Buck v. Warden Dayton Correctional Institution
SUPPLEMENTAL REPORT AND RECOMMENDATIONS - The Magistrate Judge again respectfully recommends that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificat e of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 11/20/2017. Signed by Magistrate Judge Michael R. Merz on 11/6/2017. (kpf)(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
WESTERN DIVISION AT DAYTON
- vs -
Case No. 3:17-cv-344
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
Dayton Correctional Institution,
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 4) to the
Report and Recommendations recommending dismissal (ECF No. 3).
Judge Rose has
recommitted the matter for reconsideration in light of the Objections (Recommittal Order, ECF
Petitioner pleads four grounds for relief: denial of constitutional right to a speedy trial
(Ground One), involuntary waiver of right to speedy trial (Ground Two), ineffective assistance
of both trial and appellate counsel in handling the speedy trial issue (Ground Three), and
prosecutorial misconduct (Ground Four).
The Report recommended finding no violation of Petitioner’s constitutional right to
speedy trial because she was brought to trial within the Ohio statutory speedy trial limits which
are much stricter than the Sixth Amendment guidelines. It further recommended dismissal of
Ground Two because, without a violation of the speedy trial constitutional right, the
voluntariness of the waiver did not affect her federal rights. The Magistrate Judge deferred to
the Ninth District Court of Appeals on the ineffective assistance of counsel claim. On Ground
Four the Report also recommends deferring to the court of appeals finding that the probative
value of the autopsy photographs was not outweighed by the prejudice arising from their
Petitioner objects as to all four grounds, each of which requires analysis.
Ground One: Speedy Trial Violation
In her First Ground for Relief, Ms. Buck claims she was denied her constitutional right to
a speedy trial. On appeal, the Ninth District considered this claim in the First Assignment of
Error. It noted that she had been arrested March 20, 2014, and remained incarcerated until trial
began on October 6, 2014. State v. Buck, 2017 Ohio App. LEXIS 271 ¶ 10 (9th Dist. Jan. 25,
2017). Under the Ohio speedy trial statute, Ohio Revised Code § 2945.71, each day of pre-trial
confinement counts for three days toward the statutory limit of 270 days. Under the three-forone provision, the statutory speedy trial time expired June 18, 2014. After the time had already
expired, on July 3, 2014, Buck waived her speedy trial right with an end date of September 15,
2014, but with no start date. Id. The State moved on August 22, 2014, for a continuance to
October because a material witness was unavailable material. Buck responded by revoking her
waiver, demanding a speedy trial and moving for dismissal on speedy trial grounds on the
morning of trial. Id.
Although Buck was not brought to trial until 200 days after her arrest, the Ninth District
found no statutory violation because the legal effect of a waiver with no start date was to waive
all time from arrest until the agreed continuance date, September 15, 2014. Id. at ¶ 11, citing
State v. Maitland, 2010-Ohio-6585 (7th Dist. 2010), and State v. Baugh, 1996 Ohio App. LEXIS
337 (9th Dist. Jan. 31, 1996). Because the actual trial started less than a month after the time
began to run under the waiver, the Ninth District concluded the trial was timely commenced. Id.
at ¶ 11.
This Court is bound to accept the Ninth District’s interpretation of state law. Federal
habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a);
Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v.
Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province
of a federal habeas court to reexamine state court determinations on state law questions. In
conducting habeas review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). Railey v. Webb, 540 F.3d 393 (6th Cir. 2008), quoting Bradshaw v. Richey, 546 U.S. 74,
76 (2005)(“We have repeatedly held that a state court’s interpretation of state law, including one
announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas
corpus.”), Maldonado v. Wilson, 416 F.3d 470 (6th Cir. 2005); Vroman v. Brigano, 346 F.3d 598
(6th Cir. 2003); Caldwell v. Russell, 181 F.3d 731, 735-36 (6th Cir. 1999); Duffel v. Dutton, 785
F.2d 131, 133 (6th Cir. 1986).
Because Ohio speedy trial law is so much more stringent than federal constitutional law
on the speedy trial right, a trial found to be timely under Ohio law is almost always also timely
under the Constitution. As noted in the Report, the four constitutional factors to be weighed are
(1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant has asserted
his right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530-32 (1972).
Delay is presumptively prejudicial where the post-accusation delay approaches one year. Doggett
v. United States, 505 U.S. 647 (1992).
The Report only noted that “Petitioner was brought to trial in substantially less than a
year” and did not discuss the other factors. Because the Report characterized the Barker test as a
“balancing” test and did not discuss the other three factors, Ms. Buck believes the result is
“unbalanced” (Objections, ECF No. 4, PageID 31). To complete the analysis, the Magistrate
Judge notes there was a basis for the continuance, noted by the court of appeals, of the
unavailability of a material witness. The second factor weighs in Respondent’s favor.
The Petitioner certainly did assert her right by (1) rescinding her waiver, (2) then
demanding a speedy trial, and then (3) moving to dismiss on the morning of trial, so the third
factor weighs in Petitioner’s favor.
Finally, Petitioner asserts prejudice, the fourth factor, from the prosecution’s addition of
Exhibit 233 on September 17, 2014, and supplementing it on the morning of trial. Petitioner
does not tell this Court what the exhibit was and it is not reflected in the court of appeals opinion,
so she has not shown this last factor weighs in her favor, i.e., she has not shown prejudice. On
balance, although Petitioner vigorously asserted her speedy trial right after August 28, 2014, the
Magistrate Judge finds she has not proven a violation of her Sixth Amendment right.
Buck presented her speedy trial claim to the Ninth District as a constitutional claim; her
First Assignment of Error expressly mentions her “constitutional right to a speedy trial.” When a
state court decides on the merits a federal constitutional claim later presented to a federal habeas
court, the federal court must defer to the state court decision unless that decision is contrary to or
an objectively unreasonable application of clearly established precedent of the United States
Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 785
(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002);
Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Ms. Buck has not shown that the Ninth
District’s decision is an objectively unreasonable application of clearly established Supreme
Court precedent. It is therefore again respectfully recommended that her First Ground for Relief
Ground Two: Invalid Waiver of Speedy Trial Right
In her Second Ground for Relief, Ms. Buck claims her waiver of her speedy trial right
was not knowing, intelligent, and voluntary and is therefore void. In recommending dismissal of
this Ground, the Report stated “[b]ecause the State did not violate [Ms. Buck’s] Sixth
Amendment speedy trial right nor attempt to use her waiver to extend trial beyond one year,
Ground Two should be dismissed because it does not state a claim on which federal habeas
corpus relief can be granted.” (ECF No. 3, PageID 21).
Ms. Buck objects that she was “misled into authorizing the state to begin calculating time
on 9-15-14.” She presented this claim as Assignment of Error II on direct appeal and the Ninth
[*P15] Here, Buck signed a time waiver on July 3, 2014, which
expressly stated that she was knowingly and voluntarily waiving
her right to have her case tried within the time period provided for
in R.C. 2945.71 and consented to have her case continued until
September 15, 2014. Buck argues on appeal that her waiver was
not knowingly, intelligently, and voluntarily given as she was
unaware that the waiver related back to the date of her arrest
instead of the date that she signed the waiver. However, because
the transcript of the pretrial proceeding where Buck waived her
speedy trial rights on the record has not been filed with this Court,
we must presume regularity and the validity of the time waiver.
See N. Olmsted v. Rock, 8th Dist. Cuyahoga No. 99333, 2013Ohio-3152, ¶ 21.
State v. Buck, supra.
What the Ninth District decided, as this Court reads it, is that all the evidence before it on
this question – the signed waiver itself – showed that it was knowing, intelligent and voluntary.
Under those circumstances, it had to presume that the trial court proceedings were “regular,” i.e.
that there was no error. If the transcript showed active misleading by the trial court, e.g., a
statement by the trial judge that the waiver would start on the date it was signed, then the court of
appeals could have done something else.
Ms. Buck makes her claim in the passive voice: “I was misled.” But by whom? If it was
the trial judge on the record, then the record should be produced to show that. If it was by her
attorney, then it was presumably off the record and would have to be raised in a petition for postconviction relief under Ohio Revised Code § 2953.21. However, according to the Habeas
Petition, no such post-conviction petition was filed (ECF No. 2, PageID 4, ¶ 10).
If Ms. Buck was not actively misled by the trial judge or her attorney – if she just didn’t
understand – she again would have to present evidence of that lack of understanding in a petition
for post-conviction relief, which she has not filed. This Court cannot hear evidence beyond what
was presented to the state courts to decide whether she lacked appropriate understanding. Cullen
v. Pinholster, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011).
Upon the record that was before the state courts, Ms. Buck has not proved her waiver was
involuntary, unknowing, or unintelligent. This Court must therefore defer to the state court’s
denial of her Second Assignment of Error.
Ground Three: Ineffective Assistance of Trial and Original Appellate Counsel
In her Third Ground for Relief, Petitioner asserts she received ineffective assistance of
trial counsel when her trial attorney did not put a commencement date on the waiver she signed
and misled her by telling her the continuance could not be beyond September 15, 2014. She also
asserts she received ineffective assistance of appellate counsel when her original appellate
attorney did not request pre-trial transcripts which would have shown the speedy trial violations.
The Report recommended this Ground for Relief should be dismissed as procedurally
defaulted because, as to trial counsel, Ms. Buck neither proved ineffective assistance by
producing the waiver transcript on appeal nor filed for post-conviction relief and showed there
the bad advice she alleges she was given. As to ineffective assistance of appellate counsel, the
Ninth District advised Ms. Buck that the appropriate way to raise that claim was by filing a
motion to reopen the appeal under Ohio R. App.26(B) which she has not done. (Report, ECF
No. 3, PageID 21-24.
Ms. Buck objects that the “waiver itself can be used as proof” and argues that its failure
to include a starting date it by itself proof of ineffective assistance of trial counsel. Not so. Ms.
Buck has presented no authority showing it is ineffective assistance of trial counsel to fail to put
a starting date on such a waiver. There can be many good reasons for a trial attorney to agree to
a waiver, even knowing the effect of one that is undated. The Court will not presume deficient
performance without some proof of it. Obviously the Ohio courts treated the waiver as valid
without a starting date.
Ms. Buck also claims her attorney told her off the record that the trial could not be
continued past September 15, 2014. But no sworn proof of that fact was ever before the state
courts, as it could have been in a petition for post-conviction relief. Again, this Court cannot
consider facts that are not in the state court record. Pinholster, supra.
Ms. Buck suggests she did not file a Rule 26(B) application because she thought the
reference to that remedy in the Ninth District’s decision was just a suggestion. However, a
motion under 26(B) is the only way such a claim can be raised in the Ohio courts. State v.
Murnahan, 63 Ohio St. 3d 60 (1992). Ms. Buck’s ignorance of the law does not excuse her
failure to file under 26(B) and this Court does not have the power to just waive that requirement
of Ohio law and decide the question itself.
Ground Four: Probative Value of Autopsy Pictures
In her Fourth Ground for Relief, Ms. Buck asserts she was deprived of due process when
the prosecutor was permitted to show the jury photographs (power point slides) of the victim’s
autopsy and the prejudicial effect of those photographs outweighed their probative value. The
Report noted that the Ninth District had also decided this claim against Ms. Buck when denying
her fourth assignment of error and concluded its decision was neither contrary to nor an
objectively unreasonable application of Supreme Court precedent (ECF No. 3, PageID 27).
In her Objections, Ms. Buck cites no Supreme Court precedent which is to the contrary.
This Court must therefore defer to the Ninth District.
Based on the foregoing analysis, the Magistrate Judge again respectfully recommends
that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with
this conclusion, Petitioner should be denied a certificate of appealability and the Court should
certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should
not be permitted to proceed in forma pauperis.
November 6, 2017.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by mail. .Such objections shall specify the portions of
the Report objected to and shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party=s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140,
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