Victor J. Russell v. Arthur Tate, Jr., Supt. , 946 F.2d 895 ( 1991 )

946 F.2d 895

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Victor J. RUSSELL, Petitioner-Appellant,
v.
Arthur TATE, Jr., Supt., Respondent-Appellee.

No. 91-3582.

United States Court of Appeals, Sixth Circuit.

Oct. 4, 1991.

1

Before NATHANIEL R. JONES and DAVID A. NELSON, Circuit Judges, and ROSEN, District Judge.*

ORDER

2

Victor J. Russell appeals the denial of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

Following a bench trial in the Trumbull County, Ohio, Court of Common Pleas in January 1988, Russell was convicted of single counts of aggravated robbery, kidnapping, and felonious assault. Russell was sentenced to a cumulative term of imprisonment of 20 to 50 years. Russell's convictions were affirmed by the Ohio Court of Appeals on direct appeal and the Ohio Supreme Court denied leave to appeal.

4

Thereafter, petitioner filed his habeas petition in the district court alleging that he was denied his constitutional right to a speedy trial and that he was not brought to trial within the period provided under state law because 139 days elapsed between his arrest and his trial. The state filed a return of writ and petitioner filed a traverse. The magistrate judge recommended that the petition be denied and petitioner filed objections. The district court adopted the magistrate judge's recommendation and denied the petition.

5

Upon consideration, the judgment of the district court is affirmed for the reasons stated in the magistrate judge's report and recommendation filed April 11, 1991, and adopted by the district court in its memorandum opinion filed June 10, 1991. Petitioner did not show a presumptively prejudicial delay, see Barker v. Wingo, 407 U.S. 514, 530 (1972), and petitioner's claim is not otherwise cognizable in federal habeas corpus. See Smith v. Sowders, 848 F.2d 735, 738-39 (6th Cir.), cert. denied, 488 U.S. 866 (1988); Olsen v. McFaul, 843 F.2d 918, 933 (6th Cir.1988).

6

Accordingly, the judgment of the district court is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.

*

The Honorable Gerald E. Rosen, U.S. District Judge for the Eastern District of Michigan, sitting by designation