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Klusty v. Noble

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

January 14, 2020

GARY KLUSTY, Petitioner,
v.
JEFFREY NOBLE, Warden, London Correctional Institution Respondent.

          Algenon L. Marbley Chief Judge

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This 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).

         General Objection

         At the 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).

         Ground One: Pre-Indictment Delay

         In his First Ground for Relief, Klusty argued that the delay of his re-indictment[1] 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).

         Klusty 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.)

         The 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.

         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.

         Neither 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.

         The 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 ...


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