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Suntoke v. Warden, Chillicothe Correctional Institution

United States District Court, S.D. Ohio, Eastern Division, Columbus

August 2, 2018

KALI S. SUNTOKE, Petitioner,
Warden, Chillicothe Correctional Institution Respondent.

          James L. Graham District Judge


          Michael R. Merz United States Magistrate Judge

         This habeas corpus case was brought pro se by Petitioner Kali Suntoke to obtain relief from his conviction in the Muskingum County Court of Common Pleas on multiple counts of pandering obscenity involving a minor. The case is before the Court for decision on the merits on the Petition (ECF No. 8), the Return of Writ and State Court Record (ECF No. 14), and Petitioner's Traverse (ECF No. 57). The Magistrate Judge reference in the case was recently transferred to the undersigned to help balance the Magistrate Judge workload in this District (ECF No. 65).

         Procedural History

         Petitioner was indicted by the Muskingum County Grand Jury on April 26, 2012, on thirty-two counts of pandering obscenity involving a minor as a second degree felony in violation of Ohio Revised Code § 2907.321(A)(1) and one count of pandering obscenity involving a minor as a fourth degree felony in violation of Ohio Revised Code § 2907.321(A)(5)(Indictment, State Court Record, ECF No. 14-1, PageID 651, et seq.). On the date set for trial, April 9, 2013, Petitioner agreed to plead no contest to Counts 1-9, 14-15, 20-21, 28-29, and 32 with the remainder of the charges to be dismissed with an agreed sentence of seven years' imprisonment. (Plea Agreement, State Court Record, ECF No. 14-1, PageID 716-18.) Without any explanation of his reasons, Suntoke moved pro se to withdraw his no contest plea before sentencing (Motion, State Court Record, ECF No. 14-1, PageID 719-20). The trial court denied that request and on June 13, 2013, imposed the agreed sentence. (Entry, State Court Record, ECF No. 14-1, PageID 725-27.)

         Represented by new counsel, Petitioner appealed to the Fifth District Court of Appeals which affirmed the conviction. State v. Suntoke, 2014-Ohio-1431, 2014 Ohio App. LEXIS 1333 (5th Dist. Apr. 2, 2014), appellate jurisdiction declined, 140 Ohio St.3d 1416 (2014). Suntoke filed an application to reopen his direct appeal to raise claims of ineffective assistance of appellate counsel which the Fifth District rejected for procedural defects. State v. Suntoke, Case No. CT2013-0032 (Ohio App. 5th Dist. Jul. 24, 2014)(unreported; copy at State Court Record, ECF No. 14-1, PageID 876-77.)

         Petitioner filed a motion for delayed appeal which was denied because he had already had a direct appeal. State v. Suntoke, Case No. CT2014-0036 (Ohio App. 5th Dist. Sep. 22, 2014)(unreported; copy at State Court Record, ECF No. 14-1, PageID 920-21).

         Suntoke filed a petition for post-conviction relief under Ohio Revised Code § 2953.21 raising claims of ineffective assistance of trial counsel. The trial court dismissed the petition and the Fifth District affirmed. State v. Suntoke, 2014-Ohio-3320, 2014 Ohio App. LEXIS 3248 (5thDist. Jul 21, 2014)(copy at State Court Record ECF No. 14-1, PageID 1047-53), appellate jurisdiction declined, 140 Ohio St.3d 1522 (2014). After filing an unsuccessful motion to dismiss the indictment, Suntoke filed his Petition in this Court on July 6, 2015. The Petition comprises 410 pages (ECF No. 8). While it includes the standard form required to be used for § 2254 cases (PageID 185-203), the substance of the pleading comprises the almost four hundred pages of attachments, which intermix arguments and exhibits. Amongst those pages, Suntoke pleads the following Grounds for Relief, denominated as “Assignment of Errors”:

GROUND ONE: The Grand Jury was prejudiced and biased due to the prosecutorial misconduct which led to the prejudice of the Petitioner.
GROUND TWO: Petitioner' sentence of Seven years is grossly disproportionate and inconsistent to the sentences imposed on similar offenders for similar offenses, hence the State of Ohio fails to comply with the United States Supreme Court's proportionality analysis in violation of the 8th and the 14th Amendments of the United States Constitution.
GROUND THREE: The Trial Judge was completely biased and prejudiced against the Petitioner on account of his race and religion.
GROUND FOUR: Both the Trial Counsels and the Appellate Counsel were ineffective and inadequate pursuant to Strickland v/s. Washington to the prejudice of the Petitioner.
GROUND FIVE: The Petitioner was deprived of his liberty without an Arrest Warrant in violation of Illinois v/s Gates, 462 U.S. 213.
GROUND SIX: Detective Hill misled the Judge in his Affidavit for the issue of a Search Warrant in violation of United States v/s Leon, 468 U.S. 897.
GROUND SEVEN: There is no evidence in the Plea Colloquy regarding a factual basis for the Plea.
GROUND EIGHT: The Trial Court failed to state the elements of the offense during the Petitioner's Plea Colloquy in violation of Henderson v/s Morgan, 426 U.S. 637.
GROUND NINE: The Trial Court violated North Carolina v/s Alford 400 U.S. 25 by not convicting the Petitioner on a lesser included offense which was supported by the evidence offered by the State.
GROUND TEN: The Trial Court failed to comply with Ohio Criminal Rule 11 (C)(2)(c) and thus failed to comply with the strict mandates of Boykin v/s Alabama, 395 U.S. 336.
GROUND ELEVEN: Detective Hill violated Gerstein v. Pugh 420 U.S. 103, by not obtaining a determination of probable cause after the warrantless arrest of the Petitioner.
GROUND TWELVE: The Trial Court violated the Petitioner's Speedy Trial Rights.
GROUND THIRTEEN: Denial of a Continuance by the Trial Judge violated the Petitioner's Constitutional Rights.
GROUND FOURTEEN: Trial Counsels were ineffective and committed prejudicial errors.
GROUND FIFTEEN: Prejudicial error was committed against the Petitioner by the Zanesville Police Department and Agent Bryant when they violated the Petitioner's Article 36 of the Vienna Convention to which treaty the United States is a signatory.
GROUND SIXTEEN: The Petitioner's “reasonable expectation of privacy” rights were violated when the Franklin County Task Force hacked into the Petitioner's personal home laptop computer.
GROUND SEVENTEEN: Trial Counsel were ineffective and inadequate and then committed prejudicial error when they failed to file a Motion pursuant to Criminal Rule No. 12(C) regarding an ‘Ignorantia Facti Excusat' Issue on Petitioner's behalf.
GROUND EIGHTEEN: The Petitioner's constitutional rights under the Eighth Amendment were violated as the Petitioner's sentence amounted to cruel and unusual punishment under the totality of circumstances.
GROUND NINETEEN: The Zanesville Municipal Court made an unreasonable factual determination pertaining to Petitioner's Waiver of the Preliminary hearing.

(Petition, ECF No. 8-2, PageID 230-31.)

         Without expressly discussing any review under Habeas Rule 4, Magistrate Judge Deavers issued an Order for Answer a week after the Petition was filed (ECF No. 9). The Answer/Return of Writ was filed October 29, 2015 (ECF No. 14). Petitioner took extensions of time for almost a year and a half until January 9, 2018, to file his Traverse (ECF No. 57) which is 475 pages long.

         Generally Applicable Law

         Scope of Habeas Relief

         Because of the prolixity of the pleadings, the Magistrate Judge will set out here general principles of habeas corpus law which are applicable to many of the grounds for relief.

         Petitioner complains at many places in his pleadings of failures of the Ohio courts to follow state law in processing his case. 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); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall Ch. J.); Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar concurring).

         Habeas relief may be available where a violation of state law “amounts to a fundamental miscarriage of justice or a violation of the right to due process in violation of the United States Constitution.” Cristini v. McKee, 526 F.3d 888, 897 (6th Cir. 2008), cert denied, 129 S.Ct. 1991 (2009). “State law errors may warrant habeas relief if the errors ‘rise for some other reason to the level of a denial of rights protected by the United States Constitution.'” Hoffner v. Bradshaw, 622 F.3d 487, 495 (2010), quoting Barclay v. Florida, 463 U.S. 939, 957-58 (1983). However, the burden of showing that a state law violation rises to the level of a federal constitutional violation is on the petitioner. Just because some process appears to be commanded by state statute or rule does not mean that it is required by the Due Process Clause of the Fourteenth Amendment.

         Evidence Supporting Habeas Relief

         Petitioner's pleadings have hundreds of pages of attachments, some of them generated in the state courts that handled his case and some from completely outside the record. In addition, he makes many factual assertions which do not reference any source at all. As the undersigned pointed out in recently denying Petitioner's Motion for Evidentiary Hearing, a federal habeas court must decide whether that state courts committed constitutional error by examining the record that was before those courts when they decided any federal constitutional claims presented to them. Cullen v. Pinholster, 563 U.S. 170 (2011). Pinholster also applies to matter sought to be added to the record by expanding what the Respondent has filed.

         Procedural Default

         Respondent asserts that this Court is barred from considering the merits of all of Petitioner's grounds for relief because of procedural defaults of various sorts that he made in presenting those claims to the Ohio courts. Petitioner has a number of responses which will be discussed as they arise.

         The general law of procedural default in habeas corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963). Coleman, 501 U.S. at 724.

[A] federal court may not review federal claims that were procedurally defaulted in state court-that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is an important “corollary” to the exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). “Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address” the merits of “those claims in the first instance.” Coleman, 501 U.S., at 731-732, 111 S.Ct. 2546, 115 L.Ed.2d 640. The procedural default doctrine thus advances the same comity, finality, and federalism interests advanced by the exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S.Ct. 2058, 2064 (2017).

         "A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a claim is procedurally defaulted where state-court remedies have been exhausted within the meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is procedurally defaulted where the petitioner failed to exhaust state court remedies, and the remedies are no longer available at the time the federal petition is filed because of a state procedural rule. Id.

         Failure to raise a constitutional issue at all on direct appeal is subject to the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72 (1977). Murray v. Carrier, 477 U.S. 478, 485 (1986); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6thCir. 1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert denied, 474 U.S. 831 (1985). Failure to present an issue to the state supreme court on discretionary review constitutes procedural default. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). “[E]ven if the state court failed to reject a claim on a procedural ground, the petitioner is also in procedural default ‘by failing to raise a claim in state court, and pursue that claim through the state's ordinary appellate procedures.'” Thompson v. Bell, 580 F.3d 423, 437 (6th Cir. 2009), citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)(quoting O'Sullivan v. Boerckel, 526 U.S. 838, 846-7(1999)); see also Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004) abrogated on other grounds, Stone v. Moore, 644 F.3d 342 (6th Cir. 2011)("A federal court is also barred from hearing issues that could have been raised in the state courts, but were not"). The corollary to this rule is that where a petitioner raised a claim in the state court but in violation of a state's procedural rule, a state court must expressly reject the claim on that procedural ground for a federal court to deem the claim defaulted. See Williams, 460 F.3d at 806 (noting that a state court's expressed rejection of a petitioner's claim on procedural basis and petitioner's complete failure to raise a claim in state court are the two ways a claim can be in procedural default).

         Ohio requires ineffective assistance of trial counsel claims which depend on the trial record to be raised on direct appeal, but claims depending on evidence outside the record to be raised by petition for post-conviction relief pursuant to Ohio Revised Code § 2953.21. Under that law, ineffective assistance of trial counsel claims or indeed any constitutional claims that depend on evidence outside the appellate record must be raised in a petition for post-conviction relief because evidence cannot be added to the record on direct appeal. State v. Hooks, 92 Ohio St.3d 83, 83-84 (2001); State v, Hartman, 93 Ohio St.3d 274, 299 (2001); State v. Keith, 79 Ohio St.3d 514, 536 (1997); State v. Scott, 63 Ohio App.3d 304, 308 (1989); State v. Smith, 17 Ohio St.3d 98, 101, n.1 (1985).

         Conversely, constitutional claims including ineffective assistance of trial counsel claims which are supported by the appellate record must be raised on direct appeal and will be barred by res judicata if attempted to be raised later in post-conviction. State v. Reynolds, 79 Ohio St.3d 158, 161 (1997); State v. Steffen, 70 Ohio St.3d 399, 410 (1994); State v. Lentz, 70 Ohio St.3d 527 (1994); In re T.L., 2014-Ohio-1840, ¶ 16, 2014 Ohio App. LEXIS 1804 (8th App. Dist. 2014).

         The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).

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. . . . .
Second, the court must decide whether the state courts actually enforced the state procedural sanction, citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under Sykes that there was "cause" for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner can overcome a procedural default by showing cause for the default and prejudice from the asserted error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).

         It is a common misconception among habeas petitioners, shared by Petitioner here, that the “fundamental miscarriage of justice” exception to procedural default is separate from proof of actual innocence. The Supreme Court has expressly held that "avoiding a miscarriage of justice as defined by our habeas corpus jurisprudence" requires "a strong showing of actual innocence." Calderon v. Thompson, 523 U.S. 538, 557-58 (1998); see Sawyer v. Whitley, 505 U.S. 333, 339 (1992). Thus, the “fundamental miscarriage of justice” and the “actual innocence” exceptions are one and the same.

         Ineffective Assistance of Counsel

         At many places in the pleadings where Respondent asserts a claim is procedurally defaulted, Petitioner responds that the default was caused by ineffective assistance of trial counsel or ineffective assistance of appellate counsel.

         The Sixth Amendment requires appointment of trial counsel for any indigent criminal defendant charged with an offense which carries a possible incarceration sentence. Powell v. Alabama, 287 U.S. 45 (1932)(capital cases); Gideon v. Wainwright, 372 U.S. 335 (1963)(felony cases); Argersinger v. Hamlin, 407 U.S. 25 (1972)(misdemeanor cases where imprisonment is a possibility); Alabama v. Shelton, 535 U.S. 654 (2002)(even if sentence is suspended).

         The right to appointed counsel extends to the first appeal of right and no further. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Ross v. Moffitt, 417 U.S. 600 (1974). Ineffective assistance of counsel can excuse procedural default only when it occurs in a proceeding where a defendant is constitutionally entitled to counsel under the Sixth Amendment. Wainwright v. Torna, 455 U.S. 586 (1982)(where there is no constitutional right to counsel there can be no deprivation of effective counsel); Riggins v. Turner, 1997 U.S. App. LEXIS 6115, *5 (6th Cir. 1997); Barkley v. Konteh, 240 F.Supp.2d 708, 714 (N.D. Ohio 2002).

         The governing standard for ineffective assistance of trial counsel was adopted by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing Knowles v. Mirzayance, 556 U.S.111 (2009).

         With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

466 U.S. at 689.

         As to the second prong, the Supreme Court held:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to overcome confidence in the outcome.

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally Annotation, 26 ALR Fed 218.

         The Strickland test applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000); Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance of appellate counsel, then, the court must assess the strength of the claim that counsel failed to raise. Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing Wilson v. Parker, 515 F.3d 682, 707 (6thCir. 2008).

         Ineffective assistance counsel can serve to show excusing cause and prejudice under Maupin, supra, but only when the ineffective assistance claim has itself been properly pursued in the state courts, i.e, when that claim is not itself procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (holding that a procedurally defaulted ineffective assistance of counsel claim cannot serve as cause for the default of another claim.)


         Introductory Matter in the Traverse

         Effect of Pro Se Status

         Petitioner begins his Traverse with seven pages of argument on the preferential treatment to be given pro se pleadings over those prepared by counsel (ECF No. 57, PageID 1616-22). The Court is aware of its duty to read pro se pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Estelle v. Gamble, 429 U.S. 97, 106 (1976); McNeil v. United States, 508 U.S. 106, 113 (1993). However, contrary to the assertion made at PageID 1617, pro se status does not excuse procedural default. See Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004).

         Statutory Construction

         Suntoke follows with a disquisition on statutory construction, most of which is unexceptionable, [1] but not tied to any particular point in the case (Traverse, ECF No. 57, PageID 1624-29). He prefaces this with a discussion of the supposed legislative intent behind Ohio Revised Code § 2907.321 with no reference to any source from which the accuracy of these representations could be checked.

         Petitioner correctly notes, however, that the possibilities of creating and communicating ideas and images in 1977 when the statute was passed were far different from the world in which we exist today. Before the internet existed, the traffic in child pornography largely consisted of circulating through the mail images created in Denmark during the approximately four years when creation of such images was legal in that country. The Federal Bureau of Investigation and the United States Postal Service had largely suppressed that traffic before the internet and peer-to-peer file sharing were created. Petitioner asserts “that for almost more than 200 years, no similar law was passed by either federal or state governments.” Petitioner is evidently unfamiliar with the Comstock Laws which were a set of federal acts passed by the United States Congress under the Grant administration along with related state laws. The "parent" act (Sect. 211) was passed on March 3, 1873, as the Act for the "Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use."[2]

         Procedural History Corrections

         Petitioner offers corrections to the procedural history as recited in the Return.

         Suntoke accuses the investigating officer, Special Agent Cameron Bryant, of bad faith, asserting that as a federal agent he was required to seek a search warrant from a federal judge (Traverse, ECF No. 57, PageID 1630). He cites no authority for that proposition and it is simply not the law. Federal agents are free to approach a state court judge for a warrant. See Fed. R. Crim. P. 41.

         Suntoke says his attorney and not he who sought a competency evaluation in state court. The Magistrate Judge accepts the factual correction but finds it is immaterial to the case. The same is true of Suntoke's claim that he told attorney Van Horn to remove himself from the case and Van Horn asked for appointment of co-counsel Gregory Myers instead.

         Other asserted corrections to the procedural history as recited in the Return are also immaterial. Petitioner offers many additional facts about the investigation without any reference to where those appear in the record.

         Procedural Default

         The general Procedural Default section of the Traverse covers thirty-five pages (ECF No. 57, PageID 1636-71). In general Petitioner claims he has committed no procedural defaults at all. Id. at PageID 1632. He claims that the Court has already determined under Habeas Rule 4 that his Petition has merit which he infers from issuance of the Order for Answer, although no express Rule 4 findings are made in that Order. Then he accuses Respondent of failing to provide a proper answer under Habeas Rule 5. Id. at PageID 1637.

         Petitioner asserts the “U.S. Supreme Court has consistently and repeatedly held that procedural defaults, res judicata, etc., can and should be excused if the Petitioner is able to prove” cause and prejudice or actual innocence or that “failure to consider the Petitioner's claims would result in a ‘fundamental miscarriage of justice.” (Traverse, ECF No. 57, PageID 1638.) What follows are many pages of case citations without ...

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