Petaway v. Warden Warren Correctional Instituton

Filing 20

REPORT AND RECOMMENDATIONS: The Magistrate Judge RECOMMENDS that this action be DISMISSED - objections due w/in fourteen (14) days. Signed by Magistrate Judge Norah McCann King on 09/21/2011. (sr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEVONNE PETAWAY,
Petitioner,

CASE NO. 2:10-CV-533
JUDGE MARBLEY
MAGISTRATE JUDGE KING

v.
WANZA JACKSON, WARDEN,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the petition, Doc. No. 4, Respondent’s return of
writ, Doc. No. 8, Petitioner’s traverse, Doc. No. 18, and supplemental traverse, Doc. No. 19, and
the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that
this action be DISMISSED.
FACTS and PROCEDURAL HISTORY
The Ohio Third District Court of Appeals summarized the facts and procedural history of
this case as follows:
In February 2008, the Logan County Grand Jury indicted Petaway on
one count of aggravated burglary in violation of R.C. 2911.11(A)(2),
a felony of the first degree, with a firearm specification under R.C.
2929.14(D)(1)(a)(ii); one count of aggravated robbery in violation of
R.C. 2911.01(A)(1), a felony of the first degree, with a firearm
specification under R.C. 2929.14(D)(1)(a)(ii); one count of felonious
assault in violation of R.C. 2903.11(A)(2), a felony of the second
degree, with a firearm specification under R.C. 2929.14(D)(1)(a)(ii);
one count of abduction in violation of R.C. 2905.02(A)(2), a felony
of the third degree; and, one count of having a weapon while under
disability in violation of R.C. 2923.13(A)(3), a felony of the third
degree. The indictment arose from an incident during which it was
alleged that Petaway pushed his way into a home, brandished a

firearm, demanded money, pointed the firearm at a child, struck a
woman with the firearm, and fired shots at a man who attempted to
flee the home. Subsequently, Petaway entered a plea of not guilty as
to all counts in the indictment.
In August 2008, the case proceeded to trial at which the following
testimony was heard.

Tisha Lyburtus, the female victim, testified that, in January 2008, she
lived at 313 South Park Street in Bellefontaine; that, on January 10,
2008, she and her boyfriend, Keith Brown, her son, Aurelio Lyburtus,
and her two nephews, Skylar Rogan and Desmond Lyburtus, were at
her home; that Brown and the boys were playing video games in the
living room of the home while she was in the kitchen; that she heard
a loud bang at the door and Brown went to see who it was; that she
heard someone yell “[g]et the fuck on the floor, [g]et down and give
me your money” (trial tr., p. 132); that she saw Petaway with a gun;
that she recognized Petaway because he had dated her cousin, Kyna
Brown; that Petaway told her to “shut up” and “get the fuck on the
floor,” so she cradled Aurelio and Skylar in her lap on the floor while
Desmond remained on the couch (trial tr., p. 133); that a tall white
man held a knife against Brown and told him to empty his pockets;
that Petaway pushed Desmond up against the couch and pressed the
gun against his eye; that she asked Petaway to leave the child alone,
and he replied “[s]hut the fuck up, bitch” and struck the back of her
head with the gun (trial tr., p. 137); that he then hit her hand with the
gun as she attempted to block him; that she did not see Petaway or
the white man take any money, but she believed they took $40
because it was missing; that Brown told the men that he had some
money outside in his truck, feigned reaching for his keys, knocked
the white man out of the way, and ran out the front door; that both the
white man and Petaway ran after Brown, and Petaway stood in the
doorway and fired shots at Brown; that she heard several more
gunshots as she barricaded herself and the children in a bathroom and
called 9-1-1; and, that medical personnel called to the scene
recommended she go to the hospital to receive further medical
treatment, but that she did not go to the hospital because she was
concerned about the children.
Keith Brown testified that he was present during the incident at
Lyburtus' home; that he was playing video games with Lyburtus' son
and nephews when he heard someone bang on the door; that three
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men “barged” their way into the home and demanded money; that the
tall white man backed him into a corner and held a knife against him;
that he recognized one of the other men as Petaway because Petaway
had dated Lyburtus' cousin, Kyna Brown; that Petaway yelled at
everyone inside the home to get down; that Petaway hit Lyburtus in
the head with a gun; that Petaway held a gun to Desmond's eye; that
he told the men that his money was in his truck and was able to push
the white man out of the way and run out the door; that Petaway fired
four or five shots at him as he ran; and, that he was not hit by any of
the shots.
The trial court conducted an in-chambers voir dire examination of
Skylar, during which Skylar stated that he turned eleven years old on
July 30, 2008; that he believed he was present in court because he
“was staying at his cousin's house and [they] got robbed” (trial tr., pp.
177-78); that he could not remember how to recite the Pledge of
Allegiance; that he did not know what happened to people who did
not tell the truth; that he had been around people who had been
caught telling a lie, and they got into trouble; that a lie is “where
someone don't tell the truth”; that he thought he would be punished
if he did not tell the truth; that, if he was asked to tell the truth, he
would do it because he would not want to get in trouble; and, that
lying is bad. Thereafter, Petaway objected to Skylar's testimony on
the basis of competency due to his age, which the trial court
overruled.
Skylar testified at trial that, on the night of the incident, he was
playing video games with his cousins when they heard someone
knock on the door; that, when Brown attempted to open the door, a
white man and a black man kicked down the door and the black man
held a gun to Desmond's eye; that he sat on the floor with Aurelio and
Lyburtus; that Lyburtus told the black man, “please don't kill my
nephew,” and the man hit her in the back of the head with the gun;
that the white man had a knife in his hand and was in the corner with
Brown; that Brown pushed the white man aside and ran outside; that
the black man started shooting and ran outside; and, that Lyburtus put
the boys in the bathroom while she called the police.
The trial court conducted an in-chambers voir dire examination of
Aurelio, during which he stated that he turned eleven years old on
July 29, 2008; that he believed “to tell the truth” means “to be
honest”; that it is a bad thing to lie, and people usually get in trouble
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for lying; and, that it is important to tell the truth. Thereafter,
Petaway objected to Aurelio's testimony on the basis of competency
due to his age, which the trial court overruled.
Aurelio testified at trial that, on the night of the incident, he was
playing video games with his cousins; that a black man and a white
man “busted in the door” (trial tr., p. 222); that the white man had a
knife and held Brown in a corner; that the black man held a gun and
put it on Desmond's face; that the black man hit Lyburtus on the back
of the head and on the knuckle with the gun; that Brown pushed the
white man and ran out the door; that the black man started shooting
and ran outside along with the white man; that Lyburtus put the boys
in the bathroom; and, that he had seen the black man before and
recognized him as Petaway.
The trial court conducted an in-chambers voir dire examination of
Desmond, during which he stated that he turned nine years old on
July 14, 2008; that “if you lie to your parents and your parents find
out you're going to get in trouble, but if you tell the truth you're
probably not going to get in trouble” (trial tr., p. 205); and, that he
would be willing to tell the truth under any circumstances. Thereafter,
Petaway objected to Desmond's testimony on the basis of competency
due to his age, which the trial court overruled.
Desmond testified at trial that, on the night of the incident, he was
playing video games with his cousins; that a white man and a black
man knocked on the door and then “started busting in” (trial tr., p.
231); that the men told everyone to get down on the floor, but he
remained on the couch; that the white man had a knife and pushed
Brown against a wall; that the black man put a gun against his face
and he was scared; that the black man hit Lyburtus on the back of the
head with the gun; that Brown pushed the white man and ran outside;
that the black man ran to the door and started shooting and chasing
Brown; and, that Lyburtus put the boys in the bathroom and called
the police.
Patrol Officer Dennis McBrien of the Bellefontaine Police
Department testified that, on January 10, 2008, he was dispatched to
a robbery in progress at 313 South Park Street in Bellefontaine,
Logan County; that Lyburtus, Aurelio, Desmond, and Skylar were at
the residence and were very distraught; that Lyburtus' head was
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bleeding; that Lyburtus identified the black male perpetrator as
Petaway; that Lyburtus stated that the other perpetrator was a tall,
thin, white male; and, that he discovered a spent bullet across the
street on the sidewalk.
Benjamin Kennedy of the Bellefontaine Fire Department testified that
he is a firefighter/paramedic; that, on January 10, 2008, he treated
Lyburtus in the back of an ambulance for a head injury and a hand
injury; that Lyburtus had an abrasion on her head that was bleeding
and swollen and an abrasion on her hand; that Lyburtus refused to go
to the hospital; and, that Lyburtus stated she was injured when she
was struck with a gun.
Officer Craig Comstock of the Bellefontaine Police Department
testified that he participated in the investigation of the incident; that
he received a report that the suspects were running westbound so he
began to patrol the area; that he saw a tall, white male running
westbound throw an object onto the ground in a parking lot; that the
man was running toward a bar called “Sandy's Outlaws”; and, that he
discovered a black nine-millimeter magazine and one nine-millimeter
round laying on the ground where the man had thrown the object.
Detective Scott Sebring of the Bellefontaine Police Department
testified that he processed the crime scene; that he discovered one
spent bullet and three empty shell casings; that the empty shell
casings were located on the sidewalk, the steps of the porch, and
across the street; that, at Sandy's Outlaw's, he discovered the tall,
white man, Jason Mahe, and a knife hidden inside a pool table at the
bar; that he eventually learned that Petaway, Colby Harris, and Matt
Haley were also involved in the crime; that he arrested Harris and
Haley on January 12, and both admitted that they were at 313 South
Park Street during the time of the shooting, but claimed that they
never entered the residence; that Haley told him that, after the
incident, he and Petaway buried the nine-millimeter firearm; that
Haley directed them to where they could find the firearm, which they
located; that they did not request the crime lab to process latent prints
on the firearm because the powder used to lift latent prints can
interfere with marks on the casings, because DNA testing on the
firearm cannot be done without DNA from a suspect, which they did
not have at the time, and because they knew that Haley had also
touched the firearm, which could interfere with DNA testing; and,
that they did not apprehend Petaway the night of the incident, but
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approximately ten days later.
Detective Dwight Salyer testified that he discovered Petaway had
purchased a bus ticket to Indianapolis under an alias on January 12,
2008, where he was eventually apprehended.
James Smith, a forensic scientist at the Bureau of Criminal
Identification and Investigation, testified that he performed analysis
of evidence from the incident; that he examined the nine-millimeter
firearm; and, that, in his expert opinion, the three empty shell casings
or cartridge cases discovered at the scene were fired from the
recovered firearm.
Colby Harris testified that, on January 10, 2008, he was at a bar with
Mahe, Haley, and Petaway, and they discussed robbing Brown; that
Mahe is a tall, white man; that the men went to Brown's home where
he and Haley stood by the side of the house, and Mahe and Petaway
walked up to the door; that he heard screaming inside the house and
saw Brown run outside; that he saw a flash from a gun and he and
Haley ran away; that he heard five or six shots fired; and, that he did
not know who fired the gun, but it was either Petaway or Mahe.
Matthew Haley testified that, on January 10, 2008, he was at a bar
with Petaway, Harris, and Mahe; that the men decided to rob Brown;
that the men retrieved his nine-millimeter firearm; that Petaway took
the firearm and carried it all the way from his house to Brown's
house; that Mahe had a knife with him and carried an extra magazine
for the firearm; that he and Harris stayed on the side of the house in
the alley, and Petaway and Mahe went up to the house and “rushed”
in; that he heard yelling and saw Brown run outside; that Petaway ran
behind Brown, shooting at him; and, that he retrieved the firearm and
buried it the next morning.
Jason Mahe testified that he was involved in the incident; that he had
a knife and a firearm during the incident; that the men went to
Brown's house to rob him; that he and Petaway went up to the door;
that Mahe, Petaway, Haley, and Harris all rushed into the house; that
he held Brown in the corner with a knife; that Petaway was holding
and pointing a firearm inside the home; that he did not realize
children were in the house until he heard them screaming; that he
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demanded money from Brown; that he stole “money and dope” from
Brown's sock; that Brown told him the rest of the drugs were in his
vehicle and ran outside; that he and Petaway chased Brown and
Petaway fired about four shots at Brown; and, that he went to Sandy's
Outlaws and threw an extra clip for the nine-millimeter firearm under
a car.
Kyna Brown, Lyburtus' cousin, testified that she had previously dated
Petaway; that she saw Petaway the evening of the incident; and, that
he was breathless and told her that he hoped he had not hurt Brown.
Additionally, the parties stipulated that Petaway had been convicted
of drug possession in 2004, which prohibited him from possessing a
firearm under R.C. 2923.13(A)(3).
Thereafter the jury returned a verdict finding Petaway guilty of
aggravated burglary with a firearm specification; aggravated robbery
with a firearm specification; felonious assault with a firearm
specification; abduction with a firearm specification; and one count
of having a weapon while under disability.
In September 2008, the trial court sentenced Petaway to an eight-year
prison term on the aggravated burglary conviction with a mandatory
three-year prison term on the firearm specification; to a seven-year
prison term on the aggravated robbery conviction with the firearm
specification merging; to a six-year prison term on the felonious
assault conviction with the firearm specification merging; and, to a
one-year prison term on the weapons under disability conviction.
Additionally, the trial court merged the abduction conviction with the
aggravated robbery conviction. Finally, the trial court ordered that all
sentences be served consecutively to each other and to the three-year
firearm specification, for an aggregate twenty-five year prison term.
State v. Petaway, 2009WL73772, at *1-5 (Ohio App. 3rd Dist. March 23, 2009). Petitioner filed a
timely appeal, in which he raised the following assignments of error:
Assignment of Error No. I
THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO
THE DEFENDANT IN ALLOWING THE TESTIMONY OF
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CHILDREN 10 YEARS AND UNDER AT THE TRIAL WHERE
THEIR COMPETENCY IS SUSPECT IN THAT THE CHILDREN
DID NOT APPEAR CAPABLE OF RECEIVING JUST
IMPRESSIONS OF THE FACTS AND TRANSACTIONS
RESPECTING WHICH THEY ARE EXAMINED, OR OF
RELATING THEM TRULY IN VIOLATION OF RULE 601 AND
403 OF THE OHIO RULES OF EVIDENCE, THE FIFTH, SIXTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE
OHIO CONSTITUTION.
Assignment of Error No. II
THE DEFENDANT'S CONVICTION IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
See id. On March 23, 2009, the appellate court affirmed the trial court’s judgment. Id. Petitioner
never filed an appeal to the Ohio Supreme Court.
On June 19, 2009, Petitioner filed an application to reopen the appeal pursuant to Ohio
Appellate Rule 26(B). He asserted that he had been denied the effective assistance of appellate
counsel because that attorney failed to raise on appeal claims based on an alleged denial of
Petitioner’s right to a speed trial. Exhibit 10 to Return of Writ. On July 30, 2009, the appellate court
denied Petitioner’s Rule 26(B) application because his filing exceeded the ten page limitation under
Rule 26(B)(4) and because Petitioner failed to raise a genuine issue of ineffective assistance of
appellate counsel. Exhibit 11 to Return of Writ. On November 18, 2009, the Ohio Supreme Court
dismissed Petitioner’s subsequent appeal as not involving any substantial constitutional question.
Exhibit 14 to Return of Writ.
On June 10, 2010, Petitioner filed the pro se petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of the
Constitution of the United States based upon the following grounds:

8

1. Appellant[’s] const[itutional] right to due process was violated
when the trial courts failed to have appellant tried and convicted
within his 90 day statutory speedy trial limitation, and not stating
reasons by journal entry explaining to appellant why his jury trial was
scheduled outside his 90 day speedy trial limitation and took place
well outside his 90 day speedy trial limitation.
2. Appellant[‘s] const[itutional] right to a speedy trial was violated
when the trial courts failed to have appellant tried and convicted
within appellant[‘s] 90 day statutory speedy trial limitations, records
will reflect appellant never waived his const[itutional] speedy trial
rights.
3. Appellant was denied his const[itutional] right to effective
assistance of trial counsel when trial counsel failed to file a motion
to have the indictment dismissed on the grounds that the prosecution
failed to timely prosecute.
4. Appellate counsel failed to raise Petitioner’s const[itutional] right
to due process/speedy trial/ineffective assistance of trial counsel in
Petitioner[‘s] direct appeal.
It is the position of the Respondent that Petitioner’s claims are waived or without merit.
PROCEDURAL DEFAULT
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 fairly to present those claims
to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but
still has an avenue open to him by which he may present the claims, his petition is subject to
dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per
curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). If, because of a procedural default, the
petitioner can no longer present his claims to a state court, he has also waived them for purposes of
federal habeas review unless he can demonstrate cause for the procedural default and actual

9

prejudice resulting from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485
(1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a
federal habeas claim is precluded by the petitioner's failure to observe a state procedural rule.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). “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.” Id. Second, the Court must determine whether the state courts actually
enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural
forfeiture is an ‘adequate and independent’ state ground on which the state can rely to foreclose
review of a federal constitutional claim. Id. Finally, if the Court has determined that a state
procedural rule was not complied with and that the rule was an adequate and independent state
ground, then the petitioner must demonstrate that there was cause for him not to follow the
procedural rule and that he was actually prejudiced by the alleged constitutional error. Id.
In claims one, two and three, Petitioner asserts that he was denied his right to a speedy trial
and denied the effective assistance of trial counsel because his attorney failed to file a motion to
dismiss the indictment on speedy trial grounds. These claims, being readily apparent from the face
of the record, should have been raised on direct appeal, but were not. Further, Petitioner may now
no longer present these claims to the state courts under Ohio’s doctrine of res judicata. See State
v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio
St.2d 175 (1967). The state courts were never given an opportunity to enforce the procedural rule
at issue due to the nature of Petitioner's procedural default.
Further, the State of Ohio has a procedural rule that requires that claims be raised on direct

10

appeal, if possible, or they will be barred by the doctrine of res judicata. The Court finds that Ohio's
res judicata rule is adequate and independent under the third part of the Maupin test. To be
“independent,” the procedural rule at issue, as well as the state courts’ reliance thereon, must rely
in no part on federal law. See Coleman v. Thompson, 501 U.S. 722, 732-33 (1991). To be
“adequate,” the state procedural rule must be firmly established and regularly followed by the state
courts. Ford v. Georgia, 498 U.S. 411 (1991). “[O]nly a ‘firmly established and regularly followed
state practice’ may be interposed by a State to prevent subsequent review by this Court of a federal
constitutional claim.” Id. at 423 (quoting James v. Kentucky, 466 U.S. 341, 348-351 (1984)); see
also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v. Alabama ex rel. Flowers, 377
U.S. 288, 297 (1964); see also Jamison v. Collins, 100 F.Supp.2d 521, 561 (S.D. Ohio 1998).
The Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry
rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 754,
765 (6th Cir.2006); Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th Cir.2001); Seymour v. Walker,
224 F.3d 542, 555 (6th Cir.2000); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir.2000); Norris v.
Schotten, 146 F.3d 314, 332 (6th Cir.1998). Ohio courts have consistently refused, in reliance on
the doctrine of res judicata, to review the merits of claims because they are procedurally barred. See
State v. Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at 16. Additionally, the doctrine
of res judicata serves the state's interest in finality and in ensuring that claims are adjudicated at the
earliest possible opportunity. With respect to the independence prong, the Court concludes that res
judicata does not rely on or otherwise implicate federal law. Accordingly, this Court is satisfied
from its own review of relevant case law that the Perry rule is an adequate and independent ground
for denying relief. Petitioner has waived claims one through three for federal habeas corpus review.

11

Petitioner may still obtain review of the merits of these claims if he establishes cause for his
procedural default, as well as actual prejudice from the alleged constitutional violations. As cause
for his procedural default and in claim four of his habeas corpus petition, Petitioner asserts the
ineffective assistance of appellate counsel. This claim may constitute cause for Petitioner’s
procedural default, so long as the claim has been presented to the state courts and is not itself
procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray v.
Carrier, 477 U.S. at 488-89.
The state appellate court rejected Petitioner’s claim of ineffective assistance of trial counsel
in relevant part as follows:
Upon consideration the court finds that the application fails to
comply with App.R. 26(B)(4), stating that an application shall not
exceed ten (10) pages in length.
The court further finds that, in addition to the procedural defect, the
two assignments of error raised in the application do not give rise to
a “genuine issue” as to whether Appellant was deprived of the
effective assistance of appellate counsel under the two-prong analysis
of Strickland v. Washington (1984), 466 U.S. 669. . . . For these
reasons, the application for reopening is not well-taken.
Exhibit 14 to Return of Writ.
Respondent contends that, in view of the state appellate court’s rejection of Petitioner’s Rule
26(B) application for failing to comply with the ten day page limitation, Petitioner has thereby
waived his claim of ineffective assistance of appellate counsel; the alleged ineffective assistance of
appellate counsel cannot, therefore, constitute cause for Petitioner’s procedural default of claims one
through three. See Return of Writ. In response, Petitioner argues that he had less than sixty days
to file his Rule 26(B) application and, that during that time, he was unable to obtain access to the

12

prison’s law library.1 See Traverse. The Court need not consider this issue because, as also noted
by Respondent, Petitioner’s claim that he was denied his right to a speedy trial is plainly without
merit; his trial and appellate counsel were therefore not ineffective for failing to assert that claim.
It follows that his claims of ineffective assistance of counsel fail the two-prong Strickland test.
The right to counsel guaranteed by the Sixth Amendment is the right to the effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The standard for
reviewing a claim of ineffective assistance of counsel is twofold:
First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. at 687; see also Blackburn v. Foltz, 828 F.2d 1177 (6th
Cir.1987). “Because of the difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689.
To establish prejudice, it must be shown that there is a reasonable probability that, but for
counsel's errors, the result of the proceedings would have been different. Id., at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id., at 697. Because

1

Petaway’s pro se status and claimed ignorance of the law and procedural requirements
for filing a Rule 26(B) application, and alleged limited access to the prison’s law library, are
insufficient grounds to establish cause for his procedural default. See Bonilla v. Hurley, 370
F.3d 494, 498 (6th Cir. 2004).
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petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of
counsel, if the Court determines that petitioner has failed to satisfy one prong, it need not consider
the other. Id., at 697.
The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776 (1987).
Counsel must provide reasonable professional judgment in presenting the appeal. Evitts v. Lucey,
469 U.S. 387, 396-97 (1985). “ ‘[W]innowing out weaker arguments on appeal and focusing on’
those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective
appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S.
745, 751-52 (1983)). Of course, not every decision made by appellate counsel can be insulated from
review merely by categorizing it as strategic. The United States Court of Appeals for the Sixth
Circuit has identified the following considerations that ought to be taken into account in determining
whether counsel on direct appeal performed reasonably competently:
A. Were the omitted issues “significant and obvious?”
B. Was there arguably contrary authority on the omitted issues?
C. Were the omitted issues clearly stronger than those presented?
D. Were the omitted issues objected to at trial?
E. Were the trial court's rulings subject to deference on appeal?
F. Did appellate counsel testify in a collateral proceeding as to his
appeal strategy and, if so, were the justifications reasonable?
G. What was appellate counsel's level of experience and expertise?
H. Did the petitioner and appellate counsel meet and go over possible
issues?
I. Is there evidence that counsel reviewed all the facts?
J. Were the omitted issues dealt with in other assignments of error?
K. Was the decision to omit an issue an unreasonable one which only
an incompetent attorney would adopt?
Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir.1999).
Under O.R.C. § 2945.71, a person charged with a felony who is being held in custody must
be brought to trial within ninety days of his arrest:
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(C) A person against whom a charge of felony is pending:
(2) Shall be brought to trial within two hundred seventy days after his
arrest.
***
(E) For purposes of computing time under division[] (C)(2) . . . of
this section, each day during which the accused is held in jail in lieu
of bail on the pending charge shall be counted as three days. . . . .
Certain periods, however, are excluded from this time computation:
The time within which an accused must be brought to trial, or, in the
case of felony, to preliminary hearing and trial, may be extended only
by the following:
(A) Any period during which the accused is unavailable for hearing
or trial, by reason of other criminal proceedings against him, within
or outside the state, by reason of his confinement in another state, or
by reason of the pendency of extradition proceedings, provided that
the prosecution exercises reasonable diligence to secure his availability;
(B) Any period during which the accused is mentally incompetent to
stand trial or during which his mental competence to stand trial is
being determined, or any period during which the accused is
physically incapable of standing trial;
(C) Any period of delay necessitated by the accused's lack of counsel,
provided that such delay is not occasioned by any lack of diligence
in providing counsel to an indigent accused upon his request as
required by law;
(D) Any period of delay occasioned by the neglect or improper act of
the accused;
(E) Any period of delay necessitated by reason of a plea in bar or
abatement, motion, proceeding, or action made or instituted by the accused;
(F) Any period of delay necessitated by a removal or change of venue
pursuant to law;
(G) Any period during which trial is stayed pursuant to an express
statutory requirement, or pursuant to an order of another court
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competent to issue such order;
(H) The period of any continuance granted on the accused's own
motion, and the period of any reasonable continuance granted other
than upon the accused's own motion;
(I) Any period during which an appeal filed pursuant to section
2945.67 of the Revised Code is pending.
O.R.C. § 2945.72.
Petitioner was arrested on January 16, 2008. Exhibit 10 to Return of Writ, p.8. His
arraignment was continued from January 29, 2008, to January 31, 2008, at Petitioner’s own request.
Exhibit 18 to Return of Writ. On March 11, 2008, Petitioner’s attorney filed a motion to withdraw
citing a conflict of interest. Exhibit 20 to Return of Writ. The trial court held a hearing on that
motion and, on March 14, 2008, appointed the public defender to represent Petitioner. Based on
Petitioner’s own motion, the trial court continued the scheduling conference from March 17, 2008,
to March 24, 2008. Exhibit 21 to Return of Writ. On that date, and in Petitioner’s presence via
speaker phone, the trial date was scheduled for July 1-3, 2008, based on the schedules of the trial
court and defense counsel. Transcript, March 24, 2008. On July 1, 2008, Petitioner requested a
continuance of the trial date to August 18-20, 2008. Exhibit 22 to Return of Writ.
Construing this record in the light most favorable to Petitioner, and assuming that his speedy
trial clock ran from January 17, 2008 (the day after his arrest) until March 24, 2008 (the date of the
scheduling conference) – or for a period of 67 days – the record still fails to document that
Petitioner was denied his right to a speedy trial under Ohio law. The July 1, 2008 trial date set at
the March 24, 2008 scheduling conference extended beyond the expiration of the ninety day period,
but that date was set with the agreement of defense counsel, taking into consideration the schedules
of Petitioner’s attorneys and the trial court. See Transcript, March 24, 2008. This period of time
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is therefore excluded from the speedy trial clock. See O.R.C. § 2945.72(H); State v. McRae, 55
Ohio St.2d 149, 152 (1978)(citing State v. Davis, 46 Ohio St.2d 444 (1976))(trial court has
discretion to extend time limits of O.R.C. § 2945.71 where counsel for the accused voluntarily
agrees to trial date beyond statutory time limits). Petitioner’s arguments that the State nonetheless
violated his right to a speedy trial because he did not execute a written waiver of his right to a
speedy trial, or because the trial court failed to journalize its reasons for the continuance, are not
persuasive in view of Ohio law. See id. Similarly, Petitioner’s attorney again requested a
continuance of the trial date from July 1, 2008, to August 18-20, 2008. Exhibit 22 to Return of Writ.
This period of time likewise does not count against the State. O.R.C. § 2945.72(H).
Moreover, the record also fails to reflect that Petitioner’s right to a speedy trial under the
Sixth Amendment was violated. In considering whether a defendant's Sixth Amendment right to a
speedy trial has been violated, a court must conduct a balancing test weighing the following four
factors: 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. Doggett v. United States, 505 U.S. 647, 651 (1992); Barker
v. Wingo 407 U.S. 514, 530 (1972). The length of the delay for speedy trial purposes is measured
from either the date of the indictment or the date of the arrest, whichever is earlier. Cain v. Smith,
686 F.2d 374, 381 (6th Cir.1982). The delay must be presumptively prejudicial before a court is
required to inquire into the other factors of the balancing test. Barker, 407 U.S. at 530. Whether the
delay is presumptively prejudicial is determined by the nature and complexity of the crime. Redd
v. Sowders, 809 F.2d 1266, 1269 (6th Cir.1987). The more serious the crime, the shorter the
toleration of delay. Id.
Here, approximately seven months elapsed between the date of Petitioner’s arrest (January

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16, 2008), and his trial date (August 18, 2008). This time period was not presumptively prejudicial
so as to require further inquiry into the remaining factors under Barker. See Doggett v. United
States, 505 U.S. at 652, n.1 (noting that most courts have found presumptively prejudicial delay as
the delay approaches one year); see also United States v. Jackson, 473 F.3d 660, 665 (6th Cir.
2007)(citations omitted). In any event, consideration of the remaining factors under Barker, i.e.,
reasons for the delay (schedules of defense counsel, preparation for trial), Petitioner’s apparent
consent to the delay and failure to assert his right to speedy trial, in combination with the absence
of any indication of prejudice – persuades this Court that Petitioner was not denied his federal
constitutional right to a speedy trial.
Thus, Petitioner’s appellate counsel was not ineffective under Strickland for failing to raise
a claim based on the denial of a speedy trial. Petitioner’s claim four is therefore without merit.
Moreover, it follows that Petitioner has failed to establish cause for his procedural default of claims
one through three..
WHEREUPON, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen (14)
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

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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.

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge

September 21, 2011

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