Pedraza v. Kelley
ORDER adopting 20 Recommendation as supplemented and modified, and mostly overruling 25 Objections. Pedraza's petition will be dismissed with prejudice. No certificate of appealability will issue. Signed by Judge D. P. Marshall Jr. on 12/4/2017. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
WENDY KELLEY, Director,
Arkansas Department of Correction
On de nova review, the Court adopts the Magistrate Judge's
careful recommendation, NQ 20, as supplemented and modified, and
mostly overrules Pedraza's objections, NQ 25.
FED. R. CIV. P. 72(b)(3).
Pedraza is correct that the prosecutor's
"accident" remark came before the sentencing, not after. NQ 25 at 2.
But the Magistrate Judge is correct on the deep issue:
didn't violate Pedraza' s rights.
This wasn't a case where the
prosecutor presented factually inconsistent theories to different juries
to obtain convictions or particular sentences.
Groose, 205 F.3d 1045, 1049-52 (8th Cir. 2000).
remark was not made before a jury;
Compare Smith v.
In fact, the accident
it was made to the Court in a
Neither of the Pedrazas had changed their pleas
Compare NQ 2 at 12 with NQ 12-7 at 15.
By contrast, the evidence
actually presented to the two juries advanced a consistent theory of
In short, the prosecutor's stray characterization of the
child's death as an "accident" in a pretrial hearing did not violate
Pedraza' s due process rights.
The recommendation correctly notes that
there's no right to depose witnesses in Arkansas criminal cases.
it doesn't necessarily follow that a defendant has no right to be
present if the State does, in fact, depose a critical witness.
Don v. Nix, 886 F.2d 203 (8th Cir. 1989).
change the outcome on this claim.
That law, though, doesn't
Pedraza waived his right to
confront witnesses against him when he entered his guilty plea.
Indeed, the trial court specifically noted that Pedraza was waiving the
right to confront his wife.
NQ 14, Exhibit A at TR 904-05.
the Confrontation Clause does not apply in non-capital sentencings.
E.g., United States v. Wallace, 408 F.3d 1046, 1048 (8th Cir. 2005);
United States v. Johnson, 378 F. Supp. 2d 1051, 1059-62 (N.D.
And even if it did, Pedraza got the opportunity to
confront Victoria Pedraza when she testified live at his sentencing.
NQ 14, Exhibit A at TR 1561-1636 & 1762-64.
The deposition claim
therefore fails as well.
Pedraza's petition will be dismissed with prejudice. No
certificate of appealability will issue.
28 U.S.C. § 2253(c).
United States District Judge
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