Dennison v. Warden, Ross Correctional Institution
Filing
14
REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus. The Court recommends that the petition be DENIED and that this case be DISMISSED. Objections to R&R due by 10/17/2016. Signed by Magistrate Judge Terence P. Kemp on 9/29/2016. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ARTHUR DENNISON,
Petitioner,
v.
CASE NO. 2:15-cv-1344
WARDEN, ROSS
CORRECTIONAL INSTITUTION,
JUDGE GEORGE C. SMITH
Magistrate Judge Kemp
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, filed this action seeking a writ of habeas corpus pursuant
to 28 U.S.C. §2254. This matter is before the Court on the Respondent’s Answer/Return
of Writ (Doc. 8) and the Petitioner’s Reply and Amended Reply (Docs. 11 and 12). For
the reasons that follow, it will recommended that the Court deny the petition and dismiss
this action.
I. Procedural Background
In an indictment filed on December 8, 2009, the Franklin County, Ohio grand jury
charged Petitioner with a total of eleven felony counts, all arising out of a home invasion
robbery that took place in Columbus on March 15, 2009. As one might imagine, the charges
included burglary, robbery, kidnaping, and weapons offenses. He was also charged with
rape.
Petitioner pleaded not guilty. After a substantial delay, the case was tried to a jury
beginning on June 11, 2012. The jury returned a verdict of guilty on nine counts; Petitioner
was acquitted of the rape charge, and the trial judge found him guilty of possessing a
weapon while under a disability. In an entry filed on July 26, 2012, the trial court sentenced
Petitioner to 74 years of imprisonment. Return, Ex. 13.
Petitioner timely appealed, and the State of Ohio cross-appealed, raising an issue
about merging counts for purposes of sentencing as well as an issue about the sentence on
the firearm specifications. Petitioner raised six assignments of error, involving (1) a speedy
trial claim, (2) a due process claim based on alleged hostility of the trial judge toward
defense counsel, (3) the reliability of the victims’ identification of Petitioner as one of the
perpetrators, (4) a Confrontation Clause issue, (5) a claim of prosecutorial misconduct, and
(6) an evidentiary issue concerning admission of recordings made of certain phone calls
placed by Petitioner while he was in jail awaiting trial. See Ex. 17.
The State fared better on appeal than Petitioner did. The Tenth District Court of
Appeals overruled all of Petitioner’s assignments of error but sustained both of the State’s,
remanding the case for resentencing. State v. Dennison, 2013 WL 6700392 (Franklin Co.
App. Dec. 17, 2013). Petitioner appealed this decision to the Ohio Supreme Court. In his
memorandum in support of jurisdiction (Return, Ex. 22), he presented these five issues:
Proposition of Law No. I: The doctrine of invited error applies to a
sentencing error the state induced the trial court to make, even if the sentence
is otherwise required by statute.
Proposition of Law No. II: If a declarant knew his or her statements in a
phone call from jail were being recorded, this is a significant factor the court
must consider in determining whether the statements are testimonial, under
the Confrontation Clause of the Sixth Amendment of the United Sates
Constitution and the Ohio Constitution’s right of confrontation embodied by
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Article 1, Section 10.
Proposition of Law No. III: Pursuant to the speedy trial provisions of R.C.
2945.71 and 2945.72, and the Sixth Amendment of the United Sates
Constitution and Ohio Constitution, a continuance by counsel does not
operate as a speedy-trial waiver if counsel was unreasonably unprepared
and the continuance was over his client’s objection.
Proposition of Law No. IV: Under the speedy trial provision of the Sixth
Amendment of the United States Constitution, delay calculated to gain an
advantage over the accused is weighted heavily against the state.
Proposition of Law No. V: Under the speedy trial provision of the Sixth
Amendment of the United States Constitution, delay caused by a calloused
indifference of the court in bringing the accused to a speedy trial is weighed
heavily against the state.
On April 23, 2014, the Ohio Supreme Court declined to accept the appeal. State v. Dennison,
138 Ohio St.3d 1469 (Apr. 23, 2014).
After remand, Petitioner was again sentenced to 74 years in prison. He again
appealed, this time raising only three issues, all related to sentencing: (1) that the sentence
penalized Petitioner for going to trial, (2) that consecutive sentences were improperly
imposed on convictions for allied offenses of similar import, and (3) that the court violated
Ohio law when it imposed consecutive sentences without making certain required findings.
Return, Ex. 27. This time, the court of appeals found merit in one of the issues raised on
appeal and remanded the case again for a sentencing procedure which complied with R.C.
§2929.14(C)(4). State v. Dennison, 2015 WL 1373197 (Franklin Co. App. March 26, 2015). His
success on appeal did not materially help Petitioner; the trial court, for the third time,
sentenced him to 74 years in prison. Return, Ex. 31. That prompted a third appeal, which
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was still pending at the time the return was filed. According to the website of the Franklin
County Court of Common Pleas, the last event in that appeal was the filing of the transcript
on July 29, 2015. It does not appear that Petitioner’s counsel has filed a brief on appeal, and
there is nothing indicating what issues he intends to raise in that appeal, although the
Court assumes that they would relate only to alleged errors committed as part of the
resentencing.
In his federal habeas corpus petition, Petitioner raises four grounds for relief. The
first, which parallels the speedy trial claim raised in state court, reads as follows:
GROUND ONE: The petitioner was denied his statutory right to a speedy
trial, and speedy trial right under the Sixth Amendment of the U.S.
Constitution and Ohio Constitution, and Ohio Revised Code 2945.71, 2945.73
also due process right under the 14th Amendment of the U.S. Constitution.
The second and third grounds for relief raise issues about the jury instructions on
accomplice testimony and about the admission of allegedly perjured testimony. Ground
Four asserts a claim of cumulative error. Respondent contends that only ground one was
preserved for habeas corpus review, and Petitioner’s reply argues only the speedy trial
claim.
II. The Facts
Because, as discussed below, the only issue preserved for review on its merits is the
speedy trial claim, the Court will focus its attention on the facts relating to that claim. Here
is how they are set out in the state court of appeals opinion:
After his indictment, appellant's appointed counsel requested
continuances on multiple occasions. Appellant, however, did not agree with
all of counsel's continuance requests, and their relationship deteriorated.
Appellant himself signed only two speedy-trial waivers. Ultimately, in
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November 2010, appellant's first trial counsel was replaced by a new
attorney, who sought additional time to become familiar with the case.
Thereafter, the trial was continued multiple times at the request of
appellant's second appointed counsel.
Some of defense counsel's continuance requests were based on the
fact that appellant had engaged in telephone conversations while in jail that
had been recorded and which the state considered introducing as evidence
at trial. The state produced the tapes for defense counsel, who then sought
additional time to listen to them.
Trial commenced on June 11, 2012, approximately two and one-half
years after the indictment.
State v. Dennison, supra, at *1-2. Additional facts relating to the speedy trial claim are set
forth in the Court’s discussion of the state courts’ ruling on that claim.
III. Procedural Default
Respondent asserts that grounds two and three contained in the petition were never
presented to the state courts for review. Petitioner states in his petition that ground two
was raised on direct appeal, but this Court, like Respondent, cannot find any mention of
that claim in the appellate briefs or the court of appeals’ opinion, and it was not included
in the issues which he presented to the Ohio Supreme Court. Petitioner does not identify
where ground three was raised.
He did present a claim of improper eyewitness
identification to the state courts, but the claim in his habeas petition is that the trial court
and the prosecutors were aware that one of the victims had shown photographs of
Petitioner to other victims prior to the time that one of them (identified in the state court
as S.D.) selected his picture from a photo array and did nothing to correct allegedly false
testimony given on that subject. That is not how the issue was argued in the state courts,
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however. The question then becomes whether these two claims were procedurally
defaulted because Petitioner did not give the state courts a full and fair opportunity to
correct any errors which might have occurred during the trial.
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a
writ of habeas corpus. 28 U.S.C. §2254(a). 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 to present those claims to the state courts 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 his claims, then his petition is subject to dismissal for failure
to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6, 103 (1982 (per curiam) (citing
Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a petitioner has failed to exhaust his
claims but would find those claims barred if later presented to the state courts, “there is a
procedural default for purposes of federal habeas....” Coleman v. Thompson, 501 U.S. 722,
735 n. 1 (1991).
The term “procedural default” has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular claim
to the highest court of the State so that the State has a fair chance to correct any errors made
in the course of the trial or the appeal before a federal court intervenes in the state criminal
process. This “requires the petitioner to present ‘the same claim under the same theory’
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to the state courts before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538,
552–53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the
aspects of “fairly presenting” a claim to the state courts is that a habeas petitioner must do
so in a way that gives the state courts a fair opportunity to rule on the federal law claims
being asserted. That means that if the claims are not presented to the state courts in the way
in which state law requires, and the state courts therefore do not decide the claims on their
merits, neither may a federal court do so. In the words used by the Supreme Court in
Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions of federal law which were not
resolved on the merits in the state proceeding due to respondent's failure to raise them
there as required by state procedure” also cannot be resolved on their merits in a federal
habeas case-that is, they are “procedurally defaulted.”
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues
that a federal habeas claim is waived 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 upon 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
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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. This “cause and prejudice”
analysis applies to failures to raise or preserve issues for review at the appellate level.
Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
Turning to the fourth part of the Maupin analysis, in order to establish cause,
petitioner must 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, 488
(1986). Constitutionally ineffective counsel may constitute cause to excuse a procedural
default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an
ineffective assistance of counsel claim generally must “ ‘be presented to the state courts as
an independent claim before it may be used to establish cause for a procedural default.’ ”
Edwards, 529 U.S. at 452 (quoting Murray v. Carrier, 477 U.S. 478, 479 (1986)). That is
because, before counsel's ineffectiveness will constitute cause, “that ineffectiveness must
itself amount to a violation of the Sixth Amendment, and therefore must be both exhausted
and not procedurally defaulted.” Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir. 2005).
Or, if procedurally defaulted, petitioner must be able to “satisfy the ‘cause and prejudice’
standard with respect to the ineffective-assistance claim itself.” Edwards v. Carpenter, 529
U.S. 446, 450–51 (2000). The Supreme Court explained the importance of this requirement:
We recognized the inseparability of the exhaustion rule and the
procedural-default doctrine in Coleman: “In the absence of the
independent and adequate state ground doctrine in federal
habeas, habeas petitioners would be able to avoid the
exhaustion requirement by defaulting their federal claims in
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state court. The independent and adequate state ground
doctrine ensures that the States' interest in correcting their own
mistakes is respected in all federal habeas cases.” 501 U.S., at
732, 111 S.Ct. 2546, 115 L.Ed.2d 640. We again considered the
interplay between exhaustion and procedural default last Term
in O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144
L.Ed.2d 1 (1999), concluding that the latter doctrine was
necessary to “ ‘protect the integrity’ of the federal exhaustion
rule.” Id., at 848, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1
(quoting id., at 853, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1
(STEVENS, J., dissenting)). The purposes of the exhaustion
requirement, we said, would be utterly defeated if the prisoner
were able to obtain federal habeas review simply by “ ‘letting
the time run’ ” so that state remedies were no longer available.
Id., at 848, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1. Those
purposes would be no less frustrated were we to allow federal
review to a prisoner who had presented his claim to the state
court, but in such a manner that the state court could not,
consistent with its own procedural rules, have entertained it.
In such circumstances, though the prisoner would have
“concededly exhausted his state remedies,” it could hardly be
said that, as comity and federalism require, the State had been
given a “fair ‘opportunity to pass upon [his claims].’ ” Id., at
854, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J.,
dissenting) (emphasis added) (quoting Darr v. Burford, 339 U.S.
200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)).
Edwards, 529 U.S. at 452–53.
If, after considering all four factors of the Maupin test, the court concludes that a
procedural default occurred, it must not consider the procedurally defaulted claim on the
merits unless “review is needed to prevent a fundamental miscarriage of justice, such as
when the petitioner submits new evidence showing that a constitutional violation has
probably resulted in a conviction of one who is actually innocent.” Hodges v. Colson, 727
F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)).
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Here, Petitioner did not present his jury instruction claim to any state court, nor does
it appear that, at trial, his counsel raised this objection. There was a brief discussion of
other issues about jury instructions (see Return, Doc. 8-12), but nothing about accomplice
testimony. The failure to make a contemporaneous objection to a jury instruction at trial
waives any claim of error (other than plain error) on appeal, and the failure to raise an issue
on appeal, either at the court of appeals or supreme court level, is an additional waiver of
such a claim. See, e.g., Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000) (noting that
certain grounds for relief relating to jury instructions were “defaulted, because [the
petitioner] did not raise them before the Ohio Court of Appeals, or because the court of
appeals reviewed them only for plain error due to [the petitioner]'s failure to comply with
Ohio's contemporaneous objection rule”). Petitioner has not argued that these procedural
defaults can be excused by any explanation that would be sufficient under Murray v.
Carrier. Ground two is therefore clearly defaulted.
As to ground three, as noted above, a claim must have been presented to the state
courts in the same way that it is asserted in federal habeas corpus in order for the claim to
be addressed here. There is some relationship between the eyewitness identification claim
presented to the Tenth District Court of Appeals and the one presented in Petitioner’s
federal habeas filing - both relate to the in-court identification of Petitioner by one of the
victims - but they are not the same claim. In the state court, Petitioner argued that the incourt identification by S.D. was tainted by her having previously viewed photos of
Petitioner shown to her by another victim of the home invasion (a victim who knew
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Petitioner beforehand and was convinced he was one of the three perpetrators). Here, he
makes a claim about perjured testimony. The constitutional analysis of each claim is
different. Even if the Court were to consider them as sufficiently related so as to avoid
procedural default at the court of appeals level, however, Petitioner did not appeal the
court of appeals’ ruling on the eyewitness identification issue to the Ohio Supreme Court.
That is a separate procedural default, see e.g., Lewis v. Randle, 36 Fed.Appx. 817, 818 (6th
Cir. Apr. 30, 2002) (“[Petitioner] appealed the denial of his motion for a new trial to the
Ohio Court of Appeals but not to the Ohio Supreme Court. Accordingly, he is foreclosed
from presenting his claim in federal court ...”). Again, Petitioner has presented nothing
which would excuse the procedural default, nor has he made a showing of actual
innocence. Under these circumstances, the Court agrees with Respondent that grounds
two and three were procedurally defaulted.
IV. Ground One
Respondent concedes that Petitioner properly preserved his federal constitutional
speedy trial claim for review, and the Court agrees. Consequently, the question is whether
the state courts’ determination of that claim was contrary to, or represented an
unreasonable application of, federal law as determined by the United States Supreme
Court. This standard of review is further explained below.
A. Standard of Review
Petitioner seeks habeas relief under 28 U.S.C. §2254. The Antiterrorism and Effective
Death Penalty Act (“AEDPA”) sets forth standards governing this Court's review of
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state-court determinations. The United State Supreme Court recently described AEDPA as
“a formidable barrier to federal habeas relief for prisoners whose claims have been
adjudicated in state court” and emphasized that courts must not “lightly conclude that a
State's criminal justice system has experienced the ‘extreme malfunction’ for which federal
habeas relief is the remedy.” Burt v. Titlow, ––– U.S. ––––, ––––, 134 S.Ct. 10, 16 (2013)
(quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)); see also Renico v. Lett, 559 U.S. 766,
773 (2010) (“AEDPA... imposes a highly deferential standard for evaluating state-court
rulings, and demands that state-court decisions be given the benefit of the doubt.”)
(internal quotation marks, citations, and footnote omitted). The factual findings of the state
appellate court are presumed to be correct:
In a proceeding instituted by 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. The
applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.
28 U.S.C. §2254(e)(1).
Habeas corpus should be denied unless the state court decision was contrary to, or
involved an unreasonable application of, clearly established federal law as determined by
the Supreme Court, or based on an unreasonable determination of the facts in light of the
evidence presented to the state courts. 28 U.S.C. §2254(d)(1); Coley v. Bagley, 706 F.3d 741,
748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); see also 28 U.S.C.
§2254(d)(2) (a petitioner must show that the state court relied on an “unreasonable
determination of the facts in light of the evidence presented in the State court proceeding”).
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The United States Court of Appeals for the Sixth Circuit explained these standards as
follows:
A state court's decision is “contrary to” Supreme Court precedent if
(1) “the state court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law[,]” or (2) “the state court confronts facts
that are materially indistinguishable from a relevant Supreme Court
precedent and arrives” at a different result. Williams v. Taylor, 529 U.S. 362,
405 (2000). A state court's decision is an “unreasonable application” under 28
U.S.C. § 2254(d)(1) if it “identifies the correct governing legal rule from [the
Supreme] Court's cases but unreasonably applies it to the facts of the
particular ...case” or either unreasonably extends or unreasonably refuses to
extend a legal principle from Supreme Court precedent to a new context. Id.
at 407....
Coley, supra, at 748-49. The burden of satisfying the standards set forth in § 2254 rests
with the petitioner. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
“In order for a federal court to find a state court's application of [Supreme Court
precedent] unreasonable,...[t]he state court's application must have been objectively
unreasonable,” not merely “incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520– 21,
(2003) (internal quotation marks omitted) (citing Williams v. Taylor, 529. U.S. at 409 and
Lockyer v. Andrade, 538 U.S. 63, 76 (2003)). See also Harrington v. Richter, 131 S.Ct. at 786 (“A
state court's determination that a claim lacks merit precludes federal habeas relief so long
as ‘fairminded jurists could disagree’ on the correctness of the state court's decision.”)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In considering a claim of
“unreasonable application” under § 2254(d)(1), courts must focus on the reasonableness
of the result, not on the reasonableness of the state court's analysis. “ ‘[O]ur focus on the
‘unreasonable application’ test under Section 2254(d) should be on the ultimate legal
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conclusion that the state court reached and not whether the state court considered and
discussed every angle of the evidence.' ” Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009)
(quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc)). See also Nicely v. Mills,
521 Fed.Appx. 398, 403 (6th Cir. 2013) (considering evidence in the state court record that
was “not expressly considered by the state court in its opinion” to evaluate the
reasonableness of state court's decision). Moreover, in evaluating the reasonableness of a
state court's ultimate legal conclusion under § 2254(d)(1), a federal habeas court must
review the state court's decision based solely on the record that was before the state court
at the time that it rendered its decision. Put simply, “review under § 2254(d)(1) focuses on
what a state court knew and did.” Pinholster, supra at 1398.
B. Discussion
Because the AEDPA standard of review involves a close consideration of the state
court decision, the Court begins its discussion there. The court of appeals, after rejecting
Petitioner’s state-law speedy trial claim (a claim which, because it does not involve issues
of federal law, is not subject to review in a federal habeas corpus action), turned its
attention to his federal constitutional claim. In rejecting that claim as well, the state court
provided this rationale, see State v. Dennison, supra, at *7-9:
Appellant further argues in his first assignment of error that he was
denied his constitutional right to a speedy trial as guaranteed by the Sixth
and Fourteenth Amendments to the U.S. Constitution and Ohio Constitution,
Article I, Section 10. Brime at ¶ 11. In determining whether those rights have
been violated, we first consider whether the length of the delay was
presumptively prejudicial. State v. Mohamed, 10th Dist. No 08AP–960,
2009–Ohio–6658, ¶ 22–23. If it was, we then consider and balance the four
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factors identified in Barker v. Wingo, 407 U.S. 514, 530 (1972), i.e., length of
delay, the reason for the delay, the defendant's assertion of his right, and
prejudice to the defendant. Brime at ¶ 11.; Mohamed at ¶ 21 citing State v.
Selvage, 80 Ohio St.3d 465 (1997) (adopting Barker test for purposes of Article
I, Section 10 of the Ohio Constitution).
In general, delay is deemed “presumptively prejudicial” as it
approaches one year. Mohamed at ¶ 24. In this case, two and one-half years
passed from appellant's arrest on December 8, 2009, until his trial, which
began on June 11, 2012. We find that a delay of this length is presumptively
prejudicial and that a balancing of the Barker factors is therefore necessary.
1. Length of Delay.
A delay of two and one-half years between arrest and trial is
significant. But the United States Court of Appeals, Sixth Circuit, has
recognized that a delay of eleven years prior to trial, while atypical, was not
unconstitutional when weighed along with the other Barker factors. U.S. v.
Young, 657 F.3d 408, 420 (6th Cir.2011). See also State v. Martin, 16 Ohio
App.3d 172, 174 (10th Dist.1984) (noting that there was no constitutional
speedy-trial infringement found in Barker where a period of more than five
years intervened between Barker's arrest and his conviction). In short, we
find that, although the length of the delay between appellant's arrest and trial
provides some weight in favor of appellant's constitutional speedy-trial
argument, it is not dispositive.
2. Reason for Delay
The reason-for-delay factor “is concerned with whether the
government or the defendant is more to blame for the delay.” State v.
Quinnie, 10th Dist. No. 12AP–484, 2013–Ohio–1208, ¶ 14, citing Doggett v.
United States, 505 U.S. 647, 651 (1992). Examination of the record justifies the
conclusion that, in large part, appellant or appellant's counsel was
responsible for the delay between his arrest and trial.
Appellant repeatedly filed pro se motions and correspondence
addressed directly to the judge presiding over his case, complaining about
the conduct of the prosecutors, his appointed counsel, and the court itself. As
early as March 1, 2010, appellant acknowledged that he felt that his assigned
counsel was not adequately defending him. On November 16, 2010, appellant
asserted in open court his dissatisfaction with his first appointed counsel and
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repeated his belief that the state was responsible for that attorney having
been chosen to defend him. He acknowledged that he had filed a disciplinary
complaint against his own counsel. On that date, the court appointed new
defense counsel, one of four attorneys appellant had listed as his choices to
undertake his representation. Clearly, the appointment of new defense
counsel nearly a year after appellant's arrest was the direct result of
appellant's conduct—not that of the state, and appointment of new counsel
necessarily delayed the trial.
We conclude that the delay of appellant's trial was attributable in
substantial part to appellant's own conduct or that of his counsel.
Accordingly, the reason-for-delay factor established in Barker weighs heavily
against appellant's assertion that he was deprived of the constitutional right
to a speedy trial.
3. Appellant's Assertion of Speedy-trial Right
This factor weighs in appellant's favor. He formally raised the
speedy-trial issue as early as May 2010 when he had been in county jail for
approximately five months and filed a pro se motion to dismiss the
prosecution on speedy-trial grounds. He reasserted that right on numerous
occasions.
4. Prejudice to Appellant
In assessing prejudice in the context of a Barker analysis, we consider
“the specific interests the right to a speedy trial was designed to protect:
oppressive pretrial incarceration, anxiety and concern of the accused, and the
possibility that the defendant's defense will be impaired by dimming
memories and loss of exculpatory evidence.” Quinnie at ¶ 16.
“[F]acing criminal charges for an extended period of time necessarily
entails some level of anxiety and concern.” Id. A blanket statement of anxiety
caused by delay is, however, insufficient to establish prejudice. Id., citing
State v. Glass, 10th Dist. No. 10AP558, 2011–Ohio–6287. But appellant does
not argue that he was prejudiced by the delay by being unable to call
witnesses who were no longer available at the time of trial, or that evidence
had become unavailable during the delay.
Appellant does argue that he was prejudiced by the delay of his trial
in that the state used audiotapes of telephone conversations he engaged in
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while in jail. He argues that, had the trial taken place sooner, those
conversations would not have occurred and could not have been used
against him. For the reasons discussed above relative to appellant's statutory
right to a speedy trial, we do not find that circumstance to be of great weight
in balancing the Barker factors.
Accordingly, in balancing all of the Barker factors, we find that the
delay in trial experienced by appellant was not unconstitutional. As did the
Young court, we observe that “finding ways to more quickly move this case
forward would have been preferable to the actual pace of proceedings.”
Young at 420. But, the reasons for the delay in trial were largely due to the
conduct of appellant himself or appellant's counsel—not dilatory conduct by
the state. We therefore reject appellant's argument in his first assignment of
error that he was denied his constitutional right to a speedy trial.
We have rejected appellant's arguments that he was denied his right
to a speedy trial as provided both by Ohio's speedy-trial statute and by the
state and federal Constitutions. We therefore overrule appellant's first
assignment of error.
Petitioner, in his reply, suggests that it was the state trial judge who engaged in
“dilatory conduct” and that the reason for the delay was to continue to gather evidence
against him from telephone calls made from the jail. He argues that in the first seven
months after the indictment, the State had no case, and but for the delay, which allowed
the State both to gather the phone call evidence and obtain evidence from the other two
perpetrators, the case would have been dismissed. He also blames a substantial portion
of the delay on the ineffective nature of his counsel’s representation of him, and he points
out that he repeatedly raised the speedy trial issue during the roughly 30-month delay that
occurred here. He also disputes that any delay in the filing and disposition of the motion
to disqualify the trial judge was his fault, noting that the court reporter took five months
to prepare a transcript and that his attorney unnecessarily delayed filing the motion.
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The state court of appeals’ analysis of the reasons for the delay in bringing Petitioner
to trial focused largely on the fact that he continually expressed dissatisfaction with his first
attorney, ultimately filing a disciplinary complaint against him and being appointed a new
attorney approximately one year after his arrest. While that may account for twelve of the
thirty months of delay involved here, it does not address any other reasons for the delay.
In his appellate brief (Return, Ex. 17), Petitioner, although he did not provide any
timeline for different events which delayed the trial, put much of the blame on the
prosecutors for continually providing the jail recordings to defense counsel, including
recordings they had no intent to use at trial, thus causing defense counsel to request more
time to review the tapes. Most of that argument, however, also focuses on the first year of
the delay, and on the conduct of Petitioner’s then-defense counsel, Mr. Hayes, who was
replaced on November 16, 2010. He presented little or no argument about the reason for
the delay from the first trial date set after new counsel became involved (April 18, 2011)
to the actual trial date in June, 2012. The state court docket reflects that, during that time,
Petitioner waived his speedy trial rights as to the continuance of the trial from April 18,
2011 to June 13, 2011; that counsel filed a motion to suppress on April 18, 2011; that counsel
waived Petitioner’s speedy trial rights as to the next two continuances, which waivers
Petitioner refused to sign, although he acknowledged that he had filed a motion to recuse
the trial judge which had not been decided; that Petitioner signed a speedy trial waiver for
a continuance of the trial from September, 2011 to January, 2012, granted for purposes of
allowing counsel to have additional time to prepare; that defense counsel asked for another
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continuance to April, 2012, which Petitioner did not expressly agree to; and that defense
counsel asked for the final continuance, although, again, Petitioner did not sign the speedy
trial waiver relating to that continuance. Hearing transcripts filed with the Return show
that counsel asked for the final two continuances so that he could obtain an expert witness.
See Doc. 8-6, 8-7.
This Court has, in Alexander v. Warden, Ross Correctional Inst., 2011 WL 1771114, *9
(S.D. Ohio March 22, 2011), adopted and affirmed 2011 WL 1753864 (S.D. Ohio May 9, 2011),
aff’d 485 Fed.Appx. 97 (6th Cir. June 18, 2012), previously commented on the
appropriateness of the approach taken by the Ohio courts of appeals to federal speedy trial
claims. The Court’s words directly apply here:
The Ohio Court of Appeals correctly identified the applicable
standard of review adopted in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33
L.Ed.2d 101 (1972), and followed in Doggett v. United States, 505 U.S. 647, 112
S.Ct. 2686, 120 L.Ed.2d 520 (1992), in addressing the constitutional issue. As
the state appellate court recognized, the Sixth Amendment right of the
accused to a speedy trial begins at the time of “arrest, indictment, or other
official accusation” and involves a fact-intensive inquiry requiring the
balancing of (1) “whether [the] delay before trial was uncommonly long;” (2)
“whether the government or the criminal defendant is more to blame for the
delay;” (3) “whether, in due course, the defendant asserted his right to a
speedy trial;” and (4) “whether he suffered prejudice as the delay's result.”
Doggett, 505 U.S. at 651, 655; see also Wilson v. Mitchell, 250 F.3d 388, 394 (6th
Cir. 2001).
Did the Ohio court of appeals make an unreasonable determination when it applied
these four factors to Petitioner’s case? For the following reasons, the Court finds that it did
not.
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First, the state court correctly recognized that a thirty-month delay was
presumptively prejudicial. Next, it analyzed the reasons for that delay. In doing so, it
reasonably found that although the State may not have been faultless, much of the initial
delay was due to issues which arose between Petitioner and his attorney, the appointment
of a new attorney, and the filing of a motion to recuse the trial judge. The attorney’s delays
are not attributable to the State, and “[w]hen a party makes motions, it cannot use the delay
caused by those motions as a basis for a speedy-trial claim.” United States v. Young, 657
F.3d 408, 415 (6th Cir. 2011). Although the delay in providing a transcript on the recusal
motion may not have been entirely attributable to Petitioner, at least some of it resulted
directly from his filing a motion.
Further, Petitioner did consent to some of the
continuances of the trial, and the final round of continuances were requested by his second
attorney, Jeffrey Moore, for purposes of allowing Mr. Moore to be adequately prepared to
try the case. The state court did not make an unreasonable determination as to this factor.
Turning to the other factors, the state court recognized that Petitioner did assert his
speedy trial rights repeatedly, and it weighed this factor in his favor. Petitioner does not
appear to take issue with that portion of the decision. Lastly, on the key factor of prejudice,
Petitioner argues primarily that the delay allowed the State to collect more evidence against
him through recordings of phone calls he made from jail, but the state court found - and
its factual findings are presumed to be correct, see 28 U.S.C. §2254(d) - that most of the calls
used in evidence were made early in the 30-month period, so that the delay did not assist
the State in gathering that evidence. Petitioner claims that the delay also assisted the State
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in getting the other perpetrators to testify against him, but he cites to no evidence in the
record which supports that claim, and he did not make this claim in his appellate brief.
Given the record which it had before it, the state court of appeals did not act unreasonably
in finding that Petitioner suffered no significant prejudice as a result of the delay especially that portion of the delay which exceeded one year, which is the threshold
measure for when post-indictment delay becomes presumptively unreasonable under
Barker.
The Court of Appeals has said that, of the four Barker factors, “[t]he most important
factor under prejudice is possible impairment of the defense.” United States v. White, 985
F.2d 271, 276 (6th Cir. 1993). And in United States v. Howard, 218 F.3d 556, 564 (6th Cir.
2000), it noted that “a defendant who cannot demonstrate how his defense was prejudiced
with specificity will not make out a speedy trial claim no matter how great the ensuing
delay.” Given that the state court’s finding on this most important factor was not
unreasonable, it was also not unreasonable for that court, when balancing the four Barker
factors, to have concluded that no speedy trial violation occurred. Again, the question here
is not whether this Court, were it free to make an independent review of the record, would
have reached the same conclusion; the issue is whether the state court unreasonably
applied the Barker analysis, which is the correct methodology, to this set of facts. Being
unable to conclude that it did so, the Court finds no merit in Petitioner’s first ground for
relief.
V. Cumulative Error
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Petitioner’s fourth ground for relief asserts that he was denied a fair trial through
the cumulation of the errors he has identified. Such a claim, however, does not support a
grant of federal habeas corpus relief. The Court of Appeals, citing, among other cases, Scott
v. Elo, 302 F.3d 598, 607 (6th Cir. 2002), noted that it had “held that, post-AEDPA, not even
constitutional errors that would not individually support habeas relief can be cumulated
to support habeas relief.” Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005). This Court is
bound to follow that rule, and cannot grant Petitioner relief on his fourth ground.
VI. Recommended Disposition
For the reasons set out above, the Court recommends that the petition for a writ of
habeas corpus be DENIED and that this case be DISMISSED.
VII. 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 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
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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).
/s/ Terence P. Kemp
United States Magistrate Judge
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