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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

ROXANNE BUCK, 

Petitioner, : Case No. 3:17-cv-344 

- vs - District Judge Thomas M. Rose 

Magistrate Judge Michael R. Merz 

Warden, 

 Dayton Correctional Institution, 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This is a habeas corpus case brought pro se by Petitioner Roxanne Buck seeking relief 

from her convictions for murder and evidence tampering in the Summit County Common Pleas 

Court and consequent sentence to imprisonment for eighteen years to life (Petition, ECF No. 2, 

PageID 2). As with all habeas corpus cases filed at the Dayton location of court, the case has 

been referred to the undersigned. The case is before the Court for initial review pursuant to Rule 

4 of the Rules Governing § 2254 Cases which provides in pertinent part: “[i]f it plainly appears 

from the petition and any attached exhibits that the petitioner is not entitled to relief in the 

district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” 

 Petitioner pleads the following grounds for relief: 

Ground One: Constitutional right violated when the trial was 

unreasonably continued outside the timeframe of speedy trial 

waiver. 
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Supporting Facts: Speedy trial waiver had end date of 9-15-14. 

Court allowed prosecutor continuance because they failed to secure 

their witness. Waiver was signed 7-2-14; continuance filed 8-22-

14; motion to withdraw speedy trial 8-28-14. The court did not 

specifically state the basis for its determination that continuance 

was reasonable. Trial commenced 10-6-14; from the date of arrest 

to trial 260 days elapsed. Prosecution added additional evidence 

after continuance and after originally scheduled trial. 

Ground Two: Did NOT knowingly, intelligently and voluntarily 

waive right to a speedy trial. 

Supporting Facts: Waiver to speedy trial was signed 7-2-14 but 

was not done knowingly, intelligently, and voluntarily. No one 

informed that the waiver would not be backdated to time of arrest 

if a specific date was not included. Counsel failed to ensure 

commenced date and advised that waiver could not be continued 

past 9-15-14. I was against signing waiver when counsel told me 

this. I was misled into authorizing state to begin calculating time 

on 9-15-2014 as opposed to arrest date. There was also no place 

on the waiver for a beginning date, only an end date. 

Ground Three: Ineffective counsel during trial court proceeding 

and from original appellate attorney. 

Supporting Facts: (A) Trial counsel did not inform me of putting 

a beginning date on speedy trial waiver and misled me by telling 

me continuance cannot occur after end date of 9-15-14. (B) Jeff 

James (original appellate counsel) failed to secure pretrial 

transcripts where continuances were granted and waivers given 

which would have supported speedy trial violation upon appeal 

despite an order authorizing the transcript to be created. 

Ground Four: Constitutional right to due process was violated 

when prosecutor admitted evidence that’s [whose] probative value 

was substantially outweighed by the prejudicial impact. 

Supporting Facts: The prosecutor presented evidence in the form 

of a gruesome and repetitive power point of the autopsy; this 

evidence’s probative value was substantially outweighed by its 

prejudice. The court refered [sic] to the power point as jury torture 

that was repetitive. A jury member had to leave due to having a 

severe reaction which supports this. 

(Petition, ECF No. 2). 
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 Petitioner indicates that she appealed her conviction to the Ohio Ninth District Court of 

Appeals. That court’s decision is reported at State v. Buck, 2017-Ohio-273, 2017 Ohio App. 

LEXIS 271 (9th Dist. Jan. 25, 2017). Thereafter the Ohio Supreme Court declined further 

appellate review. State v. Buck, 2017-Ohio-4396, 2017 Ohio LEXIS 1269 (Jun. 21, 2017). 

Petitioner further advises that she has filed no other “petitions, applications, or motions 

concerning this judgment of conviction in any state court.” (Petition, ECF No. 2, Question 10). 

She confirms at other points in the Petition that she has not filed any post-conviction attacks on 

the judgment. 

Analysis 

Ground One: Violation of Right to Speedy Trial 

 In her First Ground for Relief, Petitioner asserts she was deprived of her constitutional 

right to a speedy trial. 

 The Sixth Amendment to the United States Constitution guarantees a speedy trial in a 

criminal case. Like many portions of the Bill of Rights, it has been made applicable to the States 

through the Fourteenth Amendment Due Process Clause. Klopfer v. North Carolina, 386 U.S. 

213 (1967). The Supreme Court has developed a four-part balancing test to use in determining 

whether a defendant's right to a speedy trial has been violated: (1) the length of the delay; (2) the 

reasons for the delay; (3) whether the defendant has asserted his right; and (4) prejudice to the 
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defendant. Barker v. Wingo, 407 U.S. 514, 530-32 (1972). Delay is presumptively prejudicial 

where the post-accusation delay approaches one year. Doggett v. United States, 505 U.S. 647 

(1992). 

 Many States, including Ohio, have adopted statutes providing for a speedy trial of 

criminal cases. In Ohio the relevant statute is Ohio Revised Code § 2945.71. The Ohio statute is 

much more rigid than the Constitution. In Ohio if trial is not commenced within 270 days of 

arrest or 90 days if the defendant is held in jail, the charges must be dismissed, unless there has 

been a valid waiver. 

 It is important to distinguish a defendant’s rights under Ohio Revised Code § 2945.71 

from her rights under the Sixth Amendment for habeas corpus purposes, because habeas corpus 

is available only for violations of the United States Constitution. 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). 

 The Ninth District Court of Appeals determined that Petitioner was brought to trial within 

the time allowed by Ohio Revised Code § 2945.71. This habeas corpus court cannot reexamine 

the correctness of that decision as a matter of state law because the Ohio’s courts’ determinations 

of state law are binding on the federal courts. Railey v. Webb, 540 F.3d 393 (6th Cir. 2008), 

quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005)(“We have repeatedly held that a state 

court’s interpretation of state law, including one announced on direct appeal of the challenged 

conviction, binds a federal court sitting in habeas corpus.”), Maldonado v. Wilson, 416 F.3d 470 

(6th Cir. 2005); Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003); Caldwell v. Russell, 181 F.3d 

731, 735-36 (6th Cir. 1999); Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986). 
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 Applying the federal constitutional analysis adopted by the Supreme Court in Barker, 

supra, the Court notes Petitioner was brought to trial in substantially less than one year, so her 

Sixth Amendment speedy trial right was not violated. Petitioner’s Ground One is without merit. 

Ground Two: Lack of Effective Waiver of Speedy Trial Right 

 

 In her Second Ground for Relief, Petitioner asserts her speedy trial waiver was not 

knowing, intelligent, and voluntary. Because the State did not violate her Sixth Amendment 

speedy trial right nor attempt to use her waiver to extend trial beyond one year, Ground Two 

should be dismissed because it does not state a claim on which federal habeas corpus relief can 

be granted. 

Ground Three: Ineffective Assistance of Trial Counsel and Original Appellate Counsel 

 In her Third Ground for Relief, Petitioner asserts she received ineffective assistance of 

trial counsel when her trial attorney did not put a commencement date on the waiver she signed 

and misled her by telling her the continuance could not be beyond September 15, 2014. She also 

asserts she received ineffective assistance of appellate counsel when her original appellate 

attorney did not request pre-trial transcripts which would have shown the speedy trial violations. 

 Petitioner raised this claim as her Third Assignment of Error on direct appeal. The Ninth 

District decided that Assignment as follows: 
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[*P17] In her third assignment of error, Buck argues that she 

received ineffective assistance of counsel from both trial and 

appellate counsel. Specifically, Buck contends that trial counsel 

was ineffective by failing to advise her that the speedy trial time 

waiver related back to the date of arrest, March 20, 2014, instead 

of July 3, 2014, when she signed the waiver. With regard to 

appellate counsel, Buck argues that her first appellate lawyer1

was ineffective by failing to ensure that the transcript of the 

pretrial proceeding where Buck waived her right to a speedy trial 

was included in the appellate record. We disagree with both of 

Buck's arguments. 

 [*P18] "On the issue of counsel's ineffectiveness, [Buck, as the 

Appellant,] has the burden of proof because in Ohio, a properly 

licensed attorney is presumed competent." State v. Gondor, 112 

Ohio St.3d 377, 2006-Ohio-6679, ¶ 62, 860 N.E.2d 77. To prove 

ineffective assistance of counsel, Buck must establish that (1) her 

counsel's performance was deficient, and (2) "the deficient 

performance prejudiced the defense." Strickland v. Washington, 

466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To 

demonstrate prejudice, an appellant must prove that "there exists a 

reasonable probability that, were it not for counsel's [deficient 

performance], the result of the trial would have been different." 

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), 

paragraph three of the syllabus. The same standard applies to an 

ineffective assistance claim made against appellate counsel. State 

v. Rojas, 64 Ohio St.3d 131, 141, 1992 Ohio 110, 592 N.E.2d 1376 

(1992). This Court need not address both prongs of Strickland if an 

appellant fails to prove either one. State v. Ray, 9th Dist. Summit 

No. 22459, 2005-Ohio-4941, ¶ 10. 

 [*P19] With regard to Buck's ineffective assistance of trial 

counsel argument, we reiterate that since the transcript of the 

pretrial proceeding where Buck waived her right to a speedy trial 

was not included in the appellate record, this Court must presume 

regularity in the trial court's proceedings. See State v. Jackson, 9th 

Dist. Lorain No. 95CA006152, 1995 Ohio App. LEXIS 5463, 1995 

WL 734029, *2 (Dec. 13, 1995) (presuming regularity in the trial 

court's proceedings and overruling appellant's ineffective 

assistance of trial counsel argument where appellant did not 

provide this Court with a transcript of the hearing on his motion for 

post-conviction relief), citing Wozniak v. Wozniak, 90 Ohio App.3d 

400, 409, 629 N.E.2d 500 (9th Dist.1993). With regard to Buck's 

ineffective assistance of appellate counsel argument, we note that 

App.R. 26(B) is the appropriate remedy for asserting a claim for 
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ineffective assistance of appellate counsel. State ex rel. Collins v. 

Saffold, 8th Dist. Cuyahoga No. 97494, 2012-Ohio-278, ¶ 6. 

 [*P20] Accordingly, Buck's third assignment of error is overruled 

to the extent that we presume regularity in the trial court 

proceedings and this Court cannot address her ineffective 

assistance of appellate counsel argument at this juncture. 

Under the Sixth Amendment, a criminal defendant is entitled to the effective assistance of 

counsel at trial. 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). 

However, before a defendant may bring a claim of constitutional error in habeas corpus, 

she must exhaust the remedies provided by the State for that error. If she has failed to attempt to 

use those remedies within the time allowed by the State, she has procedurally defaulted on her 

claims and they are subject to dismissal. 

 "A 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. 

 Ohio provides two remedies for ineffective assistance of trial counsel. If the 

ineffectiveness can be shown from the record on direct appeal, a defendant must present the 
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claim in that way. Here the claim could have been shown on direct appeal but was not because 

the requisite transcripts were not filed. Ohio has a rule that the appellant is responsible for 

providing the court of appeals with the needed transcript. Ms. Buck did not do that and the Ninth 

District held her failure against her. Thus the ineffective assistance of trial counsel portion of 

this Third Ground is procedurally defaulted. 

 One way to avoid a procedural default dismissal is to show that it was caused by 

ineffective assistance of appellate counsel and that the defendant was prejudiced thereby. 

However, before ineffective assistance of appellate counsel can be used to excuse a procedural 

default, it must first be presented to the state courts in the way that they require. Edwards v. 

Carpenter, 529 U.S. 446 (2000). Here the Ninth District explicitly told Ms. Buck that her 

ineffective assistance of appellate counsel claim had to be raised by an application for reopening 

under Ohio R. App. P. 26(B). According to her Petition, she has not done so and the sixty-day 

time limit for that filing expired March 26, 2017. 

 Accordingly, Petitioner’s Third Ground for Relief should be dismissed as procedurally 

defaulted. 

Ground Four: Probative Value of Autopsy Pictures 

 In her Fourth Ground for Relief, Ms. Buck asserts she was deprived of due process when 

the prosecutor was permitted to show the jury photographs (power point slides) of the victim’s 

autopsy and the prejudicial effect of those photographs outweighed their probative value. 

 Petitioner presented this claim to the Ninth District as her Fourth Assignment of Error. 

That court decided the issue as follows: 
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 [*P21] In her fourth assignment of error, Buck contends that the 

trial court erred by denying her motion for a mistrial following the 

State's presentation of a "gruesome and repetitive" PowerPoint 

presentation containing photographs of the victim's autopsy. We 

disagree. 

 [*P22] "'Under Evid.R. 403 * * *, the admission of photographs 

is left to the sound discretion of the trial court.'" State v. Maurer, 

15 Ohio St.3d 239, 264, 15 Ohio B. 379, 473 N.E.2d 768 (1984). 

Likewise, a trial court's ruling on a motion for mistrial will not be 

reversed absent an abuse of discretion. State v. Witcher, 9th Dist. 

Summit No. 26111, 2012-Ohio-4141, ¶ 32. "A trial court may 

reject a photograph, otherwise admissible, due to its inflammatory 

nature, if the prejudicial effect outweighs its probative value." 

Maurer at 264-265; Evid.R. 403. "However, the mere fact that a 

photograph is gruesome or horrendous is not sufficient to render it 

per se inadmissible." Id. at 265, quoting State v. Woodards, 6 Ohio 

St.2d 14, 25, 215 N.E.2d 568 (1966). "Autopsy photographs are 

generally admissible to help the jury appreciate the nature of the 

crimes, to illustrate the coroner's or other witnesses' testimony by 

portraying the wounds, to help prove [**10] the defendant's intent, 

and to show the lack of accident or mistake." State v. Costell, 3d 

Dist. Union No. 14-15-11, 2016-Ohio-3386, ¶ 142, citing State v. 

Shakoor, 7th Dist. Mahoning No. 01CA121, 2003-Ohio-5140, ¶ 

73, citing State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, ¶ 

52, 776 N.E.2d 1061. 

 [*P23] Here, we conclude that the trial court did not abuse its 

discretion by denying Buck's motion for a mistrial. Although some 

of the photographs in question are graphic, we determine that these 

photographs are more probative than prejudicial in at least three 

respects. First, the images aided the chief medical examiner during 

her testimony and allowed the jury to better understand the medical 

examiner's testimony. The chief medical examiner, who performed 

the autopsy of Michelle Johnson, testified that in preparation for 

her testimony, she created a PowerPoint presentation to help assist 

the jury while she discussed her findings, diagnoses, and opinions. 

The images in dispute were contained in this PowerPoint 

presentation and shown to the jury while the medical examiner 

simultaneously discussed each photograph. The medical examiner 

testified that after conducting the autopsy, her findings and 

diagnoses "were sharp force injury to the neck which included an 

incised and stab wound injury to the left jugular vein and anterior 

neck, which is the front of the neck." She further stated that there 

were [**11] also "multiple incised and stab wounds to the neck 

and multiple blunt and sharp * * * force injuries on other areas of 
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the body, including the head, the torso, the arms and hands, and a 

hematoma or bruise of the scalp." The photographs within the 

PowerPoint presentation depicted the victim's wounds, primarily to 

the neck, but also to the scalp, back, and hands. Secondly, the 

photographs helped prove the murderer's intent. See State v. 

Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, ¶ 99, 813 N.E.2d 637

(explaining that the trial court did not abuse its discretion by 

allowing the State to show "gruesome" autopsy slides where the 

slides illustrated the coroner's testimony and helped prove the 

killer's intent). The medical examiner testified that the victim 

sustained 32 stab and incised wounds, thus demonstrating that the 

victim was purposely killed. Lastly, the State explained that it 

showed the photographs, in part, to prove the identity of the killer, 

as the stab wounds to the victim could help explain why Buck had 

cuts on her hands in the immediate wake of the murder. 

 [*P24] For these reasons, we determine that the trial court did not 

err by denying Buck's motion for a mistrial. Our decision on this 

matter is further buttressed by the trial court's decision to review 

the PowerPoint during a brief break in the proceedings and delete a 

photograph on the last slide of the presentation. Lastly, we note 

that while the trial court allowed the PowerPoint presentation to be 

admitted into evidence, it did not allow the presentation to be given 

to the jury during their deliberations. 

State v. Buck, supra. Although most of the Ninth District’s discussion is in terms of Ohio R. 

Evid. 403, the claim was clearly presented as due process issue; the Assignment of Error claims 

violation of the “constitutional right to due process” and the Ninth District decided the claim as 

pleaded. See Harrington v. Richter, 562 U.S. 86 (2011). 

 When a state court decides on the merits a federal constitutional claim later presented to a 

federal habeas court, the federal court must defer to the state court decision unless that decision 

is contrary to or an objectively unreasonable application of clearly established precedent of the 

United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington, supra; Brown v. Payton, 544 

U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 

U.S. 362, 379 (2000). 

 The Sixth Circuit Court of Appeals has repeatedly rejected claims that the admission of 
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gruesome or repetitive evidence is a violation of a defendant’s right to due process. Franklin v. 

Bradshaw, 695 F.3d 439, 456-57 (6th Cir. 2012) (rejecting claim that autopsy photographs of 

charred, disfigured, and gory remains of victims denied petitioner the fundamental right to a fair 

trial); Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2005) (holding admittedly gruesome 

photographs of victim’s severed head, severed breast, and torso depicting pre- and post-mortem 

injuries demonstrated defendant’s intent to kill and mutilate, and that court’s limiting instruction 

was sufficient to guarantee fundamentally fair trial); Cooey v. Coyle, 289 F.3d 882, 893-94 (6th

Cir. 2002) (finding gruesome and duplicative photographs were highly probative and did not 

“raise the spectre of fundamental fairness such as to violate federal due process of law”). 

 The Ninth District’s decision on this claim is therefore neither contrary to nor and 

objectively unreasonable application of Supreme Court precedent. The Fourth Ground for Relief 

should be dismissed on the merits. 

Conclusion 

 Based on the foregoing analysis, it is respectfully recommended that the Petition herein 

be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, 

Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth 

Circuit that any appeal would be objectively frivolous and therefore should not be permitted to 

proceed in forma pauperis. 

October 6, 2017. 

 s/ Michael R. Merz

 United States Magistrate Judge 
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NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen 

days because this Report is being served by mail. .Such objections shall specify the portions of 

the Report objected to and shall be accompanied by a memorandum of law in support of the 

objections. If the Report and Recommendations are based in whole or in part upon matters 

occurring of record at an oral hearing, the objecting party shall promptly arrange for the 

transcription of the record, or such portions of it as all parties may agree upon or the Magistrate 

Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may 

respond to another party=s objections within fourteen days after being served with a copy thereof. 

Failure to make objections in accordance with this procedure may forfeit rights on appeal. See 

United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 

153-55 (1985).