The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ERIQ R. McCORKLE,
Petitioner, : Case No. 3:21-cv-345
- VS - District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
WARDEN, Southeast Correctional
Institution,
Respondent.
REPORT AND RECOMMENDATION
Second paragraph 1*' line Barker not Barrker
This habeas corpus case, brought pro se by Petitioner Eriq McCorkle to obtain relief from
his conviction in the Greene County Court of Common Pleas, is before the Court for decision on
the merits on the Petition (ECF No. 1), the State Court Record (ECF No. 5), the Return of Writ
(ECF No. 6), and Petitioner’s Traverse (ECF No. 12).
Litigation History
McCorkle was indicted by the Greene County grand jury on December 14, 2018, on
charges of trafficking in cocaine in violation of Ohio Revised Code § 2925.03(A)(1) (Counts 1 and
3), possession of cocaine in violation of Ohio Revised Code § 2925.11(A) (Counts 2, 4 and 6),
trafficking in cocaine in violation of Ohio Revised Code § 2925.03(A)(2) (Count 5) with a 1-year
firearm specification, carrying a concealed weapon in violation of Ohio Revised Code § 2923.12(A)(2)
(Count 7), and improperly handling a firearm in a motor vehicle in violation of Ohio Revised Code §
2923.16(B) (Count 8) with 15 forfeiture specifications. (State Court Record, ECF No. 5, Exhibit 1,
Indictment). Upon arraignment, McCorkle stood mute and the Court entered a plea of not guilty. Jd.
at Ex. 2.
McCorkle moved on January 17, 2019, to suppress the evidence against him. /d. at Ex. 5.
The case was tried to a jury on September 14, 2020. A hearing on the motion to suppress was
scheduled for April 3, but on March 26 McCorkle moved to continue that hearing, stating
“Defendant is presently out of custody on bond. Furthermore, there are no speedy trial issues as Defendant
filed the Motion to Suppress and time is tolled.” Jd. at Ex. 7, PageID 47. On May 17, 2019, McCorkle
sought and received a continuance of the pretrial scheduled for May 20, 2019. /d. at Exs. 9 and 10.
On August 20, 2019, Attorney Nowicki moved to withdraw because of accusations by
McCorkle that Nowicki was working with the prosecutor. /d. at Ex. 11. On September 19, 2019,
McCorkle signed a waiver of speedy trial rights which he asserted was done knowingly,
intelligently, and voluntarily. /d. at Ex. 13.
On October 8, 2019, McCorkle filed with the Clerk of the Supreme Court of Ohio an
Affidavit of Disqualification directed at the trial Judge, The Honorable Michael Buckwalter. /d. at
Ex. 14. Chief Justice O’Conner denied disqualification, noting that as evidence of bias McCorkle
had relied on the judge’s denial of a continuance. /d. at Ex. 15.
On October 18, 2019, now represented by Attorney Ben Swift, McCorkle made a demand
for discovery and a request for a pretrial conference. /d. at Ex. 16. On December 13, 2019,
McCorkle moved for appointment of a state-funded expert to re-weigh the drugs in suit. /d. at Ex.
17. On January 7, 2020, Judge Buckwalter denied the motion, in part because McCorkle had not
shown he was indigent.! Jd. at Ex. 19.
Then on January 23, 2020, Attorney Swift moved to withdraw because his communications
with McCorkle had broken down and McCorkle had asked him to withdraw. /d. at Ex. 20. Judge
Buckwalter granted the withdrawal and noted that McCorkle had elected to represent himself in
the case. Jd. at Exs.21, 22.
The hearing on the motion to suppress was set for March 3, 2020, but continued on
McCorkle’s oral motion:
This matter comes before the Court upon defendants’ pro se oral
motion to continue the Motion to Suppress previously scheduled for
March 3, 2020. The defendant telephoned the Court and stated his.
car had broken down and could not make it to the hearing on time.
The State does not object. Accordingly, this matter is hereby
rescheduled for a Motion to Suppress on March 18, 2020 at 2 pm.
Id. at Exs. 27, 28. In the later entry, Judge Buckwalter noted that McCorkle had continued to
equivocate with the Assignment commissioner about a date for discovery disclosure. /d.
A hearing was set for April 23, 2020. At the time it was to commence, McCorkle
repeatedly refused to enter the well of the courtroom and be seated, whereupon he was held in
contempt of court and committed to jail for ten days. /d. at Ex. 33.
On April 29, 2020, Judge Wolaver, to whom the case had been reassigned, concluded:
In consideration of the pandemic emergency involving the
Coronavirus, COVID-19, the Court pursuant to R.C. 2945.72 (H)
will order speedy trial waived until the trial date is set. The Court
finds this extension of speedy trial of statutory and constitutional
rights to be reasonable based upon Barker v. Wingo, 407 U.S. 514
' Attorney Swift was retained, not appointed.
(1972), U.S. v. Loud Hawk, 474 U.S. 302 (1986) and Attorney
General Opinion 2020-002.
Id. at Ex. 35.
McCorkle then, on June 2, 2020, filed an Affidavit of Disqualification directed at Judge
Wolaver. As grounds for disqualification, among others, McCorkle asserted
the judge has denied his constitutional challenges to the court's
jurisdiction, either refused to respond to or denied his affidavits and
requests to take "mandatory judicial notice," slandered him by
asking whether he was a “sovereign citizen," and held him in
contempt of court for refusing to enter the well of the courtroom
during a hearing.
Id. at Ex. 37. Chief Justice O’Connor denied disqualification. /d.
On July 29, 2020, Judge Wolaver denied McCorkle’s motion to suppress. /d. at On
August 3, 2020, Judge Wolaver found that McCorkle had engaged in activity consistent with drug
dealing on separate occasions in July 2020, and had lied to the court about the status of charges
arising from that activity (Bond Entry, State Court Record 5, Ex. 38).
On September 2, 2020, McCorkle filed a Motion to Discharge, claiming for the first time
a violation of his speedy trial rights. /d. at Ex. 39. Judge Wolaver denied that motion on September
10, 2020, noting the days the statute was tolled on account of the pandemic and McCorkle’s written
waiver of speedy trial rights. Jd. at Ex. 41.
The case was then tried to a jury commencing September 14, 2020. Upon the jury verdicts,
McCorkle was sentenced to an aggregate term of seventy-two months imprisonment. /d. at Ex. 43. He
appealed to the Second District Court of Appeals, raising the following assignments of error
The jury held, against the manifest weight of the evidence, that the
cash in the amounts of $36,750 found in the home shared with his
girlfriend, and $310 found in Mr. McCorkle’s wallet at his residence
were to be forfeited as proceeds of criminal activity.
The Trial Court erred when it held that Mr. McCorkle’s right to a
speedy trial was within the time permitted by law.
The Trial Court erred when it held that Mr. McCorkle waived his
speedy trial time when the waiver was not knowingly and
voluntarily executed.
Id. at Exs. 49, 54. The Second District affirmed. Jd. at Ex. 61.
McCorkle then appealed to the Supreme Court of Ohio, relying on the following two
propositions of law:
1. The Right to a Speedy Public Trial is a guaranteed Right by both
the Constitution of the State of Ohio (Article I Section X), and the
6th Amendment of the United States Constitution. It is enforced by
the Statutory Law, under O.R.C. 2945.71 (C)(2)” a person charged
with a felony must be brought to Trial within 270 days after a
person’s arrest”.
2. “A person may waive a Constitutional Right to a Speedy Trial,
provided that such waiver is knowingly and voluntarily made”
Barker v. Wingo (1972) 407 U.S. 514, 523.
Id. at Ex. 63. The Supreme Court declined jurisdiction, /d. at Ex. 65.
On December 9, 2021, McCorkle filed a delayed application for reopening his direct
appeal, pleading nine assignments of error allegedly omitted because of ineffective assistance of
appellate counsel. He attempted to excuse the delayed filing on the basis of the COVID 19
pandemic. The Application remained pending as of March 4, 2022.
Analysis
McCorkle pleads one ground for relief:
Ground One: Petitioner’s rights to speedy trial were indeed
violated in pursuance of the United States Constitution (6th
Amendment).
Supporting Facts: The arrest of the petitioner occurred December
6, 2018, and a decision and conviction wasn’t rendered until
September 17, 2020. A delay becomes presumptively prejudicial as
it approaches a year in length.
(Petition, ECF No. 1, PageID 4).
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 v. Richter, 562 U.S. 86, 131 □□
Ct. 770, 785 (2011); 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). Deference is also due under 28
U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceedings.
The Warden notes that McCorkle presented his speedy trial claim, both under Ohio and
federal constitutional law, to the Second District Court of Appeals which rejected the claim on the
merits. Respondent claims the Second District’s decision is an objectively reasonable application
of the relevant Supreme Court precedent, Barker v. Wingo, 407 U.S. 514, 530-32 (1972).
In his Traverse McCorkle has written extensively on this question. First of all, he denies
that his speedy trial claim in this Court is in any way based on violation of the Ohio speedy trIAl
statute, Ohio Revised Code § 2945.71 (Traverse, ECF No. 12, PageID 2203). The Court agrees.
Although claims under both Ohio and federal constitutional law were made on appeal, McCorkle
relies entirely on federal law in his Petition.
In denying the assignments of error related to speedy trial, the Second District held:
{§ 20} The second and third assignments of error allege:
The Trial Court erred when it held that Mr. McCorkle's right to a
speedy trial was within the time permitted by law.
The Trial Court erred when it held that Mr. McCorkle waived his
speedy trial time when the waiver was not knowingly and
voluntarily executed.
{9 21} “[T]he standard for reviewing claims of speedy trial
violations is ‘whether the trial court's ruling is supported by the
evidence or whether the court abused its discretion by making a
finding manifestly against the weight of the evidence.’ ” State v.
Gatewood, 2d Dist. Clark No. 2010-CA-18, 2012-Ohio-202, ¥ 15,
citing State v. Humphrey, 2d Dist. Clark No. 2002-CA-30, 2003-
Ohio-3401, § 21.
{§ 22} “The right to a speedy trial is guaranteed by the Sixth
Amendment to the United States Constitution * * *.” State v. Adams,
43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). In Ohio, these rights
are also protected by Section 10, Article I of the Ohio Constitution,
and are enforced by statute. See id. Under R.C. 2945.71(C)(2), a
person charged with a felony must be brought to trial within 270
days after the person's arrest, subject to any applicable tolling
provisions in R.C. 2945.72.
□□ 23} McCorkle was arrested on December 6, 2018, and remained
in custody until March 2, 2019, when he was released on bond.
While he was in custody, on January 17, McCorkle filed the motion
to suppress. Later, after having been found in contempt of court, he
was in custody for almost a week in April 2020, before being again
released on bond. On April 29, 2020, due to the COVID-19
pandemic, the trial court entered a tolling order under R.C.
2945.72(H), citing Attorney General Opinion 2020-002, that
extended the time for trial until the scheduled trial date the following
September. On July 21, 2020, McCorkle was rearrested for violating
his bond conditions, and he remained in custody until the trial began.
The trial court overruled the suppression motion in late July, and the
trial began in mid-September. The trial court found that 42 days had
elapsed from McCorkle's arrest until he filed the suppression motion
and that, under R.C. 2945.71(E), each of these days counted as three,
for a total of 126 days. The court also found that its April tolling
order, issued while the motion to suppress was still pending, meant
that the speedy-trial time was effectively tolled until the trial started.
We see no problem with the trial court's ruling.
{4 24} Under the tolling provisions in R.C. 2945.72, the speedy-trial
time may be extended by “[a]ny period of delay necessitated by
reason of a plea in bar or abatement, motion, proceeding, or action
made or instituted by the accused,” R.C. 2945.72(E), as well as by
“the period of any reasonable continuance granted other than upon
the accused's own motion,” R.C. 2945.72(H). The provision in
division (E) was triggered when McCorkle's filed the suppression
motion, and while the trial court did not decide that motion for well
over a year and the trial did not begin for over a year and a half, the
delay was justified.
*5 {9 25} Many things occurred between McCorkle's indictment
and trial that tolled the speedy-trial time. Some are attributable to
McCorkle: defense counsel was replaced multiple times, McCorkle
filed numerous motions, he was found in contempt, and then he
violated his bond conditions, to name a few. The most significant
event, of course, was the COVID-19 pandemic, which began in
early 2020. “[T]he General Assembly tolled certain statutory time
limits because of the COVID-19 global health emergency” from
March 9, 2020, until July 30, 2020. Chapman Ents., Inc. v. McClain,
Ohio Slip Opinion No. 2021-Ohio-2386, —— N.E.3d ——, J 10-11;
2020 Am.Sub.H.B. No. 197, Sections 22(B) and (C). One of the
tolled time limits was the speedy-trial time. H.B. 197, Section
22(A)(3) (tolling “[t]he time within which an accused person must
be brought to trial or, in the case of a felony, to a preliminary hearing
and trial”). Moreover, it was the opinion of the Ohio Attorney
General that “[c]ourts may suspend jury trials to prevent the spread
of the novel coronavirus, and they may do so consistent with state
and federal speedy-trial obligations.” 2020 Ohio Atty.Gen.Ops. No.
2020-002, syllabus. Citing “[t]he broad language of’ R.C.
2945.72(H), the opinion concluded that “the current pandemic
emergency provide[d] a ‘reasonable’ basis for continuance.” /d. at
p. 2. It further concluded that “a continuance would comport with
state and federal constitutional guarantees.” /d. at p. 7.
{§ 26} All in all, we cannot say that the delay in bringing McCorkle
to trial violated his speedy-trial rights. The trial court's speedy-trial
ruling was supported by the evidence and was eminently reasonable.
Because we conclude that McCorkle was brought to trial within the
statutory time, his argument that his speedy-trial waiver was invalid
is moot, and we decline to consider the issue.
{§ 27} The second and third assignments of error are overruled.
State v. McCorkle, 2021-Ohio-2604 (Ohio App. 2d Dist. Jul. 31, 2021).
The determinative question in this habeas corpus case is whether this decision is an
objectively reasonable application of clearly established United States Supreme Court
constitutional precedent. 28 U.S.C. § 2254(d)(1). The Sixth Amendment to the United States
Constitution guarantees a criminal defendant a speedy and public trial. The Congress of the United
States has adopted a federal Speedy Trial Act, 18. U.S.C. § 3161 to enforce the constitutional right.
While the Sixth Amendment is applicable to state criminal trials, Klopfer v. North Carolina, 386
U.S. 213 (1967), the federal Speedy Trial Act is not. Therefore precedent interpreting 18 U.S.C.
§ 3161 is not directly applicable to the constitutional question. The same thing is true of Ohio
Revised Code § 2945.71 et seq. That is to say, both statues were adopted to enforce the Sixth
Amendment and the cognate provisions of the Ohio Constitution, but judicial opinions interpreting
and applying the statues are not directly applicable to the constitutional question.
McCorkle argues that the Sixth Circuit has held that the requirements of the Ohio Speedy
Trial statute are “coextensive” with the 6 Amendment speedy trial requirement.” Traverse, ECF
No. 12, PageID 2204, citing Brown v. Bobby, 656 F. 3d 325 (6" Cir. 2011). Not so. In Brown the
Sixth Circuit held that “Ohio courts regard the state's speedy trial scheme as an implementation of
the federal constitutional guarantee to a speedy trial.” 656 F. 3d at 329, citing 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).
The Supreme Court has developed a four-part balancing test to use in determining whether
a defendant's constitutional right to a speedy trial has been violated: a court must balance (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 defendant. Barker v. Wingo, 407 U.S. 514, 530-32 (1972).
Length of the Delay
McCorkle was arrested on December 6, 2018, and not brought to trial until September 14,
2020. Here the delay was slightly over twenty-one months.
McCorkle provides a lengthy calculation of the delay using Ohio’s statutory provisions that
counts a day in jail as three days toward the statutory limit of 270 days (Traverse, ECF No. 12,
PageID 2205-07). This provision of the Ohio statute does not apply to calculating delay for federal
constitutional purposes. For purposes of Barker, the actual delay was 648 calendar days.
Reasons for the Delay
The reasons for delaying particular events in the run-up to a felony trial in a court of general
Jurisdiction are often not apparent from the docket. No Sixth Amendment jurisprudence requires
reasons to be written. In this case, some reasons are given explicitly and some must be inferred.
Some motions must be decided before trial — in this case in particular, the motion to
suppress was required to be made and decided pre-trial. Ohio R. Crim. P. 12. Motions to suppress
usually require a hearing at which evidence is taken and may require briefing after the hearing and
preparation of a transcript before briefing.
Each time an attorney is replaced, new counsel will require time to prepare, and counsel
was replaced twice in this case before McCorkle decided to proceed pro se.
A judge who is the subject disqualification proceedings before the Chief Justice is barred
from acting until she has decided that he is not disqualified. In this case McCorkle sought, seriatim,
disqualification of both Greene County General Division Common Pleas Judges for insubstantial
reasons but that occasioned delay.
McCorkle obtained one continuance by moving for it orally on the uncorroborated claim
his car had broken down. On another occasion, he caused delay by refusing to be seated in the
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well of the courtroom in defiance of a clear order, occasioning a ten-day delayed while he was in
jail for contempt. On two occasions in the summer of 2020, he occasioned delay by being arrested
on new felony drug trafficking charges in Franklin County, Ohio.
The major reason for delay was the public health measures taken to attempt to contain the
COVID-19 virus, beginning with Governor DeWine’s declaration of an emergency in mid-March,
2020. The pandemic had its greatest impact on jury trials which require a group of strangers to
spend large amounts of time in close proximity to one another. Stories about how such gatherings
resulted in spread of the illness were widespread. For example, the disease was apparently spread
during a Rose Garden reception for Justice Amy Barrett. It was difficult for public health officials
to provide the public with useful information. There was no effective vaccine available from the
initial lock down until after McCorkle’s trial. Given the seriousness of the disease (high mortality,
high morbidity with maximum ICU usage, rapid spread, no viable treatment of vaccine),
conscientious decisions to suspend jury trials were justified; this Court suspended them as well.
All in all, the delays in bringing this case to trial were well justified.
McCorkle argues much of the delay must be charged to the State: since it did not benefit
him, it must have benefited them. However he cites no evidence of a continuance which the State
sought for its benefit, e.g. to investigate further or obtain witnesses.
Whether the Defendant Asserted His Speedy Trial Right
The only instance in the record of McCorkle asserting his speedy trial right is the Motion
to Discharge filed September 10, 2020, four days before trial (State Court Record, ECF No. 5, Ex.
40). Against that the Court must weigh McCorkle’s waiver of speedy trial and his failure to even
1]
attempt to withdraw that waiver.
Whether the Defendant Was Prejudiced by the Delay
The last factor to be weighed is whether the defendant was prejudiced by the delay. Under
Barker a presumption of prejudice attaches as the delay approaches one year. Doggett v. United
States, 505 U.S. 647 (1992). Obviously here the delay was long enough to trigger the Barker
presumption. The question, then, is whether the presumption of prejudice is overcome by the
actual evidence.
A major source of injury to defendants who remain incarcerated pre-trial is damage to their
jobs, families, and financial interests. McCorkle catalogues how all of those injuries accrued to
him. The most severe impact of these conditions is on the defendant who is not released pre-trial
but is then acquitted — he or she has lost that time forever. The defendant who is convicted,
however, is given credit day-for-day for pre-trial incarceration. That is true here of McCorkle.
Instead of attending to one of his many claimed legitimate businesses, McCorkle was
caught twice while released on bond plying his drug trafficking business to the tune of five-figure
seizures. Such prejudice simply cannot count in the speedy trial calculation.
McCorkle points to one tangible prejudice: his only intended trial witness, Timothy
Buckles, died shortly before trial.
Indubitably, Petitioner was prejudiced by the untimely death of the
Petitioner's only witness Timothy Buckles who happened to past
[sic] just days before the Trial. The lack of this vital testimony,
impaired the Petitioner's Defense indisputably and made it
impossible for the Petitioner to receive a Fair Trial. His testimony
alone had the potential to exonerate the Petitioner.
(Traverse, ECF No. 12, PageID 2211). This claim is completely conclusory. What was Buckles
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expected to testify to? What would have made his testimony admissible? If Buckles was, as
claimed, an eyewitness, nothing would have prevented McCorkle himself from testifying. This
would of course have exposed him to cross-examination, but nothing in the Constitution
guarantees a defendant the opportunity to present testimony from someone who cannot be
impeached.
Conclusion
When a habeas corpus court is presented with a claim already decided on the merits in the
state courts, our task is not to decide if the state courts were right. “A state court’s determination
that a claim lacks merit precludes federal habeas relief so long as “fair-minded jurists could
disagree” on the correctness of the state court decision,” Harrington v. Richter, 562 U.S. 86, 101
(2011)(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The state court decision must
be “so lacking in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” White v. Woodall, 572 U.S. 415, 421
(2014).
Barker does not tell us what weight to give to the factors it requires us to consider. Here
the Second District considered all the required factors and gave them weight either side as appears
fair to this Court. It is therefore recommended that the Petition be dismissed with prejudice.
Because reasonable jurists would not disagree with this conclusion, it is also recommended that
Petitioner be denied a certificate of appealability and that the Court certify to the Sixth Circuit that
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any appeal would be objectively frivolous and should not be permitted to proceed in forma
pauperis.
April 8, 2022.
s/ Michael R. Merz
United States Magistrate Judge
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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. 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. 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. #
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