Jones v. Moore

Filing 15

Order: The petitioner's objection to the Magistrate Judge's Report & Recommendation be overruled, the Report & Recommendation be adopted as the order of this court, and the petition for a writ of habeas corpus be, and the same hereb y is, denied.I decline to issue a certificate of appealability, as jurists of reason could not disagree with the Magistrate Judge's findings and conclusions or this court's overruling of the petitioner's objection. (re 1 10 ). Judge James G. Carr on 1/18/17. (Attachments: # 1 R&R)(C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHER DISTRICT OF OHIO
WESTERN DIVISION

Christopher F. Jones,

Case No. 1:15CV01927

Petitioner,
v.

ORDER

Ernie Moore,
Respondent.

This is a habeas corpus petition under 28 U.S.C. § 2254. Pending is the petitioner's objection
to a Magistrate Judge's Report & Recommendation (R&R). (Doc. 12). For the reasons that follow,
I find the objection not well taken, adopt the R&R, and decline to issue a certificate of appealability.
A jury in Lorain County, Ohio, Common Pleas Court convicted the petitioner of charges of
rape and importuning of a twelve-year-old girl. He has exhausted his state court remedies. His habeas
petition asserted two challenges to his conviction: 1) exclusion of evidence relating to a doctor's
pelvic examination of the victim; and 2) ineffective assistance of counsel. In a thorough opinion, the
Magistrate Judge concluded that the first ground, relating to an evidentiary ruling, stated a noncognizable claim under state law. With regard to the claim of ineffective assistance of counsel (due
to the failure to subpoena the doctor who conducted the examination), the Magistrate Judge
concluded that even if counsel's performance was deficient, petitioner failed to show resultant prejudice.
The petitioner's objection challenges only the finding of a lack of prejudice.
On de novo review, I agree with the Magistrate Judge that the petitioner has not shown

prejudice. That is what the state courts concluded, and their decision was not contrary to applicable
law.
Regardless of the conclusion of the state courts, I reach the same conclusion independently.
As the petitioner alleges, his lawyer should not have assumed that the state would be calling the
doctor and should, instead, have subpoenaed him for trial. However, contrary to the petitioner's
contention, there was no prejudice.
Though the doctor would have testified that the victim's hymen was "loose," rather than
“torn” as the victim testified, he also had concluded that the partial damage resulted from
penetration. Thus, at bottom, his testimony would have corroborated, rather than contradicted, that
of the victim. That being so, the failure to subpoena and call the doctor on behalf of the petitioner
certainly would not have resulted in a different outcome.
Accordingly, it is hereby,
ORDERED THAT: the petitioner's objection to the Magistrate Judge's Report &
Recommendation be overruled, the Report & Recommendation be adopted as the order of this court,
and the petition for a writ of habeas corpus be, and the same hereby is, denied.
I decline to issue a certificate of appealability, as jurists of reason could not disagree with the
Magistrate Judge's findings and conclusions or this court's overruling of the petitioner's objection.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

2