United States District Court, S.D. Ohio, Eastern Division, Columbus
KALI S. SUNTOKE, Petitioner,
Warden, Chillicothe Correctional Institution Respondent.
L. Graham District Judge
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
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).
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.)
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.)
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,
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
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
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
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.)
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.
of Habeas Relief
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.
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).
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
Supporting Habeas Relief
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.
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.
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
[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).
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.
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).
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,
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).
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
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.
Assistance of Counsel
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.
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).
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).
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).
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.
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.
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).
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.)
Matter in the Traverse
of Pro Se Status
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).
follows with a disquisition on statutory construction, most
of which is unexceptionable,  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.
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
offers corrections to the procedural history as recited in
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.
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.
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.
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
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