United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose District Judge.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
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 No. 5).
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
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 gruesomeness.
objects as to all four grounds, each of which requires
One: Speedy Trial Violation
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-for-one
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.
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.
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).
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).
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.
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.
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 ...