Brown v. Bobby

• Decision Date: 07 October 2011
• Docket Number: No. 07–4471.,07–4471.
• Citation: 656 F.3d 325
• Parties: Kevin N. BROWN, Petitioner–Appellant,v.David BOBBY, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

656 F.3d 325

Kevin N. BROWN, Petitioner–Appellant,

v.David BOBBY, Warden, Respondent–Appellee.

No. 07–4471.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 2, 2010.Decided and Filed: Sept. 2, 2011.Rehearing and Rehearing En Banc Denied Oct. 7, 2011.*

ARGUED: C. Kevin Marshall, Jones Day, Washington, D.C., for Appellant. William H. Lamb, Office of the Ohio Attorney General, Cincinnati, Ohio, for Appellee. ON BRIEF: C. Kevin Marshall, Jones Day, Washington, D.C., for Appellant. William H. Lamb, Office of the Ohio Attorney General, Cincinnati, Ohio, for Appellee.Before: KENNEDY, COLE, and ROGERS, Circuit Judges.ROGERS, J., delivered the opinion of the court, in which KENNEDY, J., joined. COLE, J., (pp. 338–48), delivered a separate dissenting opinion.

OPINION

ROGERS, Circuit Judge.

Because the facts of this case present a close question in regard to whether a Sixth Amendment violation occurred, its resolution depends largely upon whether, pursuant to the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA), this court should defer to the state court's determination that defendant's speedy trial right was not violated. The district court properly denied Kevin Brown's petition for a writ of habeas corpus in light of the Supreme Court's recent decision in Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), which supports the application of AEDPA deference to the state court's determination. The Ohio Court of Appeals rejected Brown's assertion of a federal speedy trial right, so as to implicate AEDPA. And neither of the alternatives for habeas relief under AEDPA is present here. First, the Ohio Court of Appeals' application of its specific speedy trial standards in denying Brown's speedy trial claim was not contrary to clearly established federal law. Second, the state court's determination was a reasonable application of clearly established federal law. The writ was accordingly properly denied.

I.

Kevin Brown was arrested in his home on allegations of rape on July 6, 2001. Brown's original trial date was September 26, 2001, but because of numerous continuances and motions by both parties and the court, he was not brought to trial until February 10, 2003. Brown's counsel initially requested two continuances, which the trial court granted and which pushed the trial date back to November 28, 2001. Then, the trial court entered two sua sponte continuances—in between these two continuances came another continuance by joint motion of the parties—further delaying proceedings until December 27, 2001. It is unclear what occurred from December 27, 2001, until February 27, 2002, but on that later date the government moved for a continuance to conduct DNA testing. The trial court granted this request and set a new June 5, 2002 trial date based on the government's assertion that the latest date DNA testing results would be available was the end of May 2002. However, when that June date arrived, the government noted that it still had not received the DNA testing and moved for another continuance. Brown objected to the request and claimed that further delay violated his speedy trial right. The trial court granted a forty-day continuance despite Brown's objections. Brown's trial counsel withdrew with leave of court on July 8, 2002, and on that same day Brown was appointed new counsel and an August 5, 2002 trial date was set. On August 5, 2002, the parties made a joint request for a continuance, which the court granted, setting an August 19, 2002 trial date. On August 7, 2002, Brown filed a motion to dismiss on speedy trial grounds, and thus instead of proceeding to trial on August 19, the trial court held a hearing on this motion to dismiss, denied the motion, and set an October 30, 2002 trial date. Brown appealed this denial on October 15, 2002, which the court of appeals ultimately denied and which caused his trial to be pushed back until November 18, 2002. Brown requested additional continuances on November 18, 2002, and January 6, 2003, because of the unavailability of his expert witness. The trial court granted both, moving the trial to January 21, 2003. Although proceedings began on this date, the court declared a mistrial two days later and reset the trial for February 10, 2003.

When he was finally brought to trial, a jury convicted Brown on four counts of rape, and he was sentenced to four consecutive life sentences. Brown appealed his convictions to the Ohio Court of Appeals, alleging, among other things, that he was denied his right to a speedy trial. The court of appeals rejected this claim. In so ruling, the court of appeals applied Ohio's speedy trial provisions in Ohio Rev.Code § 2945.71 et seq., and concluded that the delay of approximately nineteen months in Brown's case was both Brown and the state's fault, and that the portion of the delay for which the state was to blame did not reach the number of days required for a speedy trial violation. Brown, acting pro se, then sought leave to appeal to the Ohio Supreme Court, which was denied.

Brown filed a petition for a writ of habeas corpus with the federal district court below on May 15, 2006, again raising a speedy trial claim. The magistrate judge recommended denying this petition. In regard to Brown's speedy trial claim, the magistrate judge analyzed the four factors laid out by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and determined that the Ohio Court of Appeals' rejection of the claim “was not an ‘objectively unreasonable’ application of clearly established federal law on the Sixth Amendment right to speedy trial.” Although the magistrate judge believed that three of the four Barker factors weighed in favor of Brown, the judge did not believe that Brown demonstrated any prejudice from the delay in bringing him to trial. This prompted the magistrate judge to conclude that Brown was not entitled to the “extraordinary remedy” of a writ of habeas corpus. Despite Brown's objections, the district court adopted the magistrate judge's recommendation and denied Brown's petition on November 9, 2007. Brown now appeals.

II.

Pursuant to Harrington, this court can presume that the state court adjudicated on the merits Brown's federal speedy trial claim, warranting the application of AEDPA deference. 28 U.S.C. § 2254(d) describes this deference as follows:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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.

But by its own terms, the deference in this provision applies “only to habeas claims that were adjudicated on the merits in state court.” Newton v. Million, 349 F.3d 873, 878 (6th Cir.2003). In Harrington, the Supreme Court explained that a state court need not state its reasoning or provide any explanation for its conclusions for it to “adjudicate on the merits” a federal claim. 131 S.Ct. at 784. Instead, “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 784–85. Thus, the mere fact that the Ohio Court of Appeals did not specifically explain that it was ruling on Brown's Sixth Amendment claim does not prevent this court from deferring to that court's opinion on habeas review.

The Supreme Court held in Harrington that the presumption in favor of finding an adjudication of the federal claim on the merits “may be overcome when there is reason to think some other explanation for the state court's decision is more likely,” id. at 785, but that is not the case here. Brown has not put forth any significant reason for this court to believe that the Ohio Court of Appeals did not consider his Sixth Amendment claim. In fact, the state court of appeals even mentioned the Sixth Amendment standard in its opinion, stating that “[t]he Sixth Amendment to the United States Constitution guarantees that, ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.’ This right was made applicable to the States by the Fourteenth Amendment.” State v. Brown, 03–MA–32, 2005 WL 1385715, at *2 (Ohio App. June 7, 2005) (second alteration in original). The state court of appeals also cited Ohio cases that relied on federal speedy trial law in its decision. Id. (citing State v. Dunlap, 01–CA–124, 2002 WL 1396754, at *2 (Ohio App. June 18, 2002); State v. Anderson, 2002–CO–30, 2003 WL 21134706, at *2 (Ohio App. May 16, 2003)). Further, the mere fact that the state court of appeals applied its own 270–day limit in determining whether a speedy trial violation occurred does not make applicable the exception in Harrington, especially considering that Ohio courts regard the state's speedy trial scheme as an implementation of the federal constitutional guarantee to a speedy trial. See State v. O'Brien, 34 Ohio St.3d 7, 516 N.E.2d 218, 220 (1987); State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589, 591 (1980). These facts bolster the presumption in favor of finding an adjudication of the federal claim on the merits. Thus, we must defer to the state court of appeals' opinion.

III.

Despite this deference, AEDPA permits habeas relief “[w]hen the state court issues a decision that is contrary to federal law.” Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir.2006); see 28 U.S.C. § 2254(d)(1). This prong of AEDPA...