United States District Court, S.D. Ohio, Eastern Division
Algenon L. Marbley Chief Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE
habeas corpus case is before the Court on Petitioner's
Objections to Magistrate Judge's Report and
Recommendations (the “Report, ” ECF No. 24).
Chief Judge Marbley has reopened the judgment and recommitted
the case for reconsideration in light of the Objections (ECF
No. 22, 25).
outset of his Objections, Klusty writes that he
“objects to each and every finding of fact and
conclusion of law in the Report and Recommendations which is
adverse to Klusty's claims for relief.”
(Objections, ECF No. 24, PageID 1574.) Only specific
objections are preserved for appellate review. Smith v.
Detroit Federation of Teachers, 829 F.2d 1370, 1373
(6th Cir. 1987). The district court need not
provide de novo review where objections to a
magistrate judge's report and recommendations are
frivolous, conclusive, or general. Parties have a “duty
to pinpoint” portions of the report that the Court
should consider. Mira v. Marshall, 806 F.2d 636, 637
(6th Cir. 1986), quoting Nettles v.
Wainwright, 677 F.2d 404, 410 (5th Cir.
1982)(internal quotation marks omitted).
One: Pre-Indictment Delay
First Ground for Relief, Klusty argued that the delay of his
re-indictment in this case denied him due process of
law. The Ohio Fifth District Court of Appeals decided this
claim on the merits. State v. Klusty, 2015-Ohio-2843
(5th Dist. Jul. 13, 2015), appellate jurisdiction
declined, 144 Ohio St.3d 1459 (2016). Respondent defended
this Ground for Relief on the merits. The Report concluded
the Fifth District's thorough analysis was neither
contrary to nor an objectively unreasonable application of
clearly established Supreme Court precedent, particularly
United States v. Lovasco, 431 U.S. 783
(1977)(Report, ECF No. 12, PageID 1515-23).
objects that the Supreme Court has held “excessive
delay presumptively compromises the reliability of a trial,
” (Objections, ECF No. 24, quoting Doggett v.
United States, 505 U.S. 647, 655 (1992)). He then
proceeds to list the ways in which he believes he was
actually prejudiced by the delay. Id. at PageID
1575-80. Klusty concludes:
Ohio courts and the Magistrate Judge appear to have adopted a
heighted [sic; presumably “heightened” is
intended] standard concerning the issue of pre-indictment
delay, denying any relief where a defendant cannot point to a
specific outcome that would have resulted but for the
unreasonable delay. Respectfully, predicting the future is an
impossible task, and certainly not is what required by law.
Rather, the Constitution merely requires a criminal defendant
to demonstrate actual prejudice.
(ECF No. 24, PageID 1580.)
Report noted that “[t]he parties agree that the Supreme
Court decision in Lovasco, 431 U.S. 783, is the
relevant precedent.” (Report, ECF No. 12, PageID
1519-20). The record citations to where that agreement occurs
are in the Return of Writ (ECF No. 6, PageID 339) and the
Reply (ECF No. 10, PageID 1502). Since the Reply was filed,
Klusty has obtained new counsel (ECF No. 18, 21). New counsel
does not explicitly repudiate prior counsel's acceptance
of Lovasco as the controlling law, but argues the
Objections in terms of Doggett.
was a 5-4 decision of the Supreme Court which held that an
eight-and-a-half year delay between indictment and arrest
violated Doggett's Sixth Amendment Speedy Trial right
without a showing of particularized trial prejudice. The
Court applied the factors for analyzing speedy trial claims
it had adopted in Barker v. Wingo, 407 U.S. 514
(1972): “whether delay before trial was uncommonly
long, whether the government or the criminal defendant is
more to blame for that delay, whether, in due course, the
defendant asserted his right to a speedy trial, and whether
he suffered prejudice as the delay's result.”
Doggett, 505 U.S. at 651, citing Barker,
supra, at 530. Unlike Klusty, Doggett did not know
of the charges against him until he was arrested.
Doggett, 505 U.S. at 653-54. It noted that the most
serious form of prejudice recognized in Barker was
inability to prepare a defense. Id. It held
“Once triggered by arrest, indictment, or other
official accusation, . . . the speedy trial inquiry must
weigh the effect of delay on the accused's defense just
as it has to weigh any other form of prejudice that
Barker recognized.” Id. citing
Moore v. Arizona, 414 U.S. 25, 26-27, and n.2
(1973); Barker, supra, at 532; Smith,
supra, at 377-79; and United States v. Ewell,
383 U.S. 116, 120 (1966) 120. While it indulged a presumption
of prejudice from long and unjustified government delay, it
held that presumption could be rebutted.
the Report nor the Fifth District's decision is
inconsistent with Doggett. First of all,
Doggett did not purport to change the standard in
Lovasco which is cited approvingly, 505 U.S. at 666.
Second, as a critical matter, Klusty knew of the charges and
thus had an opportunity and incentive to prepare a defense
when he was first indicted. Third, the Fifth District
decision did not impose an outcome-determinative test of
prejudice on Klusty, but weighed each particular claim of
prejudice individually. That is, it did not declare Klusty
was not prejudiced because he could not show the outcome
would have been different with an earlier trial, but found
the likely impact of prejudice in each particular instance
was minimal or speculative.
Report also does not impose an outcome-determinative test of
Klusty's case and it does not purport to decide the
speedy trial claim de novo. Rather, because the
Fifth District decided Klusty's constitutional issue, we
must decide if its decision was objectively unreasonable.
Having reviewed that decision on the merits, the Magistrate
Judge again finds it is consistent ...