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Plevyak v. Miller

United States District Court, N.D. Ohio, Eastern Division

October 24, 2017

JAMES M. PLEVYAK, II, Petitioner,
v.
MICHELLE MILLER, Warden, Respondent.

          MEMORANDUM OF OPINION

          CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.

         This 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.

         FACTS

         The 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.

         Petitioner 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.

         Petitioner 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.

         Petitioner 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 acts.

         On 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.

         STANDARD OF REVIEW

         When a 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.

         Pursuant 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 ...

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