United States District Court, S.D. Ohio, Western Division
J. Dlott District Judge.
REPORT AND RECOMMENDATIONS.
Michael R. Merz United States Magistrate Judge.
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
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
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
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
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.)
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
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
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.
One: Admission of Other Acts Evidence from the Complaining
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.
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