Gregory v. Sheldon

Filing 14

Memorandum Opinion and Order. For all the reasons stated herein Gregory's 11 Motion for summary judgment is DENIED. Judge Sara Lioi on 5/13/2019. (O,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DAVID A. GREGORY, JR.,

PETITIONER,
vs.

EDWARD SHELDON, Warden,

RESPONDENT.

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CASE NO. 5:17CV626

JUDGE SARA LIOI

MEMORANDUM OPINION AND
ORDER

On March 24, 2017, petitioner David A. Gregory, Jr. (“Gregory”), a state inmate, filed a
pro se petition for a writ of habeas corpus. (Doc. No. 1 (Petitioner).) He challenges his
convictions for illegal assembly or possession of chemicals for the manufacture of drugs and
attempted prohibitions concerning pseudoephedrine products. Now before the Court is Gregory’s
motion for summary judgment. (Doc. No. 11 [“MSJ”].)
In support of his motion, Gregory insists that “[h]e is innocent of the charge presently
keeping him incarcerated.” (MSJ at 563, page number refers to the page identification number
generated by the Court’s electronic docketing system.) He posits that “if this court reviews all
facts and evidence submitted within his petition, it would agree that he should not be
incarcerated.” (Id.) According to Gregory, he “has appealed his conviction the best that he could
throughout the entire Ohio court system and only has this final opportunity to prove his
grievance in this court.” (Id.)
Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law.” Sanders v. Freeman, 221 F.3d 846, 851 (6th Cir. 2000) (quotation marks and citation
omitted); see Fed. R. Civ. P. 56(a). The summary judgment rule applies to habeas proceedings.
Harris v. Stegall, 157 F. Supp. 2d 743, 746 (E.D. Mich. 2001). But a federal district court should
not enter a summary judgment in a habeas case if the pleadings or papers present a genuine issue
of fact or law. United States v. DeRobertis, 718 F.2d 209, 211 (7th Cir. 1983).
The answer of respondent Edward Sheldon (“Sheldon”) challenges the claims raised in
the habeas petition, arguing that they are procedurally defaulted, legal non-cognizable on habeas
review, or otherwise conclusively refuted by the facts established by the state appellate court.
(Doc. No. 9 (Respondent’s Answer/Return of Writ).) At a minimum, Sheldon’s answer shows
sufficient disagreement based upon case law and sound legal reasoning that summary judgment
in favor of Gregory is not appropriate. Moreover, pursuant to Local Rule 72.2(b)(2), an
automatic reference has been made to a magistrate judge for the purpose of preparing a report
and recommendation on Gregory’s petition. The magistrate judge has issued his R&R, and the
parties may file objections to the R&R as provided for by Fed. R. Civ. P. 72 and L.R. 72.3. (See
Doc. No.13.) The Court shall make its determination as to Gregory’s petition after it has
reviewed the R&R and considered the objections to it, should any be filed.

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Accordingly, and for all of the foregoing reasons, Gregory’s motion for summary
judgment is DENIED.
IT IS SO ORDERED.

Dated: May 13, 2019
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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