Petition for Writ of Certiorari — Steven L. Rackley, Petitioner v. Brigham Sloan, Warden

Supreme Court briefJun 26, 2019

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No.

IN THE

SUPREME COURT OF THE UNITED STATES

STEVEN L. RACKLEY

— PETITIONER

’

(Your Name)

■

• vs.

BRTGHAM ST .DAN, WARDEN

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CE

FILED

M 2 6 2019

UNITED STATES COURT OF APPEALS FOR THE

PffJCEQE

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

STEVEN L. RACKLEY

(Your Name)

501 Thompson Road

(Address)

Conneaut, OHIO 44030

heuEfVED

(City, State, Zip Code)

JUL - 2 20(9

N/A

(Phone Number)

QUESTION(S) PRESENTED

The question of whether the District Court properly applied the statue

of limitations to Rackley's habeas petition in Respondent's first order

by the District Court to file an answer and brief the merits of Rackley's

petition waived his defense on the statue of limitations that was not

the primary focus of his dismissal.

The question of whether Rackley should have been given a COA on the

lack of notice of the involuntary manslaughter charge that he involuntary

plead to.

The question of whether the post-indictment delay prejudiced Rackley's

case and caused the illegal arrest without probable cause determination

that violated his Fourth and Sixth Amendment Constitutional Rights.

The question of whether Petitioner's Fifth Amendment Right was violated

from the direct indictment and the District Court for not conducting

an evidentiary hearing on his actual innocence claim, and alibi defense.

The question of whether Petitioner's guilty plea was knowingly and

voluntary and counsel's ineffectiveness for not telling Petitioner about

his appeal rights, and having a pre-sentence investigation report prepared

during the sentencing hearing.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

APPENDIX B

Opinion of the United States Court of Appeals an Order.......

dening petitioners habeas corpus as untimely filing..........

A-l

The Opinion of the United States District Court Northern

District of Ohio denied for statue; of limitations..........

A-2

APPENDIX C Opinion of the Supreme Court of Ohio dening his State

Writ of Habeas Corpus..................................................

APPENDIX D Pdtition^fof-Rehearing^fehbanc'Ms ddriidd- due- to untiitiil^' “

iness so petition was not filed....................................................

,/A^3

A-4

APPENDIX E This was a letter that Rackley sent too the County Sheriffs

office in a attempt to get his Booking sheet, and the

booking sheet that was from the Sheriffs to the public

APPENDIX F defenders office was not official, did not have State Seal..... A-5

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Coleman v Alabama, (1970), 399 U.S. 1, 7, 26 L.Ed.2d 387, 90 S.Ct. 1999

Illinois v Allen, 397 U.S. 337, 338, 25 L.Ed.2d 353, 90 S.Ct. 1057 (1970)... 17

Miller v Anderson, 255 F.3d 455 U.S. App. LEXIS 14384 (7th Cir. 2001)........... 28

Cole v Arkansas, 333 US 196, 201, 92 L.Ed. 644, 68 S.Ct.514.............................

Acosta v Artuz, 221 F.3d 117, 122 (2nd Cir. 2000)............................................... 6

Ex Parte Bain, 121 U.S. 1, 7, S.Ct. 781, 30 L.Ed. 849(1887)............................. 29

Alley v Bell, 307 F.3d 380, 389 (6th Cir. 2002)................................................... 35

Hill v Braxton, 277 F.3d 701, 705 (4th Cir. 2002)............................................... 6

Douglas v Budrey, 412 US 430, 37 L.Ed.2d 52, 93 S.Ct. 21 99............................. 4

Ex Parte Burford, 3 Cranch 448................................................................................. 17

Bean v Calderon, 163 F.3d 1073, 1079 (9th Cir. 1998).......................................... 29

Hurtado v California, 110 US 516, 4 S.Ct. Ill, 28 L.Ed. 232 (1884)................. 20.21

Rochin v California, 342 US 165, 173 72 S.Ct. 205, 96 L.Ed. 183 (1952))....... 10

Murray v Carrier, 477 US 478 (1986)........................................................................ 37

Miller El v Cockrell, 537 U.S. 322, 327 (2003).................................................... 2,10

Gregory v Chicago, 394 US 111, 22 L.Ed.2d 134, 89 S.Ct. 624 (1960)................. 4

Scott v Collins, 286 F.3d 923 (6th Cir. 2001).................................................... 6

Ingram v City of Columbus, 185 F.3d 579, 594 (6th Cir. 1999)........................... 14

Boddie v Connecticut, 401 US 371, 377-379, 28 L.Ed.2d 113, 91 S.Ct. 780.......

Picard v Conner, 30 L.Ed.2d 438, 404 US 270.......................................................... 16

McGrain v Daugherty,. 237, U.S. 135, 154-157............................................................ 18

Donnelly v Decristoforo...................... ....................................................................... 18

Shclup v Delo, 513 U.S. 298, 329 (1995))............................................................... 28

Samuel v Duncan, 1996 U.S. App. LEXIS 18542 at *7, No. 95-56380, 1996 WL 413

632 (9th Cir. July 8, 1996)....................................................................................... 8

Hovey v Elliot, 167 US 409, 416-420, 42 L.Ed. 215, 17 S.Ct. 841...................... 4

Barefoote v Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)... 8

Ferreira, 665 F.3d at 705.......................................................................................... 11

Stemler v City of Florence, 126 F.3d 856, 871 (6th Cir. 1997)......................... 14

Adderlay v Florida, 355 US 39, 17 L.Ed2d 149, 87 S.Ct. 242............................... 4

Garner v Florida, (1977), 430 U.S. 349, 358 L.Ed.2d 393, 97 S.Ct. 1197......... 33

Lockhart v Fretwell, (1993), 506 US 364, 368-369, 122 L.Ed.2d 180, 113 S.Ct.

838

TABLE OF AUTHORITIES GONT.

CASES

PAGE #

Presnell v Georgia, 439 US 14, 58 L.Ed.2d 207, 99 S.Ct. 235...........................

Kootz v Glossa, 731 F.2d 365, 369 (6th Cir. 1984)............................................. 21

Vachon v New Hampshire, 414 US 478, 38 L.Ed.2d 666, 94 S.Ct. 664..................

Branzburg v Hayes, 408 U.S. 665, 688 n. 25, 92 S.Ct. 2546, 33 L.Ed.2d 626 (

1972).............................................................................................................................

Mooney v Holohan, 294 US 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935)...........

Hasan v Ishee, U.S. Dist. LEXIS 25081 (6th Cir. 2018)......................................

Columbus v Jackson, (1952), 93 Ohio App. 516, 518, 114 N.E.2d 60..................

Speigner v Jago, 603 F.2d 1208 (6th Cir. 1979)...................................................

Watson v Jago, 558 F.2d 330 (6th Cir. 1977)........................................................

Kiser V Johnson, 163 F.3d 326, 329 (5th Cir. 1999)...........................................

Cochran v Town of Jonesborough, U.S. Dist. LEXIS 34088 (6th Cir. 2018).......

Houston v Lack, 487 U.S. 266, 276 (1988).............................................................

Blackford v Lazaroff, (2017) (6th Cir.) R & R opinion 2921.52 shame legal..

Klein v Long, 275 F.3d 544, 550 (6th Cir. 2001).................................................

Thompson v Louisville, 362 US 199, 4 L.Ed.2d 654, 80 S.Ct. 624 (1960).........

Lovasco, 431 U.S. at 790..........................................................................................

Frank v Mangum, 237 US 309, 345-350, 59 L.Ed. 969, 987-989, 35 S.Ct. 582 (

dissenting opinion of Mr. Justice Holmes)............................................................ 27

Marion,' 404 US at 324................................................................................................ 10

Green v Miller, 483 US 756, 765, 107 S.CT. 3102, 3109, 97 L.Ed.2d 618 (1987) 18

Wood v Milyard, 566 U.S. 463, 132 S.Ct. 1826, 182 L.Ed.2d 733 (2002)

Henderson v Morgan, 49 L.Ed.2d 108, 426 U.S. 637...............................

Phelps v McCellan, 30 F.3d 658, 662 (6th Cir. 1994).............................

Barker v McCollan, 443 U.S. 137, 142 43, 61 L.Ed.2d 433, 99 S.Ct. 2689(1979) 14

Slack v McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 1602-1603, 146 L.Ed.2d

542 (2000)....................................................................................................

Hernandez v McKee, 2018 US Dist. LEXIS 38158 (6th Cir. 2018).........

at*

County of Riverside v McLaughlin, 114 L.Ed.2d 49, 500 US 44 (1991)

In Re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948)

Cullen v Pinholster, U.S. 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011)..

Gerstein v Pugh, 420 U.S. 103, 43 L.Ed.2d 54, 95 S.Ct. 854 (1975).

Pyles v Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995)...........................

Washington v Renico, 455 F.3d 722, 731 (6th Cir. 2006)....................

TABLE OF AUTH. CONT.

CASES

PAGE #

Yapp v Reno, 26 F.3d 1562, 1565 (11th Cir. 1994)).............................................

Carrington v Robinson, 2001 US Dist. LEXIS 6758 at *4, No. 99-cv-76377, 2001

WL 558232 (E.D. Mich. Mar.. 27, 2001).,................................................................... 7

Ahlers v Schebil, 188 F.3d 365, 370 (6th Cir. 1999)............................................ 14

Gardenhire v Schubert, 205 F.3d 303, 315 (6th Cir. 2000).................................. 14

Cook v Stegall, 295 F.3d 517, 521 (6th Cir. 2002)............................................... 2

Maples v Stegall, 427 F.3d 1020, 1026 (6th Cir. 2005))...................................... 11

Wallace v Stewart, 184 F.3d 1112, 1117 (9th Cir. 1999)...................................... 29

Kentucky v Stincer, 482 U.S. 730, 745, 96 L.Ed.2d 631, 107 S.Ct. 2658(1987). 17

Cooley v Stone, 134 US App. DC 317, 414 F2d 1213(1969)...................................... 15

Shadwick v City of Tampa,407 U.S. 345, 350, 92 S.Ct. 2119, 32 L.Ed.2d 783(19

72)

Pointer v Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 LEd.2d 923 (1965)

Donovan v Thames, 105 F.3d 291, 297-98 (6th Cir. 1997).............................

Ashwander v TVA, 297 U.S. 288, 347 (1936)(Brandeis, J., concurring)....

Darden v Wainwright, 477 US 168, 171, 106 S.Ct. 2426, 91 l.Ed.2d 144 (1986). 18

Butler v Warden, 2012 U.S. Dist. Lexis 123381 (6th Cir. 2012)........................ 21

Haskell v Washington Township, 864 F.2d 1266, 1273 (6th Cir.1988).................

Strickland v Washington, 466 US 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984)........................................................................................................................... .22

Rice v White, 660 F.3d 242, 249 (6th Cir.2011)(28 U.S.C. § 2241 (C)............. 17

Swayer v Whiteley, 507 US 333 (1992)..................................................................... .37

Barker V Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972))...

11,12

In Re Winship,397 US 355 (1969)......................................................................

Smith v City of Xenia, 417 F.3d 565, 573 (6th Cir.2005)).........................

Girts v Yani, 600 F.3d 576,588 (6th Cir.2010).............................................

Herring v New York, (1975) 422 US 853, 858, 45 L.Ed2d 593, 95 S.Ct.2550

* • • i

United States v Atchley, 474 F.3d 840, 852 (6th Cir.1982)........................

United States v Bagely, 473 US 667, 105 S.Ct. 3375, 87 L.Ed2d 481 (1985)...

United States v Balitmore, 482 F. App'X 977, 981 (6th Cir. 2012)..................

United States v Bimey, 626 F.2d 102, 105-06 (2nd Cir. 1982).........................

Bousley v United States, 523 US 614, 623, 118 S.Ct. 16, 04, 140 L.Ed.2d 828

(1998))................................. ........................................................................................

United States v Brown, 667 F.2d 566, 568 (6th Cir. 1982).................................

tv.

VII

r;-t

TABLE OF AUTH ;! GONT.

PAGE #

CASES

United States v Brown, 169 F.3d 344, 349 (6th Cir.: 1999).............................

United States v Clark, 83 F.3d 1350, 1352 (11th Cir. 1996).........................

United States v Crutcher, 405 F.2d 239, 242 (2nd Cir. 1968), cert, denied

394 U.S.908, 22 L.Ed.2d 219, 89 S.Ct. 1018 (1969)..........................................

Doggett v United States, 505 U.S. 647, 651-52, 112 S.Ct.2686, 120 L.Ed.2d

520 (1992))...............................................................................................................

11,12

United States v Gagnon, 470, U.S. 522, 526-27, 84 L.Ed.2d 486, 105 S.Ct.

2658 (I985)(percuriam).........................................................................................

United States Ex Rel Galvan v Gilmore, 997 F. Supp. 1019, 1026 (N.D. Ill.

1998)..........................................................................................................................

;17

Giordenello v United States, 357 US 480 (1958)...............................................

United States v Hansel, 70 F.3d 6,8 (2nd Cir. 1995)(percuriam)..................

United States v Hofstetter, No. 3:15-CR-27-TAV-CCs, 2017 U.S. Dist. LEXIS

149134, 2017 W1 4079181 at *6 (e.D. Tenn. Sept. 14,2017).............................

'22

: 10

Hohn v United States, 524 U.S. 236, 248,118 S.Ct. 1969, 141 L.Ed.2d 242 .

(1998)......................................................................................................................

United States v Ingram, 446, F.3d 1332 (11th Cir. 2006)...........................

Johnson v United States, 333 U.S. 10, 14........................................................

United States v Jones, 555 F.3d App'x. 485 (6th Cir. 2014)........................

U nited States v Pandilidis, 524 F.2d 644 (6th Cir. 1975), cert, denied,

424 U.S. 933, 96 S.Ct. 1146, 47 L.Ed.2d 340 (1976)......................................

Parisi v United States, 529 F.3d 134 (2n Cir. 2008)....................................

United States v Pennington, 328 F.3d 215, 217-18 (6th Cir. 2003).............

Prou v United States, 199 F.3d 37, 42, (1st Cir. 1999)...............................

McCarthy v United States, 394 US 459, 466 [22 L.Ed.2d 418, 89 S.Ct.1166]

(1969)........................................................................................................................

United States v Maselli, 534 F.2d 1197 1201 (6th Cir. 1976)........................

United States v Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076 (1930).

United States Court of Appeals v Reiter, (2nd Cir. 1989).............................

United States v Robinson, 455 F.3d 602, 607 (6th Cir.2006))........................

United States v Rogers, 118 F.3d 466, 475 (6th Cir. 1997)...........................

United States v Romano, (C.A. 2 1987) 825 F.2d 725, 728...............................

Rusell v United States, 369 U.S. 749, 770, 80 S.Ct.1038, 8 L.Ed.2d 240 (

1962)..........................................................................................................................

vnr:

TABLE OF AUTH. GONT.

CASES

United States v Sciacca, C.A.8 1989, 879 F.2d 415, 416...................................

PAGE #

United States v Shell, 974 F.2d 1035,.................................................................

United States v Silverman, 430 F.2d 106, 111 (2nd Cir. 1970), cert, denied

402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed. 2d 123 (1971)........................................

Stirone v United States, 361 U.S. 212 80 S.Ct. 270, 4 L.Ed.2d 252 (I960)..

29,30

United States v Torres, 129 F.3d 710, 715-16 (2nd Cir. 1997)........................

United States v Zahawa, 719 F.3d 555, 563 (6th Cir.2013)...............................

Zedner v United States, 547 US 489 (2006)..........................................................

State v Darrah, (1980), 64 Ohio St.2d 22, 412 N.E.2d 1328.............................

Doyle v State, 17 Ohio, 222,224............................................................................

State v Cole, (1982), 2 Ohio St.3d 112, 443 N.E.2d 169 on other grounds...

State v Hester, (1976), 45 Ohio St.2d 71, 341 N.E.2d 304...............................

State v Jones, 76 Ohio App. 3d 602, 604, N.E.2d 1267, 1992 Ohio LEXIS 116

(1992).........................................................................................................................

State v Roberson, 141 Ohio App. 3d 626 (2001)...................................................

STATUTES AND RULES

28 U.S.C. 2253(c)(2)

28 U.S.C. 2254(D)

. 33

2,8.9

35,2, 7, 26,27

26,27

28 U.S.C. 2254(e)(2)

28 U.S.C. 2241(d)

28 U.S.C. 2241(c)

R.C. 2903.01(A)

6,7,8

R.C. 2903.04(A)

2911.01(A)(3)

R.C. 2921.52

R.C. 2953.08(A)(1)(b)

CONSTITUTIONAL PROVISIONS

Fourth Amendment

Fifth Amendment

4,13, 14, 15,16,17

4,17,20,21,29

3,4,11,13,17

3,9,14,17,37

Sixth Amendment

Fourteenth Amendment

Equal Protection Clause

TABLE OF AUTH. CONT.

RULES

Federal Rule Civ. P. 8(c)

Federal Rule App21P. 22(b)

PAGE #

7,35

Federal Crim. P.

Federal Rule 72

Federal Rule 7.2

Federal Rule 72.3

Criminal Rule 3

Ohio Criminal Rule 4

Ohio Criminal Rule 9(b)(1)

Ohio Rules of Superintendent

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[XI For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix A

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

The opinion of the United States district court appears at Appendix ^__ to

the petition and is

[ ] reported at

; or,

[>C has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[X For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix __ _ to the petition and is

DG reported at lfl'JW.suprpmpc.oiirt.ohia .gov

5 or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the _

appears at Appendix

court

to the petition and is

[ ] reported at___ _

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

JURISDICTION

Bt] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

fY\frgj*Vv

was

[X] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: _fey Or,

^___

, and a copy of the

order denying rehearing appears at Appendix__H

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including _

(date) on

(date)

in Application No.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

BG For cases from state courts:

The date on which the highest state court decided my case was .limp 1 fi,901 ft

A-3

A copy of that decision appears at Appendix

[ ] A timely petition for rehearing was thereafter denied on the following date:

______________________ , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date) in

Application No. ___A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

STATEMENT Ot THE CASE

Steven Rackley an Ohio prisoner proceeding pro, se, had appealed a dist

rict court judgment dismissing as untimely his petition for a writ of habeas

corpus filed pursuant to 28 U.S.C § 2254. Rackley requested a certificate of

appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). He also requested

leave to proceed in forma pauperis.

Rackley pleaded guilty to involuntary manslaughter and aggravated robbery.

He was sentenced to serve ten years of imprisonment for the manslaughter convic

tion and nine years of imprisonment for the robbery conviction, to run consecu

tively. The judgment was entered on April 24, 2013. Rackley did not file a timely

appeal.

On March 27, 2015, Rackley filed a State application for a writ of habeas

corpus. The Ohio Court of Appeals dismissed Rackley's petition, and the Ohio

Supreme Court affinned the judgment of the Ohio Court of Appeals on June 16, 2016.

_______ - Rackley ma-i-led -h-is-habeas-corpus petition _froiii_prlson_Qn__,3uly_ _19_,__2016 ,____

and it is considered filed on that date. See Houston v Lack, 487 U.S. 266, 276

(1988); Cook v Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Rackley's

petition

raised seven grounds for relief. On the recommedation of a magistrate judge and

over Rackley's objections, the district court dismissed Rackley's habeas corpus

petition as time-barred and denied a certificate of appealibility.

A certificate of appealability may issue only if a petitioner makes

a substantial showing of the.denial of a constitutional right." 28 U.S.C. § 2253

(c)(2). "A petitioner satisfies this standard by demonstrating that jurist of

reason. could disagree with the district court's resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further." MilL^>^El_v__Cocteellj!__537__U_._S._^22j[_^27__(2003)_^

REASONS FOR GRANTING THE PETITION

In the case

of Rackley v Sloan, Warden, there has been a complete mis

carriage of justice, that has continued through-out petitioner's due dilligence

to be heard of his constitutional claims in the State and Federal Courts, from

(1) the deprivation of his detention caused by the state:(2) the ineffectiveness

of trial counsel for not looking into the facts of his illegal detention or the

pre-indictment delay:(3) the direct indictment by the State without probable cau

se determination in 48 hours:(4) the signing of the coerced speedy trial waiver;

(5) final the coerced guilty plea and the lack of notice to appeal his otherwise

void sentced for not having a pre-sentence investigation report. The evidence that

was overlooked by the district court to show and prove Rackley's actual::innocence

the Sixth Amendment guarantee's a defendant assistance of counsel for is defence.

When a indigent defendant is faced to defend himself against judicial sc

rutiny, and fundamentally unfair procedures, and relying on the Sixth Amendment

^to-defend-against—this-unjii^-t s5return

Due-Pr oces s_isoffended-.—The Fourteenth-___

Amendment guarantee's the Equal Protection of the laws, the Constitution prohibits

the criminal conviction of any person except upon proof of guilt beyond a reason

able doubt. In Re Winship, 397 US 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 , 51 Ohio

Ops 2d 323. The question in this case is what standard is to be applied in a Fed

eral Habeas Corpus proceeding when the claim is made that a person has been con

victed in a state court upon insufficient evidence.

Whether the Strickland standard be applied due to counsel's commulitive

errors, and having his client plead guilty without fair notice, it is axiomatic

that a conviction upon a charge not made or upon a charge not tried constitutes

a denial of Due Process. Cole v Arkansas, 333 US 196 , 201, 92 L. EdlJ 644 , 68 S.

Ct. 514; Presnell v Georgia, 439 US 14, 58 L.Ed 2d 207, 99 S. Ct. 235. These stan

dards no more than reflect a broader premise that has never been doubted in our

constitutional system: That a person cannot incur the loss of liberty for an

offense without notice and a meaningful opportunity to defend. e.gjj. Hovey v

Elliot, 167 US 409, 416-420, 42 L. Ed. 215, 17 S. Ct. 841. Boddie v Connecticut,

401, US 371, 377-379 , 28 L.. Ed. 2d 113, 91 S. Ct. 780. A meaningful opportunity

to defend if not the right to a: trial itself, presumes as well that a total want

of evidence to support a charge will conclude the case in favor of the accused.

Accordingly, we held in the Thompson case that a conviction based upon

a record wholly devoid of any relevant,, evidence of a crucial element of the offense charged is constitutionally infinn.

See also Vachon v New Hampshire, 414

US 478, 38 L. Ed. 2d 666, 94 S. Ct. 664; Adderley v Florida, 355 US 39, 17 L. Ed.

2d 149, 87 S. Ct. 242; Gregory v Chicago, 394 US Ill, 22 L. Ed. 2d 134, 89 S. Ct.

946; Douglas v Budery, 412 US 430, 37 L. Ed. 2d 52, 93 S. Ct. 21 99. The Mno'evidence" doctrine of Thompson v Louisville, 362 US. 199, 4 L. Ed. 2d 654 , 80 S. Ct.

624 (1960), thus secures to an accussed the most elemental of due process rights:

freedom^raH-a-wholly-arhi-trarydeprivation-of liberty-.--------------------------------------Hr. Rackley asks this Honorable Court to review five issues:

1. The question of whether the district court property applied the statue of,lim

itations to Rackley's habeas petition in Respondent's first order by the district

court to file an answer and brief the merits of Rackley's petition waived his

defense on the statue of limitations that was not the primary focus of his dis

missal.

2. The question of whether Rackley should have been givien a C0A on the Lack of

notice of the involuntary manslaughter charge that he involuntary pled too.

3. The question of whether the post-indictment delay prejudiced

Rackley's case and caused the illegal arrest without probable

cause determination that violated his Fourth and Sixth Amendment.

4. The question of whether petitioner's Fifth Amendment Right was

violated from the direct indictment.and the district-court for

not conducting an evidentiary hearing on his actual innocence

claim, an alibi defense.

5..The question of whether petitioner's guilty plea was knowing

and voluntary and counsel's ineffectiveness for not telling him

about his appeal rights, and not having a pre-sentence investig

ation report during sentencing.

I. The waiver of the statue of limitations defense.

On September 30, 2016, Respondent filed a motion to dismiss Rackley's

petition arguing that Rackley's claims are not cognizable and/or were waived/

procedurally defaulted, (Docs# 8). Rackley filed a response. (Doc.##9).

On March 21, 2017, the magistrate judge issued an Order stating that

Respondent filed a motion to dismiss five.of the seven grounds asserted in Ra

ckley's petition, noting that the Court's initial order required Rspondent to

brief the merits of Rackley's claims, stating that Respondent had not briefed

the merits of the petition or even moved to. dismiss all of the grounds as pro

cedurally defaulted, noting that federal courts on habeas review are not requried to address a procedural default issue before deciding the merits, denying

Respondent's motion to dismiss, and noting that Respondent may refile amotion

to dismiss if the motion also addresses the merits of Rackley's grounds for relief. (Doc.# 17, Order, PagelD#: 1069).

Pursuant to Rule 72 of the Federal Rules of Civil Procedure and Local

Rules 7.2 and 72.3, Respondent filed objections to the magistrate judge's order.

(Doc.# 20). Respondent noted that he did seek dismissal all of Rackley's grounds

for relief as waived/procedurally defaulted and argued that Rackley's ficstdand

fifth grounds for relief were not cognizable. Id. at 4, PagelD#: 1078. Respon

dent also argued that permitting Rackley to recieve a merits review of his claims

despite not having established cause and prejudice, or actual innocence, to ex

cuse his procedural defaults was contrary to United States Supreme Court precedent 5

a rule requring Respondent to address the merits of clearly defaulted

grounds for relief was unduly burdensome, and required merits briefing places

petitioners; who fairl)' present their claims in the state courts at a disadvan

tage when compared to those who default their claims. Id. at44-5, PagelD#: 1078-79.

Respondent noted that the Court permits pre-answer motions to dismiss

in other civil cases and it is not clear why federal habeas cases would be ..

treated differently. Id. at 5, PagelD#: 1079. Respondent also requested an ex

tension of time to file an Anwser/Return of Writ to allow for the district Judge's

consideration of Respondent's dispostive motion to dismiss and Respondent's ob

jections to the magistrate Judge's March 21, 2017 Order. (Doc.#23). On August

15, 2017, the magistrate judge issued an order denjdng Respondent's motion for

extension of time and directing Respondent to file an anwser/retum of writ on

or before September 5, 2017. (Doc.#27). The magistrate judge noted that "[r]ather than complying with the court's order, respondent filed an objection: and

...moved for an extension." (Doc.#27, Order p. 1, PagelD#: 1116). The magistr

ate judge citing Sixth Circuit cases stated that "[wjhether or not the district

judge agrees with the arguments asserted in respondent's objection to the court's

order denying its motion to dismiss, federal courts on habeas review are not

required to address procedural issues before deciding on the merits" Id. The

magistrate also stated that "Respondent is unnecessaryily delaying the dispostion of this case." Id. at 2, PagelD#: 1117.

Respondent filed his second pleadings with the statue of limitations

bar. (Doc.# 28). Rackley's question is whether Respondent waived his argument

of the statue of limitations in his first responsive pleadings, in Scott v Coll

ins, 286 F. 3d. 923 (6th Cir. 2001), reversed and remanded, based on the facts

that Respondent waived his statue of limitations argument. To avoid waiver under

the rules of pleadings and to comply with the court order, Respondent had to

plead the § 2244(d) statue of limitations defense.

The § 2244(d) statue of limitations defense is an affirmative defense

as opposed to a jurisdictional defect. See Hill v Braxton, 277 F. 3d. 701, 705

(4th dr. 2002); Acosta v Artuz, 221 F. 3d. 117, 122 (2nd Cir. 2000)(" The AEDPA

statue of limitations is not jurisdictional, and nothing in the AEDPA or in the

§ 2254 Habeas Rules indicates that the burden of the pleading;;the statue of limi

tations has been shifted from the Respondent to the petitioner. The AEDPA statue

of limitations therefore an affirmative defense.and compliance “' there with need

not be pleaded in the petition.")(Citations omitted); Kiser v Johnson, 163 F. 3d.

326, 329 (5th Cir. 1999)( recognizing that "the statue of limitations provision

the AEDPA is an affirmative defense rather than jurisdictional"); United Stat

es ex. rel. Galvan vGilmore, 997 F. Supp. 1019, 1026 (N.D. Ill. 1998)("Since § 22

44(d) does not affect this court's subject-matter jurisdiction over habeas petitions,

the State can waive the § 2244(d) timeless issue by failing to raise it")(Cita

tions omitted).

Because the § 2244(d) statue of limitations is an affirmative defense,

Rule 8(c) of the Federal Rules of Civil Procedure requires that a party raise

it in the first responsive pleading to avoid waiving it. Federal R. Civ. P. 8(c)

(' In pleading to a proceeding, a party shall set forth affirmative ... statue

of limitations .7. and anyother matterconstitutingan avoidance or afFirmative

defense.") Haskell v WashingtonTownship, 864 F. 2d 1266, 1273 (6th Cir. 1988)

( pursuant to Rule 8(c) of the Federal Rules of Civil Procedure, a defense based

upon a statue of limitations is waived if not raiesd in the first responsive ;

pleadings." ); See also Hielps v McCellan, 30 F. 3d. 658 , 662 (6th Cir. 1994)(

" Generally, a failure to plead an affirmative defense, like statue of limitat

ions., results in the waiver of that defense and its exclusion from the case.");

Carrington v Robinson, 2001 US Dist. LEXIS 6758 at *4, Wo. 99-cv-76377, 2001 WL

558232 (E,D. Mich. Mar, 27, 2001)( explaining that "the statue of limitations

provision of the AEDPA is an affirmative defense'’); 5 Charles Alan Wright & Art

hur R. Miller, Federal Practice and Procedure § 1278, a 477 (2dEd). (1990).

The Sixth Circuit is not alone recognizing that a respondent who does

not raise the § 2244(d) statue

of limitations defense

waives it. see, e.g.,

Galvan, 997 F. Supp. at 1026(" Since the state did not raise the § 2244(d) limi

tations argument in this case, we find that it has been waived."); Samuel v Qu

ean, 1996 U.S. App. LEXIS 18542 at *7, No. 95-56380, 1996 WL 413632 (9th dr.

duly 8, 1996)(explaining that the government waived the § 2244(d) statue of li

mitations defense by not raising the defense when the habeas petition was filed

after the one-year statue had run).

In Wood v Milyard, 566 U.S. 463, 132 S. Ct. 1826, 182 L. Ed. 2d 733 (

2002), the Court held even the Courts of Appeals have authority to consider a

forfeited timeliness defense sua sponte.

II.

Whether the Court of Appeals should have granted a COA.

A COA will issue only, if the requirements of § 2253(c) have been sat

isfied. "The COA statue establishes procedural rules and requires a threshold

inquiry into whether

the circuit court may entertain an appeal." Slack v McDan

iel, 529 U.S. 473, 482, 120 S. Ct. 1595, 1602-1603, 146 L. Ed. 2d 542 (2000);

Bohn y United States, 524 U.S. 236, 248, 118 S. Ct. 1969, 141 L. Ed. 2d 242 (

1998). § 2253(c) permits the issuance of a COA only where a petitioner has made

a "substantial showing of the denial of a constitutional right." In Slack, Supra,

at 483, 120 S. Ct. 1595, the Supreme Court recognized that Congress codified the

standard, announced in Barefoot v Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L.

Ed. 2d 1090 (1983), for determining what constitutes the requisite showing.

Rackley contends that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different

manner or that the issues, presented were 'adequate to deserve encouragement to

proceed further.

'' 529 U.S., at 484, 120 S. Ct. 1595 (qouting Barefoote, supra,

at 893, n. 4, 103 S. Ct. 3383).

Rackley was not given fair notice of the Involuntary Manslaughter charge

as stated by the magistrate Judge in his footnote bottom of page,3see Doc.# 32

PageID#: 2054, which clearly violates the Due Process Clause of the Fourteenth

Amendment. In determining whether a COA should issue where -the petition was dismissedd on procedural grounds has to components, one directed at the underlying

constitutional claims and one directed at the district court's procedural hold

ing. Section 2253 mandates that both showings be made.before the court of appeals

may entertain the appeal. Each component of the § 2253(c) showing is part of a

threshold inquiry, and a court may find that it can dispose of the application

in a fair and prompt manner if it proceeds first to resolve the issue whose an

swer is more apparent from the record and arguments. The recognition that the "

Court will pass upon a constitutional question, although properly presented by

the record, if there is also present some other ground upon which the case may

be disposed of," Ashwander v TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring), allows and encourages the court to first resolve procedural issues.

The Ashwander rule should inform the court's discretion in this regard.

In this case Rackley did make a substantial showing of the denial of a constit

utional right, but the district court and the Sixth Circuit court of Appeals

overlooked his constitutional violation regarding the issuance of his COA.

The Sixth Circuit Court in Watson v Jago,5558 F. 2d 330 (6th dr. 1977),

reversed and remanded the case to the district court with instructions to grant

the writ of habeas corpus, there is no question that the Fourteenth Amendment

encompasses the right to fair notice of criminal charges. The Supreme Court In

Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 92 L. Ed._682 (1948), in dealin with

the Due Process Clause of the Fourteenth Amendment, stated that:

A person's right to reasonable notice of a charge against him, and an

opportunity to be heard in his defense- - a right to his day in court - are basic

in our system of * Jurisprudence...........

" Rackley statisfies this standard by demostrating that jurists of rea

son could disagree with the district court and the Court of Appeals resolution

of his constitutional claims or that jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further." Miller-El v Cockrell)

537 U.S. 322, 327 (2003).

III. Whether the Six-year post-indictment delay constituted the Illegal Arrest

without probable cause determination.

A. pre-indictment delay

In United States v Hofstetter, No. 3:15-GR-27-TAV-CCS, 2017 U.S. Dist

LEXIS 149134, 2017 WL 4079181 at *6 (E.D. Term. Sept. 14, 2017), To assess whether a constitutional violation occurred, courts must deter nine whether the I It fundamental conceptions of justice which lie at the base of our civil and political

institutions,'and which define 'the community's sence of fair play and decency,'"

are violated. Lovasco, 431 U.S. at 790 (qouting Mooney v Holohan, 294 US 103, 112

____55 S. Ct . 340, 79-L. Ed. 791^(1935)-, and Rochin v Califomia, 342 US 165, 173 72

S. Ct. 205, 96 L. Ed. 183 (1952)). The defendant must shoulder a "heavy burden"

in order to show that his or her rights were violated by pre-indictment delay.

United States v Baltimore, 482 F. App'x 977,981 (6th Cir. 2012).

"Dismissal for pre-indictment delay is warranted only when the defendant

shows substantial prejudice to his right to a fair trial and that the delay was

intentional device by the government to gain a tactical advantage." United States

v Brown, 667 F.2d 566, 568 (6th Cir. 1982), See also Marion, >404 US at 324; Uni

ted States v Atchley, 474 F.3d. 840, 852 (6th Cir.)( finding government did not

file superseding indictment in order to gain astrategic advantage), Cert, denid,

550 U.S. 965, 127 S/ Ct. 2447, 167 L. Ed. 2d 1145(2007). The defendant bears the

burden of showing substanial prejudice by definite proof, rather than speculation.

United States v Biraey, 626 F.2d 102, 105-06 (2nd Cir. 1982); see also United States

tates v Rogers, 118 F.3d. 466, 475 (6th Cir. 1997).

In United States v Jones, 555 F. Ed. App'x. 485 (6th Cir. 2014), The

Sixth Amendment provides criminal defendant's a right to a speedy, trial. "Courts

must balance four factors to determine whether a delay violated the Sixth Amend

ment: (1) the '[ljength of the delay'; (2) 'the reason for the delay '; (3)

the

defendant's assertion of his right •.; (4)' prejudice to the defendant.'" Ferreira,

665 F. 3d. at 705 (qouting Baker v Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33

L. Ed. 2d 101(1972)). The parties agree that relevant "delay" in this case is the

Six years and two weeks between the indictment and the arrest. Ihe parties also

agree that Jones timely asserted his speedy trial right.

" The First factor is a threshold requirement : we only consider the .

remaining Barker factors if the delay is longer than Oneyear." United States v>

Zabawa, 719, F.3d 555 , 563(6th Cir. 2013)(citing United States v Robinson, 455 F.3d.

602, 607 (6th Cir. 2006)). Ihe Rationale here is the judicial examination of a

speedy^ trial'cIaiTfTTs" needed dhr)ridiere the delay crossd^ therLTne ^dividing^ordinary from ff I presumptively prejudicial [.]'" Girts v Yanai, 600 F. 3d. 576, 588

(6th dr. 2010)(qouting Doggett v United States, 505 U.S. 647, 651-52, 112 S.Ct.

2686, 120 L. Ed. 2d. 520 (1992)).

In this case, the delay was six years and two weeks, so we must consider

the remaining Barker factors. "The Second Barker Factor looks at 'whether the

governement or the criminal defendnat is more to blame for [the] delay. till Zabawa.

719 F. 3d. at 563 (qouting Maples v Stegall, 427 F.3d 1020, 1026 (6th Cir, 2005)).

"Governmental delays motivated by bad faith, harrassment, or attaiipts to

seek a tactical advantage weigh heavly, and valid reasons for the delay weigh in

favor of the government." Robinson, 455 F.3d. at 607. Thus, "different weights

should be assigned to different reasons[,]" Barker, 407 U.S. at 531, and a dist

rict court's conclusions regarding these inquires are entitlted to "'consider

able deference,'' United States v Brown, 169 F.3d 344 , 349 (6th Cir. 1999)(qouting Doggett, 505 U.S. at 652). Here, Jones does not allege any "bad Faith " on

the government's part and the government offers no "valid reason" for the delay.

The parties dispute only whether the government exhibited reasonable

dilligence in attanpting to discoverrjone's whereabouts from the time of the .i

indictment until his arrest. The district court did not clearly err infinding

that it did.

In Rackley's case he was charged .with Aggravated murder, and Aggravated

Robbery, the alledge crime took place on November of 2006, the Six in a half :

year:post-indictment:delay'presumptively prejudice, Rackley case there;was no

probable cause determination for his arrest, the record states that there was

no direct indictment but the charges Rackley was forced to face was in fact/or

according the magistrate Judge Parker assesment of his indictment suggest that

Rackley was direct indicted. See (Doc.# 32 PagelD#: 2052-53).

In United States v Ingram, 446 F.3d 1332 (11th Cir. 2006).• t v 11 Determin

ation of whether a defendant's constitutional right to a speedy trial has been

violated is a mixed question of law and fact. Questions of law are reviewd de novo

and findings of fact are reviewed under the clearly erroneous, standard."

United States v Clark, 83 F.3d 1350, 1352 (11th Cir. 1996)(citing Yapp v Reno,

26 F.3d 1562, 1565(llth Cir. 1994):).

In United States v Shell, 974 F.2d 1035, stated in it's opinion: Short1)'

after our opinion was filed, The Supreme Court held that a defendant was not

always required to show actual prejudice to prove a violation of his speed)' trial

rights. Doggett v United States, 112 S.Ct. 26 86 , 26 94, 120L. Ed. 2d 520 (1992).

The court modified the Barker v Wingo, 407 U.S. 514, 33 L.Ed. 2d 101,

92 S. Ct. 2182 (1972), four-part test, and held that no showing of prejudi.ce is

required when the delay is great and attributable to the government. The Ninth

Circuit ruled that a five-year delay violated the defendant's Sixth Amendment

right to speedy trial. Like the eight-year delay in Doggett, created "a strong

presumption of prejudice.

B. lack of probable cause arrest without warrant.

The Ohio Supreme Court has established a four-part test to determine

whether a person is under arrest. State v Darrah (1980), 64 Ohio St.2d 22, 412

N.E.2d 1328. An arrest occurs when there is "(1) [A]n intent to arrest, (2) un

der a real or pretended authority, (3) accompanied by an actual or constructive

seizure or detention of the person, and (4) which is so understood by the person

arrested."(citations omitted.) Id. at 26.

Each of the four prongs is not present in Rackley'£ case, the officers

approched Rackley with intent to place him under arrest and acted without real

authority. Moreover, when the officers approched, they detained him by surrounding

-the—gas—s tation—he was—a-t—in—Shaker_hts.—andJieldJiim a.b^gun_pointin_.frQnLof._his---daughters and his fiance', and secured him from leaving. The fourth and final

factor Rackley asked the officers how did they know he was at the gas station,

the officer reponded by stating they followed him from his house to the gas station.

The proper inference to be drawn from such bad conduct is that Rackley

did not understand the implications of his false arrest. The federal constitut

ional right implicated here is the Fourth Amendment Right to be arrested only

upon probable cause. Pyles v Raisor, 60 F.3d 1211? 1215 (6th Cir. 1995); Donovan

v Thames, 105 F.3d 291, 297-98 (6th dr. 1997). Thus, this court must address

whether the evidence, when construed most favorable to Rackley., states a claim

that Shaker Hts. police officers arrested him without probable cause. Pyles, 60

F.3d at 1215. jlso_see ( Objection

to Magistr. R&R Doc#. 33 Page 17.)

<•/ ?;

Today it is well established that any arrest without probable cause

violates the Fourth Amendment. See Gardenhire v Schubert, 205 F.3d 303, 315 (6

th dr. 2000); Ahlers v Schebil, 188 F«3d 365, 370 (6th Cir, 1999); See Baker v

McCollan, 443 U.S. 137, 142 43, 61 L.Ed. 2d 433, 99 S.Ct. 2689 (1979)'.( "by

virtue of its's

incorporation' into the Fourteenth Amendment, the Fourth Amend

ment requires the states to provide a fair and reliable determination of probable

cause as condition for any sigificant pretrial restraint of liberty.")(citing

Gerstein v Pugh, 420 U.S. 103, A3 L. Ed. 2d 54 , 95 S.Ct. 854 (1975). also see

Rackley's petition Doc.# 1-1 PagelD#: 28-43.

In Cochran v Town of Jonesborough, U.S.Dist. LEXIS 34088(6th Cir. 2018),

first alleges unlawful arrest :under the Fourth Amendment (Count 1 ) and Tennes

see law (Count 5). "It Is beyond debate that and arrest made without probable

cause violates the Fourth Amendment." Smith v City of Xenia, 417 F.3d 565, 573

(6th Cir. 2005)). Conversely," the existence of probable cause forecloses a

false arrest claim." Stemler v City of Florence, 126 F.3d 856, 871(6th Cir.1997)

(cleaned up). Probable casue to make an arrest exists, "if, at the moment of

the arrest, 'the facts and circumstances within the officers 'knowledge and of

which they had resasonable trustworthy information weresufficient to warrant a

prudent man in believeing that the arrestee had. committed, or was committing an

offense. ""Kl^in v Long, 275 F.3d 544, 550 (6th Cir, 2001)( internal citation

omitted)(cleaned up). The arresting officer's knowledge depends on the "law of

the jurisdiction at the time of the Occurrence." Ingram v City of Columbus, 185

F.3d 579, 594, (6th Cir. 1999). Alegal arrest together with the filing of a valid

sworn complaint upon which a warrant is issued subjects an accused to a Municipal

courts jurisdiction. State v Jones, 76 Ohio App. 3d 602, 604. N.E.2d 1267, 1992

Ohio LEXIS 116,(1992). Doc.# 1-1 PagelD#: 30.

The Supreme Court has held that the probable cause findings required by

the Fourth Amendment must be made by a neutral and detached magistrate. See

Shadwick v City of Tampa, 407 U.S. 345 , 350 , 92 S. Ct.2119, 32 L.Ed.2d 783(1972)

; United States v Pennington, 328 F.3d 215, 217-18 (6th Cir. 2003).

In Cooley v Stone,1134 USApp. IjC 317, 414 F.2d 1213(1969), The district

Judge granted the writ, ruling orally as follows:

"no person can be lawfully held in penal custody by the

state without a prompt judicial determination of pro

bable cause. Ihe Fourth Amendment so provides and this

constitutional mandate applies to-juveniles as well as

adults. Such is the Teachings of Gault and teaching of

Kent. The historic writ of habeas corpus is proper way

to challenge illegal detention or irregularites in- pro

cedures leading to detention, as was clearly set forth

in Washington v Clemmer, [119 US App. D.C. 216] 339 F.2d

715.

In County of Riverside v McLaughlin, 114 L.Ed.2d 49 , 500 US. 44 (1991),

On Certiorari, the United States Supreme Court vacated the Judgement of the Court

of Appeals and remanded the case for further proceedings. In an Opinion by 0'Conner,J., joined by Rehnquist Ch.J.

and White, Kenndy, and Souter,JJ., it was

held that (1) jurisdictions that provide judicial determinations of probable ca

use within 48 hours of a warrantless arrest will, as a general matter, comply

with the promptness requirement of the federal constitution's fourth amendment,

and such jurisdiction will be immune from systenatic challenges to thier probable

cause determinationproceedings,

(a) 48-hour Rule accommadates the competing in

terest involved, (b) the vague admonition of the common law that an arresting

officer must bring a person arrested without a warrant before a judicial officer

"as soon as he reasonabley can " offers no support for an in flexible standard

that would reqiure a probable cause determination tohe made as soon as the adminstrative steps incident to arrest are completed, and (c) given that it can take

36 hours to process arrested persons, a rule setting 24-hours as the outer boundry

for providing probable cause determinations would compel countless jurisdict

ions to speed up thier criminal justice mechanism?substantially; and (2) the

defendant county is entitled to combine probable cause determinations with ,

arraignments; but (3) The Supreme Court in Gerstein did not hold that the fourth

amendment affords arrestee's the right to attend a probable cause determination.

The Supreme Court based it holding that warrantless arrestee's must

recieve a prompt probable cause determination; upon the premise that warrantless

atterstee's should be treated on par with those arrested with a warrnant. Ge

rstein , 420 US at 120. The Fourth Amendment, therefore, affords those arrested

without arrested without a warrant the same right to have the evidence against

them reviewed by a neutral and detached magistrate as to that enjoyed by those

arrested with a warrant. Gerstein at 420 US at 112. Rackley was held for two days

and was not released, he also was not given counsel by Shahker Tits'. Municipal

court. See Doc.# 1-1 Page ID#: 30. also see booking sheet Doc.# 10-1 PagelD#: 1008.

The?.Booking sheet of Shaker Hts police Dept, shows that Rackley was not

charged with a felon)' crime. Picard v Conner, 30 L.Ed. 2d 438 , 404 US 270, Mr.

Justice Brennan delivered the opinion of the Court:

The Court of Appeals for the First;Circuit, reversing the district court's

dismissal of Respondent's petition for a writ of federal habeas corpus, held that

"the procedure by which [Respondent] was brought to trial deprived him of the

Fourteenth Amendment's guarantee of Equal protection of the Laws." 434, F.2d 673

(1970). The question is whether Rackley was entitled to a probable cause deter

mination for further detention. Whether Equal protection of the Fourteenth Amend

ment has violated Rackley's Rights of Procedural Due Process.

IV. The question of whether Rackley's Fifth Amendment Right was; violated from

the direct indictment and the district court for not conducting?an evidentiary

hearing on his actual innocence claim, and alibi defense.

Section 2241 "is an affirmative grant of power to federal courts to issue

writs of heabeas corpus to prisoners being held 'in violation of the Constitution

or laws or treaties of the United States. I II Rice v White, 660 F.3d 242, 249 (6th

Cir. 2011)( 28 U.S.C. § 2241'(C)). In order to prevail on due process claim, a

petitioner must show that the government has interfered with a protected liberty

or property interest.

Fourteenth Amendment Section 1 states;

No State shall make or enforce any law which shall abridge the privileges or imm

unities of citizens of the United States; nor shall any State deprive any person

or life, liberty, or property, without due process of the law; nor deny to any

person within its jurisdiction the equal protection of the laws.

United States v Reiter Court of Appeals 2nd Cir. (1989), A defendant enjoys

both a constitutional right and a right under Fed. R. crim. P. 43 to be present

at trial. The constitutional right is premised on anaccussed's Sixth Amendment

right to Confront his accusers, See Illinois v Allen, 397 U.S. 337, 338 , 25 L.Ed.

2d 353, 90 S/ Ct. 1057 (1970),,and Fifth Amendment, Fourteenth Amendment Due Pro

cess right to be present at certain trial-related proceedings where he is not :

actually confronting witness or evidence against him, see Kentucy v Stincer, 482

U.S. 730 , 745 , 96 L.Ed. 2d 631, 107 S.Ct. 2658(1987); United States v Gagnon, 470,

U.S. 522, 526-27 , 84 P..Ed 2d 486,—105 S.Ct-. 1482(1985)(percuraim); United States

v Crutcher, 405 F.2d 239, 242 (2nd Cir. 1968), Cert, denied, 394 U.S. 908, 22 L.

Ed. 2d219, 89 S.Ct. 1018(1969).

In Giordenello v United States, 357 US 480 (1958), the Supreme Court stated

Criminal Rules 3 and 4 provide that an arrest warrant shall be issued only upon

a written sworn complaint (1) setting forth "the essential facts constituting the

offense charged," and (2) showing " that there is probable cause to believe that

[such] an offense has been committed and that defendant has committed it ....

The provisions of these Rules must be read in light of the constitutional

requirements they implement. The langauge of the Fourth Amendment;, that" ... that

no warrants shall issue, but upon probable cause, supported by oath or affirm

ation, and particularly describing ---- the persons or things to be seized," of

course applies to arrest as well as search warrants. See Ex parte Burford, 3 C

cranch 448; McGrain v Daugherty, 237 U.S. 135, 154-157. The protection afforded

by these Rules, when they are viewed against thier constitutional background, is

that the inferences from the facts which lead to the complaint"... .be drawn by a

neutral detached magistrate, instead of being judged by the officer engaged in

the often competive enterprise of fettering out crime." Johbson v United States,

333 U.S. 10, 14. ? The purpose of the complaint, then, is to enable the appropriate

magistrate, here a Commissioner, to determined whether the "probable cause" re

quired to support a warrant existence.

The warrant requirement exists in order to permit a neutral magistrate to

make the decision whether to authorizes arrest, rather than leaving this decision

up to;the prosecutor or officer. Gerstein v Pugh, supra; Johnson vUnited State,

supra. Gerstein and .Johnson involved determinations of probable cause but the same

pricipals are applicable here. Even where an Indictment has been handed down and

there is a presumption of probable cause, a warrant requirement remains. Fed. R.

“CriiTiinaT:“f>T~§ “(b)f±) v

-------------------------------------------------

Habeas petitions will be granted for prosecutorial misconducto=oply when

the misconduct "so infected the trial with unfairness as to make the resulting

conviction a denial of due process." Darden v Wainwright, 477 US 168, 171, 106

S.Ct. 2426, 91 L.Ed.2d 144 (1986) (qouting Donnely v DeCristoforo, 416 US 637,

643 94 S.Ct. 1868, 1871, 40 L.ed.2d (9th Cir. 1995). To constitute a due process

violation, the prosecutorial misconduct must be "of sufficient signifcance to

result in the denial of the defendant's right to a fair trial." Green v Miller,

483 US 756 , 765, 107 S.Ct. 3102 , 3109 , 97 L.Ed. 2d 618 (1987)(qouting United

States v Bagely, 473 US 667, 105 S.Ct,. 3375, 87 L.ed.2d 481 (1985).

x;-; Xpi-xrax- v laxas

3-SU -i.t-S.-. 400

In Pointer v Texas, 380 U.S. 400 , 403, 85 S.Ct.-J065, 13 L.Ed. 2d 923

(1965),

On certiorari, the Supreme Court of the United States reversed, in an

opinion by Black, J., expressing the views of seven members of the court, it was

held that (l) the Sixth Amendment guaranty protecting an accused's right to con

front the witnesses against him was made obigatory on the States by the fourth

eenth amendment ; and (2) the facts, as stated above, constituted a denial of

defendant's constitutional right to confrontation.

The Sixth Amendment right of an accused to confront the witness against

him is a fundamental right, essential to a fair trial, and is made obligatory

on the states by the fourteenth amendment. Blackford v Lazaroff (2017) (6th Cir)

R & R opinion

2921.52

shame legal. The prosecution used sham legal process for

aggravated murder and aggraveted robbery in Rackley's case , the Confrontation

Clause is applicable to the States through the fourteenth amendment' s due pro

cess clause. Herriandez v Mckee 2018 US Dist. LEXIS 38158 (6th Cir. 2018).

The magistrate Judge stated in his Report and recommendation, State

court: rulings on issues of state law may "rise to the level of due process vio

lations [if] they' offend [] some principal of justice so rooted in the tradi

tions and conscience of our people as to rank as fundamental." ' He further sta

ted that Rackley's contentions do not reveal any violations of state law that

denied him fundamentally fair proceeding or any violation of his due process

rights.

The indictment signified that a grand jury found probable cause to sup

port the charges based on the sworn complaint of the assistant prosecutor. Rule

6 of the Supertendence for the courts of Ohio states: Each court shall require

an attorney to include the attorney or pro hav vice registration number issued

by the Supreme court on all documents filed with the court. Each court shall use

the attorney or pro hac vice registratation number issued by the Supreme Court

as the exclusive number or code to indentify attorneys who file documents with

the court. The complaint that was filed without and affidavit of a police officer

has no [registration number] so the court cannot identify the signatures of the

deputy clerk. See Complaint filed by the prosecutor (Doc#; 28-1 PageID#: 1310,

see also complaint summary and bond report, Doc#: 28-1 PagelD#: 1308), " this

process is called direct indictment. II IIThe term direct indictment simply means

that no criminal complaint was first filed against the defendant. There is no

constitutional or statutory requirement that criminal prosecution begin by complaint. Doc#: 32 PagelD#!;2051-56. The magistrate's determination of the facts

where errorneous an "resulted in a decision that is contraryto, or involved an

unreasonable application of, clearly established Federal Law, the Fifth Amendment

to the United States.Constitution requires indictment by grand jury for all fed

eral prosceutions for felonies or capital crimes. The Supreme Court has held that

this requirement is not binding on the the States. Hurtado v California, 110 US

516, 4 S.Ct. Ill, 28 L.Ed. 232((1884). Critics of the grand jury contend that it

is now so completely under the control of the prosecutor that it serves as little

more than a "Rubber Stamp" for the prosecutor's charging decisions.

The complaint is the jurisdictional instrument of the Municipal Court. A

court's subjeet-matterrjurisdictment is invoked by the filing of a complaint. In

the matter of: C.W. Butler App. No. CA. 2004-12-312 , 2005 Chip 3905, P.ll. The

filing of a valid complaint is therefore a necessary prerequisit to a court's

accquiring jurisdiction. Columbus v Jackson, (1952), 93 Ohio App. 516, 518, 114

N.E.2d 60. Criminal Rale 6(f) states that the grandijary - or it's foreperson or

deputy foreperson - must return the indictment to a Magistrate Judge in open court,

the Appearance Docket does not show that an indictment was returned. See Appearance

Docket certified copy Doc#: 28-1 PagelD#: 1383-96.

In Hasan v Ishee, U.S. Dist. LEXIS 25081 (6th Cir. 2018) stated that there

is no constitutional right to an indictment in State Court criminal proceedings.

Hurtado v California, supra.

In Butler v Warden,, 2012 U.S. Dist. LEXIS 123381 (

6th Cir. 2012), as Respondent, pointed out in the Retuen of writ (Doc.# 8, P.12),

it is well settled that there is no federal constitutional right to an indictment

in the State criminal proceedings. Bransburg v: Hayes, 408 U.S. 665, 688 n. 25, 92

S.Ct. 2546, 33 L.Ed. 2d 626 (1972); Koontz v Glossa, 731 F.2d 365 . 369 (6th Cir.

1984)( " The law is well settled that the federal guarantee of a grand jury ind

ictment has not been applied to the States.... it is also well settled in this

Circuit that the constitution does not require any particular State indictment

rule").

Therfore this should constitute as a Fifth Amendment violation of the

Fourteenth Amendment to the United States consitution and whether this would amount to the trial court not accquiringjjurisdiction of:the subject-matter.

In Doyle v State, 17 Ohio, 222,224, where the defendants was not indicted

.by a_proper..._grand^jury?_,_ i±_js_saidj__L,hence._.nQ__ihdlctment.„in__this„case_.was _ever_____ _

found by a grand jury, because there was no grand jury to pass upon it. Hence

that which purports to be an indictment was no indictment, and the part}' charged

could not be put upon trial to answer. But it iis said the objection comes too late.

No objection can come to late, which discloses the fact-that a person has

been put to answer a crime in a mode violating his legal and Constitutional Rights.

***No man, by express consent, can make that an indictment, authorizing the court

to try that which, in fact, was not an indictment, should be put upon file, not

purporting to be bound [found] by a grand jury, could the person charged, by ent

ering a plea of not guilty, confer upon the court power to try and sentencehhiim ?

no one would pretend it". Rackley filed a motion for grand jury minutes on October

16, 2017 but was denied. See Doc#: 30 and Doc#: 31.

,'21

In Strickland v Washington, 466 US 668, 687-88, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984), the Supreme Court established a two-prong test by which

to evaluate claims of ineffective assistance of counsel, the petitioner must

prove: (1) that counsel's performance fell below an objective standard of ,

reasonableness,; and (2) that counsel's deficient performance prejudice the

defendasnt resulting in an unreiahle or fundamentally unfair outcome. In Parisi

v United States, 529 F.3d 134 (2d dr. 2008)

Parisi's submissions can be read

as raising the claim that his attorney was ineffective in advising him to accept

the plea agreement rather than advising him to move to dismiss the indictment

with prejudice based on alleged Speedy Trial Act violations. This claim surv

ives the appeal waiver because, by focusing on the advice Parisi recieved from

his attorney, it connects the alleged ineffectiveness of Parisi's attorney with

-:s

the voluntary nature of his plea. See United States v Hansel, 70 F.3d 6,8 (2d

Cir. 1995)(per curaixn)( allowing ineffective assistance claim based on failure

to move to dismiss counts as time-barred to proceed, desite guilty plea, be-___

cause "Hansel's waiver of the time-barr defense cannot be deemed knowing and

intelligent" as "he would not have pled guilty to counts that he knew to be

time-barred " (emphasis added)). The Parisi Case is very similar to Rackley's

case because counsel was ineffective for advising Rackley to sign a Speedy

Trial Act waiver, ( see petition Doc#: 1-1 PagelD#: 55-57))

The Supreme Court recently described the. requirement that the district

court make such findings as "categorical" and held that "if a Judge fails to

make the reguisite findings regarding the need for an end-of-justice contin

uance, the delay resulting from the continuance must be counted. "Zedner v Uni

ted States, supra, 547 US 489 (2006). There. after indictment and at the urgi

ng of the distict court, the defendant had signed a form waiving all Speedy

®rial Act claims in advance. Id. at 494-96.

The court held that defendant's cannot prospectively waive the Act,

which does not provide for "exclusion on the grounds of mere consent or waiver,"

becasue the act was designed to protect both " a defendant's right to a Speedy

Trial " and " the public interest."Id. at 500-01. An ineffective assistance of

counsel claim survives the guilty plea or the appeal waiver only where the claim

concerns " the advice [the defendant] recieved from counsel," United States v

Torres, 129 F.3d 710, 715-16 (2d Cir.v 1997)(internal qoutations marks ommitted).

When an attorney fails to raise an important, obvious, defense without

any imaginable strategic or tactical reason for omission, his proformance falls

below the standard of proficient representation that the constitution demands.

Prou v United States, 199 F.3d 37, 42, (1st Cir. 1999).,Counsel commulative

errors started

July 02, 2012 the time he was appointed to Rackley's case at

his arraigment Rackley was not at this arraignment and not by choice, Rackley

didnot recieved this transcript in order to prove he was not at attendence, On

July 02_,__counse]—filed-a-motion—for-evidencenotice-, which was not responed by-----the prosecution, On July 10, counsel requested for evidence notice, but the State

failed to respond to that request. See Appearance Docket Doc#: 28-1 PagelD#: 138396 certified copy.

This would have shown the weakness of the States case against petitioner

such as the actual innocence claim that Rackley presented to the Sixth Circuit

Court of Appeals to demonstrate that he was actual innocent of this crime. This

evidence that was not produced, in Rackley's case should have been relavant to

show cause for further inquiry to defendant's guilty plea, qouting Bousley v Unied States,,523 US 614, 623, 118 S.Ct. 16, 04, 140 L.Ed.2d 828(1998)).

The magistrate Judge's, Report, and Recommendation stated:Rackley s traverse asserts his actual innocence. "The evidence in this case that has been sub

mitted will prove that Rackley did not commit this crime."

23’.

ECF Doc#: 29, PagelD#: 1984. "[Defense counsel] coerced Rackley to [ /

plead guilty to] involuntary manslaughter without any prior notice, when the state

failed to respond to the evidence notice filed by counsel this should show that

the state never intended on going to trial. " In the instant case, the claim of

actual innocence is presented along with allegations of underlying constitutional

violations. Id. at PagelD#: 1994.

The magistrate continued to state Rackley has offered no new evidence that

would establish his actual innocence or undermine his guilt. Rackley contends

that the Booking sheets of Shaker/Hts police Dept, and the Cuyahoga County Book

ing sheet is new evidence and shows it is not and official document that was sent

by the sheriffs dept, of Cuyahoga County, see Shaker Hts. booking sheetODoc#: 101 PagelD#: 1008, Cuyahoga County Booking Sheet Doc#: 10-1 PagelD#: 1009, also

see Appendix (E) Exhibit (A) (this is a letter that was sent by the Sheriffs

dept, regarding a request for the booking sheet of Cuyahoga County that Rackley

was -prevented-f-rom- obtaining ,—wi-th -lhe embossed -seal)-.- This- wlll prove that-

Rackley was illegaly detained which fundamentally deprived him of his liberty

interest. Other evidence that rackley submitted to the trial court to prove his

innocence that was not presented by counsel such as: (On Feburary 28, 2010, I

examined the tennis shoes confiscated from Steven Rackley by Sgt. Mullaney on

december 13, 2006, with the cast of the foot impression collected at the crime

scene. Rackley's tennis shoes (did not match the tread impression in the casts).

Doc#: 28-1 PagelD#: 1416, at the Bottom of the page. (2) (Note: an examination

of the footwear by Lake County Crime Labortory Criminalist, David Green, of the

above submitted items was conducted. (The submitted items (did not match the part

ial

foot impressions submitted by Shaker Hts. Police Dept.) (item #144 Rackley's

shoes). Doc#: 28-1 PagelD#: 1415. On July 31, 2007, the Vehicle Rackley was driving

the

Chrysler Van that belonged to his Fiance' was checked, inside for the presence

of blood with (negative reults). see Doc#: 28-1 PagelD#: 1417-18. On November 9,

2006, the victims car was sent to the BCI Lab the inside of the vehicle was ex

amined for blood the (results were negative) see Doc#: 28-1 PagelD#: 1419-20.

Shaker Hts. contended as previously stated in this investigation, Steven

Rackley consented to a DNA swabbing of his cheeks on December 12,2006, this was

done without the assistance of counsel when Rackley was unsure if he should do

this with representation, which clearly violated the Sixth Amendnment and the

Fourth Amendment, cause this was a sharch in a persons moutihhfor medical data,

Shaker Hts. Detective consulted with scientists at the Cuyahoga County Coroner's

office, (who are not DNA experts) I was informed that the DNA swabs indicated

that Steven Rackley had handled the knife recovered from the Homicide crime

scence. Doc#: 28-1 PagelD#: 1440.

In viewing all the evidence that was submitted to the Cuyahoga County

Coroner's office by detective Green of the Shaker Hts. police Dept, certain evi

dence was-handled by different department officers, the-knife could not-be linked—

to the partial blade that was found near the crime scence. See Doc#: 28-1 PagelD#:

1438. This would explain the lack of probable cause to issue a warrant for Rackley's

arrest. Dr. Nasir Butt of the Cuyahoga County coroner's office said in his report

that Steven Rackley and Stephanee Roebuck are the only two people in the mixture,

(" There are no other possibilities"). On November 08, 2012, counsel filed a mo

tion for forensic DNA testing at State expense, the motion was granted,-■ March 19,

2013, DNA Diagnostic center is ordered to provide to State of Ohio all lab reports

examinations and notes relative to this case. See Doc#: 28-1 PagelD#: 1388 app

earance docket. The examiner reported that there is a mixture of three or more

individuals, on the handle the examiner also informed to counsel that it is highly

unusual for DNA to be on the handle and not on the blade, See Doc#: 28-1 PagelD#:

1442 for Dr. Nasir report, DNA Diagnostic center report 1449-50.

This shows that Dr. Nasir was wrong in his report about the DNA, counsel

was ineffective for not fully investigating key factors regarding the knife handle

such the discription of the location where the knife was found, the temperature

was 60°F the overcast was foggy. Fog brings mositure in the air this would have

casued the handle to be wet which would contaminate the handle, See Doc#: 28-1

PagelD#: 1447. On July 03, 2007, members of the Shaker Hts police dept, executed

a municipal court search warrant for the residence of Stephanee Roebuck, (Rackley

also stayed at this residence as well, the detectives tried to isolate him from

his family) during the search seven knives of similar types to the knife presumed

to be used in the homicide, the knives were later examined by metallurgist/for

ensic examiner Dr. Susan Kazanjian, PhD. of the FBI labor tory in Quantico, Virg

inia, she later determined they did not match the knife fragments and habdle co

llected from the homocide crime scene. See Doc#: 28-1 PagelD#: 1438-39.

In Cullen v Pinholster, U.S. 131 S.Ct 1388, 179 L.Ed2d 557 (2011), adopted

the view and maintained that "New Evidence properly presented in federal courts

hearing" should be deemed "relavant to the reasonableness'to the State Court de

cision" in orederto "accommendate [] the competing goals, reflected in §§ 2254(d)

and 2254(e)(2), of according deference to tte&sgnahlp&stateseobrtidecisions and

preserving the opportunity for diligent petitioner's to present evidence to the

federal courts when the}' were unable to do so in state court Id." at 213-14 (Sotomayor, J., dissenting), justice Alito, who concurred in part in the majority's

opinion and concurred in the judgment, joined Justice Sotornayor on this point. Id.

at 203 (Alito, J., concurring in part and concurring.in the Judgment)(" as the

dissent point out, refusing to consider the evidence recieved in the hearing in

federal court gives § 2254(e)(2) an implusible narrow scope").

The majorit}' found a continuing role for section 2254(e)(2) and federal

evidentiary hearing in cases that are exempt from section 2254(d)(1) review,

pointing to federal habeas corpus claims that were not adjudicated on the merits:

as an example of such a situation:

Section 2254(e)(2) continue to have force where

§ 2254 (d)(1) does not bar federal habeas relief

for example, not all federal habeas claims by st

ate prisoners fall within the scope of § 2254(d)'

which applies only to claims "adjudicated on the

merits in state court proceedings."

The rule could not be otherwise. The whole history of the writ its un

ique developnent -refutes a construction of the federal court's 'habeas corpus

powers that would assimilate thier task to that of court's of appellate review.

The function on habeas is different.

It is to test by way of an original

civil proceeding, independent of the very gravest allegations. State prisoners

are entitled to relief on federal habeas corpus only upon proving that thier

detention violates the fundamental liberties of the person, safeguarded against

state action by the federal constitution. Simple because detention so obtained

intorlerable, the opportunity for redress, which presuppoeses the opportunity

to.be heard, to argue and present evidence, must never be totally foreclosed. See

Frank v Mangum, 237 US 309 , 345-350 , 59 L.ed 969, 987-989, 35 S.Ct. 582 (disenting

opinion of Mr. Justice Holmes). It is the .typical, not the rare, case in which

constitutional claims turn upon the resolution of contested factual issues.

Thus a narrow view of the hearing power would totally subvert Congress'

specific aim in passing the act of Feburary 5, 1867, of affording state prisoners

a forum in the federal trial courts for the determination of claims of detention

in violation of the constitution. The language of Congress, the history of the

writ, the.decisions of this court, all make clear that the power of inquiry on

federal habeas corpus is plenary. Therefore, where an applicant for a writ of

habeas corpus alleges facts which, if proved, would entitle him to relief, the

27 ;

federal court to which the application is made has the power to recieve evidence

and try the facts anew. The circumstantial facts, when taken together, are in

sufficient to establish Rackley's guilt. Such as the knife handle that was found

near the crime scene and on the street that Rackley lives on, the handle could

not be linked to the partial blade that also was near the crime scene. See Doc#:

28-1 PagelD#: 1438. Counsel also failed his duties when he did not have an expert

examine the knife, because the DNA would be questionable according to Kylie Graham

an Ohio Bureau of Criminal Investigation, Forensic DNA Analysist. She also studied

at the Forensic Institute of Ohio, she state that there are instances where the

DNA generated from an evidence item is insufficient or it is a mixture of too

many individuals where the individual DNA profiles cannot be teased apart, and

therefore, does not have comparable value. So by not obtaining expert analysist

counsel was deficient.

An Evidentiary hearing would find that " it surely cannot be said that a

juror, conscientiously following the Judge's intructions requiring proof beyond

a reasonable doubt, would vote to convict." citing Schlup v Delo, 513 U.S. 298,

329 (1995)). Rackley has dilligently pursued an evidentiary hearing but to no

avail was denied, counsel deficient proformance concerning Rackley's alibi that

was overlooked, and not considered resulted in a total miscarriage of Justices

because the phone records from Rackley's cell phone, and the tower signals show

that Rackley was nowhere near the crime when the neighbors heard the disturbance

in the street. Doc#: 28-1 PagelD#: 1414. In a similar case Miller v Anderson,

255 F.3d 455,U.S. App. LEXIS 14384 (7th Cir. 2001), counsel's failure to present

expert testimony concerning foot print, hair, and DNA evidence discovered at the

crime was ineffective assistance where defendant's sole defense was that he was

never at the crime scene. In these circumstances, it was irresponsible of the

lawyer not to consult experts. Wallace v Stewart. 184 F.3d 1112, 1117 (9th Cir

1999); Bean v Calderon, 163 F.3d 1073, 1079 (9th dr. 1998); cf. Strickland v

Washington, 466 U.S. 668, 690-91, 80 L.Ed. 2 674, 104 S.Ct. 2052 (1984)(dutv of

reasonable investigation).

I remain only to consider whether Miller would have had reasonable shot

at acquittal had his lawyer been minimally competent. We think so. The minimall)'

competent lawyer would have presented expert evidence, that there was no physical

of Miller's presence at the crime scene, would have greatly undermined the hard

ware clerk's evidence, would not have undermined the alibi testimony of Miller's

wife, would by forgoing psychological evidence (unlikely in any event to impress

a jury) have keep the evidence of Miller's previous crimes from the jury, and

would thus have forced the state to .rely entirely on wood's questionable testimony.

The Judgment is reversed with directions thatthe state either release Miller

or retry him within 120 days. Rackley would, like to request this type of relief

if applicable.

....

..—..

V. The question of whether petitioner's guilty plea was knowing and volunt

ary and counsel's ineffectiveness for not telling him about his appeal rights,

and not having a pre-sentence investigation report during sentencing.

Under the Fifth Amendment's provision that no person shall be held to

answer for a capital crime unless on the indictment of a grand jury, it has been

the rule that after an indictment has been returned its charges may not be bro

adened except by the grand jury, itself. Stirone v United States, 361 U.S. 212

80 S.Ct. 270, 4 L.Ed. 2d 252 (1960); Exparte Bain, 121 U.S. 1, 7 S.Ct. 781, 30

L.Ed.2849 (1887). See Russell v United States, 369 U.s. 749, 770, 82 S.Ct. 1038

8 L.Ed2d 240(1962); United States v Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed.

1076(1930). In 1887, the Supreme Court in Bain, supra, 121 U.S. at 9-10, 7 S.Ct.

781, held that a defendant could only be tried upon the indictment as found by .

the grand jury and that langauge in the charging part could not be changed without

rendering the indictment invalid. Stirone, supra, 361 U.S. at 217, 80 S.Ct. at 273

j_ the Supreme Court stated the Bain "stands for the rule that a court cannot per

mit a defendant to be tried on charges that are not made in the indictment against

him." This rule has been reaffirmed recently several times in this Circuit. United

States v Maselli, 534 F.2d 1197 1201 (6th Cir. 1976): United States Pandilidis,

524 F.2d 644 (*6th Cir. 1975), cert, denied, 424,,U.S. 933, 96 S.Ct. 1146, 47 L.Ed.

2d 340 (1976).

Stirone v United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Edx2d 252,

involved a "contructive" amendment. The defendant was found guilty, but the Supr

eme Court reversed the conviction, stating that the defendant's right to be tried

only on charges presented in an indictment returned by a grand jury has been de

stroyed even though the indictment had not been formly changed. Stirone v United

States,supra, 361 U.S.at217,,80S.Ct.270,

Under Stiome, the question to be asked in identifying a constructive am

endment is whether there has been a modification at trial in the elements of the

crime charged. United States v Silverman, 430 F,2d 106, 111 (2nd Cir. 1970), cert.

denied,,402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971). Such a modification

would result in a constuctive amendment. As a matter of law, .Rackley was prejudiceed by the constructive amendment. The orginal indictment charged Rackley with the

violation of R.C. § 2903.01(A), aggravated murder while the amendment of the ind

ictment charged him with a violation of involuntary manslaughter, R.C. § 2903.04

(A), because the amended indictment took the mens re element of "purpose", Rackley

was unduly prejudice by the change. The magistrate stated in a footnote that: ( .

Rackley didn't have fair notice of the substance of the involuntary manslaughter

charge since the only difference between .it an aggravated murder was the (elimin

ation) of the requirement that the state prove purpose to cause death. See Doc#:

32 PagelD#: 2054 (bottom of.page).

In Henderson v Morgan, 49 L.Ed. 2d 108, 426 U.S. 637, Mr. Justice Stevens

delivered the opinion of the Court. The question presented is whether a defendant

may enter a voluntary plea of guilty to a charge of second ^degree murder without

being informed that intent to cause the death of his victim was an element of the

offense.

The case arises out of a collateral attack on a judgment entered by a state

trial court in Fulton County, N.Y., in 1965. Respondent, having been indicted on

a charge of first degree murder, pleaded guilty to second-degree murder and was

sentenced to an indeterminate term of imprisonment of 25yrs. to life he did not

appeal. '■ In 1970, respondent initiated proceedings in the New York courts

seeking to have his conviction vacated on the ground^that his plea of guilty was

involuntary. The state courts denied relief on the basis of the written record.

Having exhausted his state remedies, in 1973, respondent filed a petition

for writ of habeas corpus in the United States District Court for the Northeren

District of New York. He alleged that his guilty plea was involuntary because he

was not

aware (1) of the sentence that might be imposed upon conviction of sec-

ond-degree murder, or (2) that intent to cause death was an element of the offense.

Based on the stated-court record, the federal district court denied relief.

The Court of Appeals reversed similarity and directed the district court

"to conduct an evidentiary hearing on the issues raised by petitioner, including

wheteher, at the time of his entry of his guilty plea, he was aware that intent

was an essential element of the crime

and was advised of the scope of the punish

ment that might be imposed."

-31

At the conclusion of the hearing, the District Court made only two spec

ific findings of fact. First, contary to respondent's testimony, the court expr

essly found that he was advised that a 25yr. sentence would he imposed if he pleaded

guilt)'. Second, the court found that respondent "was not advised by counsel or court,

at any time, that an intent to cause the death or design to effect the death of

the victim was an essential elanent of murder 2nd degree." On the basis of the

latter finding, the District Court held "as a matter of law" that the Plea of guilty

was involuntary and had to be set aside.

As stated by the Supreme Court, 'a guilty plea is an admission of the ele

ments of a formal criminal charge, it cannot be truely voluntary unless the defend

ant posses an understanding of the law in relation to the facts. McCarthy v United

States, 394 US 459, 466 [22 L.Ed.2d 418, 89 S.Ct. 1166] (1969). Based upon the for

egoing, I hold as a matter of law that petitioner's plea of guilt)' to murder 2nd

degree must be set aside as involuntary and unconditional." The District Court or

dered that respondent be dischsrged.from custody 'unless the state of New York takes

such steps as are necessary to return [him] to Fulton Count)' for rearraignment:

said arriagnment is to be held in 60 days.

In the case at bar Rackley's guilty plea was involuntary according to Hend

erson the record in his case shows,- cousel1s ineffectiveness stated:

we believe at this time he's prepared to change his former 1)'

entered plea of not guilt)' (their is no record of Rackley pl

eading not guilt)' at his arriagnment he was not there) and

enter a plea of guilty to the two counts amended by the state

of Ohio in this matter, with full understanding that before

you accept this plea you'll go over his constitutional rights

with him.

We're satisfied, Judge that once you have gone through his

constitional rights with him that his change of plea will

be Knowing!)', intelligent!)' and voluntarily made.

thank you. See Doc#: 28-3 PagelD#: 1904-5 (Tp.lines

pagelD: 1904 15-25, pagelD: 1905 lines 1-3.

32.

Counsel also advised Rackley to anwser yes to all of the .Judges questions

he advised him to say no when ask if anyone promised him anything or threatened

him in any way in order to get him to change his plea, but counsel did induce fear,

as to the amended count one to involuntary manslaughter which states that on Nove

mber 8, 2006 that Rackley did cause the death of the victim, as to count five aggr

avated robbery, in violation of 2911.01(A)(3), which states that on November 6, 2006

that date is incorrect he did, in attempting or committing a theft offense as de

fined in the Revised Code, or in fleeing immediatly after the attempt or offense

upon the victim, the evidence that Rackley presented to this court does not reflect

that he committed this crime and his alibi shows his where abouts during the com

mission of the crime, there are no witnesses to place Rackley at the scence, fur

thermore Rackley's plea was involuntary because had he know that the essential

elements of aggravated murder was taken away for them too have to prove he would

have insisted on going to trial. See Dcic#; 28-3 PagelD#: 1908 (tp. lines 19-25),

PageID#: T909(T^>7 TinesT-T5).’^Counsel also shown Thathis^ perTormaricewasdeficient

when asked (" by the way, does he waive any defect in — any defect in count 1 or

presentment to the Grand Jury?)". Doc#: 28-3 (Tp. line 16-18).

In State v Roberson, 141 Ohioo App. 3d 626 (2001), stated: The Sixth Am

endment to the United States Constitution guarantees the individual's Right to

effective assistance of counsel during a criminal prosecution. This right applies

to all crital stages, of the criminal proceeding where substanial rights of the

accused may be affected. Coleman v Alabama, (1970), 399 U.S. 1, 7, 26 L.Ed,2d

387, 90 S.Ct. 1999. The United States Supreme Court has recognized that this right

extends through the sentenceing stage. Gardner v Florida, (1977), 430 U.S. 349,

358, L.Ed.2d 393, 97 S.Ct. 1197.

The question becomes how much process is due. The ultimate test of whether

appointed counsel rendered ineffective assistance of counsel is whether the de

fendant had a fair trial. Lockehart vFretwell( (1993), 506 US 364 , 368-369, 122

L.Ed.2d 180, 113 S. Ct. 838, and State v Hester (1976), 45 Ohio St. 2d 71, 341

N.E.2d 304, paragraph four of the syllabus, overruled in part by State v Cole

(1982), 2 Ohio St. 3d 112/ 443 N.E.2d 169 on othe r grounds.

Furthermore, the United States Supreme Court has held that appointed

counsel cannot be restricted in defending a criminal prosecution within the para

meters of our Judicial system. Thus,, the appointed counsel must have the "oppor

tunity to participate fully and fairly in the adversary fact-finding process."

Herring v New York (1975), 422 US 853 , 858 , 45 L.Ed.2d 593, 95 S.Ct. 2550.

More recent decisions, however, tend to go the other way and hold that

the Due Process Clause "reuires that a defendant be afforded an opportunity

ensure that the information considered at sentencing hearing is accurate and re

liable ." United States v Sciacca, C.A+8 1989, 879 F.2d 415, 416, see also United

Statesv Romano (C.A.2 1987), 825 F.2d 725, 728.

At the end of Rule 11 the Judge asked counsel was the Rule satisfied

counsel answered yes.See Doc#: 28-3 PageID#:1909 (Tp. Lines 19-25), they proceeded

to sentencing, the state asked for a 20 year sentence, after the state mentioned

that several members of the victims family were there to give a statement, the

Judge asked the state to articulate the facts in this case as you know therru ?

see Doc.#: 28-3 PagelD#: 1910-12).

at line 14 of page 1912 of the transcript,the

prosecution was asked how was Rackley apprehended? the responded through the tire

less work of the Shaker hts. police dept., which we have the detectives and ser

geant here with us. Lines 19 states: they located not only the knife blade but a

knife handle, and once that handle was tested, it did come back with DNA which

pointed to Mr. Rackley.

His DNA was on the knife handle along with a girlfriend of Mr. Rackley's,

a Stephanee Roebuck's DNA as well. Donald Butler violated Ohio Rules of Profess

ional conduct 8.4(b)(c)(d), when counsel failed to pursue the motion for evidence

notice filed by him, the state never responed to that motion the record shows no

response, counsel should have had the handle supressed even though it could not

be linked to the partial-blade that was found near the crime scene as stated in

Rackley's actual innocence claim, SEE Doc#: 28-1 PagelD#: 1438.

Rule 8 of the rules Governing § 2254 proceedings sets forth the procedure a district court must empoly when determining whether to conduct an evidentiary hearing. Under ..Rule 8

"the Judge must review the answer, any transcripts

and records of state-court proceedings, ,and [other] material .... to determine

whether to conduct an evidentiary hearing under rule 8 falls within the courts

discretion. Alley v Bell, 307 F.3d 380 389 (6th Cir. 2002). In deciding whether

to grant the hearing the court must consider whether the grounds petitioner all

eges are sufficient to secure his release from custody and relavant facts are in

dispute. See Washington v Renico, 455 F.3d 722, 731 (6th Cir. 2006).

Gounsel deficient performance was further forseeable when he was. on his

phone in court, See D0c#: 28-3 PagelD#: 1914 (Tp. line 17-18). As counsel addressed

the court he stated that Rackley was not on the (Run). Shaker Hts. police Dept,

always knew where he was, and he always made himself available to Shaker Heights

Police department as they investigated this particular crime. I believe they inter

viewed him atleast : three times between 2006.and 2012, when he was finally indicted

on this particular crime. Doc#: 28-3 PagelD#: 1928 (T]p. lines 15-22). he also

stated on the record the)' knew about him before the DNA came back on the Handle

of this knife. Doc#:; 28-r3 PagelD#:: 1928i(TP.' lines 23425). fhis?shows that;:the:.six in half year delay was not the result of Rackley and the State was responsible.

Counsel failed to order a presentence investigation report, the sent

encing Judge cannot render community control sanctions on a defender, or grant

probation. See Criminal Rule 32.2, pursuant to R.C. 2953.08(A)(1)(b) the defen

dant as a right to an appeal, who is convicted or pleads guilt)' to a felony, the

sentence imposed upon the defendant, the Due Process Clause requires that a defen

dant be afforded an opportunity to ensure that the information considered at sen

tencing hearing is accurate and relible. This was not an aggreed upon sentence

because counsel stated in his last remarks: (Judge , I just would express to you

that when we have these kinds of cases where we have a range in sentence that the

Court can impose, as it is here, between 15 and 20 years, you know, I've never

not seen an instance where the State wants the maximum sentence and the defendants

want the minimum sentence, and I think it's the same thing in this particular case

today. Doc#: 28-3 PagelD#: 1934 - 35 (TP. lines) 14-25, page 1934)( 1-25 on page J ; b

1935)y

The judge proceeded to sentence Rackley and gave him five years (PRC)

without a presentence investigation report, and without letting him he has a right

to appeal. The right of notice is more fundamental than the rights privisously

guaranteed by the Suprane Court. The Courts of Appeals for the First and Ninth

Circuits have answered that question with ,a bright-line rule: Counsel must file

a notice of appeal unless the defendant specifically intructs otherwise; failing

to do so is per se deficient. See e.g., Stems, 68 F.3d, at 330; Lozada, supra,

at 958; Tajeddini, supra, at 468.

Such a rule effectivelyimposes an obligation on counsel in all cases

either (1) to file a notice of appeal, or (2) to discuss the possibility of an

appeal with the defendant, ascertain his wishes, and act accordingly. We reject

this per se rule as inconsistent with Strickland's holding that "the performance

inquiry must be whether counsel's assistance was reasonable considering all the

circumstances." 466 US at 688, 80 L.Ed.2d 674, 1001 S.Ct. 2052.

The Court of Appeals failed to engage in the circumstance-specific reasonbleness inquiry required by Strickland and that alon mandates vacatur and

remand. Because the decision to appeal rests with the defendant, we agree with

Justice, Souter, that the better practice is for counsel's routinely to consult

with the defendant regarding the possibility of an appeal. See ABA Standards for

Criminal .justice, Defense Function 4-8.2(A)(3d Ed. 1993); post, at 490-491, 145

L.Ed.2d, 1003-1004((opinion concurring in part and dissenting in part).

The Due Process

Clause of the Fourteenth Amendment guarantee's a criminal

defendant the effective assistance of counsel on a first appeal as of right; nom

inal representation on such an appeal does not suffice to render the proceedings

constitutional!)' adequate ( Burger, Ch.

and Rehnquist, J., dissented from

this holding).

...

Therfore InRackley's case a hearing is- warranted. Actual innocence ;

~.. '

means factual innocence, not mere legal insufficienc)'. See Saw)'er v Whiteley, 507

US 333 (1992). Here, constitutional error has resulted in the conviction of one

who is actually innocent. Murray v Carrier, 477 US 478 (1986), and in light of the

evidence, it is more likely than not that no juror would have convicted him. Bousely

v United States, 523 US 614 (1998).

In the instant case, the claim of actual innocence is presented along

with allegations of underlying constitutional violations, therefore, the actual

innocence claim is not presented as a stand alone claim. In the very least, Rackley

should have his claim reviewed under the no evidence standard, as stated in Thompson

v Louisville, 362 US 199 (1990), Rachon v New Hampshire, 414 US (19|74), In Re Winship, 397 US 355 (1969), and Speigner v Jago, 603 F.2d 1208 (6th Cir. 1979).

- -

This is a neglected area of American Jurisprudence. To keep turning

a "blind eye" to the necessity of federal review would be to allow, prescribed

and indeed, further, constitutional violations across the board.

Surely, the Founding Fathers stood for more, as did the legislature.

when enacting provisions of §2254(d).

Case law holds a State Court finding of facts can be. questioned in the

Federal Court, and indeed, the second prong of U.S.C. 2254(d) shows legislature

intent of the ADEPA calls for issuance of a Federal Writ of Habeas Corpus

where there was three unreasonable determination of the facts.

At each level of review it has been argued this conviction flies in

the face of the facts. Jones v. Palmer, (6th Cir. 2011).

Rackley prays for an Unconditional Release or a Evidentiary hearing

on the evidence he submitted to prove his case that was not disproved by the

State.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submi

Date:

LO ^

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.