)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Emmanuel Elder,
Petitioner,

Case No. 1:14 CV 2686
JUDGE JAMES G. CARR

v.
ORDER
State of Ohio,
Respondent.

Pro se Petitioner Emmanuel Elder filed the above-captioned Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254 challenging his 2013 conviction in the Lake County Court of
Common Pleas, Case No. 13 CR 000415, on charges of failure to comply with an order or signal of
a police officer, obstructing official business, failure to register, a headlight violation, and a no tail
light or rear license plate light violation. Petitioner asserts two grounds for relief in his habeas
petition: (1) the trial court failed to bring him to trial within 270 days as required by Ohio Revised
Code § 2945.72(A) violating his right to speedy trial; and (2) he was arrested by Officer Our without
an affidavit of probable cause and his judgment entry of conviction was not signed by a judge under
oath of affirmation, in violation of his Fourth Amendment rights and Ohio Criminal Rule 4(A)(1).
He asks the Court to vacate his conviction. For the following reasons, I deny the Petition and
dismiss this case with prejudice.
I. Background
On March 7, 2013, around 7:20 p.m., Petitioner was driving his minivan westbound on

interstate route 90 ("I-90") near the vicinity of Willoughby Hills, Ohio. See Elder v. State of Ohio,
No. 1:13 CV 1348, 2013 WL 3864822 (N.D. Ohio July 24, 2013)(Pearson, J.). A Willoughby Hills
Police Officer was stationed at the highway crossover monitoring westbound traffic traveling on
I-90. Id. The officer observed Petitioner’s van approaching with a single headlight illuminated and
no light above the license plate. Id. The officer pulled into traffic and began following Petitioner’s
minivan. Id. While trailing Petitioner, the officer checked the status of the van's registration with
the police dispatcher. Id. The officer learned that the registration had expired in December 2012
and that the Ashtabula Police Department had issued an active warrant against the vehicle’s owner
for larceny. Id.
Petitioner’s van moved to the far left southbound lane on interstate route 271 ("I-271"), when
the officer approached from the center lane and initiated a traffic stop at White Road. Id. The
officer walked toward the passenger side of Petitioner’s van and advised him to turn off the vehicle.
Id. Petitioner obeyed. Id. The officer then explained the reason for the stop and asked to see
Petitioner’s driver’s license. Id. As Petitioner was producing his license, a second Willoughby Hills
officer arrived at the scene. Id. The first officer then notified Petitioner of the outstanding warrant
issued against him and asked him to exit his vehicle. Id. Instead of exiting, Petitioner sped away.
Id. The officers pursued Petitioner on I–271, allegedly at speeds in excess of 80 mph, until his
sergeant directed him to terminate the pursuit. Id. A Complaint was filed against Petitioner on
March 8, 2013 by the City of Willoughby Hills, asserting that he violated Ohio Rev. Code §
2921.331, for willfully eluding or fleeing a police officer, a felony of the third degree.
Petitioner was arrested in the City of Cleveland on March 13, 2013 and charged with Failure
to Comply with the Order or Signal of a Police Officer in violation of Ohio Rev. Code §

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2921.331(B), pursuant to a criminal complaint filed by the City of Cleveland. He appeared in
Cleveland Municipal Court on April 3, 2013 and entered a plea of Not Guilty. The matter was
bound over to the Cuyahoga County Grand Jury. At that appearance, Petitioner was notified that
a detainer had been placed on him by Ashtabula County as well as the City of Willoughby.
Petitioner was indicted on the charges May 8, 2013. A cash surety bond for $10,000 was set on
April 8, 2013. Petitioner posted bond on June 3, 2013.
Petitioner was arrested by the City of Willoughby Hills on June 4, 2013. He was arraigned
in the Willoughby Municipal Court that same day. Bond was set at $100,000.00. Petitioner could
not post bond and was transported to the Lake County Jail. The Municipal Court conducted a
preliminary hearing on June 12, 2013 and issued a Judgment Entry that same day finding probable
cause to believe a felony offense was committed by Petitioner. He was bound over to the Lake
County Grand Jury.
On July 19, 2013, the Lake County Grand Jury issued an indictment, charging Petitioner
with: (Count One) Failure to Comply with Order or Signal of Police Officer, a felony of the third
degree, in violation of Ohio Rev. Code § 2921.331(B); (Count Two) a Headlight Violation, a minor
misdemeanor, in violation of Ohio Rev. Code § 4513.14; (Count Three) a No Tail Light or Rear
License Plate Light Violation, a minor misdemeanor, in violation of Ohio Rev. Code § 4513.05;
(Count Four) Failure to Register, a misdemeanor of the fourth degree, in violation of Ohio Rev.
Code § 4503.11; and (Count Five) Obstructing Official Business, a misdemeanor of the second
degree, in violation of Ohio Rev. Code § 2921.31. The trial court conducted an arraignment on July
22, 2013, noting in its judgment entry from the proceedings that Petitioner entered no plea, so the
court entered a plea of not guilty on his behalf.

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Prior to trial, Petitioner filed various motions, including a motion for summary judgment and
multiple motions to dismiss the charges, which were denied. In these motions, he raised various
issues, including that the court lacked territorial jurisdiction and venue, that no victims’ names were
provided to whom he caused a risk of harm, that his traffic tickets had been dismissed in the
municipal court, that there were no uniform traffic citations, that there was a lack of evidence that
he failed to stop upon signal of an officer, and that the police vehicle video did not prove
jurisdiction. He repeatedly asserted that there was no proof the offense occurred in Lake County.
These motions were denied by the trial court in several Orders and Journal Entries.
A jury trial was held on September 17 and 18, 2013. Petitioner was found guilty on Counts
One, Four, and Five by the jury. The court found Petitioner guilty on the remaining two counts,
which were minor misdemeanors. On September 24, 2013, the trial court issued a Judgment Entry
memorializing the verdict. On the same date, the court sentenced Petitioner to serve a term of 30
months for Failure to Comply and 30 days for Obstructing Official Business, to be served
concurrently. Petitioner was also ordered to pay fines on the remaining counts, totaling $100.
II. Direct Appeal and Post Conviction Motion
Petitioner filed a timely direct appeal of his conviction and sentence to the Ohio Eleventh
District Court of Appeals. He raised the following assignments of error:
1. Appellant was prejudiced when the trial court failed to find the
state failed to establish territorial jurisdiction pursuant to O.R.C.
2938.10, due to failing to prove beyond a reasonable doubt that each
of the offenses cited in the 7/19/2013 (5) count indictment were
initiated and or committed within the territorial jurisdiction of Lake
County, Ohio, Therefore defining [sic] violation of appellant[']s right
against unreasonable search and seizure and or probable cause under
the 4th U.S.C.A. in violation of appellant [']s right to a full and fair
trial and a[n] impartial trier of fact under the 6th U.S.C.A, in
violation of appellant[']s right to due Process and Equal protection of
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Law under the 14th U.S.C.A. (sic).
2. Appellant was prejudiced when the trial court failed to find that
O.R.C. 2921.31 Obstructing Official Business and O.R.C.
2921.331(D) Failure to Comply (F–3), was of the same animus of
similar import pursuant to O.R.C. 2945.25 and Crim.R. 4. (sic)
3. Appellant was prejudiced when the trial court failed to find that the
state lacked Personal jurisdiction, Territorial jurisdiction and Subject
matter jurisdiction for counts 1, 2, 3, and 4 of the 7/19/2013 (5) count
indictment, due to failure to apply the controlling law(s) of Crim.R.
4, Crim.R. 5(B)(7), Crim.R. 48(A), Crim.R.5(B)(4)(C), R.C.
2936.26(B)(1)(2)(4).
4. Appellant was prejudiced by trial court[']s jury verdict form, due
to it omitting the misdemeanor elements for O .R.C. 2921.331(B),
Failure to Comply, (F–3), for which violated O.R.C. 2945.75(A)(2).
(sic)
5. Appellant was prejudiced when trial court failed to apply the
controlling law of Crim.R. 41(a) when the appellant[']s objection
during trial to not allow the state to utilize the 15 photos officer
James Ours obtained from private property outside the territorial
jurisdiction of Lake [C]ounty, Ohio. (sic)
6. Appellant was prejudiced when trial court denied the appellant [']s
request to submit exculpatory evidence of the Willoughby Municipal
Court judge Harry Field's 8/28/2013 judgment entry of dismissal of
the 4 misdemeanor traffic cases and appellant[']s motion to dismiss
said traffic offenses for case number 13TRD04272 for which were
dismissed pursuant to O.R.C. 2937.04, O.R.C. 2941.33, O.R.C.
2945.71, O.R.C. 2935.26, Crim R. 48(A), and Crim.R. 5(B)(4)(C),
defining violations of appellant[’]s right against double jeopardy
under the 5th U.S.C.A. (sic)
7. Appellant was prejudiced when trial court failed to apply
controlling law of Crim.R. 31(A) and O.R.C. 2945.71 when the jurors
failed to provide signed unanimous juror's verdict of guilty on all 5
counts of the 7/19/2013 indictment, for which defines violation of
appellant[’]s right to a full and fair trial and public trial of a jury of
his peers. (sic)
8. Appellant was prejudiced when trial court failed to apply
controlling laws of Crim.R. 7(e) and Crim.R. 16 due to the state[']s
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failure to provide the appellant with an amende[d] Bill of Particulars
of the chronological times each offense commenced, mile marker
locations of each offense, times of each offense, jurisdiction and or
the venue of each offense. (sic)
9. Appellant was prejudiced when trial court failed to schedule a[n]
in camera hearing pursuant to Crim.R.16(B)(1)(G) and a hearing
pursuant to R.C. 2705.02(C) and 2705.05 when the appellant filed
affidavit and petition to find officer James Ours and Officer Erik
Kupchik in violation of perjury and contempt due to their deliberate
indifference to subpoenas duly served on them via the Clerk of
Common Pleas on the request of the appellant pursuant to Crim.R.
17(C).” (sic)

See State of Ohio v. Elder, No. 2014–L–001, 2014 WL 4825388 (Ohio App. 11 Dist. Sept. 30,
2014). The Court of Appeals addressed the assignments of error on the record, and affirmed the
judgment of the trial court on September 30, 2014. Id.
Petitioner appealed that decision to the Supreme Court of Ohio on November 13. 2014. He
asserted seven Propositions of Law:1
1. State failed to prove venue beyond a reasonable doubt.
2. State violated defendant’s speedy trial rights pursuant to O.R.C.
2945.71.
3. State violated defendant’s right against double jeopardy.
4. State violated defendant’s right to present exculpatory evidence
in his defense.
5. State wilfully denied defendant a Bill of Particulars that appraised
[sic] him of information in their possession of times, dates, mile
marker locations, in violation of Crim. R. 7(D) and Crim. R. 16.

1

Petitioner’s Notice of Appeal and Memorandum in Support of Jurisdiction are the same
document and neither is a picture of legal clarity. In that document, he identifies seven reasons why
his case is of public interest or great general interest and involves a substantial constitutional
question. Aside from these “claims,” the Memorandum does not identify Propositions of Law.
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6. State’s witnesses P.O. Ours and P.O. Kupchik committed
contempt of subpoena and perjury in violation of Crim. R. 17© and
Crim. R. 16(B)(1)(G).
7. State’s witness P.O. Ours obtained 15 photos in violation of the
4th U.S.C.A. against unreasonable search and seizure.
State of Ohio v. Elder, No. 2014-1972 (Ohio S. Ct. filed Nov. 13, 2014). The Supreme Court of
Ohio denied jurisdiction on March 25, 2015.
Petitioner also filed a Motion for a New Trial in the trial court on October 1, 2013. In this
Motion, he raised various issues including several alleged jurisdictional defects. On December 5,
2013, the trial court issued an Opinion and Judgment Entry, denying Petitioner’s Motion for New
Trial. The trial court addressed each of the issues raised by Petitioner, ultimately finding no merit
in any of the issues and holding that it had jurisdiction.
Petitioner filed a timely appeal of that decision to the Ohio Eleventh District Court of
Appeals. He asserted one assignment of error:
The trial court abused [its] discretion for failing to find it lacked
personal jurisdiction and subject matter jurisdiction due to failing to
apply the controlling laws of Ohio Traffic Rule 3(A)(C)(E) [sic],
Crim.R. 1(C)(3), Crim.R. 5(B)(7) and O.R.C. 2938.10 to the material
facts of the case.
In this assignment of error, however, he raised multiple issues, arguing that the trial court abused
its discretion in rejecting each of these arguments. First, issues A, J, and K related to whether the
municipal court properly followed Crim.R. 5(B)(7) in transmitting the complaint and the ticket to
the Court of Common Pleas when the matter was bound over. He also noted that “the Ohio Uniform
Traffic citation is not controlled by statutes which apply to indictments.” In issue B, Petitioner
argued that all of the counts against him should have been documented on a traffic ticket, pursuant
to the Ohio Traffic Rule 3(A). Issues C and D challenged the trial court’s jurisdiction based their
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alleged failure to comply with the Traffic Rules. In issue E, Petitioner argued that his convictions
were obtained without the trial court, the grand jury, and himself being apprised of the time, date,
location, and statutory section numbers of the offenses. Similarly, in issue G, Petitioner asserted that
no documentation was offered to prove that the offenses for which he was convicted were committed
within the jurisdiction of the trial court. In issue F, Petitioner asserted that the trial court mistakenly
claimed in its December 5, 2013 Judgment Entry that his preliminary hearing was conducted on June
6, 2013, when the actual date of Elder’s preliminary hearing was June 12, 2013. In issue H,
Petitioner asserted that “no affidavit pursuant to Crim.R. 4 was filed in support of the reporting
officer’s claim of Ashtabula City Limit Warrant.” He appeared to be arguing that the state was
required to prove, in the initial complaint or at trial, through an affidavit, that there was a warrant
in Ashtabula against him to just the traffic stop by Willoughby Hills police. In issue I, Petitioner
asserted that the record reflected that he had filed several motions to dismiss counts 1, 2, 3, and 4.”
No argument or error was presented to the court for that issue.
In issue L, Petitioner argued that, since he did not submit a plea at the July 22, 2013
arraignment in the court of common pleas, the trial court lacked all jurisdiction and should vacate
his convictions. In issue M, Petitioner asserted that a structural error occurred, and the trial court
did not have the ability to “function as a reliable vehicle for the determination of guilt or innocence.”
Finally, regarding issue N, Petitioner asserted that his convictions were the result of an unreasonable
search and seizure, and that his right to a full, fair trial was violated. He, however, presented no
further cognizable argument as to why these rights were violated or how he was entitled to a new
trial under this issue. See State v. Elder, No. 2013-L-128, 2014 WL 2719682 (Ohio App. 11 Dist.
June 16, 2014). The Court of Appeals addressed each of these issues on the merits and denied them.

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On June 16, 2014, the Court affirmed the decision of the trial court denying Petitioner’s Motion for
a New Trial.
Petitioner appealed that decision to the Supreme Court of Ohio on July 21, 2014. He
asserted three Propositions of Law:
1. Pursuant to R.C. 2945.05, trial court lacked subject matter
jurisdiction and personal jurisdiction to try the Defendant on Counts
4, 2, and 3 of the July 19, 2013 (5) count indictment without a signed
jury trial waiver being journalized and filed on the Defendant docket
after a colloquy....violation of a full and fair trial, impartial trier of
fact.
2. Counts 2, 3, and 4 were dismissed for statutory and constitutional
violations in the Willoughby Municipal Court, Case No. 13 TRD
04272. The Ohio Constitution, Article I section 10 states no person
shall be twice put in jeopardy for the same offense...violation against
double jeopardy.
3. Counts 2, 3, and 4 were dismissed for statutory and constitutional
violations in the Willoughby Municipal Court, Case No. 13 TRD
04272 pursuant to R.C. 2941.33 Nolli Proseqi R. C. 2945.71 Speedy
trial R.C. 2935.26; Crim R. 48 (A) and Crim R. 5 (B)(4)(c) for the
state incurred the court cost....6th U.S.C.A. violation of a fair trial
and 14th U.S.C.A. violation of due process and equal protection of
law. 6th U.S.C.A. violation of speedy trial.
State of Ohio v. Elder, No. 2014-1252 (Ohio S. Ct. filed July 21, 2014). The Supreme Court of Ohio
declined jurisdiction on October 8, 2014.
III. Habeas Petition
Petitioner has now filed the within Petition for a Writ of Habeas Corpus. The Petition is
difficult to interpret because Petitioner did not use the standard form for a habeas corpus petition,
and instead stated his grounds in a narrative with attached exhibits. Liberally construing the
Petition, the Court can discern two grounds for relief:
1. The trial court failed to bring Petitioner to trial on the
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misdemeanor charges within the same time period required for
highest degree offense, violating his right to speedy trial under Ohio
Revised Code § 2945.72(A); and
2. Petitioner’s arrest was not supported by an affidavit of probable
cause by Officer Ours. Also, his judgment entry of conviction was
not signed by the judge under an oath of affirmation. These violated
his Fourth Amendment rights and Ohio Crim R. 4(A)(1).
In support of his first ground for relief, Petitioner contends that the misdemeanor charges
against him were dismissed by the Municipal Court when he was bound over. The Lake County
Grand Jury, however, indicted him on those misdemeanor charges as well as the third degree felony
of Failure to Comply with an Order or Signal of a Police Officer. Two of the charges were classified
as minor misdemeanors. One charge was classified as a fourth degree misdemeanor and one charge
was a second degree misdemeanor. Ohio Revised Code § 2945.71(A) provides that a person
charged with a minor misdemeanor shall be brought to trial within thirty days. A person charged
with a fourth degree misdemeanor shall be brought to trial within forty-five days, and a person
charged with a second degree misdemeanor shall be brought to trial within ninety days of arrest or
service of summons. Ohio Revised Code § 2945.71(B)(1) and (2).

Ohio Revised Code §

2945.71(C) provides that an individual charged with a felony shall be brought to trial within two
hundred seventy days after the person’s arrest. The statute clarifies that if a person is charged with
more than one offense, the time period associated with the highest degree offense will be applied
to all charges. Ohio Revised Code § 2945.71(D). Petitioner argues that the Willoughby Municipal
Court’s dismissal of the misdemeanor charges severed those charges from the felony charge and he
therefore should have been brought to trial on those charges within ninety days of his arrest.
In addition, Petitioner asserts that the Ohio speedy trial statute is constitutionally mandated
and he disputes the manner in which the Ohio courts calculated the date by which he had to be
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brought to trial. Petitioner was in jail in Cuyahoga County for another offense from March 18, 2013
until June 2013 when he was served with the indictment for these charges. Petitioner argues that
the clock should start ticking on his speedy trial rights from the time the warrant for his arrest was
issued by the Willoughby Municipal Court, or at the very least from the time he was jailed by the
City of Cleveland on other charges.
In his second ground for relief, Petitioner asserts that the warrant for his arrest and his
judgment of conviction were defective. The warrant for his arrest was issued as a result of a
complaint and summons signed by Officer James Ours. The complaint was witnessed by a Deputy
Court Clerk. Petitioner contends that the Court Clerk could not have determined probable cause
existed to justify his arrest because Officer Ours did not sign the document under oath. He claims
Ours also did not indicate that he personally witnessed the infraction of wilfully eluding or fleeing
a police officer after he activated the signal for a stop. He asserts that the police report was not
signed under oath and it therefore does not comply with the Fourth Amendment.
Petitioner also contends that the Judgment Entry of Conviction entered by the Lake County
Court of Common Pleas was not signed under oath. He asserts that this also violated his Fourth
Amendment rights.
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which amended 28
U.S.C. § 2254, was signed into law on April 24, 1996 and applies to habeas corpus petitions filed
after that effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997); see Woodford v. Garceau, 538
U.S. 202, 210 (2003); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999). The AEDPA was
enacted “to reduce delays in the execution of state and federal criminal sentences, and ‘to further

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the principles of comity, finality, and federalism.’” Woodford, 538 U.S. at 206 (citing Williams v.
Taylor, 529 U.S. 362, 436 (2000)). Consistent with this goal, when reviewing an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be presumed to be correct. Wilkins v.
Timmerman-Cooper, 512 F.3d 768, 774-76 (6th Cir. 2008). The Petitioner has the burden of
rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A federal court, therefore, may not grant habeas relief on any claim that was adjudicated on the
merits in any state court unless the adjudication of the claim either: “(1) resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d); Wilkins, 512 F.3d 768, 774 -76 (6th Cir. 2008).
A decision is contrary to clearly established law under §2254(d)(1) when it is “diametrically
different, opposite in character or nature, or mutually opposed” to federal law as determined by the
Supreme Court of the United States. Williams v. Taylor, 529 U.S. 362, 405 (2000). In order to have
an “unreasonable application of ... clearly established Federal law,” the state-court decision must
be “objectively unreasonable,” not merely erroneous or incorrect. Id. at 409. Furthermore, it must
be contrary to holdings of the Supreme Court, as opposed to dicta. Id. at 415.
A state court’s determination of fact will be unreasonable under §2254(d)(2) only if it
represents a “clear factual error.” Wiggins v. Smith, 539 U.S. 510, 528-29 (2003). In other words,
a state court’s determination of facts is unreasonable if its finding conflict with clear and convincing
evidence to the contrary. Id. “This standard requires the federal courts to give considerable

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deference to state-court decisions.” Ferensic v. Birkett, 501 F.3d 469, 472 (6th Cir.2007). AEDPA
essentially requires federal courts to leave a state court judgment alone unless the judgment in place
is “based on an error grave enough to be called ‘unreasonable.’” Herbert v. Billy, 160 F.3d 1131,
1135 (6th Cir.1998).
IV. Procedural Barriers to Habeas Review
Before a federal court will review the merits of a Petition for a Writ of Habeas Corpus, a
Petitioner must overcome several procedural hurdles. Specifically, Petitioner must surmount the
barriers of exhaustion, procedural default, and time limitation.
As a general rule, a state prisoner must exhaust all possible state remedies or have no
remaining state remedies before a federal court will review a petition for a writ of habeas corpus.
28 U.S.C. § 2254(b) and (c); see Baldwin v. Reese, 541 U.S. 27 (2004). Exhaustion is fulfilled once
a state supreme court provides a convicted defendant a full and fair opportunity to review his or her
claims on the merits. O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Rust v. Zent, 17 F.3d 155, 160
(6th Cir. 1994); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990).
To be properly exhausted, each claim must have been “fairly presented” to the state courts.
See e.g. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Frazier v. Huffman, 343 F.3d 780, 797
(6th Cir. 2003). Fair presentation requires that the state courts be given the opportunity to see both
the factual and legal basis for each claim. Wagner, 581 F.3d at 414. Specifically, in determining
whether a petitioner “fairly presented” a federal constitutional claim to the state courts, courts should
consider whether the Petitioner (1) phrased the federal claim in terms of the pertinent constitutional
law or in terms sufficiently particular to allege a denial of the specific constitutional right in
question; (2) relied upon federal cases employing the constitutional analysis in question; (3) relied

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upon state cases employing the federal constitutional analysis in question; or (4) alleged “facts well
within the mainstream of [the pertinent] constitutional law.” See Hicks v. Straub, 377 F.3d 538, 553
(6th Cir. 2004) (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000)). For the claim
to be exhausted, it must be presented to the state courts as a federal constitutional issue, not merely
as an issue arising under state law. Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984). Moreover,
the claim must be presented to the state courts under the same legal theory in which it is later
presented in federal court. Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). It cannot rest on a
legal theory which is separate and distinct from the one previously considered and rejected in state
court. Id. This does not mean that the applicant must recite “chapter and verse” of constitutional
law, but the applicant is required to make a specific showing of the alleged claim. Wagner, 581 F.3d
at 414.
The procedural default doctrine serves to bar review of federal claims that a state court has
declined to address because the Petitioner did not comply with a state procedural requirement.
Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In these cases, the state judgment is not based on a
resolution of federal constitutional law, but instead “rests on independent and adequate state
procedural grounds.” Coleman v. Thompson, 501 U.S. 722, 730 (1991). When the last explained
state court decision rests upon procedural default as an “alternative ground,” a federal district court
is not required to reach the merits of a habeas petition. McBee v. Abramajtys, 929 F.2d 264, 265
(6th Cir. 1991). In determining whether a state court has addressed the merits of a Petitioner’s
claim, federal courts must rely upon the presumption that there is no independent and adequate state
procedural grounds for a state court decision absent a clear statement to the contrary. See Coleman,
501 U.S. at 735.

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To determine if a claim is procedurally defaulted the Court must determine whether: (1)
there is a state procedural rule that is applicable to the Petitioner’s claim and that the Petitioner
failed to comply with the rule; (2) whether the state courts actually enforced the state procedural
sanction; and (3) whether the state procedural forfeiture is an adequate and independent state ground
upon which the state can rely to foreclose review of a federal constitutional claim. See Maupin v.
Smith, 785 F.2d 135, 138 (6th Cir.1986). A claim that is procedurally defaulted in state court will
not be reviewed by a federal habeas court unless a Petitioner can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of federal law, or can demonstrate that failure
to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 751.
“Cause” is a legitimate excuse for the default, and “prejudice” is actual harm resulting from the
alleged constitutional violation. See Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). If
a Petitioner fails to show cause for his procedural default, the Court need not address the issue of
prejudice. See Smith v. Murray, 477 U.S. 527 (1986).
Simply stated, a federal court may review only federal claims that were evaluated on the
merits by a state court. Claims that were not so evaluated, either because they were never presented
to the state courts (i.e., exhausted) or because they were not properly presented to the state courts
(i.e., were procedurally defaulted), are generally not cognizable on federal habeas review.
III. Analysis
As an initial matter, Petitioner did not exhaust his state court remedies for these claims. He
has two speedy trial claims. First, he claimed the dismissal of the misdemeanor charges by the
municipal court severed them from the felony for purposes of calculating speedy trial statutory
deadlines under Ohio Revised Code § 2945.71. Second, he claimed the time allotted in which to try

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him under Ohio Revised Code § 2945.71 should have begun on the date the arrest warrant was
signed or the day on which he was incarcerated on any charge, even one unrelated to the offenses
for which he is being tried. Petitioner’s pro se pleadings at every stage of this process have been
difficult to decipher. At best, and providing the most liberal construction to Petitioner’s claims, he
may have raised them for the first time on appeal to the Supreme Court of Ohio on direct appeal.
He also may have asserted it for the first time on appeal of his Motion for a New Trial to the
Supreme Court of Ohio. These arguments do not appear to have been presented to the Ohio Court
of Appeals.
Petitioner also asserts two claims pertaining to sworn oaths. He contends the complaint and
summons and his judgment entry of conviction were not signed under oath. He did not assert these
claims in either the Ohio Court of Appeals or in the Supreme Court of Ohio. These claims are not
exhausted.
As explained above, a Petitioner cannot obtain federal habeas relief unless he has completely
exhausted his available state court remedies to the state’s highest court. Buell v. Mitchell, 274 F.3d
337, 349 (6th Cir. 2001); 28 U.S.C. § 2254(b)(1)(A). The United States Supreme Court has
emphasized that the “interests of comity and federalism dictate that state courts must have the first
opportunity to decide a Petitioner’s claim,” since “it would be unseemly in our dual system of
government for a federal district court to upset a state court conviction without an opportunity to the
state courts to correct a constitutional violation.” Rhines v. Weber, 544 U.S. 269, 273-74
(2005)(citations omitted). Accordingly, where a habeas petition contains unexhausted claims, there
is a “strong presumption” in favor of requiring a Petitioner to pursue his available state remedies.
Granberry v. Greer, 481 U.S. 129, 131 (1987); see also O’Guinn v. Dutton, 88 F.3d 1409, 1412 (6th

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Cir. 1996) (stating that “the Supreme Court has been quite clear that exhaustion is the preferred
avenue and that exceptions are to be for narrow purposes only”).
Nevertheless, a habeas court need not wait for a Petitioner’s claims to be exhausted if it
determines that a return to state court would be futile. If a Petitioner fails to fairly present his claims
through the requisite of levels of state appellate review to the state’s highest court, and no avenue
of relief remains open, or if it would otherwise be futile for Petitioner to continue to pursue his
claims in the state courts, the claims are subject to dismissal with prejudice as procedurally
defaulted. See O’Sullivan, 526 U.S. at 847-48; Harris v. Reed, 489 U.S. 255, 260-62 (1989); McBee
v. Grant, 763 F.2d 811, 813 (6th Cir.1985); see also Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir.
1989).
In this case, Petitioner did not present his habeas claims to all levels in the state courts, and
he has no remaining avenue for relief to raise these claims. Each of his claims would be found on
the trial court’s record. As such, they would have to have been included as part of his direct appeal.
He filed a direct appeal and asserted nine assignments of error, but did not include the claims he
asserts in this Petition. Ohio has a rule that claims must be raised on direct appeal if possible;
otherwise, res judicata bars their litigation in subsequent state proceedings. See State v. Perry, 10
Ohio St.2d 175, 180 (1967), syllabus para. 8, 9. That rule is consistently applied by the state.
Petitioner cannot return to state court to assert claims he could and should have asserted in his direct
appeal. His claims are procedurally defaulted.
When a claim is procedurally defaulted, federal habeas review is barred unless the Petitioner
can demonstrate cause for the default and actual prejudice as a result of the alleged violation of
federal law, or can demonstrate that failure to consider the claims will result in a fundamental

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miscarriage of justice. Coleman, 501 U.S. at 750. Petitioner can overcome a procedural default by
showing (1) there was cause for him not to follow the procedural rule and that he was actually
prejudiced by the alleged constitutional error or (2) a fundamental miscarriage of justice would
result from a bar on federal habeas review. See Maupin, 785 F.2d at 138; see also Hutchison v. Bell,
303 F.3d 720, 735 (6th Cir. 2002); Combs v. Coyle, 205 F.3d 269, 274-75 (6th Cir. 2000). “[T]he
existence of cause for a procedural default must ordinarily turn on whether the prisoner can 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, 484 (1986). “Such factors may include
‘interference by officials,’ attorney error rising to the level of ineffective assistance of counsel, and
‘a showing that the factual or legal basis for a claim was not reasonably available.’”
Hargrave–Thomas v. Yukins, 374 F.3d 383, 388 (6th Cir. 2004) (quoting McCleskey v. Zant, 499
U.S. 467, 493-94 (1991)). To establish prejudice, Petitioner must demonstrate that the constitutional
error “worked to his actual and substantial disadvantage.” Perkins v. LeCureux, 58 F.3d 214, 219
(6th Cir. 1995) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).
The Petition does not suggest any factor external to the defense precluded him from raising
these claims in his first appeal of his conviction. As noted above, he asserted nine lengthy
assignments of error on appeal. Petitioner does not indicate why he did not assert these claims at
all levels of his direct appeal. He therefore has not demonstrated “cause” for the default.
Because the cause and prejudice standard is not a perfect safeguard against fundamental
miscarriages of justice, the United States Supreme Court has recognized a narrow exception to the
cause requirement where a constitutional violation has “probably resulted” in the conviction of one
who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392 (2004)

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(citing Murray, 477 U.S. at 495-96). Petitioner does not claim he is innocent of the underlying
conviction. There is no suggestion that a fundamental miscarriage of justice occurred as a result of
this procedural default.
Moreover, even if Petitioner’s grounds for relief were not barred by procedural default, they
would not be cognizable in a federal habeas corpus petition because they are all based on alleged
violations of state law. Generally, a federal habeas court sitting in review of a state court judgment
will not second guess a state court’s decision concerning matters of state law. Greer v. Mitchell, 264
F.3d 663, 675 (6th Cir. 2001)(citing Gall v. Parker, 231 F.3d 265, 303 (6th Cir. 2000). A claim
based solely on an error of state law, therefore, is not redressable through the federal habeas process.
Norris v. Schotten, 146 F.3d 314, 328-29 (6th Cir. 1998). This Court is bound by the state court’s
interpretation of its own law. Davis v. Straub, 430 F.3d 281, 291 (6th Cir. 2005); Lopez v. Wilson,
426 F.3d 339, 351 (6th Cir. 2005).
First, Petitioner’s speedy trial claims are based on the state’s alleged violation of Ohio
Revised Code § 2945.71. Whether state officers have violated state law in failing to administer a
state statute is a question of state law.

See Levine v. Torvik, 986 F.2d 1506, 1515 (6th

Cir.1993)(citing Engle v. Isaac, 456 U.S. 107 (1982)).

The constitutional parameters for

determining a speedy trial violation are less defined and less stringent than those set forth in Ohio
Revised Code § 2945.71. The Supreme Court has set forth a balancing approach for determining
when a Sixth Amendment speedy-trial violation has occurred. Barker v. Wingo, 407 U.S. 514,
523-30 (1972). The following four factors are to be considered: (1) whether the delay was
uncommonly long; (2) the reason for the delay; (3) whether the defendant asserted his right to a
speedy trial; and (4) whether prejudice resulted to the defendant. Id. The length of the delay,

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however, is a threshold issue. That is, if there is no delay that is presumptively prejudicial, there is
no necessity for inquiry into the other factors. United States v. Schreane, 331 F.3d 548, 553 (6th
Cir. 2003)(citing Barker, 407 U.S. at 530).

A delay is presumptively prejudicial if it is

“uncommonly long” or “extraordinary.” Id. (citing Doggett v. United States, 505 U.S. 647, 651-52
(1992)). The Sixth Circuit has found that a delay is presumptively prejudicial when it approaches
one year. Id. Ohio Revised Code § 2945.71(C) provides that an individual charged with a felony
shall be brought to trial within two hundred seventy days after the person’s arrest, and it allows for
counting three days as one for purposes of the statute if the defendant is detained on that charge prior
to trial. It therefore is possible for a defendant’s right to a speedy trial to be violated under the Ohio
statute, but not under the United States Constitution. The question Petitioner raised in the state
courts and in this Petition is based solely on a violation of the Ohio statute. Those claims are not
cognizable in a federal habeas corpus petition.
Similarly, Petitioner’s claims regarding alleged technical defects in the criminal complaint
and judgment entry do not rest on violations of the United States Constitution. His claim concerning
the criminal complaint is governed by OHIO CRIM. R. 3, which provides: “[t]he complaint is a
written statement of the essential facts constituting the offense charged. It shall also state the
numerical designation of the applicable statute or ordinance. It shall be made upon oath before any
person authorized by law to administer oaths.” Petitioner’s contention is that the complaint issued
by Willoughby Hills Police Officers did not meet the requirements of Criminal Rule 3. That
assertion is based solely on Ohio law and is not properly asserted in a federal habeas corpus petition.

Similarly, Petitioner’s claim with regard to the Judgment Entry not signifying that it was

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issued under oath would arise, if at all, under Ohio law. It has no basis in federal constitutional law.
It therefore is not cognizable in a federal habeas corpus petition.
IV. Conclusion
Accordingly, Petitioner’s Application to Proceed In Forma Pauperis (Doc No. 2) is granted,
the Petition (Doc. No. 1) is denied and this action is dismissed pursuant to Rule 4 of the Rules
Governing Section 2254 Cases. Further, the Court certifies, pursuant to 28 U.S.C. §1915(a)(3), that
an appeal from this decision could not be taken in good faith, and that there is no basis upon which
to issue a certificate of appealability. 28 U.S.C. § 2253; Fed.R.App.P. 22(b).
IT IS SO ORDERED.
s/James G. Carr
JAMES G. CARR
SR. UNITED STATES DISTRICT JUDGE

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