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Buck v. Warden Dayton Correctional Institution

United States District Court, S.D. Ohio, Western Division, Dayton

November 6, 2017

ROXANNE BUCK, Petitioner,
v.
Warden, Dayton Correctional Institution, Respondent.

          Thomas M. Rose District Judge.

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         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 No. 5).

         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 gruesomeness.

         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-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.

         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 ...


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