Pedraza v. Kelley

Filing 26

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)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION DANIEL PEDRAZA ADC #155040 v. PETITIONER No. 5:17-cv-37-DPM WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT ORDER 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. The supplement. 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 remark 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; pretrial hearing. yet. 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 the cnme. 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 modification. The recommendation correctly notes that there's no right to depose witnesses in Arkansas criminal cases. But 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. Compare 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. Further, 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. Iowa 2005). 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. -2- 28 U.S.C. ยง 2253(c). So Ordered. J l D.P. Marshall United States District Judge -3-

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