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Pelfrey v. Buchanan

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

August 9, 2019

GREGORY D. PELFREY, Petitioner,
v.
TIM BUCHANAN, Warden, Noble Correctional Institution Respondent.

          Walter H. Rice District Judge

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This 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).

         The 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 improper statements.
Supporting Facts:
(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 Fourteenth Amendment.
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.[1]

(Petition, ECF No. 1, PageID 25, 26, 30, 3339, 43, 47) (emphasis removed).

         Analysis from the Report

         Ground 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).

         Ground 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.

         Ground 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.

         Ground 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 ...


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