United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
an inmate in state custody at the Pickaway Correctional
Institution, has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging his drug
convictions. (Doc. 1). This matter is before the Court on the
petition (Doc. 1) and respondent's return of writ (Doc.
7), to which petitioner has replied (Doc. 10).
reasons stated below, the petition should be denied.
Trial Proceedings and Direct Appeal
September 22, 2015, a Lawrence County, Ohio, grand jury
returned a seven-count indictment charging petitioner with
five counts of trafficking in heroin, one count of
trafficking in cocaine, and one count of trafficking in drugs
(Oxycodone). (Doc. 6, Ex. 1). The trafficking-in-heroin
charges included three fourth-degree felonies, one
second-degree felony, and one fifth-degree felony. (Doc. 6,
Ex. l, PageID 34-36). The case proceeded to a jury trial. On
February 5, 2016, the jury found petitioner guilty of the
five heroin-trafficking charges but not guilty of a
cash-forfeiture specification accompanying one of the
heroin-trafficking charges and not guilty of the cocaine- and
Oxycodone-trafficking charges. (Doc. 6, Ex. 8). On February
16, 2016, petitioner was sentenced to an aggregate term of
twelve years in the Ohio Department of Corrections and to pay
a $16, 250 fine. (Doc. 6, Ex. 9).
through appellate counsel, was granted leave to file an
untimely appeal to the Ohio Court of Appeals. (Doc. 6, Ex.
16). Thereafter, petitioner successfully moved to dismiss his
appellate counsel and was granted a new appellate attorney.
(Doc. 6, Exs. 17, 18). Petitioner raised the following three
assignments of error on appeal:
1. The continuation of Appellant Smith's trial beyond the
two hundred seventy-day time limit violates his right to a
speedy trial pursuant to R.C. 2945.71 through 2945.73.
Additionally, this failure to provide a speedy trial is a
violation of Smith's fundamental rights guaranteed by the
Sixth and Fourteenth Amendments to the United States
Constitution and Section 10, Article 1 of the Ohio
2. Appellant Smith's right to the effective assistance of
counsel was violated when his attorney failed to argue that
he was denied his right to a speedy trial. Additionally,
Smith was denied the effective assistance of counsel when his
attorney failed to file an affidavit of indigency prior to
sentencing resulting in the imposition of excessive fines.
U.S. Const. Amends. V, VI, XIV; Ohio Const. Art. 1
§§ 9, 10, 16.
3. Appellant Smith's conviction was not supported by
sufficient credible evidence and was against the manifest
weight of the evidence. Thus, Smith was deprived of his right
to due process of law as guaranteed by the Fifth and
Fourteenth Amendments to the United States Constitution and
Article 1, § 10 of the Ohio Constitution.
(Doc. 6, Ex. 19). On September 15, 2017, the Ohio Court of
Appeals overruled all of petitioner's claims, except that
it sustained in part his second assignment of error and
remanded the case to the trial court to determine whether
petitioner was indigent and unable to pay the mandatory
fines. (Doc. 6, Ex. 22, at PageID 161).
December 5, 2017, petitioner filed a pro se notice of appeal
out of time and a motion for leave to file a delayed appeal,
which the Ohio Supreme Court denied. (Doc. 6, Exs. 23-25).
Petitioner did not seek a writ of certiorari in the United
States Supreme Court.
meantime, petitioner, through new counsel, filed a motion to
set aside the fines imposed by the trial court in the
original sentencing entry. (Doc. 6, Ex. 26). On October 23,
2017, the trial court filed an amended judgment entry waiving
petitioner's fines but otherwise reinstating
petitioner's twelve-year prison sentence. (Doc. 6, Ex.
27). Petitioner did not appeal.
April 23, 2018, petitioner commenced the instant federal
habeas corpus action. (Doc. 1). Petitioner raises the
following three grounds for relief:
GROUND ONE: Petitioner was denied [a] speedy
Supporting Facts: The continuance
of Petitioner's trial beyond the two hundred seventy-day
limit violates his right to speedy trial.
GROUND TWO: Ineffective assistance of
Supporting Facts: Attorney failed
to argue petitioner was denied his right to a speedy trial.
Additionally, petitioner was denied effective assistance when
his attorney failed to file an affidavit of indigency
resulting in excessive fines.
GROUND THREE: Petitioner's conviction
was not supported by sufficient credible evidence and was
against the manifest weight of the evidence.
(Doc. l, at PageID 5-8).
has filed a return of writ in opposition to the petition.
(Doc. 7). According to respondent, petitioner's grounds
for relief are procedurally defaulted or without merit.
Petitioner has filed a traverse. (Doc. 10).
THE PETITION SHOULD BE DENIED.
federal habeas case, the applicable standard of review
governing the adjudication of constitutional issues raised by
petitioner to the state courts is set forth in 28 U.S.C.
§ 2254(d). Under that provision, a writ of habeas corpus
may not issue with respect to any claim adjudicated on the
merits by the state courts unless the adjudication either:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal
law, as determined by the United States Supreme Court; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding.
28 U.S.C. § 2254(d).
decision is 'contrary to' clearly established federal
law when 'the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially
indistinguishable facts." Otte v. Houk, 654
F.3d 594, 599 (6th Cir. 2011) (quoting Williams v.
Taylor, 529 U.S. 362, 412-13 (2000)). "A state
court's adjudication only results in an 'unreasonable
application' of clearly established federal law when
'the state court identifies the correct governing legal
principle from [the Supreme] Court's decisions but
unreasonably applies that principle to the facts of the
prisoner's case.'" Id. at 599-600
(quoting Williams, 529 U.S. at 413).
statutory standard, established when the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) was enacted, is a
difficult one for habeas petitioners to meet. Id. at
600. As the Sixth Circuit explained in Otte:
Indeed, the Supreme Court has been increasingly vigorous in
enforcing AEDPA's standards. See, e.g., Cullen v.
Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398, 179
L.Ed.2d 557 (2011) (holding that AEDPA limits a federal
habeas court to the record before the state court where a
claim has been adjudicated on the merits by the state court).
It is not enough for us to determine that the state
court's determination is incorrect; to grant the
writ under this clause, we must hold that the state
court's determination is unreasonable. . ,
. This is a "substantially higher threshold.".
. . To warrant AEDPA deference, a state court's
"decision on the merits" does not have to give any
explanation for its results, Harrington v. Richter,
U.S., 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), nor does it
need to cite the relevant Supreme Court cases, as long as
"neither the reasoning nor the result of the state-court
decision contradicts them." Early v. Packer,
537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per
Id. (emphasis in original). The Supreme Court
extended its ruling in Harrington to hold that when
a state court rules against a defendant in an opinion that
"addresses some issues but does not expressly address
the federal claim in question," the federal habeas court
must presume, subject to rebuttal, that the federal claim was
"adjudicated on the merits" and thus subject to the
"restrictive standard of review" set out in ...