petition in Ohio, and Austin allowed that petition to lapse; it was dismissed for inactivity on August 9, 1995. In the meantime, he had turned to state post-conviction review, as provided by Ohio Rev.Code § 2953.21. He filed his petition on December 1, 1994 in the trial court, alleging that the indictment was invalid by virtue of the omitted language, and that his attorney’s failure to raise this on appeal had constituted ineffective assistance of appellate counsel. The state trial court granted summary judgment to the State of Ohio on grounds that the indictment’s defect did not prejudice Austin’s substantive rights and was a mere formality. It followed established Ohio law with respect to the very language in question. See State v. Whitt, 3 Ohio App.2d 278, 210 N.E.2d 279 (1964) (<HOLDING>). As to the claim of ineffective assistance of
holding that the insertion of surplus words in the indictment does not change the nature of the offense charged holding that an indictment lacking the words against the peace and dignity of the state of ohio was not fatally flawed holding a suit against an agency of the state is a suit against the state holding that an indictment gave sufficient notice when the indictment charged the elements of the offense holding that it is generally sufficient that an indictment set forth the offense in the words of the statute itself