Harris v. Warden, Pickaway Correctional Institution

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATIONS Petitioners objections, Doc. No. 22, are OVERRULED. This action is hereby DISMISSED. The Clerk is DIRECTED to enter FINAL JUDGMENT. Petitioenrs request for a certificate of appealabilty is GRANTED. Petitioners request to proceed on appeal in forma pauperis is DENIED without prejudice. Signed by Judge Algenon L. Marbley on 2/23/2012. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL L. HARRIS,
Petitioner,

CASE NO. 2:11-CV-376
JUDGE MARBLEY
MAGISTRATE JUDGE KING

v.
WARDEN, PICKAWAY
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On February 2, 2012, the United States Magistrate Judge recommended that the petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. Report and Recommendation,
Doc. No. 21. Petitioner has filed objections to that recommendation. Objection, Doc. No. 22.
Having considered the matter de novo, see 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b), Petitioner’s
objections are OVERRULED.
As his single ground for federal habeas corpus relief, Petitioner asserts that he was denied
a fair trial and was convicted in violation of his right to a speedy trial due to excessive preindictment delay. In objecting to the recommendation that the action be dismissed. Petitioner raises
all of the same arguments that he previously presented. Specifically, Petitioner asserts that the state
court’s decision rejecting his claim contravened or unreasonably applied United States v. Lovasco,
431 U.S. 783, 790 (1977), and was based on an unreasonable determination of the facts in light of
the evidence presented. See 28 U.S.C. 2254(d), (e). Petitioner complains that the government had
no valid justification for the twenty-one year delay in bringing charges against him. Moreover,
Petitioner contends that requiring him to show that the government sought a tactical advantage by
delaying the filing of charges in order to establish a due process violation creates an unfair and

“insurmountable burden” on the criminal defendant. Objection, at 4. Petitioner suggests the Court
should take into account his difficulty in establishing prejudice due to the length of the government’s
delay. Petitioner additionally argues that he has, in any event, established such substantial prejudice,
as witnesses and evidence that would have supported his defense were no longer available at the
time of trial.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons
detailed in the Magistrate Judge’s Report and Recommendation, this Court is not persuaded that the
record warrants habeas corpus relief. See Harrington v. Richter, – U.S. –, –, 131 S.Ct. 770, 786
(2011). Petitioner has failed to meet his burden of establishing that the state appellate court’s factual
findings were unreasonable. Moreover, Lovasco requires dismissal of charges based on preindictment delay only where the defendant establishes that he was substantially prejudiced by the
delay and that the delay evidenced an intentional effort on the part of the government to gain a
tactical advantage. United States v. Brown, 959 F.2d 63, 66 (6th Cir. 1992)(citations omitted). In
view of the record, this Court is unable to conclude that Petitioner has met this standard here.
Petitioner’s objections, therefore, are OVERRULED.
WHEREUPON Petitioner’s objections, Doc. No. 22, are OVERRULED. The Report and
Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
The Clerk is DIRECTED to enter FINAL JUDGMENT.
Petitioner also seeks a certificate of appealability. Where a claim is dismissed on the merits,
a certificate of appealability may issue only if the petitioner "has made a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is a codification of Barefoot
v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529 U.S. 473, 489 (2000). To make a

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substantial showing of the denial of a constitutional right, a petitioner must show
that reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or
that the issues presented were "‘adequate to deserve encouragement
to proceed further.'" Barefoot, 463 U.S., at 893, and n.4 . . . .
Id.
This Court is persuaded that Petitioner has made such a showing here. Therefore,
Petitioenr’s request for a certificate of appealabilty is GRANTED. The Court certifies the following
issue for appeal:
Was Petitioner denied his right to a speedy trial due to excessive preindictment delay?

Petitioner’s request to proceed on appeal in forma pauperis is DENIED without prejudice
to renewal upon submission of his financial affidavit indicating his inability to pay the filing fee
required for the appeal. See Fed. R. App. P. 24(a)(1).

s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge

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