Brooks v. Forshey

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DEMONDRAY BROOKS, CASE NO. 1:23-CV-2123-JRK

Petitioner, JUDGE JAMES R. KNEPP, II

vs. MAGISTRATE JUDGE DARRELL A. CLAY

WARDEN HAROLD MAY,1 REPORT AND RECOMMENDATION

Respondent.

INTRODUCTION

Representing himself, Demondray Brooks, a prisoner in state custody, petitions for a writ

of habeas corpus under 28 U.S.C. § 2254. (ECF #1). The District Court has jurisdiction under

§ 2254(a) and referred the matter to me to prepare a Report and Recommendation. (Non-

document entry of Oct. 31, 2023). On February 26, 2024, then-Respondent Warden Jay Forshey,

as Warden of the Noble Correctional Institution (hereinafter, the State), filed the Return of Writ

(ECF #8) with the state-court record and transcripts (ECF #8-1, 8-2). On May 23, 2024, Mr.

Brooks submitted his Traverse. (ECF #7).

1 When Mr. Brooks filed his petition, he was incarcerated at Noble Correctional

Institution, but was later transferred to Mansfield Correctional Institution. (ECF #9). Harold May

is the Warden of that facility. See Mansfield Correctional Institution, Ohio Dept. of Rehab. & Corr.,

http://drc.ohio.gov/about/facilities/mansfield-correctional (last accessed June 18, 2025).

Accordingly, under Fed. R. Civ. P. 25(d) and Rule 2(a) of the Rules Governing Section 2254 Cases

in the United States District Courts (Habeas Rules), I automatically substitute Warden May as

Respondent.

Mr. Brooks raises two grounds for relief. For the reasons below, I recommend the District

Court DENY Ground One as without merit, DISMISS Ground Two as not cognizable, and

DISMISS the petition. I further recommend the District Court DENY a certificate of appealability

(COA).

PROCEDURAL HISTORY

A. State court factual findings

The Ohio Court of Appeals, Fifth Appellate District, summarized the facts here on direct

appeal. These factual findings are presumed correct unless Mr. Brooks offers clear and convincing

evidence to the contrary. See 28 U.S.C. § 2254(e)(1). The Fifth District determined:

{¶2} On January 7, 2022, the Richland County Grand Jury returned an Indictment

charging Brooks with: Count 1, Failure to Comply with an Order or Signal of a Police

Officer causing a substantial risk of serious physical harm to persons or property;

Count 2, Failure to Comply with an Order or Signal of a Police Officer while fleeing

immediately after the commission of a felony; Count 3, Trafficking in a Fentanyl-

Related Compound in the vicinity of a juvenile in an amount equal to or greater

than 5 grams but less than 10 grams; Count 4, Possession of Fentanyl in an amount

equal to or greater than 5 grams but less than 10 grams; Count 5, Trafficking in

Cocaine in the vicinity of a juvenile; Count 6, Possession of Cocaine in an amount

equal to or exceeding 5 grams but less than 10 grams; Count 7, Aggravated

Trafficking in Drugs, Methamphetamine; Count 8, Aggravated Possession of Drugs,

Methamphetamine; Count 9, Trafficking in Drugs, Clonazepam, a Schedule IV

drug, in the vicinity of a juvenile in an amount less than bulk amount; Count 10,

Possession of Drugs, Clonazepam, a Schedule IV drug, with a previous conviction of

a drug abuse offense; Count 11, Having Weapons While under a Disability with a

previous conviction for a drug trafficking offense; Count 12, Having Weapons While

under a Disability with a previous conviction for a felony of violence; Count 13,

Assault - J.N.; Count 14, Assault - K.T; and Count 15, Criminal Damaging or

Endangering with a substantial risk of serious harm to the property of M.P.

{¶3} On November 25, 2021, Brooks filed a Demand for Discovery.

{¶4} On March 24, 2022, Brooks filed a Motion to Continue the trial date. On April

6, 2022, Brooks filed a Motion to Dismiss/Suppress Counts 1, 2, 11 & 12 of the

Indictment. On April 13, 2022, the trial court filed a Notice of Hearing scheduling

a hearing on Brooks’ motion to dismiss/suppress for April 22, 2022. On April 14,

2022, the trial court filed a Judgment Entry granting Brooks’ motion to continue

and scheduled a new trial date of May 16, 2022. On April 28, 2022, the trial court

filed a Judgment Entry overruling Brooks’ motion to dismiss/suppress.

{¶5} On May 3, 2022, counsel for Brooks filed a motion to withdraw. By Judgment

Entry filed May 4, 2022, the trial court granted the motion to withdraw and

scheduled a final pre-trial for May 12, 2022, and a jury trial for May 16, 2022.

{¶6} On May 6, 2022, Brooks’ new counsel filed a Demand for Discovery, a Demand

for a Bill of Particulars, and a Demand for Testimony. On May 12, 2022, Brooks

filed a motion to continue the trial, in which he noted that he had received discovery

from the state on May 10, 2022.

{¶7} On May 23, 2022, Brooks filed a pro se motion to dismiss for a violation of his

right to a speedy trial. On June 9, 2022, Brooks filed a pro se motion to discharge

his counsel and represent himself.

{¶8} By Judgment Entry filed June 15, 2022, the trial court granted Brooks’ motion

to continue the trial date. The trial court tolled time and scheduled a new trial date

for July 18, 2022.

{¶9} On June 24, 2022, Brooks, through counsel, filed a Motion to Dismiss alleging

a violation of his right to a speedy trial.

{¶10} On July 15, 2022, the trial court held a hearing on Brooks’ motion to dismiss.

Sergeant Beau James of the Richland County Sheriff's Office, Corrections Division

testified that Brooks has been in jail since his arrest on the present charges on

November 2, 2021. On the day of his arrest, a holder was placed on Brooks by

Morrow County for a Failure to Appear for a misdemeanor charge.

{¶11} The trial court took the motion to dismiss under advisement and next

addressed Brooks’ request to proceed pro se. Brooks informed the court that he

decided not to represent himself. After plea negotiations, the trial judge orally

overruled Brooks’ motion to dismiss. Thereafter, the state amended Count 3 of the

Indictment to remove the “in the vicinity of a juvenile” language thereby making the

offense a felony of the third degree. The trial court permitted Brooks to plead “No

Contest” to Counts 1, 2, Count 3 as amended, Counts 7, 11, 13 and Count 15.

Brooks stipulated to a guilty finding by the trial judge. The trial court imposed the

agreed upon sentence of 8.5 years as follows: Count 1: 36 months; Count 3: 36

months; Count 7: 12 months, Count 11: 18 months, to be served consecutively to

each other but concurrently with Count 13: 6 months, concurrent to Count 15: 6

months.

(ECF #8-1 at PageID 184-87 (citations and footnote omitted); see also State v. Brooks, No. 2022 CA

0055, 2023 WL 3455618, at *1-2 (Ohio Ct. App. May 15, 2023), appeal not allowed, 216 N.E.3d

702 (Ohio 2023) (table)).

B. Direct appeal

On August 17, 2022, through appointed counsel, Mr. Brooks timely appealed to the Fifth

District. (ECF #8-1 at PageID 110-11). There he, asserted a single assignment of error: “The trial

court erred in denying Appellant’s motion to dismiss for failure to grant him a speedy trial.” (ECF

#8-1 at PageID 115).

On November 21, 2022, Mr. Brooks filed a Motion for Leave to Proceed Pro Se, claiming

his appointed counsel had willfully failed to communicate with him. (Id. at PageID 140). On

February 10, 2023, the Fifth District discharged Mr. Brooks’ appointed appellate counsel and

allowed Mr. Brooks to represent himself. (Id. at PageID 150). On March 9, 2023, Mr. Brooks filed

an Appellant’s Brief raising the same assignment of error: “The trial court erred in denying

Appellant’s motion to dismiss for failure to grant him a speedy trial.” (Id. at PageID 155). After the

State responded (id. at PageID 170-82), Mr. Brooks did not file a Reply Brief. The Fifth District

affirmed on May 15, 2023. (Id. at PageID 183-93).

On June 29, 2023, Mr. Brooks (through new counsel) timely appealed to the Supreme

Court of Ohio. (Id at PageID 194-95). There, he raised a single proposition of law: “For purposes

of computing time under R.C. 2945.71(A), (B), (C)(2), and (D), each day during which the accused

is held in jail in lieu of bail on the pending charge shall be counted as three days.” (Id. at PageID

198). On September 12, 2023, the Supreme Court of Ohio declined to hear his appeal. (Id. at

PageID 211).

FEDERAL HABEAS PETITION

Before this Court, Mr. Brooks raises two grounds for relief:

Ground One: The trial court denied the petitioner his 6th Amendment rights to a

speedy trial.

Supporting Facts:

Nov. 2, 2021 0 Arrest, counting starts Nov. 3

Jan. 25, 2022 84 Demand for discovery filed by Brooks/no reply by

State

Mar. 24, 2022 142 Motion to continue jury by Brooks. No tolling events

stopped the running of time prior to March 24th.

Ground Two: The State of Ohio denied Petitioner his obligatory rights to due

process under the 5th and 14th Amendments.

Supporting Facts: The State of Ohio denied Petitioner his rights to due process by

not following the plain language of speedy trial statute.

(ECF #1 at PageID 5, 7).

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs Mr. Brooks’

habeas petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA recognizes that “[s]tate courts

are adequate forums for the vindication of federal rights” so AEDPA acts as a “formidable barrier

to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v.

Titlow, 571 U.S. 12, 19 (2013). AEDPA “dictates a highly deferential standard for evaluating state-

court rulings which demands that state-court decisions be given the benefit of the doubt.” Bell v.

Cone, 543 U.S. 447, 455 (2005) (citation and quotation omitted). Habeas courts review the last-

explained state-court judgment on the federal claim at issue. Ylst v. Nunnemaker, 501 U.S. 797, 805

(1991).

Accordingly, habeas relief cannot be granted for a person in custody pursuant to a state

conviction unless the adjudication “(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 upon an unreasonable

determination of the facts in light of the evidence presented in the State court proceedings.”

28 U.S.C. § 2254(d). For the purposes of § 2254(d)(1), “clearly established Federal law” means

“the governing legal principle or principles set forth by the Supreme Court at the time the state

court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). It includes “the holdings,

as opposed to dicta, of [Supreme Court] decisions.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

Under § 2254(d)(2), a state court’s factual determinations stand unless they too are

objectively unreasonable in light of the evidence presented in state court. See Harrington v. Richter,

562 U.S. 86, 100 (2011). The Supreme Court has repeatedly emphasized “a state court factual

determination is not unreasonable merely because the federal habeas court would have reached a

different conclusion.” Burt, 571 U.S. at 18. Under AEDPA, “a determination of a factual issue

made by a state court shall be presumed to be correct” unless the petitioner offers clear and

convincing evidence to the contrary. See 28 U.S.C. § 2554(e)(1).

Comity principles also require federal courts to defer to a state court’s judgment on issues

of state substantive and procedural law. Murray v. Carrier, 477 U.S. 478, 491 (1986); Engle v. Isaac,

456 U.S. 107, 128-29 (1982). Federal courts must accept a state court’s interpretation of its statutes

and rules of practice. Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986).

The standard is intended to be difficult to meet and reflects the view that habeas corpus is

a “guard against extreme malfunctions in the state criminal justice systems,” not a substitute for

ordinary error correction through appeal. Harrington, 562 U.S. at 102-03; see also Brown v.

Davenport, 596 U.S. 118, 133 (2022) (describing habeas as an “extraordinary remedy, reserved for

only extreme malfunctions in the state criminal justice system and different in kind from providing

relief on direct appeal”) (cleaned up). To obtain “habeas corpus from a federal court, a state

prisoner must show that the state court’s ruling on the claim being presented in federal court was

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

law beyond any possibility for fair-minded disagreement.” Harrington, 562 U.S. at 103.

FEDERAL HABEAS REVIEW OF STATE LAW CLAIMS

Federal habeas review is limited to claims involving federal constitutional rights. In other

words, federal habeas review is available only for claims that “challenge the legality of [the

petitioner’s] custody” based on a “violation of the Constitution or law or treaties of the United

States.” 28 U.S.C. § 2254(a). Stated otherwise: “The writ of habeas corpus is not available to

remedy errors of only state law.” Smith v. Morgan, 371 F.App’x 575, 582 (6th Cir. 2010); see also

Norris v. Schotten, 146 F.3d 314, 328 (6th Cir. 1998) (“A claim based solely on an error of state law

is not redressable through the federal habeas process.”); see also Rivera v. Illinois, 556 U.S. 148, 158

(2009) (“The Due Process Clause . . . safeguards not the meticulous observance of state procedural

prescriptions, but the fundamental elements of fairness in a criminal trial.”) (quotation omitted);

Engle, 456 U.S. at 121 n.21 (“We have long recognized that a ‘mere error of state law’ is not a

denial of due process.”) (citation omitted).

Federal habeas review is generally not available to decide whether a state court complied

with state law or state procedural requirements. Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987).

A federal habeas court “does not function as another state appellate court to review a state court’s

interpretation of its own law or procedure.” Id. Instead, a federal habeas court is bound by “[a]

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

challenged conviction.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

A petitioner cannot justify habeas relief by simply asserting that a state-law error violates

the federal constitution. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010). But habeas relief may be

available if an error of state law made the criminal process “fundamentally unfair.” Williams v.

Anderson, 460 F.3d 789, 816 (6th Cir. 2006). “[T]he category of infractions that violate

fundamental fairness is defined very narrowly,” and includes only state rulings that “offend some

principle of justice so rooted in the traditions and conscience of our people as to be ranked as

fundamental.” Bey v. Bagley, 500 F.3d 514, 521 (6th Cir. 2007) (cleaned up). The habeas petitioner

must show “the principle of procedure violated by the rule (and allegedly required by due process)”

is fundamental. Id.

ANALYSIS

In Ground One, Mr. Brooks asserts he was denied the right to a speedy trial under the

Sixth Amendment. (ECF #1 at PageID 5). In Ground Two, he claims the State violated his due

process rights by “not following the plain language of [Ohio’s] speedy trial statute.” (Id. at PageID

7). The State contends the claims are meritless. (ECF #8 at PageID 55). I conclude that Ground

One has no merit and that Ground Two is not reviewable in this Court.

A. Ground One lacks merit because the eight-month delay in Mr. Brooks’ trial was not

contrary to, nor did it involve, an unreasonable application of clearly established federal

law.

The Sixth Amendment guarantees a defendant a “speedy and public trial.” U.S. Const.

Amend. VI; Barker v. Wingo, 407 U.S. 514 (1972). In Barker, in lieu of establishing a set number of

days that constitutes a violation of the speedy trial right, the Supreme Court established a

balancing test that weights the parties’ conduct to assess whether a speedy trial violation has

occurred based on the delay between the earlier of the date of arrest or indictment and the date of

trial. Id. at 407 U.S. at 523, 530. Under this test, courts consider four factors: (1) the length of the

delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4)

prejudice to the defendant. Id. at 530; see also Doggett v. United States, 505 U.S. 647, 651 (1992).

To enforce the federal constitutional right to a speedy trial in Ohio, the legislature enacted

Revised Code §§ 2945.71, et seq., that Ohio courts deem as implementing the federal

constitutional speedy trial requirement. Brown v. Bobby, 656 F.3d 325, 329 (6th Cir. 2011) (citing

Ohio case law). Under those provisions, a person charged with a felony must be brought to trial

within 270 days after arrest and, for purposes of computing time, “each day during which the

accused is held in jail in lieu of bail on the pending charge shall be counted as three days.” Ohio

Rev. Code §§ 2945.71(C)(2) and (E). Thus, a person who remains in jail only on the pending

charge must be brought to trial within 90 days of his arrest. Section 2945.72 provides instances in

which the time limit for bringing the defendant to trial may be paused or “tolled.”

Mr. Brooks first asserted a speedy trial claim in his motion to dismiss in the trial court,

arguing he was not brought to trial within the statutorily prescribed time. (ECF #8-1 at PageID 96).

At a hearing, the trial court heard testimony that Mr. Brooks was held on the charges in the case

before the trial court and on a holder from another court. (Id. at PageID 99). Citing state case law

interpreting Ohio’s statutory speedy trial provisions, the trial court determined Mr. Brooks was not

entitled to the triple-count provision under Revised Code § 2945.71(E) because he was held on the

pending counts and on a holder from another court. (Id. at PageID 99-100). On direct appeal, Mr.

Brooks claimed the trial court erred in denying his motion to dismiss on speedy trial grounds. (Id.

at PageID 159-66). The Fifth District disagreed:

{¶14} Speedy trial provisions are mandatory and are encompassed within the Sixth

Amendment to the United States Constitution. The availability of a speedy trial to a

person accused of a crime is a fundamental right made obligatory on the states

through the Fourteenth Amendment. “The statutory speedy trial provisions, R.C.

2945.71 et seq., constitute a rational effort to enforce the constitutional right to a

public speedy trial of an accused charged with the commission of a felony or a

misdemeanor and shall be strictly enforced by the courts of this state.”

* * *

Issue for appellate review:

{¶17} Brooks specifically contends dismissal of the indictments in the case sub judice

was required on the grounds that he was not brought to trial within ninety days

under the “triple-count” provision of R.C. 2945.71(E). Brooks argues that the

decision in State v. McDonald, 48 Ohio St.2d 66, 357 N.E.2d 40 (1976) was wrongly

decided. Specifically, Brooks contends that R.C. 2945.71(E) does not contain any

language that the accused be held in jail “solely” on the pending charge in order to

be entitled to the triple-count provisions.

{¶18} A person charged with a felony shall be brought to trial within 270 days after

the person’s arrest or the service of summons. In addition, the first day is excluded

from the count. Accordingly, it is Brooks’ contention that the state had until

Tuesday, February 1, 2022, to bring Brooks to trial.

{¶19} The statutory provision commonly referred to as the “triple count” provision,

R.C. 2945.71(E), reads as follows,

(E) For purposes of computing time under divisions (A), (B), (C)(2),

and (D) of this section, each day during which the accused is held in

jail in lieu of bail on the pending charge shall be counted as three days.

This division does not apply for purposes of computing time under

division (C)(1) of this section.

Emphasis added. The Ohio Supreme Court has held that the triple count provision

only applies when the person is being held in jail in lieu of bail solely on the pending

case.

{¶20} Upon review of the record, we find that competent, credible evidence supports

the trial court’s conclusion that Brooks was not being held in the Richland County

jail solely on the underlying charges in the case sub judice. Unrefuted testimony was

presented that a holder was placed upon Brooks by Morrow County on November

2, 2021. We hold the existence of the detainer from Morrow County would alone

equate to Brooks being held on other charges for the purposes of McDonald, supra.

To be held in jail on “the pending charge” can only be interpreted as meaning that

“but for” the pending charge the defendant could not be held in jail. In the case at

bar, had Brooks posted bond on the pending charges, he would not have been

released from jail because of the holder placed on him by Morrow County. Richland

County was informed that Morrow County had an active warrant for Brooks and

they intended to come and get Brooks. Therefore, Brooks was not held in jail only

because of the charges in the case at bar. Hence, we conclude the trial court properly

denied the application of the triple-count provision of R.C. 2945.71(E) under the

facts of this case.

{¶21} Brooks’ appeal to this Court to reverse or ignore the Ohio Supreme Court’s

decision in McDonald is untenable. Article IV of the Ohio Constitution designates a

system of “superior” and “inferior” courts, each possessing a distinct function. The

Constitution does not grant to a court of common pleas or to a court of appeals

jurisdiction to reverse or vacate a decision made by a superior court.

(ECF #8-1 at PageID 188-90; see also Brooks, 2023 WL 3455618, at *3-4) (citations and footnotes

omitted).

The Fifth District expressly adjudicated Mr. Brooks’ claim in terms of state law. In other

similar cases, this Court has concluded that “a claimed violation of Ohio’s statutory speedy trial

laws is not necessarily a violation of the federal constitutional right to a speedy trial, nor does an

alleged violation of Ohio’s speedy trial statute present a cognizable federal habeas claim.” Phillips v.

Schweitzer, 2020 WL 9889893, at *9 (N.D. Ohio Nov. 10, 2020); see also Norris, 146 F.3d at 328 (“It

is especially inappropriate for a federal habeas court to set aside a state court’s ruling on an issue of

state law where, as in the present situation, Ohio’s appellate courts on direct appeal have already

found appellant’s claim of his statutory right to a speedy trial to be meritless.”); accord Anderson v.

Warden, Lebanon Corr. Inst., No. 1:18-CV-149, 2019 WL 3245326, at *6 (S.D. Ohio Apr. 30, 2019)

(“[B]ecause the federal habeas court only has jurisdiction to consider whether petitioner’s

confinement violates the Constitution, laws or treatises 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.”), report and recommendation adopted, 2019 WL 2502796 (S.D. Ohio June 17, 2019).

Both parties concede the Fifth District’s decision decided Mr. Brooks’ federal

constitutional claim on its merits, and so it must be reviewed under the deferential AEDPA

standard. (ECF #8 at PageID 53; ECF #11 at PageID 297). Precedent from the Supreme Court

and the Sixth Circuit confirm this view. In Harrington, the Supreme Court stated, “When the

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 principles to the contrary.” 562 U.S. at 99. In a similar case where the court of appeals

applied Ohio’s speedy trial provisions, the Sixth Circuit explained:

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.

Brown, 656 F.3d at 329. In accordance with Harrington and Brown, this court must presume the

Fifth District decided Mr. Brooks’ federal speedy trial claim on the merits, warranting the

application of AEDPA deference.

As stated above, habeas relief cannot be granted for a person in custody pursuant to a state

conviction unless the adjudication “(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 upon an unreasonable

determination of the facts in light of the evidence presented in the State court proceedings.”

28 U.S.C. § 2254(d). The Sixth Circuit has explained how the “contrary to” prong is not

applicable in cases where a state court applies Ohio’s 270-day rule to determine whether the delay

in bringing a defendant to trial violated his right to a speedy trial:

Although the Ohio Court of Appeals applied a 270-day rule to determine whether

the delay in bringing Brown to trial violated his right to a speedy trial, this process

does not violate clearly established federal law. The Supreme Court laid out a

balancing test in Barker for determining whether a defendant’s speedy trial right has

been violated, and the Ohio Court of Appeals did not explicitly address the factors

outlined in Barker. But AEDPA does not require that a state court strictly apply a

federal test, as long as the court does not apply any test or standard that is contrary

to federal law. In fact, the Supreme Court has explained that the use of the word

“contrary,” which “is commonly understood to mean ‘diametrically different,’

‘opposite in character or nature,’ or ‘mutually opposed,’” in the text of 28 U.S.C.

§ 2254(d) “suggests that the state court’s decision must be substantially different

from the relevant [Supreme Court] precedent.” That is simply not the case here.

Ohio’s procedure for determining whether a speedy trial violation has occurred, by

applying the 270-day limit, is not “substantially different” from the Barker analysis,

and can be seen as merely the state’s method of applying that Supreme Court

precedent in a more structured manner. The Supreme Court in Barker refused to

establish a set number of days constituting a violation of the speedy trial right, stating

that “such a result would require [the] Court to engage in legislative or rulemaking

activity, rather than in the adjudicative process to which [it] should confine [its]

efforts.” However, the Court recognized that “[t]he States . . . are free to prescribe a

reasonable period consistent with constitutional standards,” and this is exactly what

Ohio has done. Moreover, Ohio courts consider the speedy trial provisions outlined

in Ohio Rev. Code § 2945.71 et seq. to be “coextensive” with the Sixth Amendment’s

requirement, even stating that “the speedy trial statutes implement the constitutional

guarantee of a public speedy trial.” Though this fact alone is not sufficient to establish

that the application of Ohio’s 270-day limit is not contrary to federal law, it is

instructive on this point.

Further examination of how Ohio’s speedy trial statutes are applied demonstrates

that they are not contrary to federal speedy trial law. Ohio Rev. Code § 2945.72 tolls

the amount of time within which an accused must be brought to trial—essentially

attributing the delay to the accused—in the following situations:

(A) Any period during which the accused is unavailable for hearing or trial, by

reason of other criminal proceedings against him, within or outside the state, by

reason of his confinement in another state, or by reason of the pendency of

extradition proceedings, provided that the prosecution exercises reasonable

diligence to secure his availability;

(B) Any period during which the accused is mentally incompetent to stand trial

or during which his mental competence to stand trial is being determined, or any

period during which the accused is physically incapable of standing trial;

(C) Any period of delay necessitated by the accused’s lack of counsel, provided

that such delay is not occasioned by any lack of diligence in providing counsel to

an indigent accused upon his request as required by law;

(D) Any period of delay occasioned by the neglect or improper act of the accused;

(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;

(F) Any period of delay necessitated by a removal or change of venue pursuant to

law;

(G) Any period during which trial is stayed pursuant to an express statutory

requirement, or pursuant to an order of another court competent to issue such

order;

(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;

(I) Any period during which an appeal filed pursuant to section 2945.67 of the

Revised Code is pending.

In every other scenario, the amount of time the defendant is held counts toward his

or her speedy trial clock. This provision thus takes into account many of the

considerations behind the second and fourth Barker factors, i.e., the reason for the

delay and the prejudice to the defendant. The remaining factors, the length of the

delay and the defendant’s assertion of his right, are likewise accounted for in Ohio’s

time limits for bringing an accused to trial, Ohio Rev. Code § 2945.71, and through

its requirement that a defendant bring a motion to discharge on speedy trial grounds

at trial, Ohio Rev. Code § 2945.73(B). In addition, the Ohio courts have recognized

that “there may be situations wherein the statutes do not adequately afford the

protection guaranteed by the federal and state constitutions, in which case it is [their]

duty to see that an accused receives the protection of the higher authority.” Thus,

any time an Ohio court reviews the implementation of a speedy trial statute, it is

guided not just by those provisions, but also by the dictates of the Sixth Amendment

whether or not it expressly applies the factors laid out in Barker.

The mere fact that the Ohio Court of Appeals did not explicitly follow each of the

rules laid out by the Supreme Court in applying the Barker factors does not mean

that its determination is substantially different from the relevant Supreme Court

precedent. This is especially true considering that Barker does not set forth a strict

formula for determining if a speedy trial violation has occurred, but instead calls for

the weighing of a number of factors. Brown argues that the Supreme Court has

rejected quantifying into a number of days or months a specific amount of time

necessary to establish a speedy trial violation. However, as previously noted, the

Court has recognized that while it is inappropriate for that court to establish such

time limits, there is no problem with the state legislatures doing so as long as they

are reasonable.

At oral argument, Brown also pointed to the fact that Ohio’s speedy trial provision

treats sua sponte continuances differently than the Supreme Court did in Barker, but

this minor difference does not make Ohio’s approach, which was followed by the

state court of appeals here, contrary to federal law. Ohio tolls Brown’s 270-day limit

for any reasonable continuance while the Court in Barker stated that “[a] more

neutral reason [for delay] such as negligence or overcrowded courts should be

weighted less heavily but nevertheless should be considered since the ultimate

responsibility for such circumstance must rest with the government rather than with

the defendant.” This consideration does not have a large impact on the weighing of

the Barker factors, as the Court itself recognizes that such reasons for delay should be

given less weight even though they should be weighed against the state. Further,

although these standards might differ in some respects, they are not substantially

different, as one can envision scenarios in which a continuance will be treated the

same under both. Ohio’s manner of looking at the reason for the delay is thus not

contrary, or diametrically opposed, to federal precedent.

Brown, 656 F.3d at 330-32 (cleaned up). This reasoning suffices to show that Ohio’s statutory

speedy trial analysis is not substantially different from the Barker analysis and thus in Mr. Brooks’

case did not result in an adjudication that was contrary to Supreme Court precedent.

Having determined the Fifth District’s decision was not contrary to federal law, I now

analyze the Barker factors to determine whether the Fifth District unreasonably applied federal law

in finding Mr. Brooks’ speedy trial rights were not violated. A decision can “unreasonably apply”

federal law if “the state court identifies the correct governing legal rule from [Supreme Court] cases

but unreasonably applies it to the facts of the particular state prisoner’s case,” or if “the state court

either unreasonably extends a legal principle from [Supreme Court] precedent to a new context

where it should not apply or unreasonably refuses to extend that principle to a new context where

it should apply.” Williams, 529 U.S. at 407. Courts on federal habeas review are not concerned

with whether the state court ruled erroneously or incorrectly, but rather whether the state court

decision was “objectively unreasonable.” See Lordi v. Ishee, 384 F.3d 189, 195 (6th Cir. 2004);

McAdoo v. Elo, 365 F.3d 487, 493 (6th Cir. 2004). To satisfy this high bar, even clear error will not

suffice. Lockyer, 538 U.S. at 75-76. Rather, a habeas petitioner must “show that the state court’s

ruling on the claim being presented in federal court was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility of fairminded

disagreement.” Harrington, 562 U.S. at 103.

Explained above, the four Barker factors are the length of the delay, the reason for the

delay, the defendant’s assertion of the right, and the prejudice to the defendant. 407 U.S. at 530.

No single factor is “a necessary or sufficient condition to the finding of a deprivation of the right

to speedy trial,” but instead they “are related factors and must be considered together with such

other circumstances as may be relevant.” Id. at 533. I discuss each in turn.

Length of Delay. The first factor, length of the delay, acts to trigger a speedy trial analysis if

the defendant alleges the interval between the accusation and trial has crossed a threshold dividing

ordinary from presumptively prejudicial delay. Doggett, 505 U.S. at 651-52; accord United States v.

Robinson, 455 F.3d 602, 607 (6th Cir. 2006) (“The first factor is a threshold requirement, and if

the delay is not uncommonly long, judicial examination ceases.”). The length of delay also serves

secondarily “as a measure of the severity of the prejudice suffered by an accused.” Rice v. Warden,

Warren Corr. Inst., 786 F.App’x 32, 34 (6th Cir. 2019). Generally, the Sixth Amendment right to

speedy trial attaches at the earlier of the defendant’s arrest or indictment. See United States v.

Marion, 404 U.S. 307, 320 (1971) (“it is readily understandable that it is either a formal indictment

or information or else the actual restraints imposed by arrest and holding to answer a criminal

charge that engage the particular protections of the speedy trial provision of the Sixth

Amendment”); Maples v. Stegall, 427 F.3d 1020, 1026 (6th Cir. 2005). “A delay that approaches

one year is ‘presumptively prejudicial,’ and triggers the speedy trial analysis,” United States v.

Flowers, 476 F.App’x 55, 60 (6th Cir. 2012) (citing Doggett, 505 U.S. at 562), but the determination

of the length of delay that triggers the speedy trial analysis is necessarily dependent on the peculiar

circumstances of the case, Barker, 407 U.S. at 530-31. For instance, “the delay that can be tolerated

for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Id.

at 531. “‘[C]ustomary’ delays during litigation—such as a five-month delay—automatically pass

muster under the Sixth Amendment.” Doggett, 505 U.S. at 652; see Brown v. Romanowski, 845 F.3d

703, 713 (6th Cir. 2017). Sixth Circuit case law suggests the approximately eight-month delay Mr.

Brooks faced is not presumptively prejudicial. See United States v. Brown, 498 F.3d 523, 530 (6th

Cir. 2007) (noting that a ten-month delay “is likely right at the line to trigger an analysis of the

remaining factors”); United States v. McPherson, No. 2:08CR38, 2009 WL 2146360, at *3 (E.D.

Tenn. July 14, 2009) (delay of nine months does not “approach” one year so as to trigger

presumption of prejudice); United States v. Gardner, 488 F.3d 700, 719 (6th Cir. 2007) (finding that

nine-month delay is not uncommonly long and is insufficient to warrant further consideration of

the remaining Barker factors); United States v. Cope, 312 F.3d 757, 778 (6th Cir. 2002) (delay of

eight months and three weeks was not presumptively prejudicial).

In this case, there are some facts in the state court record that describe the nature and

circumstances of the case. Mr. Brooks was arrested on November 2, 2021 (ECF #8-2 at PageID

234) and indicted on January 7, 2022 (ECF #8-1 at PageID 61-65). The trial court established the

following at the change of plea and sentencing hearing: Police were dispatched for an alleged

assault and attempted to stop a Chevy Malibu matching the description of the suspect’s vehicle;

Mr. Brooks fled, ultimately taking the car airborne and crashing atop another parked car, causing

damage to another vehicle in the process; Mr. Brooks’ 15-year-old son was in the car with him at

the time; and a search of Mr. Brooks’ vehicle revealed a gun he was not allowed to possess and

several different drugs in amounts suggesting distribution rather than possession. (Id. at PageID

272-74). He entered his conditional guilty plea to six of the fifteen charges on July 15, 2022, little

more than eight months after the date of his arrest. (See id. at PageID 228). Neither Mr. Brooks

nor the State address this threshold issue. Out of caution, I will assume without deciding that the

delay is presumptively prejudicial and address the remaining Barker factors.

Reason for the Delay. The second factor is the government’s justification for the delay.

Barker, 407 U.S. at 531. Deliberate attempts to delay the trial to hamper the defense should be

weighted heavily against the government, whereas more neutral reasons such as negligence or

unexplained delay should be weighted less heavily against the government. Id. Because “pretrial

delay is often both inevitable and wholly justifiable,” Doggett, 505 U.S. at 656, the question is not

whether there is delay, but whether the delay is unreasonable. Courts must also consider whether

some of the delay is attributable to the defendant. United States v. Bass, 460 F.3d 830, 837 (6th Cir.

2006). Barker does not require courts to “search for a blameless party,” Wilson v. Mitchell, 250 F.3d

388, 395 (6th Cir. 2001), but to determine “whether the government or the criminal defendant is

more to blame for [the] delay,” Doggett, 505 U.S. at 651. Only “those periods of delay attributable

to the government or the court are relevant to [a defendant’s] constitutional claim.” United States v.

Howard, 218 F.3d 556, 564 (6th Cir. 2000).

Approximately two months passed between Mr. Brooks’ arrest in November 2021 and the

indictment on January 7, 2022. (See ECF #8-1 at PageID 61). There is no indication the delay

between the arrest and indictment was intended to hamper Mr. Brooks’ defense or that it was

unreasonable. On January 27, 2022, the trial court scheduled a jury trial for March 28, 2022. (Id.

at PageID 215). From there, all delays in getting to trial are attributable to Mr. Brooks and his

counsel. See Vermont v. Brillon, 556 U.S. 81, 90-91 (2009).

 On March 24, 2022, defense counsel requested the trial be rescheduled for

May 16, 2022, citing discovery issues. (Id. at PageID 74).

 On April 6, defense counsel moved to dismiss the indictment for lacking

probable cause that the offenses occurred. (Id. at PageID 79).

 On May 4, the trial court granted trial counsel’s motion to withdraw and

appointed new counsel for Mr. Brooks. (ECF #8-1 at PageID 217).

 On May 12, newly appointed counsel moved for a continuance to prepare

for trial. (Id. at PageID 88). The trial court granted the continuance and

rescheduled trial for July 18, 2022. (Id. at PageID 93).

 On May 23, the trial court received Mr. Brooks’ pro se motion to dismiss on

speedy trial grounds. (Id. at PageID 85).

 On June 9, Mr. Brooks moved to represent himself. (Id. at PageID 90).

Defense counsel then filed a motion to dismiss on speedy trial grounds,

alleging Mr. Brooks was entitled to the triple-count provision. (Id. at PageID

95).

 On July 15, 2022, at a hearing to address Mr. Brooks’ motion to represent

himself and the motion to dismiss, Mr. Brooks withdrew his request to

represent himself and the trial court determined Mr. Brooks was not entitled

to the triple-count provision because of the holder out of a different court.

(Id. at PageID 99).

Because Mr. Brooks does not allege and it does not appear that the government acted in bad faith,

and because the delays in this case were caused in part by Mr. Brooks’ own motions, the

government was not more to blame than Mr. Brooks for the delay in bringing him to trial. See

Bass, 460 F.3d at 837.

Assertion of the Right to Speedy Trial. The third factor contemplates whether and how a

defendant asserts his right. Barker, 407 U.S. at 531. A “defendant’s assertion of his speedy trial

right . . . is entitled to strong evidentiary weight in determining whether the defendant is being

deprived of the right.” Id., 407 U.S. at 531-32. Mr. Brooks’ filed a pro se motion to dismiss on

speedy trial grounds in May 2022 and counsel filed a second motion on the same grounds in June.

(ECF #8-1 at PageID 85, 95). This factor favors Mr. Brooks.

Prejudice from the Delay. The last factor for consideration is whether Mr. Brooks was

prejudiced by the delay. When the delay is lengthy and attributable to bad faith by the

government, no showing of prejudice is required, but when the government used reasonable

diligence to pursue a defendant, the defendant must show that the delay caused “actual prejudice”

to his defense. See Doggett, 505 U.S. at 657. Here, there is no indication of bad faith by the

government, so Mr. Brooks must show actual prejudice. Prejudice is evaluated with respect to the

three purposes of the speedy trial right: “(i) to prevent oppressive pretrial incarceration; (ii) to

minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will

be impaired.” Barker, 407 U.S. at 532. “Of these, the most serious is the last, because the inability

of a defendant adequately to prepare his case skews the fairness of the entire system.” Id. Mr.

Brooks has not alleged prejudice in any form and any prejudice that can be gleaned from the

record is minimal at most. He was prejudiced to some extent because he lived under a cloud of

suspicion and was held in jail in lieu of bail for a little more than eight months, but he does not

assert that potential witnesses died or became unavailable, physical evidence was lost or destroyed,

or that the delay hindered his defense. This factor weighs in favor of the State.

On balance, the Barker factors show that Mr. Brooks has not suffered a violation of the

Sixth Amendment right to a speedy trial. There is no evidence the government unreasonably

delayed the case or intended to hamper Mr. Brooks’ defense, Mr. Brooks and his counsel

contributed to the delay, and he has not shown he was actually prejudiced by the delay. As such,

he has failed to show the Fifth District unreasonably applied federal law. Therefore, I recommend

the District Court DENY Ground One as without merit.

B. Ground Two is not cognizable because the state court’s application of Ohio’s speedy trial

statute was not a denial of fundamental fairness.

In Ground Two, Mr. Brooks contends the trial court violated his federal right to due

process when it did not “follow the plain language of [Ohio’s] speedy trial statute.” (ECF #1 at

PageID 7). In the Traverse, he does little to elaborate on this argument except to say that “the

results of these proceedings [were] ‘fundamentally unfair and unreliable.’” (ECF #11 at PageID

298).

A claim based solely on an error of state law cannot be addressed through the federal

habeas process. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Hutchison v. Marshall, 744 F.2d

44, 46-47 (6th Cir. 1984), cert. denied, 469 U.S. 1221 (1985). In fact, even if it could be said that

the state court’s interpretation is wrong, “it has long been recognized that ‘a mere error of state

law’ is not a denial of due process.” Engle, 456 U.S. at 121 n.21.

In such cases, federal habeas relief is not warranted except where the petitioner shows that

a state court’s error in interpreting or applying its own law has rendered the trial so fundamentally

unfair as to deprive the petitioner of due process. See Estelle, 502 U.S. at 67-68. The fundamental

fairness doctrine is rooted in the belief that a “fair trial in a fair tribunal is a basic requirement of

due process.” Hutchison, 744 F.2d at 47 (citing In re Murchison, 349 U.S. 133, 136 (1955)). Ohio’s

speedy trial statute relates to the fairness of pretrial detention, not to the fairness of the trial itself.

Norris, 146 F.3d at 329; see also Hutchison, 744 F.2d at 47 (fundamental fairness has little

application in pretrial proceedings and application is limited to events or circumstances that affect

or tend to affect the fairness of the trial). As such, Mr. Brooks cannot show that the trial court’s

decision would tend to have any unfair effect on the trial. Therefore, I recommend the District

Court DENY Ground Two as not cognizable.

CERTIFICATE OF APPEALABILITY

A habeas petitioner may not appeal the denial of an application for a writ of habeas corpus

unless a judge issues a COA and specifies the issues that can be raised on appeal. 28 U.S.C.

§ 2253(c). “A [COA] may issue . . . only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court has determined a

petitioner’s constitutional claim to lack merit, the petitioner “must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claim debatable or wrong”

before receiving a COA. Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district court

denies a habeas petition on procedural grounds without reaching the petitioner’s underlying

constitutional claim, a COA 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

right and that jurists of reason would find it debatable whether the district court was correct in its

procedural ruling. Id. A showing that the appeal would succeed on the claim is not needed to grant

a COA. Miller-El v. Cockrell, 537 U.S. 332, 337 (2003).

Mr. Brooks has not demonstrated that jurists of reason would find it debatable whether his

petition states a valid claim of the denial of his constitutional rights. Therefore, I recommend the

District Court DENY Mr. Brooks a COA as to any ground.

CONCLUSION AND RECOMMENDATION

For these reasons, I recommend the District Court DENY Ground One as without merit,

DISMISS Ground Two as not cognizable, and DISMISS the petition. I further recommend the

District Court DENY a certificate of appealability.

Dated: June 23, 2025

L/W

DARRELL A. CLAY

UNITED STATES MAGISTRATE JUDGE

Objections, Review, and Appeal

A party must serve and file specific written objections to the proposed findings and

recommendations of the Magistrate Judge within 14 days after being served with a

copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2); see also

28 U.S.C. § 636(b)(1); Local Civ. R. 72.3(b). The district judge will review properly

asserted objections de novo.

If a party does not file objections within the specified time, it may result in the

forfeiture or waiver of the right to raise the issue on appeal, either to the district

23

judge or in a subsequent appeal to the United States Court of Appeals, depending

on how or whether the party responds to the Report and Recommendation.

, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be specific

and not merely indicate a general objection to the entirety of the Report and

Recommendation; “a general objection has the same effect as would a failure to

object.” , 932 F.2d 505, 509 (6th Cir.

1991). Objections should focus on specific concerns and not merely restate the

arguments in briefs submitted to the Magistrate Judge. “A reexamination of the

exact same argument that was presented to the Magistrate Judge without specific

objections ‘wastes judicial resources rather than saving them and runs contrary to

the purpose of the Magistrates Act.’” , No. 1:17-CV-00186, 2018

WL 3018175, at *2 (W.D. Ky. June 15, 2018) (quoting , 932 F.2d at 509).

The failure to assert specific objections may in rare cases be excused in the interest

of justice. , 924 F.3d 868, 878-79 (6th Cir. 2019).