IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION AT COLUMBUS 

PATRICK KELLY, 

Petitioner, 

 Case No. 2:18-cv-19 

- vs - Judge George C. Smith 

Magistrate Judge Michael R. Merz 

RHONDA RICHARD, Warden, 

 FRANKLIN MEDICAL CENTER, 

 

 Respondent. 

OPINION AND ORDER 

 

 This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 23) to the 

Magistrate Judge’s Report and Recommendations (ECF No. 19) and his Objections (ECF No. 33) 

to the Magistrate Judge’s Supplemental Report and Recommendations after recommittal (ECF No. 

25). 

 Specific objections to a Magistrate Judge’s Report and Recommendations on the merits of 

a habeas corpus case are to be reviewed by the District Court de novo under Fed.R.Civ.P. 72(b). 

Having conducted that de novo review, the Court finds the objections are without merit and are 

hereby OVERRULED. 

I. PROCEDURAL HISTORY 

 Petitioner Patrick Kelly is a former Sheriff of Athens County, Ohio. who was indicted 

January 31, 2014, on thirteen counts of theft in office, four counts of theft, and one count each of 

tampering with records, tampering with evidence, perjury, obstructing official business, failure to 

keep a cashbook, money laundering, dereliction of duty, and engaging in a pattern of corrupt 
2 

activity (Indictment, State Court Record, ECF No. 4, Ex. 1, PageID 24-34). 

Kelly was convicted by a trial jury on twelve counts of theft in office, perjury, failure to 

keep a cashbook, three counts of theft and engaging in a pattern of corrupt activity, and acquitted 

on the remaining counts. He was then sentenced to seven years imprisonment. The convictions 

were affirmed on appeal. State v. Kelly, No. 15CA11, 2016-Ohio-8582 (Ohio App. 4th Dist. Dec. 

30, 2016), appellate jurisdiction declined, 149 Ohio St. 3d 1421, 2017-Ohio-4038. 

With the assistance of counsel, Kelly then filed his Petition for Writ of Habeas Corpus in 

this Court, pleading four grounds for relief. The Magistrate Judge recommended dismissal of all 

grounds, both originally and then on recommittal (ECF Nos. 19, 25). Kelly filed Objections to 

each Report (ECF No. 23, 33). The Court considers the Grounds for Relief in the order considered 

by the Magistrate Judge. 

A. Ground Four: Erroneous Jury Instructions on the RICO Count 

 The most serious charge in the Indictment was in Count 25, engaging in a corrupt 

enterprise. In his Fourth Ground for Relief, Kelly claims two constitutional errors were made in 

the jury instructions on that count. 

 First, Kelly claims the trial judge erred in his definition of “enterprise” when the jury asked 

for a definition. Kelly asserts that the judge should instead have given the instruction his attorney 

requested (Petition, ECF No. 1, PageID 11). The Fourth District Court of Appeals decided that 

the instruction Kelly requested was not an accurate statement of Ohio law. Kelly, 2016-Ohio8582, ¶¶ 85-88. 

 In his original Report, the Magistrate Judge noted that the correctness of jury instructions 

rarely raises a federal constitutional question and in any event Kelly has not argued this claim, 

which was his Fifth Assignment of Error on direct appeal as a constitutional question. 
3 

Furthermore, the definition of “enterprise” used in federal Racketeering Influenced and Corrupt 

Organizations (“RICO”) cases has never been made binding on the States. 

 In his Reply, Kelly had argued a much broader proposition: that the trial judge’s 

instructions did not include all the elements of the Ohio RICO count (ECF No. 18, PageID 2751-

59). In his original Report, the Magistrate Judge recommended dismissing this claim because it 

had never been fairly presented to the Ohio courts, nor had it even been pleaded in the Petition 

(ECF No. 19, PageID 2791). In his Supplemental Report, the Magistrate Judge adhered to this 

position (ECF No. 25, PageID 2824). 

B. Ground One: Ineffective Assistance of Trial and Appellate Counsel 

In his First Ground for Relief, Kelly claimed he received ineffective assistance of trial 

counsel when his trial attorney did not object the assertedly erroneous RICO instructions. In his 

original Report the Magistrate Judge found this claim procedurally defaulted because it had never 

been raised in the state courts (ECF No. 19, PageID 2792); he adhered to this conclusion in his 

Supplemental Report (ECF No. 25, PageID 2824-25). 

C. Ground Two: Insufficient Evidence of the RICO Violation 

In his Second Ground for Relief, Petitioner asserted there was insufficient evidence 

presented at trial to convict him on the RICO charge, Count 25. In his original Report, the 

Magistrate Judge concluded that the Ohio Fourth District Court of Appeals had decided this 

constitutional claim ln the merits and its decision was not an objectively unreasonable application 

of the governing Supreme Court precedent, Jackson v. Virginia (Report, ECF No. 19, PageID 

2792-96, citing 443 U.S. 307 (1979)). Based on that conclusion, he recommended the Second 

Ground for Relief be dismissed on the merits. Id. at PageID 2796. Kelly did not object to that 

conclusion. 
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D. Ground Three: Insufficient Evidence of Perjury

In his Third Ground for Relief, Petitioner asserted there was insufficient evidence presented 

at trial to convict him of perjury. In his original Report, the Magistrate Judge concluded the Fourth 

District’s decision on this claim also was entitled to deference under the Antiterrorism and 

Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2254(d). Kelly also did 

not object to this conclusion. 

II. ANALYSIS

 Kelly through counsel filed timely Objections (ECF No. 33) to the Magistrate Judge’s 

Supplemental Report and Recommendations (ECF No. 25). Respondent’s time to reply to those 

Objections has expired and the case is thus ripe for final disposition. 

 In his current Objections, Kelly stands by his Objections to the original Report without 

repeating them (ECF No. 33, PageID 2846, n.2). He states no new objection as to Ground Two or 

Three, and the Magistrate Judge’s recommendation that they should be dismissed is therefore 

ADOPTED. 

 The Magistrate Judge concluded that Grounds One and Four were barred by Kelly’s 

procedural default in failing to present them to the state courts in a petition for post-conviction 

relief under Ohio Revised Code § 2953.211

 (for ineffective assistance of trial counsel) or Ohio 

R.App.P. 26(B) (for ineffective assistance of appellate counsel). Kelly sought to excuse these 

defaults by claiming his appellate attorney failed to inform him of post-conviction process, relying 

on Gunner v. Welch (Supp. Objections, ECF No. 33, PageID 2846, citing 749 F.3d 511 (6th Cir. 

2014)). In response the Magistrate Judge noted that there was no evidence of that failure to inform. 

 

1

 Even though the asserted instances of ineffective assistance of trial counsel could have been litigated on direct appeal, 

Kelly was not bound to do so under res judicata doctrine because he had the same attorney on direct appeal as at trial. 
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In his present Objections, Kelly rejoins that he alleged in the Petition “Petitioner's trial and 

appellate counsel did not inform him of the Post-Conviction process.” (ECF No. 1, PageID 72). 

But these are bare pleading allegations made by counsel. The Petition itself is not verified, but 

signed by counsel on behalf of Petitioner. 

 Petitioner asserts that the reason no evidence has been submitted is that there has been no 

hearing and no discovery in this habeas case (Supp. Objections, ECF No. 33, PageID 2848). While 

that is true, it is not material. While Gunner allows a petitioner to rely on lack of advice about 

post-conviction process from counsel, the place to present that evidence is in the state courts. 

Gunner must be read consistently with Edwards v. Carpenter, 529 U.S. 446 (2000), which requires 

that ineffective assistance of trial counsel or ineffective assistance of appellate counsel as excusing 

cause must first be properly presented to the state courts for adjudication. Both Ohio Revised 

Code § 2953.23 and Ohio R.App.P. 26(B) provide a prisoner with opportunities to excuse delayed 

filings by pointing to facts such as those Kelly would now like to offer. 

 Because Petitioner has not offered sufficient excusing cause, the Court ADOPTS the 

Magistrate Judge’s recommendation that Grounds One and Four be dismissed as procedurally 

defaulted. 

III. CONCLUSION 

 In accordance with this analysis, the Court orders that the Petition for Writ of Habeas 

Corpus be dismissed with prejudice and the Clerk enter judgment to that effect. Because 

reasonable jurists would not disagree with this conclusion, Petitioner is denied a certificate of 

appealability and the Court certifies to the Sixth Circuit that any appeal would be objectively 

frivolous and should not be permitted to proceed in forma pauperis. 

 

2

 The same allegation in slightly different words is made as to Ground Four at ECF No. 1, PageID 12. 
6 

 The Clerk shall remove Documents 19, 23, 25, and 33 from the Court’s pending motions 

list. Final judgment should be entered and this case should be closed. 

 IT IS SO ORDERED.

 

 s/ George C. Smith__________________ 

 GEORGE C. SMITH, JUDGE 

 UNITED STATES DISTRICT COURT