Scott v. Warden Pickaway Correctional Institution

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS, OVERRULING Petitioner's Objection, GRANTING Respondent's Motion to Dismiss. This case is DISMISSED as procedurally defaulted. The Clerk is directed to enter Final Judgment. Signed by Judge Algenon L. Marbley on 2/4/2014. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

DELBERT W. SCOTT,
Petitioner,
CASE NO. 2:13-CV-0362
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE KING

v.

WARDEN, PICKAWAY
CORRECTIONAL INSTITUTION,
Respondent.
ORDER
On January 3, 2014, the Magistrate Judge recommended that
Respondent’s Motion to Dismiss, Doc. No. 7, be granted and this case
be dismissed on the basis of procedural default. Report and
Recommendation, Doc. No. 9. Petitioner has filed objections to that
recommendation. Objection, Doc. No 11.
matter de novo.

See 28 U.S.C. § 636(b);

The Court will consider the
Fed. R. Civ. P. 72(b).

This habeas action presents claims of, inter alia, the denial of
Petitioner’s right to a speedy trial and the denial of effective
assistance of trial and appellate counsel because Petitioner’s
attorneys failed to raise this issue. As noted, Respondent moved to
dismiss the action on the basis of procedural default and the
Magistrate Judge recommended dismissal of the action on that basis.
In his objections, Petitioner points to the ineffective assistance of
his trial and appellate counsel as cause for his procedural default.
Petitioner has attached to his objections certain documents, including
copies of letters from his appellate attorney stating the reasons for
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not raising a speedy trial issue on direct appeal and advising
Petitioner of the procedure for filing an application to reopen the
appeal under Ohio Appellate Rule 26(B).

See Exhibits to Objection.

Petitioner in fact pursued Rule 26(B) proceedings, in which he
claims that he had been denied the effective assistance of trial and
appellate counsel because his attorneys failed to raise the issue of
speedy trial.

However, Petitioner referred to that speedy trial claim

only as a matter of state law.

See Exhibit 25 to Motion to Dismiss.

He did not claim that his attorneys performed in a constitutionally
ineffective manner by failing to raise a speedy trial issue under the
United States Constitution.

Thus, to the extent that Petitioner

asserts in these proceedings that he was denied the right to a speedy
trial under the United States Constitution, or that he was denied the
effective assistance of trial counsel because his attorneys failed to
raise the claim as one of federal constitutional magnitude, Petitioner
cannot now rely on the performance of his counsel as cause for his
procedural default of his federal claims.

See Edwards v. Carpenter,

529 U.S. 446, 451-52 (2000)(a claim of ineffective assistance of
counsel cannot serve as cause for the default of another claim if the
ineffective assistance of counsel has not been properly presented to
the state courts).
It is true that Petitioner pursued a claim of denial of the
effective assistance of trial and appellate counsel because his
attorneys failed to raise a speedy trial claim based on state
statutes. This claim of ineffective assistance of counse is without
merit, however, and therefore cannot serve to establish cause for
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Petitioner’s procedural default.

The state appellate court expressly

concluded that there had been no violation of Ohio’s speedy trial
statutes and that Petitioner’s counsel were therefore not ineffective
for failing to raise that speedy trial claim.

See Exhibit 25 to

Motion to Dismiss. This Court must defer to that state court ruling on
a matter of state law.

A federal court must accept a state court’s

interpretation of its own statutes and rules of practice.

Israfil v.

Russell, 276 F.3d 768, 771 (6th Cir. 2001)(citing Engle v. Isaac, 456
U.S. 107-128-29 (1982)).does not function as an additional state
appellate court reviewing state courts’ decisions on state law or
procedure.

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)(“It is not

the province of a federal habeas court to reexamine state-court
determinations on state-law questions.”). Thus, Petitioner’s trial and
appellate attorneys did not perform in a constitutionally ineffective
manner, under the standard set forth in Strickland v. Washington, 466
U.S. 668 (1984), by failing to raise a claim based on Ohio’s speedy
trial statutes.

It follows, then, that Petitioner cannot establish

cause and prejudice for his procedural default of the issue regarding
the alleged denial of his right to a speedy trial.

For these reasons and for the reasons detailed in the Magistrate
Judge’s Report and Recommendation, Petitioner’s Objection, Doc. No.
11, is OVERRULED.

The Report and Recommendation, Doc. No. 9, is

ADOPTED and AFFIRMED.

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Respondent’s Motion to Dismiss, Doc. No. 7, is GRANTED.

This

case is hereby DISMISSED as procedurally defaulted.
The Clerk is DIRECTED to enter FINAL JUDGMENT.

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

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