Folley v. Foley

 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON DEREK FOLLEY, Petitioner, : Case No. 3:22-cv-065 - vs - District Judge Thomas M. Rose Magistrate Judge Michael R. Merz KEITH J. FOLEY, Warden, : Respondent. REPORT AND RECOMMENDATION ON SPEEDY TRIAL SUMMARY JUDGMENT MOTION This habeas corpus case, brought pro se by Petitioner Derek Folley under 28 U.S.C. § 2254, is before the Court on Petitioner’s Motion for Summary Judgment in Pursuant to Speedy Trial Violation (ECF No. 178). Petitioner has previously filed summary judgment motions directed to this and other issues. The Magistrate Judge recommended denying them without prejudice because the record was not yet complete. Judge Rose adopted that recommendation September 28, 2022 (ECF No. 169). Since then the record has been completed and the Magistrate Judge has recommended dismissing the case with prejudice because all of Folley’s claims are barred by his procedural default in failing to present them on direct appeal to the Second District Court of Appeals (Report and Recommendation, ECF No. 177). Summary Judgment Standard Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. On a motion for summary judgment, the movant has the burden of showing that there exists no genuine issue of material fact, and the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). Nevertheless, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (emphasis in original). Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment asserting that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed. R. Civ. P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989). If, after sufficient time for discovery, the opposing party is unable to demonstrate that he or she can do so under the Liberty Lobby criteria, summary judgment is appropriate. Id. The opposing party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). "The mere possibility of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F. 2d 577, 582 (6th Cir. 1992)(quoting Gregg v. Allen-Bradley Co., 801 F. 2d 859, 863 (6th Cir. 1986). Therefore a court must make a preliminary assessment of the evidence, in order to decide whether the plaintiff's evidence concerns a material issue and is more than de minimis. Hartsel v. Keys, 87 F. 3d 795 (6th Cir. 1996). "On summary judgment," moreover, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Thus, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249. The moving party [A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; see also, Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (citation omitted). If the moving party meets this burden, the nonmoving party must go beyond the pleadings to show that there is a genuine issue for trial. Matsushita, 475 U.S. at 587; Martin v. Ohio Turnpike Comm'n., 968 F. 2d 606, (6th Cir. 1992). In ruling on a motion for summary judgment (in other words, determining whether there is a genuine issue of material fact), "[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). Thus, in determining whether a genuine issue of material fact exists on a particular issue, a court is entitled to rely only upon those portions of the verified pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties. Application of the Standard In arguing for summary judgment on his speedy trial claim, Folley emphasizes that he was arrested June 7, 2019, and not brought to trial until May 17, 2021 (ECF No. 178, PageID 2082). He notes that this is almost twice the pre-trial delay that warrants a presumption of denial of a speedy trial under Barker v. Wingo, 407 U.S. 514, 530-32 (1972); and Doggett v. United States, 505 U.S. 647 (1992). Folley also sends a great deal of time in his Motion discussing the separate provisions of the Ohio speedy trial statute, Ohio Revised Code § 2945.71. He emphasizes his own pre-trial demands for a speedy trial and his disagreement with his counsel’s waiver of speedy trial rights. If granting relief on the basis of Folley’s speedy trial claim were possible, the Magistrate Judge would sort through these arguments and determine the extent to which the material facts are uncontested. However, the Magistrate Judge has already determined that none of Folley’s claims, including the speedy trial claim, can survive the procedural default defense. That is to say, the procedural default prevents this Court from reaching the merits of any claim. Conclusion Because Folley’s speedy trial claim is barred by his procedural default, his Motion for Summary Judgment should be DENIED. NOTICE REGARDING OBJECTIONS Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within fourteen days after being served with this Report and Recommendations. Because this document is being served by mail, three days are added under Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. A party may respond to another party’s objections within fourteen days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. # October 17, 2022. s/ Michael R. Merz United States Magistrate Judge