United States District Court, N.D. Ohio, Eastern Division
JAMES M. PLEVYAK, II, Petitioner,
MICHELLE MILLER, Warden, Respondent.
MEMORANDUM OF OPINION
CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Petitioner James M. Plevyak,
II's Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (ECF #1). For the
following reasons, the Court accepts and adopts the
Magistrate Judge's Report and Recommendation and
dismisses Petitioner's Petition.
following is a factual synopsis of Petitioner's claims.
The Magistrate Judge's Report and Recommendation, adopted
and incorporated, provides a more complete and detailed
discussion of the facts.
was indicted on September 1, 2011, by a Trumbull County Grand
Jury on four counts of Gross Sexual Imposition and one count
of Disseminating Matter Harmful to Juveniles. On February 22,
2013, a jury found Petitioner guilty on three counts of Gross
Sexual Imposition and not guilty on the remaining count. The
court dismissed the charge of Disseminating Matter Harmful to
Juveniles upon the state's Motion. On April 10, 2013, the
trial court imposed a three year prison term on each count of
Gross Sexual Imposition, to be served consecutively for an
aggregate sentence of nine years. The trial court issued a
nunc pro tunc judgment entry of sentence on August
7, 2013, providing notice that Petitioner was required to
register as Tier III Sex Offender.
filed a timely Notice of Appeal in the Ohio Court of Appeals.
On June 30, 2014, the Court of Appeals affirmed the Judgment
of the trial court. Petitioner filed a timely Notice of
Appeal to the Ohio Supreme Court. The Supreme Court declined
to accept jurisdiction of the Appeal on January 28, 2015.
filed the instant Petition on January 28, 2015, asserting one
ground for relief:
GROUND ONE: A trial court violates a
criminal defendant's constitutional rights pursuant to
the Due Process Clause of the Fourteenth Amendment to the
United States Constitution by permitting extensive evidence
by the State of a criminal defendant's other bad acts in
violation of state notice requirements concerning such and
conducting no analysis of the admissibility of said other bad
February 2, 2016, this Court referred Petitioner's
Petition to the Magistrate Judge for a Report and
Recommendation. The Magistrate Judge issued his Report and
Recommendation on July 25, 2017. On August 29, 2017,
Petitioner filed his Objections to Report and Recommendations
of Magistrate Judge.
federal habeas claim has been adjudicated by the state
courts, 28 U.S.C. § 2254(d)(1) provides the writ shall
not issue unless the state decision “was contrary to,
or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court of
the United States.” Further, a federal court may grant
habeas relief if the state court arrives at a decision
opposite to that reached by the Supreme Court of the United
States on a question of law, or if the state court decides a
case differently than did the Supreme Court on a set of
materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405-406 (2000). The appropriate
measure of whether or not a state court decision unreasonably
applied clearly established federal law is whether that state
adjudication was “objectively unreasonable” and
not merely erroneous or incorrect. Williams, 529
U.S. at 409-411.
to 28 U.S.C. § 2254(e)(1), findings of fact made by the
state court are presumed correct, rebuttable only by clear
and convincing evidence to the contrary. McAdoo v.
Elo, 365 F.3d 487, 493-494 (6th Cir. 2004). Finally,
Rule 8(b)(4) of the Rules Governing §2254 states:
A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify in
whole or in part ...