Tate v. LaRose
Filing
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Opinion and Order For reasons set forth in this order, the Court ADOPTS AND ACCEPTS the Magistrate Judge's well-reasoned Report and Recommendation and DENIES Petitioner's Petitioner under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. Judge Christopher A. Boyko on 7/9/2021. (L,Ja)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KEITH TATE,
Petitioner,
vs.
CHRISTOPHER LAROSE, Warden,
Respondent.
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CASE NO. 1:18CV979
SENIOR JUDGE
CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, SR. J.:
This matter comes before the Court on Petitioner Keith Tate’s Petition under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus (Doc. 1). For the foregoing reasons, the Court accepts and
adopts the Magistrate Judge’s Report and Recommendation and DENIES the Petition.
FACTS
The following is a procedural synopsis of Petitioner’s claims. The Magistrate Judge’s
Report and Recommendation, adopted and incorporated herein, provides a more complete and
detailed discussion.
An Ohio jury found Petitioner guilty of one count of Attempted Murder with Firearm
Specifications; two counts of Felonious Assault with Firearm Specifications; and one count of
Having a Weapon while Under Disability. For these actions, the Trial Court sentenced
Petitioner to a total of seventeen-years in prison. Petitioner appealed his conviction. The
Appellate Court affirmed both the conviction and sentence. Petitioner asked the Appellate
Court to reconsider, but the court declined. Petitioner appealed to the Ohio Supreme Court, but
that court declined to accept jurisdiction.
On April 30, 2018, Petitioner, through counsel, filed the instant Petition for habeas
relief. He asserted five Grounds for Relief, two of which include:
GROUND ONE: Sixth Amendment. Petitioner was denied his
right to a speedy trial where a criminal complaint which charged the
same offense for which a later indictment was filed showed that
there was a lack of any diligence to notify Petitioner of the pending
criminal charges.
GROUND TWO: Sixth Amendment. Petitioner was denied his
right of confrontation and cross-examination where, at trial, the
court improperly restricted cross-examination on critical issues. In
addition, the court admitted a hearsay exhibit for consideration on
the merits of the case.
(Doc. 1, PageID: 5-7).
On June 7, 2019, the Court referred Petitioner’s Petition to Magistrate Judge Kathleen B.
Burke for a Report and Recommendation. (Doc. 3). On August 9, 2019, Respondent filed his
Answer/Return of Writ. (Doc. 7). Petitioner filed a Traverse and Respondent offered a Reply.
On December 23, 2019, the Magistrate Judge issued her Report and Recommendation, in which
she recommended that the Court deny the Petition. (Doc. 10). On February 7, 2020, Petitioner
filed his Objection, an almost carbon-copy of his Traverse. (Doc. 12). Respondent filed a brief
Response notifying the Court of this fact. (Doc. 13). Petitioner did not respond.
STANDARD OF REVIEW
When a Federal habeas claim has been adjudicated by the state courts, 28 U.S.C. §
2254(d) provides the writ shall not issue unless the state court decision (1) “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) “was based on an unreasonable determination of the
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facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(1)(2). Further, a Federal court may grant habeas relief if the state court arrives at a decision
opposite to that reached by the Supreme Court of the United States on a question of law, or if
the state court decides a case differently than did the Supreme Court on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The appropriate
measure of whether a state court decision unreasonably applied clearly established Federal law
is whether that state adjudication was “objectively unreasonable” and not merely erroneous or
incorrect. Id. at 409-11.
Pursuant to 28 U.S.C. § 2254(e)(1), findings of fact made by the state court are
presumed correct, rebuttable only by clear and convincing evidence to the contrary. McAdoo v.
Elo, 365 F.3d 487, 493094 (6th Cir. 2004).
ANALYSIS
A.
Petitioner’s Failure to Specifically Object
At the outset, the Court notes Defendant’s generic and general objections to the
Magistrate Judge’s Report and Recommendation are improper. The rules governing objections
to report and recommendations require parties to specifically object to the problematic aspects
of the report and recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2) &
(b)(3); LR 72.3(b). A party’s failure to do so could result in the loss of appellate rights. Andres
v. Comm’r of Soc. Sec., 733 Fed. App’x 241, 244 (6th Cir. Apr. 30, 2018). And overly general
objections do not satisfy the specific-objection requirement. Spencer v. Bouchard, 449 F.3d
721, 725 (6th Cir. 2006) abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
Neither does the regurgitation of the same merit brief before the magistrate judge constitute a
sufficient objection. Andres, 733 Fed. App’x at 243.
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Yet that is exactly what Petitioner did here. In his twenty-four page “objection,”
Petitioner adds just seven new paragraphs. The remainder is a copy and paste of his argument
before the Magistrate Judge. (Compare Doc. 8 with Doc. 12). Thus, the majority of
Petitioner’s objection does not comply with the rules governing objections.
Accordingly, the Court overrules Petitioner’s verbatim objections to Grounds Three
through Five and adopts the Magistrate Judge’s Report and Recommendation. However, the
Court will afford Petitioner the benefit of the doubt and entertain his objections to the two
grounds addressed below.
B.
Ground One – Right to a Speedy Trial
Petitioner claims that his Sixth Amendment right to a speedy trial was violated when he
was charged in Municipal Court with the same offense which a County Indictment later
addressed. The Magistrate Judge found this claim failed on its merits. 1 In doing so, the
Magistrate Judge determined that the State appellate court’s decision was not unreasonable as it
properly applied Federal law to the facts of Petitioner’s case.
Petitioner takes umbrage with the Magistrate Judge’s analysis. In doing so, Petitioner
claims the state courts erred in their analysis and that the sixteen-month delay between filing the
complaint and the arrest of Petitioner was prejudicial.
The Court agrees with the Magistrate Judge. The Sixth Amendment guarantees that “in
all criminal prosecutions, the accused shall enjoy the right to a speedy trial.” Doggett v. United
States, 505 U.S. 647, 651 (1992) (cleaned up). In protecting that right, the Supreme Court
developed a four-factor balancing test “to determine whether there has been a violation of an
The Magistrate Judge addressed three possible arguments: 1) pre-indictment delay under the Due Process Clause
of the Constitution; 2) Ohio statutory violation; and 3) Federal speedy trial concerns. In his Objection, Petitioner
focuses solely on the Federal speedy trial concern and so does the Court in this Order.
1
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accused’s constitutional right to a speedy trial.” Norris v. Schotten, 146 F.3d 314, 326 (6th Cir.
1998). “These four factors are: (1) the length of the delay, (2) the reason for the delay, (3) the
defendant’s assertion of his right, and (4) prejudice to the defendant.” Id. (citing Barker v.
Wingo, 407 U.S. 514, 530 (1972)). “No one factor is dispositive. Rather, they are related
factors that must be considered together with any other relevant circumstances.” Brown v.
Romanowski, 845 F.3d 703, 712 (6th Cir. 2017) (citing Barker, 407 U.S. at 533).
Here, the State appellate court reasonably applied the above law to the facts of
Petitioner’s case. See State v. Tate, 70 N.E.3d 1056, 1064-66 (Oh. Ct. App. 2016).
Accordingly, the appellate court’s determination is entitled to deference by this Court. 28
U.S.C. § 2254(d). And Petitioner’s generic objection neither highlights the appellate court’s
error nor the Magistrate Judge’s erroneous conclusion.
Furthermore, Petitioner’s Objection ignores the Magistrate Judge’s discussion of when
an accused’s speedy trial rights attach in the Federal system. Generally, Sixth Amendment
speedy trial right “attaches when the defendant is arrested or indicted, whichever is earlier.”
Brown, 845 F.3d at 712-13. Yet, Petitioner focuses on the date the municipal court complaint
was filed. Petitioner’s Objection makes no specific argument against the Magistrate Judge’s
potential four-and-one-half month (as opposed to sixteen-month) delay on the analysis.
Finally, Petitioner’s Objection can best be summarized as advocating for a bright-line
rule that a sixteen-month delay (assuming he is correct) is presumptively prejudicial and no
other factor is relevant. But this argument is mistaken. There is no bright-line rule. Id. at 717.
And in the Sixth Circuit, the defendant is required to show that the delay caused ‘substantial
prejudice.’ Id. at 716. The State appellate court found issue with this lack of showing during
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Petitioner’s appeal. And Petitioner has not even attempted to make that showing in his Federal
habeas claim.
Accordingly, the Court agrees with the Magistrate Judge and finds Petitioner’s Ground
One fails on the merits.
C.
Ground Two – Inability to Cross-Examine; Hearsay
Petitioner argues that the trial court violated his Sixth Amendment rights to effectively
cross-examine a witness at his trial. He also claims the trial court improperly admitted evidence
over his hearsay objection.
The Magistrate Judge recommended that these claims fail on their merits. With respect
to the purported Confrontation Clause violations, the Magistrate Judge found that the State
appellate court adequately considered these claims and its determination was reasonable.
Moreover, Petitioner did not adequately explain why his inability to present a certain question
violated his constitutional rights. With respect to the hearsay issue, the Magistrate Judge found
that the State appellate court properly applied the harmless error principle to the claim, even if
the purported evidence constituted hearsay.
Petitioner’s objection on Ground Two is contained in three paragraphs of new analysis,
rather than verbatim argument recycled from his Traverse. In those paragraphs, Petitioner
challenges the Magistrate Judge’s constitutional analysis, claiming that both the State appellate
court and Magistrate Judge failed to analyze Ground Two in a “constitutional sense.”
The Court agrees with the Magistrate Judge. “The Sixth Amendment guarantees a
criminal defendant the right to confront the prosecution’s witnesses through cross-examination,
Boggs v. Collins, 226 F.3d 728, 736 (6th Cir. 2000), as well as ‘a meaningful opportunity to
present a complete defense,’ Crane v. Kentucky, 476 U.S. 683, 690 (1986).” Jordan v. Warden,
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675 F.3d 586, 593 (6th Cir. 2012). However, “this right is not absolute.” Id. at 594; Norris,
146 F.3d at 329. Rather, criminal defendants are only guaranteed “an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to whatever
extent, the defense may wish.” Jordan, 675 F.3d at 594 (quoting Delaware v. Fensterer, 474
U.S. 15, 20 (1985)).
As such, “[t]rial judges retain great discretion to impose reasonable limits on the crossexamination of witnesses[.]” Norris, 146 F.3d at 329. And a trial court “does not abuse its
discretion nor violate the Confrontation Clause by prohibiting testimony where…the relevance
of such questions is unclear[.] Id. at 330 (internal citations omitted). Instead, a criminal
defendant must show that he was prohibited from engaging in otherwise appropriate crossexamination designed to show a prototypical form of bias on the part of the witness to state a
Confrontation Clause violation. Miller v. Genovese, 994 F.3d 734, 743 (6th Cir. 2021) (citing
Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)).
Even then, “[u]nconstitutional limitations on cross-examination are normally subject to
harmless-error analysis.” Hargrave v. McKee, 248 Fed. App’x 718, 728 (6th Cir. Sept. 27,
2007); Jordan, 675 F.3d at 598. To satisfy this inquiry, the defendant must show that the error
had a “substantial and injurious effect or influence in determining the jury’s verdict.” Jordan,
675 F.3d at 598 (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). This review is
rigorous. Miller, 994 F.3d at 744. It involves a “holistic inquiry” in determining whether
defendant’s inability to ask the proposed question harmed the defendant’s case. Id. (quoting
Van Arsdall, 475 U.S. at 684). In making this determination, courts look at various factors,
including “[1] the witness’s importance to the State’s case, [2] whether [the] testimony was
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cumulative of or corroborated by other testimony, [3] other cross-examination the defendant
conducted, and [4] ‘of course, the overall strength of the prosecutor’s case.’” Id.
Applying the above here, Petitioner’s objection is without merit. Despite his argument
to the contrary, both the State appellate court and the Magistrate Judge analyzed Petitioner’s
Ground Two in a “constitutional sense.” By doing so, this Court not only affords the State
decision deference, see 28 U.S.C. § 2254(d), but also finds the Magistrate Judge’s analysis
proper. The Court also finds Petitioner’s objection does not detail how the purported questions
demonstrated a “prototypical form of bias on the part of the witness.” Miller, 994 F.3d at 743.
Even if it did, Petitioner certainly did not show that the inability to ask the two questions had a
‘substantial and injurious effect or influence in determining the jury’s verdict,’ and thus the
purported errors are harmless.
Finally, the Court agrees with the Magistrate Judge’s hearsay analysis. Petitioner does
not object to the Magistrate Judge’s admonition that the purported hearsay even qualified as
hearsay to begin with. Even if he had, Petitioner cannot overcome other testimony at trial from
the witness at issue who testified consistently with the purported hearsay. Again, Petitioner
cannot satisfy the harmless error standard.
Accordingly, the Court agrees with the Magistrate Judge and finds Petitioner’s Ground
Two fails on its merits.
CONCLUSION
Petitioner’s Objection largely reiterates his Traverse word-for-word and is therefore
improper. And even if the Court extended Petitioner some leniency for Grounds One and Two,
the Court agrees with the Magistrate Judge and finds those grounds meritless.
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Accordingly, the Court ADOPTS AND ACCEPTS the Magistrate Judge’s well-reasoned
Report and Recommendation and DENIES Petitioner’s Petitioner under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody.
The Court finds an appeal from this decision could not be taken in good faith. 28 U.S.C.
§ 1915(a)(3). Since Petitioner has not made a substantial showing of a denial of a constitutional
right directly related to his conviction or custody, the Court declines to issue a certificate of
appealability. 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Rule 11 of Rules Governing §
2254 Cases.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
Senior United States District Judge
Dated: July 9, 2021
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