Opinion
Case No. 3:19-cv-59
09-23-2019
GREGORY PELFREY, Petitioner, v. WARDEN TIM BUCHANAN, Respondent.
DECISION AND ENTRY ADOPTING UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (DOC. #12) AND SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC. #21); OVERRULING PETITIONER'S OBJECTIONS THERETO (DOCS. ##18, 22); OVERRULING PETITIONER'S REQUEST FOR A CERTIFICATE OF APPEALABILITY (DOC. #20) AND ANTICIPATED REQUEST FOR LEAVE TO APPEAL IN FORMA PAUPERIS; DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (DOC. #1) WITH PREJUDICE; JUDGMENT TO ENTER IN FAVOR OF RESPONDENT AND AGAINST PETITIONER; TERMINATION ENTRY
Petitioner Gregory Pelfrey obtained a power of attorney from his elderly grandmother, Judith Daniel, altered the date on it and used it, without her permission, to obtain a $75,000 mortgage on her house. His grandmother never saw the money and eventually lost her home. Pelfrey was indicted for theft from an elderly adult and forgery. He then attempted to cover up his crimes by convincing two women to prepare false documents. This led to additional charges of tampering with evidence. A jury convicted Pelfrey on all counts. His convictions were affirmed on appeal. State v. Pelfrey, 2d Dist. No. 27474, 2018-Ohio-2427 (June 22, 2018).
In his Petition for Writ of Habeas Corpus, Doc. #1, Pelfrey pleads four grounds for relief: (1) prosecutorial misconduct in failing to clear up incorrect or misleading testimony, failing to disclose evidence favorable to the accused, and knowingly making improper statements; (2) due process violations in allowing parol evidence regarding the power of attorney; (3) insufficiency of the evidence; and (3) speedy trial violations under the Interstate Agreement of Detainers ("IAD").
On June 28, 2019, United States Magistrate Judge Michael R. Merz issued a Report and Recommendations, Doc. #12, in which he recommended that the Court dismiss the Petition with prejudice. Pelfrey filed Objections to the Report and Recommendations, Doc. #18, and the Court recommitted the matter to Magistrate Judge Merz. On August 8, 2019, Pelfrey filed a Request for a Certificate of Appealability, Doc. #20. On August 9, 2019, Magistrate Judge Merz issued a Supplemental Report and Recommendations, Doc. #21, again recommending that the Court dismiss the Petition with prejudice and deny the Request for a Certificate of Appealability. Pelfrey has now filed Objections to the Supplemental Report and Recommendations, Doc. #22.
Based on the reasoning and citations of authority set forth by Magistrate Judge Merz in his Report and Recommendations, Doc. #12, and his Supplemental Report and Recommendations, Doc. #21, as well as upon a thorough de novo review of this Court's file and the applicable law, the Court ADOPTS said judicial filings in their entirety, and OVERRULES Pelfrey's Objections, Docs. ##18, 22.
Magistrate Judge Merz properly concluded that Ground One is procedurally defaulted, that Grounds Two and Four are procedurally defaulted and fail on the merits, and that Ground Three fails on the merits. Pelfrey continues to argue the merits of Grounds One, Two and Four, but fails to address the threshold issue of procedural default.
Moreover, Ground Two fails because there is no constitutional right to application of the parol evidence rule. With respect to Ground Three, Pelfrey has failed to show that the Second District's decision was an objectively unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979). The IAD speedy trial violation asserted in Ground Four is not cognizable in habeas unless there is a resulting fundamental miscarriage of justice. None exists here.
Accordingly, the Court DISMISSES WITH PREJUDICE the Petition for Writ of Habeas Corpus, Doc. #1.
Given that Petitioner has not made a substantial showing of the denial of a constitutional right and, further, that the Court's decision herein would not be debatable among reasonable jurists, and because any appeal from this Court's decision would be objectively frivolous, Petitioner is DENIED a certificate of appealability, Doc. #20, and is denied leave to appeal in forma pauperis.
Judgment will be entered in favor of Respondent and against Petitioner.
The captioned case is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton. Date: September 23, 2019
/s/_________
WALTER H. RICE
UNITED STATES DISTRICT JUDGE