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Kelley v. Warden, Lebanon Correctional Institution

United States District Court, S.D. Ohio, Western Division

June 5, 2017

JOHN KELLEY, Petitioner,
v.
WARDEN, Lebanon Correctional Institution, Respondent.

          Susan J. Dlott District Judge.

          REPORT AND RECOMMENDATIONS.

          Michael R. Merz United States Magistrate Judge.

         This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the Petition (ECF No. 1), the State Court Record (“Record, ” ECF No. 6, ) the Return of Writ (ECF No. 7), and Petitioner's Reply (ECF No. 11). To help balance the Magistrate Judge workload in the Western Division, the referral in the case has been transferred from Magistrate Judge Karen L. Litkovitz to the undersigned (ECF No. 12).

         With the assistance of counsel, Mr. Kelley pleads the following Grounds for Relief:

Ground One: Other Act evidence was admitted into evidence violating Petitioner's Right to Fair Trial.
Supporting Facts: The complaining witness was permitted over objection to recount seven other acts of violence alleged to have been committed by Petitioner including an order for temporary protection she successfully obtained against Petitioner, a conviction for assault and the sentence imposed.
Ground Two: The trial court admitted prior statements of a witness which contained irrelevant and prejudicial other act evidence in violation of Petitioner's right to a fair trial.
Supporting Facts: During the trial Petitioner's trial counsel sought to impeach a witness with a single reference from one statement he had made at a previous time. The trial court required counsel to play the entire recorded statement as a condition to using the impeaching statement. Two prior statements containing references to other acts of violence committed by Petitioner were admitted over objection.
Ground Three: The trial court had an ex parte communication with the jury regarding their safety but did not disclose it during the trial which violated Petitioner's right to an impartial [sic] jury and fair trial.
Supporting Facts: Wihtout [sic] providing notice to eith [sic] the prosecutor or defense lawyer, the trial judge had a discussion regarding their safety. The rial [sic] judge did not notify anyone during the trial that she had such a conversation, what promted [sic] the action. The trial judge did not make a record of what prompted the action she took.
Ground Four: Petitioner's right to effective assistance of appellate counsel was violated.
Supporting Facts: Family of Petitioner hired counsel to file a Memorandum in Support of Jurisdiction to the Ohio Supreme Court. He was hired in a timely manner. He failed to file a notice of appeal and the Memorandum in a timely manner. Instead he filed a Notice out of time and a Motion for Delayed Appeal which was factually inaccurate and failed to comply with Ohio Appellate Rule 26(B).

(Petition, ECF No. 1-2.)

         Procedural History

         On January 5, 2013, the Hamilton County grand jury indicted Petitioner Kelley on two counts of attempted murder and four counts of felonious assault, all with firearm specifications. Kelley was convicted on all counts at a jury trial and sentenced to an aggregate term of imprisonment of twenty-five years.

         Kelley appealed to the First District Court of Appeals raising five assignments of error. The conviction was, however, affirmed. State v. Kelley, 2014 WL 7215187 (1st Dist. Dec. 19, 2014). No timely appeal was taken to the Ohio Supreme Court, but on March 3, 2015, new counsel filed a motion for delayed appeal on Kelley's behalf, which was denied. State v. Kelley, 142 Ohio St.3d 1446 (table)(2015). On June 19, 2015, Mr. Kelley filed a pro se Application to Reopen the direct appeal under Ohio R. App. P. 26(B)(Record, ECF No. 6, PageID 134). The Application was denied as untimely and Kelley did not appeal to the Ohio Supreme Court.

         On October 21, 2015, represented by counsel who represents him in this habeas proceeding, Mr. Kelley filed a second motion for delayed appeal in the Ohio Supreme Court which was also denied. State v. Kelley, 144 Ohio St.3d 1438 (table)(2015). Counsel then filed the instant Petition on Mr. Kelley's behalf on January 29, 2016.

         Analysis

         Ground One: Admission of Other Acts Evidence from the Complaining Witness

         As Judge (now Justice) DeWine put the matter in the First District's opinion on direct appeal, John Andrew (“Drew”) Kelley was convicted of shooting his old girlfriend Shaudrell Foshee, and her new boyfriend, Eric Davis. State v. Kelley, 2014 WL 7215187, ¶ 1 (Dec. 19, 2014). In his First Ground for Relief, Mr. Kelley claims that admitting Ms. Foshee's testimony about Kelley's prior acts of domestic violence against her denied him a fair trial. This was his first assignment of error on direct appeal. Kelley, supra, at ¶ 12. The First District decided admitting this testimony was error, but harmless in light of the overwhelming other evidence of Mr. Kelley's guilt. Id. at ¶¶ 14-19, 27-31.

         Respondent Warden asserts that Mr. Kelley has procedurally defaulted on his First Ground for Relief because he did not timely appeal to the Ohio Supreme Court (Return, ECF No. 7, PageID 393-94). In his Traverse, Mr. Kelley concedes that the deadline for appealing to the Ohio Supreme Court was February 2, 2015, and that he had not filed a notice of appeal by that date (Traverse, ECF No. 11, PageID 429-30). He seeks to excuse this failure by showing that his mother had retained attorney Clyde Bennett to make the necessary filings. Bennett did not file ...


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