United States District Court, S.D. Ohio, Western Division, Dayton
GREGORY D. PELFREY, Petitioner,
TIM BUCHANAN, Warden, Noble Correctional Institution Respondent.
H. Rice District Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
habeas corpus case is before the Court on Petitioner's
Objections (ECF No. 18) to the Magistrate Judge's Report
and Recommendations which recommended that the Petition be
dismissed with prejudice (ECF No. 12). District Judge Rice
has recommitted the case for reconsideration in light of the
Objections (ECF No. 19).
Petition pleads four grounds for relief as follows:
Ground One: Prosecutorial misconduct in
violation of Pelfrey's Sixth and Fourteenth Amendment
rights by (1) failing to clear up any testimony that he knew
to be incorrect or misleading, (2) failing to disclose
evidence favorable to the accused, and (3) knowingly making
(1) The State violated Pelfrey's right to a fair trial
under Fourteenth Amendment by failing to clear up any
testimony that he knew to be incorrect or misleading.
(2) The State violated the Due Process Clause of the
Pelfrey's Fourteenth Amendment by failing to disclose
evidence favorable to the accused.
(3) The State violated the Due Process Clause of the
Pelfrey's Fourteenth Amendment by knowingly making
improper statements during closing
Ground Two: The trial court erred in
allowing parol evidence regarding the power of attorney in
violation of the Due Process Clause of Pelfrey's
Ground Three: Pelfrey's convictions were
based on insufficient evidence in violation of the Due
Process Clause of Pelfrey's Fifth Amendment for failing
to prove beyond a reasonable doubt every element of the
crimes with which Pelfrey was charged. The Constitution
prohibits the criminal conviction of any person except upon
proof of guilt beyond a reasonable doubt. In re
Winship, 397 U.S. 358');">397 U.S. 358 [(1970)].
Ground Four: The trial court violated his
right to a speedy trial in violation of Pelfrey's Sixth
Amendment right under the IAD.
(Petition, ECF No. 1, PageID 25, 26, 30, 3339, 43, 47)
from the Report
One is a claim of prosecutorial misconduct which the Report
recommended be dismissed because it was not raised on direct
appeal (Report, ECF No. 12, PageID 1359).
Two is a claim that the trial court violated Pelfrey's
due process rights by admitting parol evidence about the
power of attorney that Pelfrey's grandmother gave him.
The Report recommended dismissing this claim as procedurally
defaulted because it was not fairly presented to Ohio's
Second District Court of Appeals as a constitutional claim,
but rather as a claim of abuse of trial court discretion
(Report, ECF No. 12, PageID 1359-61). More fundamentally,
there is no due process right to application of the parol
evidence rule. Id. at PageID 1361-62.
Three claims Pelfrey was convicted on insufficient evidence.
Pelfrey raised that claim in the Second District. The Report
recites the Second District's opinion on this issue and
concludes that, given the double deference required by
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. 104-132, 110 Stat. 1214 (“AEDPA”), (ECF No.
12, PageID 1363, quoting Brown v. Konteh, 567 F.3d
191, 205 (6th Cir. 2009), the Second
District's decision was not an objectively unreasonable
application of the controlling Supreme Court precedent,
Jackson v. Virginia, 443 U.S. 307 (1979).
Id. at PageID 1362-67.
Four claims Pelfrey was denied a speedy trial. On direct
appeal he claimed only a violation of the Ohio speedy trial
statute, Ohio Revised Code § 2945.71. He never made a
constitutional claim of denial of speedy trial until he filed
an Ohio App. R. 26(B) application claiming it was ineffective
assistance of appellate counsel to fail to raise this is a
claim under the IAD. The Second District found no ineffective
assistance of appellate counsel because there was no IAD
violation, and the ...