IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRIAN L. HEFT, 

Petitioner, 

CASE NO. 2:11-CV-103

v. JUDGE FROST

MAGISTRATE JUDGE KING

WARDEN, MADISON CORRECTIONAL

INSTITUTION, 

Respondent.

OPINION AND ORDER

This is an action for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner asserted

fifteen claims for relief in the original Petition, Doc. No. 2. He thereafter withdrew claims two

(2), five, seven, nine, eleven, twelve, and fourteen. Motion to Voluntarily Withdraw Grounds,

Doc. No. 43. Petitioner also withdrew claim four as a separate claim. Traverse, Doc. No. 30, at

44. On May 25, 2012, the United States Magistrate Judge recommended that this action be

dismissed. Order and Report and Recommendation, Doc. No. 45. Petitioner has filed objections

to that recommendation as it relates to claims one, six and eight; he also seeks a certificate of

appealability as to these claims and asks for leave to proceed on appeal in forma pauperis. 

Petitioner’s Objection to Magistrate’s Report and Recommendation and Motion for a Certificate

of Appealability and Request to Proceed in Forma Pauperis, Doc. No. 50. For the reasons that

follow, Petitioner’s objections are OVERRULED and his request for a certificate of

appealability is DENIED. Petitioner’s request for leave to proceed on appeal in forma pauperis

is GRANTED.

Claim one alleges that Petitioner was denied his right to a speedy trial. The Magistrate

Case: 2:11-cv-00103-GLF-NMK Doc #: 51 Filed: 07/27/12 Page: 1 of 6 PAGEID #: <pageID>
Judge concluded that this claim has been waived and, alternatively, is plainly without merit to

the extent that the claim alleges a violation of state law. In his objections, Petitioner alleges, as

cause for any procedural default, that his attorney performed in a constitutionally ineffective

manner by failing to present the claim to the state courts as one of federal constitutional

magnitude; alternatively, Petitioner insists that the claim is properly before this Court. 

Additionally, Petitioner argues that he was denied his right to equal protection by the state

court’s ruling against him because he was treated differently than were other similarly situated

criminal defendants. He also complains that the Magistrate Judge failed to address his

arguments regarding the appropriate calculation of time for purposes of Ohio’s speedy trial law. 

In this regard, Petitioner again argues that Ohio’s speedy trial law is coextensive with the United

States Constitution’s guarantee of a speedy trial. Referring to his state appellate briefs,

Petitioner also again argues that he fairly presented his federal speedy trial claim to the state

appellate courts. 

The record is clear that Petitioner presented his speedy trial claim to the state courts only

as a claimed violation of state law.1

 Petitioner contends that he properly preserved this claim for

federal habeas corpus review by referring to federal law in his appeal to the Ohio Supreme

Court. However, the Ohio Supreme Court does not ordinarily consider claims raised for the first

time before that court. Fornash v. Marshall, 686 F.2d 1179, 1185 n.7 (6th Cir. 1982) (citing

State v. Phillips, 27 Ohio St.2d 294, 302, 272 N.E.2d 347 (1971). Therefore, Petitioner did not

thereby preserve his claim for review in these proceedings. Moreover, Petitioner has never

1

Petitioner made passing reference to the federal constitutional right to a speedy trial in his state

court appellate briefs. See Exhibit 18 (attached to Return of Writ, Doc. No. 16-1, pp. 63-63); Exhibit 25,

(attached to Return of Writ, Doc. No. 16-1, pp. 298-99). But the substance of his argument in support of

this claim was couched entirely in terms of state law. 

2

Case: 2:11-cv-00103-GLF-NMK Doc #: 51 Filed: 07/27/12 Page: 2 of 6 PAGEID #: <pageID>
presented to the state courts a claim that he was denied equal protection based on the state

appellate court’s ruling against him. That claim has therefore also been waived for review in

these proceedings. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Similarly, the

claimed ineffective assistance of appellate counsel cannot serve as cause for Petitioner’s

procedural default, because Petitioner raised the claim in the state courts only in the context of

an alleged violation of state law. See Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000)

(ineffective assistance of counsel cannot constitute cause for a procedural default where that

claim is also procedurally defaulted). Even assuming as accurate Petitioner’s allegation that the

state appellate court’s calculation of the tolling date was improper under state law, the fact

remains that federal habeas relief is not warranted for the alleged violation of state law. See 28

U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41 (1984). 

Claim six alleges that the evidence in support of Petitioner’s convictions on two counts

of gross sexual imposition (i.e., Counts Three and Four) was constitutionally insufficient. The

Magistrate Judge concluded that, as it relates to Count Four, the claim has been waived because

Petitioner failed to present that claim on direct appeal; the Magistrate Judge also concluded that,

in any event, claim six is without merit. In his objections, Petitioner asks that this Court conduct

a plain error review of the claim as it relates to Count Four. However, a federal court has no

authority to conduct a “plain error” review of a claim that has been waived. See Maupin, 785

F.2d at 135. Petitioner asserts the ineffective assistance of appellate counsel as cause for his

procedural default of his claim of insufficiency of the evidence as it relates to his conviction on

Count Four of the Indictment. Petitioner failed to present this claim to the state courts. See

Exhibit 45 to Return of Writ. Therefore, the claimed ineffective assistance of appellate counsel

3

Case: 2:11-cv-00103-GLF-NMK Doc #: 51 Filed: 07/27/12 Page: 3 of 6 PAGEID #: <pageID>
cannot serve as cause for his procedural default in this regard. See Edwards v. Carpenter, 529

U.S. at 451-52. 

Petitioner also complains that the Magistrate Judge, in considering the merits of this

claim, failed to address each element of the offense of gross sexual imposition. The elements of

this offense, and the evidence of each element as presented at Petitioner’s trial, were addressed

in the decision of the state appellate court and were detailed in the Magistrate Judge’s Report

and Recommendation. The Court will not again address those matters here. For the reasons

discussed in the Magistrate Judge’s Report and Recommendation, this Court likewise concludes

that, viewing all the evidence in the light most favorable to the prosecution, see Jackson v.

Virginia, 443 U.S. 307, 319 (1979), the evidence supporting Petitioner’s convictions was

constitutionally sufficient. 

Petitioner also complains that the Magistrate Judge failed to address the influence on the

jury of allegedly false statements made by the prosecutor during closing argument. As discussed

in the Magistrate Judge’s Report and Recommendation, however, the record fails to reflect any

improper comments by the prosecutor during opening or closing arguments. Report and

Recommendation at 40-41.

Claim eight alleges that Petitioner was denied the effective assistance of appellate

counsel. Petitioner objects to the Magistrate Judge’s recommendation that this claim – as it

relates to his argument that the ineffective assistance of appellate counsel constitutes cause for

the procedural default of his federal claims – be dismissed as itself having been waived. As

already discussed, because Petitioner waived this claim of ineffective assistance of appellate

counsel, he has failed to establish cause for the procedural default of his federal claims. See

4

Case: 2:11-cv-00103-GLF-NMK Doc #: 51 Filed: 07/27/12 Page: 4 of 6 PAGEID #: <pageID>
Edwards v. Carpenter, 529 U.S. at 451-52. 

Pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), this Court has conducted a de

novo review of the record and concludes that, for the reasons detailed in the Magistrate Judge’s

Report and Recommendation, none of Petitioner’s arguments are persuasive.

For these reasons and for reasons detailed in the Magistrate Judge’s Report and

Recommendation, Petitioner’s objections are without merit. 

Accordingly, Petitioner’s Objection, Doc. No. 50, is OVERRULED. The Report and

Recommendation, Doc. No. 45, is ADOPTED and AFFIRMED. This action is hereby

DISMISSED. 

The Clerk is DIRECTED to enter FINAL JUDGMENT.

Petitioner seeks a certificate of appealability on habeas corpus claims one, six and eight. 

When a claim has been denied on the merits, a certificate of appealability may issue only if the

petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. §

2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). See

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (recognizing codification of Barefoot in 28 U.S.C.

§ 2253(c)(2)). To make a substantial showing of the denial of a constitutional right, a petitioner

must show “that reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues presented were

‘adequate to deserve encouragement to proceed further.'" Slack, 529 U.S. at 484 (quoting

Barefoot, 463 U.S., at 893 n.4). Where the Court dismisses a claim on procedural grounds, a

certificate of appealability "should issue when the prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a constitutional

5

Case: 2:11-cv-00103-GLF-NMK Doc #: 51 Filed: 07/27/12 Page: 5 of 6 PAGEID #: <pageID>
right and that jurists of reason would find it debatable whether the district court was correct in its

procedural ruling." Id. Thus, there are two components to determining whether a certificate of

appealability should issue when a claim is dismissed on procedural grounds: "one directed at the

underlying constitutional claims and one directed at the district court's procedural holding." Id.

at 485. The court may first "resolve the issue whose answer is more apparent from the record

and arguments." Id. 

Upon review of the record, the Court concludes that petitioner has failed to establish

either that reasonable jurists would debate whether the Court properly dismissed his claims as

procedurally defaulted or whether the petition states a valid claim of the denial of a

constitutional right. Petitioner's request for a certificate of appealability is therefore DENIED. 

Finally, Petitioner asks for leave to proceed on appeal in forma pauperis. Because

Petitioner was granted leave to proceed in forma pauperis at the outset of this case, Order, Doc.

No. 4, his request for leave to proceed on appeal without prepayment of fees or costs is

GRANTED. See Fed. R. App. P. 24(a)(3) (a party permitted to proceed in forma pauperis

before the district court may proceed on appeal in forma pauperis without further authorization

unless the district court certifies that the appeal is not taken in good faith). All judicial officers

who render services in this action shall do so as if the costs had been prepaid. 

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

 

6

Case: 2:11-cv-00103-GLF-NMK Doc #: 51 Filed: 07/27/12 Page: 6 of 6 PAGEID #: <pageID>