UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES D. ANDERSON, Case No. 1:18-cv-149

Petitioner,

Black, J.

vs. Litkovitz, M.J.

WARDEN, LEBANON REPORT AND

CORRECTIONAL INSTITUTION, RECOMMENDATION

Respondent.

Petitioner, an inmate in state custody at the Lebanon Correctional Institution, has filed a 

pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 3). This matter is 

before the Court on the petition and respondent’s return of writ (Doc. 10), to which petitioner has 

not replied.1

For the reasons stated below, the petition should be denied. 

I. PROCEDURAL HISTORY

State Trial Proceedings and Direct Appeal

On December 16, 2014, the Scioto County, Ohio, grand jury returned a twenty-count

indictment charging petitioner with seven counts of burglary, six counts of theft, three counts of 

grand theft, three counts of receiving stolen property, and one count of failure to comply with an 

order or signal of a police officer. (Doc. 9, Ex. 1). Petitioner, through counsel, entered a plea of 

not guilty to all charges and the case proceeded to trial on February 9, 2015. However, because 

the trial court was unable to seat an alternate juror, the trial was continued to February 17, 2015. 

(See Doc. 9, Ex. 2). 

 1 Petitioner was granted two extensions of time to file a reply to the return of writ. (See Doc. 12, 14). Most recently, 

on July 31, 2018, petitioner was granted a 40-day extension. (Doc. 14). To date, long after expiration of the 40-day 

extension, petitioner has not filed a reply. 

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On February 17, 2015, the trial court continued the case for a second time, noting that 

“Scioto County experienced 6 inches of snow resulting in a level 2 snow emergency and not 

enough prospective jurors appeared to allow for the selection of twelve jurors.” (Doc. 9, Ex. 3 at 

PageID 93). The matter was continued until the next available date on the court’s trial docket. 

Trial commenced on February 23, 2015. However, prior to jury selection, petitioner 

moved to dismiss the case pursuant to Ohio Rev. Code § 2945.71(C)(2), Ohio’s speedy trial 

statute. (Doc. 9, Ex. 4). The trial court overruled petitioner’s motion on the record. (See Doc. 9, 

Ex. 11 at PageID 163–64). Following a jury trial, petitioner was found not guilty of two counts 

of theft, two counts of burglary, and one count of grand theft. With the exception of one count of 

receiving stolen property—for which no verdict was returned—petitioner was found guilty of the 

remaining charges. (See Doc. 9, Ex. 11 at PageID 160–61). On February 25, 2015, petitioner 

was sentenced to a total aggregate prison sentence of twenty years in the Ohio Department of 

Corrections. (Doc. 9, Ex. 5). 

Petitioner, through different counsel, submitted a timely notice of appeal to the Ohio 

Court of Appeals. (Doc. 9, Ex. 6). Petitioner raised the following two assignments of error in 

his appellate brief: 

1. THE TRIAL COURT ERRED BRINGING MR. ANDERSON TO TRIAL 

AFTER THE 90 DAY DEADLINE FOR A SPEEDY TRIAL PURSUANT TO 

R.C. 2945.71 (C) and (E) HAD PASSED. 

2. THE TRIAL COURT ABUSED ITS DISCRETION IN ITS RESTITUTION 

ORDER

(Doc. 9, Ex. 7). On September 30, 2016, the Ohio Court of Appeals overruled petitioner’s 

assignments of error and affirmed the judgment of the trial court. (Doc. 9, Ex. 11). 

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Ohio Supreme Court

On November 10, 2016, petitioner filed a pro se notice of appeal to the Ohio Supreme 

Court. (Doc. 9, Ex. 12). In his memorandum in support of jurisdiction, petitioner raised the 

following proposition of law:

Appellant was prejudicially deprived of his rights to a fair, impartial, and speedy 

jury trial on direct appeal as secured by the Fifth, the Sixth and the Fourteenth 

Amendments to the United States Constitution and Article I, Section 10, 18 and 16 

of the Ohio Constitution. 

(Doc. 9, Ex. 13). On March 15, 2017, the Ohio Supreme Court declined jurisdiction of the 

appeal. (Doc. 9, Ex. 15). 

Federal Habeas Corpus

On March 12, 2018, petitioner commenced the instant federal habeas corpus action. 

(Doc. 1). Petitioner raises the following single ground for relief in the petition: 

GROUND ONE: The trial court erred by bringing Mr. Anderson to trial after the 

90 days deadline for a speedy trial pursuant to R.C. 2945.71(C) and (E). The record 

shows that Mr. Anderson was in jail from arrest until trial and that he was brought 

to trial after 90 days Speedy Trial requirement passed and as such Scioto County 

Common Pleas Court, or any other court, lost jurisdiction and the matter should 

have been dismissed with prejudice, was arrested on 11/14/14 went to trial on 

2/23/15 = 102 days this make the court violated the Speedy Trial Rights, which 90 

days x 3 = 270 here 102 x 3 = 306 total. (EXHIBIT-AA) State v. Smith, 2011-

Ohio-5750, [HN 1, 3, 4, 5]. 

Supporting Facts: The right to a speedy trial is guaranteed by the 6th Amend. and 

the 14th and Ohio Const. art. I, § 10, pursuant to these constitutional mandates, 

R.C. 2945.71 through R.C. 2945.73, this the State must bring the accused to trial. 

Upon these findings the state must discharge the accused. 

(Doc. 3 at PageID 49). 

Respondent has filed a return of writ in opposition to the petition. (Doc. 10). According 

to respondent, petitioner’s ground for relief is without merit. As noted above (see supra n.1), 

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although petitioner was granted two extensions of time to file a reply to the return of writ, he has 

failed to file a reply. 

II. THE PETITION SHOULD BE DENIED. 

In this 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). 

“A 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).

The statutory standard, established when the Antiterrorism and Effective Death Penalty 

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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 statecourt decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 

154 L.Ed.2d 263 (2002) (per curiam).

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 § 2254(d). See Johnson v. Williams, 568 U.S. 289, 292

(2013).

Although the standard is difficult to meet, § 2254(d) “stops short of imposing a complete 

bar on federal court relitigation of claims already rejected in state proceedings” and “preserves 

authority to issue the writ in cases where there is no possibility fairminded jurists could disagree 

that the state court’s decision conflicts with [Supreme Court] precedents.” Harrington v. 

Richter, 562 U.S. 86, 102 (2011). In other words, to obtain federal habeas relief under that 

provision, the state prisoner must show that the state court ruling on the claim presented “was so 

lacking in justification that there was an error well understood and comprehended in existing law 

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beyond any possibility for fairminded disagreement.” Id. at 103.

The Supreme Court has made it clear that in assessing the merits of a constitutional claim 

under § 2254(d), the federal habeas court must apply the Supreme Court precedents that 

controlled at the time of the last state-court adjudication on the merits, as opposed to when the 

conviction became “final.” Greene v. Fisher, 565 U.S. 34, 38–40 (2011); cf. Otte, 654 F.3d at 

600 (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (in evaluating the merits of a claim 

addressed by the state courts, the federal habeas court must “look to Supreme Court cases 

already decided at the time the state court made its decision”). In Greene, 565 U.S. at 38, the 

Court explained:

[W]e held last term in Cullen v. Pinholster, 563 U.S. , 131 S.Ct. 1388, 179 L.Ed.2d 

557 (2011), that review under § 2254(d)(1) is limited to the record that was before 

the state court that adjudicated the prisoner’s claim on the merits. We said that the 

provision’s “backward-looking language requires an examination of the state-court 

decision at the time it was made.” Id., at , 131 S.Ct. at 1398. The reasoning of 

Cullen determines the result here. As we explained, § 2254(d)(1) requires federal 

courts to “focu[s] on what a state court knew and did,” and to measure state-court 

decisions as of ‘the time the state court renders its decision.’” Id., at , 131 S.Ct. 

at 1399 (quoting Lockyer v. Andrade, 538 U.S. [at] 71-72 . . .; emphasis added).

Decisions by lower courts are relevant “to the extent [they] already reviewed and 

interpreted the relevant Supreme Court case law to determine whether a legal principle or right 

had been clearly established by the Supreme Court.” Otte, 654 F.3d at 600 (quoting Landrum v. 

Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)). The writ may issue only if the application of 

clearly-established federal law is objectively unreasonable “in light of the holdings, as opposed 

to the dicta, of the Supreme Court’s decisions as of the time of the relevant state court decision.” 

McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529 U.S. at 412).

In this case, the Ohio Court of Appeals was the only state court to issue a reasoned 

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opinion addressing petitioner’s speedy trial claim: 

{¶ 16} Anderson argues that the trial court erred by bringing him to trial after the 

90 day deadline for a speedy trial pursuant to R.C. 2945.71(C) and (E) had passed. 

Anderson contends that because his trial occurred after his speedy trial time expired 

the matter should have been dismissed with prejudice. Although the State concedes 

that Anderson made a prima facie case of a violation of his speedy trial rights, the 

State contends that several events tolled the time in which Anderson had to be 

brought to trial.

{¶ 17} The Sixth Amendment to the United States Constitution and Section 10, 

Article I of the Ohio Constitution guarantee a criminal defendant the right to a 

speedy trial. This guarantee is implemented in R.C. 2945.71, which provides the 

specific time limits within which a person must be brought to trial. State v. 

Blackburn, 118 Ohio St.3d 163, 2008–Ohio–1823, 887 N.E.2d 319, ¶ 10.

{¶ 18} R.C. 2945.71 provides that a person against whom a felony charge is 

pending shall be brought to trial within 270 days after arrest. Id. at (C)(2). If an 

accused is in jail in lieu of bail solely on the pending charge, the statute mandates 

that each day count as three days for purposes of speedy trial calculation. Id. at (E). 

If an accused is not brought to trial within the statutory time limit, the accused must 

be discharged. R.C. 2945.73(B). However, the R.C. 2945.71 time limits can be 

extended for any reason set out in R.C. 2945.72, but those extensions must be 

strictly construed against the State. See State v. Alexander, 4th Dist. Scioto No. 

08CA3221, 2009–Ohio–1401, ¶ 17; State v. Monroe, 4th Dist. Scioto No. 

05CA3042, 2007–Ohio–1492, ¶ 27.

{¶ 19} “Upon establishing that more than 270 days has passed before trial, a 

defendant establishes a prima facie case for dismissal based on a speedy trial 

violation.” State v. Davis, 4th Dist. Scioto No. 12CA3506, 2013–Ohio–5311, ¶ 19. 

Once a defendant presents a prima facie case for dismissal, then the burden shifts 

to the State to prove that the limitations have not expired, either by showing that 

the time limit was extended by R.C. 2945.72, or by establishing that the accused is 

not entitled to the triple count provision in R.C. 2945.71(E). Id.; Carr, 2013–

Ohio–5312 at ¶ 13; State v. McGhee, 4th Dist. Lawrence No. 04CA15, 2005–Ohio–

1585, ¶ 39.

{¶ 20} The trial time tolling provisions are set forth in R.C. 2945.72, which 

provides, in pertinent part, as follows:

The time within which an accused must be brought to trial, or, in the case

of felony, to preliminary hearing and trial, may be extended only by the 

following:

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* * *

(E) Any period of delay necessitated by reason of a plea in bar or abatement, 

motion, proceeding, or action made or instituted by the accused;

* * *

(H) The period of any continuance granted on the accused’s own motion, 

and the period of any reasonable continuance granted other than upon the 

accused’s own motion[.]

{¶ 21} In this case, approximately 102 actual days or 306 triple count days elapsed 

between the date of Anderson’s arrest on November 13, 2014, and the date of filing 

of the motion to dismiss, February 23, 2015. Anderson has thus established a prima 

facie case of a speedy trial violation; and the burden is on the State to show that a 

violation has not occurred. We are mindful that we must construe extensions of 

time under R.C. 2945.72 strictly against the State. State v. Singer, 50 Ohio St.2d 

103, 108–09, 362 N.E.2d 1216 (1977).

{¶ 22} We first note that Anderson’s date of arrest was November 13, 2014. The 

date of arrest does not count against the State in computing the 90 days. State v. 

Younker, 4th Dist. Highland No. 07CA18, 2008–Ohio–6889, ¶ 15, citing State v. 

Madden, 10th Dist. Franklin No. 04AP–1228, 2005–Ohio–4281, ¶ 28; see 

also Crim.R. 45(A). Therefore, we begin our calculations on November 14, 2014.

{¶ 23} Next, we consider the filing of Anderson’s motion for discovery as a tolling 

event. The Ohio Supreme Court has held that a defendant’s motion for discovery 

tolls the speedy trial statute. State v. Sanchez, 110 Ohio St.3d 274, 2006–Ohio–

4478, 853 N.E.2d 283, ¶ 25. Anderson states in his appellate brief that he submitted 

his motion for discovery on January 12, 2015; but, according to the State’s 

Information to the Court filed on February 25, 2015, Anderson submitted his 

Request for Discovery electronically on January 9, 2015. The State then 

purportedly responded electronically on January 14, 2015, according to the State’s 

certificate of service; however, the State alleges that it responded to the discovery 

request on January 16, 2015, which is the date the response was filed in the Clerk 

of Court’s office.

{¶ 24} The discrepancy in the dates is immaterial as Anderson also filed a Motion 

to Preserve Evidence on January 12, 2015. The trial court ruled on Anderson’s 

Motion to Preserve Evidence on January 23, 2015. R.C. 2945.72(E) provides that 

“[a]ny period of delay necessitated by reason of a * * * motion * * * made or 

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instituted by the accused” may toll time for speedy trial purposes. The Ohio 

Supreme Court also states:

We do not agree that the state has an affirmative duty to show that a motion 

diverted the prosecutor’s attention or caused a delay in the proceedings 

before speedy-trial time is tolled. It is the filing of the motion itself, the 

timing of which the defense can control, that provides the state with an 

extension. R.C. 2945.72(E) implicitly recognizes that when a motion is 

filed by a defendant, there is a “period of delay necessitated”—at the very 

least, for a reasonable time until the motion is responded to and ruled upon.

Sanchez at ¶ 26. Accord United States v. Rush, 738 F.2d 497, 502 (1st Cir.

1984) (filing of a motion to preserve evidence and the ruling thereon is a period of 

delay which shall be excluded in computing the time within which the trial must 

commence). Thus, the time from January 10, 2015 through January 23, 2015 is 

tolled for speedy trial purposes.

{¶ 25} Once the motion to preserve evidence was ruled upon by the trial court, the 

time continued to elapse. Starting on January 24, 2015, we look to the next event—

the jury trial that was scheduled for February 9, 2015—to examine whether the 

speedy trial time should toll. Again, we are mindful that we must construe 

extensions of time under R.C. 2945.72 strictly against the State. Singer, 50 Ohio 

St.2d at 108–09, 362 N.E.2d 1216. The trial court stated the following:

THE COURT: But you understand that my ability to seat a jury today with 

12 people and no alternate if your calculations are wrong on time then that’s 

a problem. The bottom line is I’m able to seat a jury, but I don’t have any 

alternate today, are you willing to take that risk?

The trial court recognized that the continuance of the trial could be a problem. We 

believe that the time period from January 24, 2015 through the next scheduled jury 

trial of February 17, 2015 should not be excluded in computing the time within 

which the trial must commence. Consequently, the days from January 24, 2015 

through February 17, 2015 counted towards the time in which Anderson needed to 

be tried.

{¶ 26} Anderson’s case came before a jury again on February 17, 2015. This time, 

the trial court simply did not have enough jurors to comprise a panel of twelve 

jurors. Both the State and Anderson’s attorney agreed that they had made every 

effort to seat a jury; but they were unable to seat twelve jurors. The trial court was 

forced to declare a mistrial. The Judgment Entry declared that “[t]he speedy trial 

time, pursuant to R.C. § 2945.71, is hereby tolled pursuant to R.C. § 

2945.72(H).” R.C. 2945.72(H) provides that “[t]he time within which an accused 

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must be brought to trial * * * may be extended only by * * * [t]he period of any 

reasonable continuance granted other than upon the accused’s own motion[.]” We 

find that this continuance was reasonable, especially in light of the parties’

agreement that they had made every effort to seat a jury, but were unable to do so. 

Accordingly, the time period of six days from February 18, 2015 through February 

23, 2015 was tolled.

{¶ 27} In total, Anderson was incarcerated for 102 days prior to the filing of the 

motion to dismiss on speedy trial grounds. Eighty-two of the 102 days elapsed 

towards the time counted against the State for speedy trial purposes. Twenty days 

of the 102 days were tolled. As a result, we find that the State has met its burden 

to show that a violation has not occurred.

(Doc. 9, Ex. 11 at PageID 165–170 (footnote omitted)). 

Upon review of the petition and record in this case, the Court finds that petitioner is not 

entitled to federal habeas relief. As an initial matter, because the federal habeas court only has 

jurisdiction to consider whether petitioner’s confinement violates the Constitution, laws or 

treaties of the United States, petitioner is unable to prevail on any claim of error under Ohio’s 

speedy trial statute or state case-law interpreting the Ohio statute. See 28 U.S.C. § 2254(a); 

Pulley v. Harris, 465 U.S. 37, 41 (1984); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) 

(“it is not the province of a federal court to reexamine state-court determinations on state-law 

questions”). Cf. Wilcher v. Rose, No. 95-3835, 1996 WL 262951, at *1 (6th Cir. May 16, 1996) 

(citing Hutchison v. Marshall, 744 F.2d 44, 46 (6th Cir. 1984)) (holding that “[t]he district court 

properly found that [the habeas petitioner’s] speedy trial claim was not cognizable insofar as it 

was based solely on state law”); Herron v. Kelly, Case No. 1:10-cv-1783, 2013 WL 3245326, at 

*5 (N.D. Ohio June 26, 2013) (holding that the petitioner’s speedy trial claim, which was 

“premised on his interpretation of his state statutory rights,” did not constitute a “cognizable 

claim for federal habeas relief”); Younker v. Warden, Chillicothe Corr. Inst., No. 1:10-cv-875, 

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2011 WL 2982589, at *10 (S.D. Ohio June 24, 2011) (Bowman, M.J.) (Report & 

Recommendation) (and cases cited therein) (holding that “to the extent petitioner’s arguments for 

relief are based solely on a violation of Ohio’s speedy trial statute or other error under Ohio law, 

he does not present a cognizable federal constitutional claim subject to review in this 

proceeding”), adopted, 2011 WL 2976790 (S.D. Ohio July 22, 2011) (Dlott, J.). The Court only 

has jurisdiction to consider whether the pre-trial delay amounted to a violation of petitioner’s 

federal constitutional speedy trial right. 

The Sixth Amendment guarantees a defendant the right to a speedy trial, which involves 

a fact-intensive inquiry requiring the balancing of (1) “whether [the] delay before trial was 

uncommonly long;” (2) “whether the government or the criminal defendant is more to blame for 

the delay;” (3) “whether, in due course, the defendant asserted his right to a speedy trial;” and (4) 

“whether he suffered prejudice as the delay’s result.” Doggett v. United States, 505 U.S. 647, 

651, 655 (1992); Barker v. Wingo, 407 U.S. 514, 530 (1972); see also Wilson v. Mitchell, 250 

F.3d 388, 394 (6th Cir. 2001).

“The first factor serves a dual function.” United States v. Schreane, 331 F.3d 548, 553 

(6th Cir. 2003). First, as a threshold requirement, the Court must determine that the length of 

delay is presumptively prejudicial. Id. “[T]he length of the delay is the triggering factor because 

‘until there is some delay which is presumptively prejudicial, there is no necessity for inquiry 

into the other factors that go into the balance.’” Wilson, 250 F.3d at 394 (quoting Barker, 407 

U.S. at 530); see also Doggett, 505 U.S. at 651-52. If the length of the delay is found to be 

“presumptively prejudicial,” it must then be considered “as one factor among several” in

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determining whether the accused was deprived of his Sixth Amendment speedy trial right. See 

Doggett, 505 U.S. at 652 (citing Barker, 407 U.S. at 533-34). 

Petitioner has failed to make a threshold showing of prejudice. Although delays 

approaching one year are “presumptively prejudicial” and thus satisfy the threshold requirement 

for review of a speedy trial claim under the four-factor balancing test, see, e.g., Doggett, 505 

U.S. at 652 n.1; Robinson, 455 F.3d at 607, the delay that occurred in this case between 

petitioner’s arrest on November 13, 2014 and trial on February 23, 2015 was less than four

months. Furthermore, in assessing the length of the delay, “only those periods of delay 

attributable to the government or the court are relevant to [petitioner’s] constitutional claim.” 

United States v. Howard, 215 F.3d 556, 564 (2000). As observed by the Ohio Court of Appeals, 

petitioner filed pretrial motions, including a motion for discovery and motion to preserve 

evidence, which were pending between January 9, 2015 and January 23, 2015. (See Doc. 9, Ex. 

11 at PageID 168–69). The relevant period of delay for petitioner’s speedy trial claim is 

therefore 88 days, or less than three months.

2

 

Because the length of the delay was not “uncommonly long,” petitioner is unable to 

demonstrate that Sixth Amendment speedy trial concerns are implicated in this case.3

 See 

 2 Fifty-seven days passed between petitioner’s November 13, 2014 arrest and his January 9, 2015 motion for 

discovery, the first of his pretrial motions. The trial court denied petitioner’s motion to preserve evidence on 

January 23, 2015 and, thirty-one days later, petitioner filed his motion to dismiss. 

3 See, e.g., United States v. White, 985 F.2d 271, 275 (6th Cir. 1993) (finding that a “six-and one half month delay is 

not excessive and does not rise to the level of constitutional violation”); see also Bennett v. Warden, No. 2009-cv00622, 2011 WL 901529, at *1 (S.D. Ohio Mar. 15, 2011) (six month delay not presumptively prejudicial); Wilcher 

v. Rose, No. 95-3835, 1996 WL 262951, at *1 (6th Cir. May 16, 1996) (finding that ten and one half month pretrial 

delay did not create a presumption of prejudice); Smith v. Brigano, No. 94-3764, 1995 WL 283781, at *2 (6th Cir. 

May 10, 1995) (finding six and one-half month delay, even if entirely attributable to the state, is not presumptively 

prejudicial); United States v. Cope, 312 F.3d 757, 778 (6th Cir. 2002) (eight-month-and-three-week delay not 

presumptively prejudicial). 

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Schreane, 331 F.3d at 553 (“if the delay is not uncommonly long, judicial examination ceases”). 

Cf. Herron, supra, 2013 WL 3245326, at *6 (holding that the six-month delay between the 

petitioner’s arrest and entry of his guilty plea was not “presumptively prejudicial” and that, 

therefore, the Court could conclude that the petitioner’s constitutional right to a speedy trial was 

not violated without considering the other three Barker factors); see also United States v. 

Gardner, 488 F.3d 700, 719 (6th Cir. 2007) (involving nine-month delay between the indictment 

and trial date).

Moreover, even if petitioner could satisfy his threshold showing that the delay in his case 

was “presumptively prejudicial,” upon consideration of the remaining Barker factors, the 

undersigned is convinced that petitioner is not entitled to habeas corpus relief on his claim that 

he was deprived of his constitutional right to a speedy trial. While petitioner did assert his right 

to a speedy trial in the state court proceedings, the delays not attributable to petitioner were not 

excessive, intentional, or motivated by bad faith. See Barker, 407 U.S. at 531; Doggett, 505 U.S. 

at 656–57; Schreane, 331 F.3d at 553–54. As noted above, aside from delay related to 

petitioner’s motions, the trial was continued on two occasions: first, on February 9, 2015, 

because an alternate juror could not be seated and second, on February 7, 2015, because weather

conditions prevented jurors from making it to the courthouse. With respect to the second 

continuance, both parties agreed that every effort had been made to seat a jury.

4

 Finally, with 

respect to the fourth Barker factor, at no point in this proceeding or in the state courts has 

petitioner argued or demonstrated that he was prejudiced in any way by the brief delays. See

Schreane, 331 F.3d at 559 (quoting Howard, 215 F.3d at 564) (“If ‘the government prosecutes a 

 4 Taken together, the continuances resulted in a delay of fourteen days, from February 9, 2015 to February 23, 2015. 

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case with reasonable diligence, a defendant who cannot demonstrate how his defense was 

prejudiced with specificity will not make out a speedy trial claim no matter how great the 

ensuing delay.’”). 

Accordingly, in sum, this Court concludes petitioner was not denied his Sixth 

Amendment right to a speedy trial. Petitioner is therefore not entitled to federal habeas corpus 

relief based on Ground One of the petition, his sole ground for relief. 

IT IS THEREFORE RECOMMENDED THAT:

1. Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 3) 

be DENIED with prejudice.

2. A certificate of appealability should not issue with respect to the claim alleged in the 

petition, which has been addressed on the merits herein, because petitioner has not stated a “viable 

claim of the denial of a constitutional right,” nor are the issues presented “adequate to deserve 

encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing 

Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). See also 28 U.S.C. § 2253(c); Fed. R. App. 

P. 22(b). 

3. With respect to any application by petitioner to proceed on appeal in forma pauperis,

the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting 

this Report and Recommendation would not be taken in “good faith,” and, therefore, should DENY

petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R. 

App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

Date: 4/29/19 s/ Karen L. Litkovitz 

Karen L. Litkovitz 

United States Magistrate Judge

Case: 1:18-cv-00149-TSB-KLL Doc #: 15 Filed: 04/30/19 Page: 14 of 15 PAGEID #: 251
15

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES D. ANDERSON, Case No. 1:18-cv-149

Petitioner,

Black, J.

vs. Litkovitz, M.J.

WARDEN, LEBANON 

CORRECTIONAL INSTITUTION,

Respondent.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of 

the recommended disposition, a party may serve and file specific written objections to the 

proposed findings and recommendations. This period may be extended further by the Court on 

timely motion for an extension. 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 Recommendation is based in whole or in part upon matters occurring on the 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 14 DAYS after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Case: 1:18-cv-00149-TSB-KLL Doc #: 15 Filed: 04/30/19 Page: 15 of 15 PAGEID #: 252