NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0562n.06
No. 21-3376
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Dec 03, 2021
BOBBIE LEE NEW, DEBORAH S. HUNT, Clerk
)
Petitioner-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
KENNETH BLACK, Warden, ) OHIO
Respondent-Appellee. )
)
BEFORE: COLE, KETHLEDGE, and WHITE, Circuit Judges.
KETHLEDGE, Circuit Judge. In 2015, an Ohio jury found Bobbie Lee New guilty of a
1976 murder. New thereafter petitioned for federal habeas relief, arguing that the State’s delay in
indicting him amounted to a violation of his due-process rights. The district court denied relief.
We affirm.
In 1976, Dorothy Spencer was shot to death in her home. New was living in Spencer’s
home at the time and became a leading suspect. Although police never found the murder weapon,
they did find a box for a revolver in Spencer’s home. The box contained two bullets that matched
a spent shell casing recovered from Spencer’s sofa. The police also learned that New had borrowed
the revolver—which had been in the box—from a friend. Finally, New told Spencer’s son, Alfred
Lilly, that New might—at some point in the future—tell Lilly how his mother had died.
Prosecutors presented all this evidence to a grand jury later in 1976. The grand jury also heard
No. 21-3376, New v. Black
testimony from New’s sister, Zula Stader, and her husband Ezra, who each testified that they had
not seen New the night of the murder. The grand jury chose not to indict New.
Thirty-four years later—in 2010—the Straders’ son, Perry, contacted the police about
Spencer’s murder. Perry Strader said his parents had lied to the grand jury. Specifically, Perry
said, New had come to his parents’ home the night of the murder and had confessed to killing
Spencer. Perry Strader also said that he had waited until both his parents had died—which, by
2010, they had—before coming to the police with this information. Perry added that he would not
have shared this information with the police—even if they had asked him—before his parents had
died.
A grand jury indicted New in 2011, but the trial court dismissed the indictment because of
the State’s long delay in seeking it. The Ohio Court of Appeals reversed, holding that Perry
Strader’s testimony had not been available to investigators before 2010. On remand, a jury found
New guilty of Spencer’s murder. The Ohio Court of Appeals affirmed; the Ohio Supreme Court
declined jurisdiction. New then brought this petition for habeas relief. We review de novo the
district court’s denial of New’s petition. Haliym v. Mitchell, 492 F.3d 680, 689 (6th Cir. 2007).
In this appeal, New again argues that the 35-year interval between Spencer’s murder and
his indictment violated his due-process rights. To obtain relief, New must show that the Ohio
Court of Appeals’ rejection of that claim was “contrary to, or involved an unreasonable application
of,” clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).
The precedents at issue here are United States v. Marion, 404 U.S. 307 (1971), and United
States v. Lovasco, 431 U.S. 783, 789 (1977), the latter of which New reads to require “the court to
balance” any prejudice resulting from pre-indictment delay “against the reasons for delay and
reach a conclusion premised on fundamental fairness.” Br. at 15. But neither Marion nor Lovasco
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No. 21-3376, New v. Black
established any requirement of express “balancing,” see Marion, 404 U.S. at 324–25; Lovasco,
431 U.S. at 790: instead, the Court in Lovasco merely said that “the due process inquiry must
consider the reasons for the delay as well as the prejudice to the accused,” 431 U.S. at 790. That
is exactly what the Ohio Court of Appeals did here: the court acknowledged that New had been
prejudiced by the pre-indictment delay, but held that Perry Strader’s testimony had not been
available to prosecutors before 2010. Nothing in Marion or Lovasco required the Ohio court also
expressly to balance the prejudice against the reasons for the delay. Instead, Lovasco otherwise
left “to the lower courts, in the first instance, the task of applying the settled principles of due
process” to the facts “of individual cases.” Id. at 797. A fairminded jurist could therefore conclude
that the Ohio Court of Appeals reasonably applied Marion and Lovasco in its decision here. See
Harrington v. Richter, 562 U.S. 86, 103 (2011).
The district court’s judgment is affirmed.
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