Bennett v. Warden, Lebanon Correctional Institute, 2011 U.S. Dist. LEXIS 26821

Background

Bennett, an Ohio state inmate, filed a pro se habeas petition under 28 U.S.C. §2254 challenging convictions in Brown County case Nos. 2003-2143 and 2004-2008.
The petition presented Grounds One through Nine alleging speedy-trial, multiplicity of counts, sufficiency of evidence, ineffective assistance, and sentencing issues.
The Ohio Supreme Court remanded for resentencing under Foster v. Ohio to cure Blakely/Booker-based constitutional defects; Bennett was resentenced in 2006 under Foster remedies.
Petitioner alleged that the original September 2004 sentences violated Blakely and Ex Post Facto principles, and that the resentencing under Foster was improperly retroactive.
The magistrate judge recommended denying most grounds but granting relief on Ground Two (multiplicity/undifferentiated counts) and related cause claims depending on Ohio-vacated convictions and resentencing; respondent advised, and the district court entered an order adopting the R&R.
The Graham/Barker four-factor speedy-trial analysis and Jackson v. Virginia sufficiency standard guided the court’s determinations on the federal issues within Grounds One, Three, Two, Six–Nine.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ground One is cognizable and meritorious as a federal speedy-trial claim.	Bennett asserts federal speedy-trial violation beyond state-law calculations.	Ohio statutory timing governs; federal review limited to constitutional speedy-trial right.	Ground One denied on federal merits; no due-process speedy-trial violation found.
Whether Ground Two (multiplicity/undifferentiated counts) is cognizable and meritorious.	Indictment/personalized bill of particulars failed to differentiate counts, violating notice and double jeopardy.	Indictment and bill of particulars sufficiently informed; no federal notice/double-jeopardy error.	Grant relief under Ground Two; persistent defects require vacatur of undifferentiated counts and resentencing, unless Ohio vacates convictions.
Whether Ground Three, challenging sufficiency of evidence in Case No. 2003-2143, warrants relief.	Evidence insufficient to convict on multiple counts.	State’s sufficiency standard satisfied; credible testimony supports convictions.	Ground Three denied; evidence viewed in prosecution’s light supports convictions.
Whether Grounds Four, Five, Eight, and Nine relating to ineffective assistance and appellate counsel merit relief.	Counsel's failures to raise/argue issues prejudiced trial and appeal.	Claims procedurally defaulted or fail on Strickland standards.	Grounds Four, Five, Eight, Nine denied; limited relief only to Ground Two with cause/ prejudice; no relief on others.
Whether Foster-based resentencing violated the Ex Post Facto or due process standards when applying the severance remedy.	Foster remedy retroactive application created ex post facto concerns and improper resentencing.	Foster cure does not violate Blakely/Booker; post-Foster sentencing within lawful ranges.	Grounds Six–Eight denied except as needed to grant relief via Ground Two; no ex post facto violation found.

Key Cases Cited

Barker v. Wingo, 407 U.S. 514 (U.S. 1972) (speedy-trial balancing factors governing constitutional claim)
Doggett v. United States, 505 U.S. 647 (U.S. 1992) (threshold presumptively prejudicial delay; four-factor analysis start point)
United States v. Marion, 404 U.S. 307 (U.S. 1971) (speedy-trial protections relative and not fixed to days count)
Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for reviewing sufficiency of evidence in habeas corpus)
Russell v. United States, 369 U.S. 749 (U.S. 1962) (indictment must state elements, provide notice, and protect against double jeopardy)
State v. Foster, 845 N.E.2d 470 (Ohio 2006) (severance/remedy reducing Blakely constraints in Ohio sentencing; central to resentencing)