Jones v. Hill

Filing 18

Opinion and Order: For the foregoing reasons, the Court OVERRULES Petitioner's objections (ECF No. 17 ), ADOPTS the Magistrate Judge's Report and Recommendation (ECF No. 14 ), and DENIES and DISMISSES t he petition for a writ of habeas corpus. Further, the Court DECLINES to issue a certificate of appealability under 28 U.S.C. § 2253(c). The Court DIRECTS the Clerk to enter judgment accordingly. Judge J. Philip Calabrese on January 3, 2025. (Y,A)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DARRELL JONES,

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Petitioner,
v.
WARDEN LEON HILL,
Respondent.

Case No. 1:21-cv-2135
Judge J. Philip Calabrese
Magistrate Judge
Carmen E. Henderson

OPINION AND ORDER
In 2019, a jury found Petitioner Darrell Jones guilty of one count of aggravated
robbery, one count of possessing criminal tools, and two counts of robbery. He was
sentenced to 144 months in prison. Mr. Jones petitions for a writ of habeas corpus,
asserting nine grounds for relief. The Magistrate Judge recommends that the Court
deny his claim and dismiss Mr. Jones’s petition. Petitioner filed timely objections to
the report and recommendation.
OVERRULES

Petitioner’s

For the reasons that follow, the Court

objections,

ADOPTS

the

Magistrate

Judge’s

recommendation, and DENIES and DISMISSES the petition for a writ of habeas
corpus. The Court also DECLINES to issue a certificate of appealability.
FACTUAL AND PROCEDURAL BACKGROUND
This petition for a writ of habeas corpus arises from a conviction in State court.
A.

Indictment, Trial, and Conviction

On January 22, 2019, Mr. Jones was charged in a multi-count indictment.
(ECF No. 5-1, PageID #93–95.) The charges included one count of aggravated robbery

with two firearm specifications under Section 2941.145 of the Ohio Revised Code (a
mandatory, consecutive three-year sentence for brandishing a firearm) and Section
2941.141 (a mandatory, consecutive one-year sentence for having a firearm), one
count of possessing criminal tools, and two counts of robbery with a firearm
specification under Section 2941.141. (Id.) On January 25, 2019, Mr. Jones pled not
guilty to all charges. (Id., PageID #96.) Before trial, he moved to sever the counts for
trial (id., PageID #98), and the State trial court denied the motion (id., PageID #121).
At trial, the jury found Mr. Jones guilty on all counts but not guilty on the firearm
specifications under Section 1941.141 (the one-year specification for having a firearm
during the commission of an offense) and did not make a finding on the Section
2941.145 firearm specification (the three-year specification for brandishing a
firearm).

(Id., PageID #122.)

Mr. Jones was sentenced to twelve years of

imprisonment. (Id., PageID #125.)
B.

Direct Appeal

On appeal, Mr. Jones raised Mr. Jones raised two assignments of error: (1) the
jury’s verdict was contrary to the manifest weight of the evidence, and (2) the State
trial court’s failure to sever the counts, which involved separate robberies, prejudiced
him. (Id., PageID #135.) Finding no merit to these assignments of error, the State
appellate court affirmed the judgment and sentence. (Id., PageID #172–85.)
Proceeding pro se, Mr. Jones sought discretionary review at the Ohio Supreme
Court on September 8, 2020. (Id., PageID #186.) He did so asserting the same issues
as he did in the State appellate court. (Id., PageID #190.) On November 10, 2020,
the Ohio Supreme Court declined review. (Id., PageID #234.)
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C.

Application to Reopen

On October 26, 2020, Mr. Jones filed an application to reopen his direct appeal
under Rule 26(B) of the Ohio Rules of Appellate Procedure. (Id., PageID #235.) He
raised twenty assignments of error. (Id., PageID #240–44.) On March 23, 2021, the
State appellate court denied his application, finding that Mr. Jones did not present
arguments supporting his allegations or offer legal or rational bases for his claims.
(Id., PageID #270–81.)
Mr. Jones timely appealed the denial of his application to reopen to the Ohio
Supreme Court. (Id., PageID #282.) In his memorandum in support of jurisdiction,
Mr. Jones raised sixteen propositions of law. (Id., PageID #295–304.) On June 22,
2021, the Ohio Supreme Court declined review. (Id., PageID #319.)
D.

Habeas Petition

On October 26, 2021, Mr. Jones filed this petition for a writ of habeas corpus,
asserting nine grounds for relief:
1. Manifest weight of the evidence.
2. Improper joinder in violation of due process and the right to a fair trial
by an impartial jury.
3. Ineffective assistance of appellate counsel.
4. Prosecutorial misconduct through the knowing presentation of false
testimony.
5. Structural error in that the indictment failed to charge the requisite
mens rea for robbery and the grand jury was presented with false
evidence and perjured testimony to obtain an indictment, violating the
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due process right to a fair trial and impartial jury and equal protection
of the law.
6. Judicial error that fundamentally prejudiced Mr. Jones’s rights under
the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United
States Constitution and Article I, Sections 10 and 16 of the Ohio
Constitution. Specifically, the State trial court allowed the prosecution
to engage in a pattern of misconduct that permeated the entire trial, and
the State trial court failed to remain impartial and permitted this
miscarriage of justice to go uncorrected.
7. The trial court committed plain error that prejudiced Mr. Jones’s rights
under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
Constitution of the United States and Article I, Sections 10 and 16 of the
Ohio Constitution.
8. Prosecutorial misconduct through the presentation of false evidence and
testimony to the grand jury.
9. Ineffective assistance of trial counsel.
(ECF No. 1, PageID #5–17.)
Under Local Rule 72.2, the case was referred to a Magistrate Judge, who issued
a report and recommendation that the Court deny the petition on the grounds that:
Ground One is non-cognizable or procedurally defaulted; Grounds Two and Three fail
on the merits; and Grounds Four through Nine are procedurally defaulted. (See
generally ECF No. 14.) Also, the Magistrate Judge recommended that the Court not

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grant a certificate of appealability. (Id.) Petitioner generally objected to the Report
and Recommendation in its entirety. (ECF No. 17.)
STANDARD OF REVIEW
A district court judge may designate a magistrate judge to submit “proposed
findings of fact and recommendations for the disposition” of a petition for a writ of
habeas corpus. 28 U.S.C. § 636(b)(1)(B). If a party timely objects to the report and
recommendation, the district court must “make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1)(C). Objections must be specific, not general,
and should direct the Court’s attention to a particular dispute. Howard v. Secretary
of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). “The filing of objections
to a magistrate’s report enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.” Thomas v. Arn, 474
U.S. 140, 147 (1985).
On review, the court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
636(b)(1)(C).

28 U.S.C. §

Importantly, the Court’s job is not to conduct a free-wheeling

examination of the entire report and recommendation but only to address any specific
objections that a party has advanced to some identified portion of it. Accordingly, it
is the Court’s task in this matter to review the Magistrate Judge’s report and
recommendation de novo, based on the specific objections Petitioner raises.

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Because Petitioner represents himself, the allegations in his petition must be
construed in his favor, and his pleadings are held to a less stringent standard than
those prepared by counsel. Urbina v. Thomas, 270 F.3d 292, 295 (6th Cir. 2001).
Petitioner makes a general objection to the findings in the report and
recommendation, which constitutes a waiver of any potential objections. See Howard
v. Secretary of HHS, 932 F.2d 505, 509 (6th Cir. 1991) (holding that a general
objection has the same effect as a failure to object). Nevertheless, in the interest of
justice, the Court will evaluate the merits of Petitioner’s objections to the Magistrate
Judge’s report and recommendation.
ANALYSIS
Where a petitioner “is in custody in violation of the Constitution or laws or
treaties of the United States,” he is entitled to a writ of habeas corpus. 28 U.S.C.
§§ 2241(c)(3) & 2254(a). At bottom, the writ tests the fundamental fairness of the
State court proceedings resulting in the deprivation of the petitioner’s liberty. See,
e.g., Brown v. Allen, 344 U.S. 443, 463 (1953); Powell v. Collins, 332 F.3d 376, 388
(6th Cir. 2003) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)); Skaggs v Parker,
235 F.3d 261, 266 (6th Cir. 2000).
28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim –

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(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

“With the AEDPA, Congress limited the source of law for habeas relief to cases
decided by the United States Supreme Court.” Herbert v. Billy, 160 F.3d 1131, 1135
(6th Cir. 1998); see also Williams v. Taylor, 529 U.S. 362, 412 (2000). A State court
adjudication is “contrary to” Supreme Court precedent under Section 2254(d)(1) “if
the state court arrives at a conclusion opposite to that reached by [the Supreme]
Court on a question of law,” or “if the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent” and arrives as a
different result. Williams, 529 U.S. at 405. “Avoiding these pitfalls does not require
citation of [Supreme Court] cases—indeed, it does not even require awareness of [the]
cases, so long as neither the reasoning nor the result of the state-court decision
contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002).
Under Section 2254(d)(1), an unreasonable application of federal law differs
from an incorrect application of federal law. See Harrington v. Richter, 562 U.S. 86,
101 (2011) (citing Williams, 529 U.S. at 410). A State court adjudication might
involve an unreasonable application of Supreme Court precedent in one of two ways:
(1) the State court identifies the correct governing legal rule from the Supreme
Court’s cases but unreasonably applies it to the facts of the particular State prisoner’s
case; or (2) the State court either unreasonably extends a legal principle from the
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Court’s precedent to a new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should apply. See Williams, 529
U.S. at 407.
I.

Ground One
Petitioner argues that his convictions were against the manifest weight of the

evidence. (ECF No. 1, PageID #5.) Respondent contends that this ground is noncognizable because a manifest-weight-of-the-evidence claim arises under State law,
not the Constitution. (ECF No. 5, PageID #48–50.) Respondent is correct. Unlike a
challenge to the sufficiency of the evidence, which raises federal constitutional issues,
a claim challenging the manifest weight of the evidence arises under State law, and
State-law claims are not cognizable in habeas.
Nonetheless, the Sixth Circuit has noted that “courts often consider a manifestweight-of-the-evidence claim in a § 2254 petition to allege an insufficient-evidence
claim . . . when . . . the petitioner is pro se.” Hoffman v. Lazaroff, No. 18-3439, 2018
WL 5849894, at *3 (6th Cir. Sept. 17, 2018) (citing Nash v. Eberlin, 258 F. App’x 761,
764 n.4 (6th Cir. 2007)). However, “the exhaustion doctrine requires the petitioner
to present ‘the same claim under the same theory’ to the state courts before raising it
on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir. 2004).
The Magistrate Judge determined that, to the extent Ground One can be construed
as a claim challenging the sufficiency of the evidence under the federal Constitution,
that claim is procedurally defaulted because Petitioner did not raise and present it in
State court. Upon review of the record, the Court agrees. Therefore, the Court finds

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that Petitioner procedurally defaulted this claim and OVERRULES Petitioner’s
objections regarding Ground One.
II.

Ground Two
Petitioner argues that the State trial court’s failure to sever the charges

violated his right to a fair trial and resulted in prejudice because evidence from the
stronger cases was used to supplement weaker cases. On direct appeal, the State
appellate court found the evidence admissible under the State evidentiary rules even
though the evidence of the crimes was separate and distinct. State v. Jones, 2020Ohio-3852, ¶¶ 37–43.
Habeas relief is only warranted on a severance claim under State law if the
petitioner is denied due process of law under the Fourteenth Amendment because of
the non-severance, and the petitioner shows actual prejudice. Davis v. Coyle, 475
F.3d 761, 777 (6th Cir. 2007). Here, the State appellate court determined that the
trial court “did not abuse its discretion in joining the offenses for a single trial,” nor
did the denial of the severance motion prejudice Mr. Jones’s rights. Jones, 2020-Ohio3852, ¶ 43. In doing so, the State appellate court relied only on State law.
For that reason, the Magistrate Judge determined that Petitioner failed to
show that the State court adjudication was contrary to clearly established Supreme
Court precedent. See Coley v. Bagley, 706 F.3d 741, 753 (6th Cir. 2013). Accordingly,
the Magistrate Judge recommended dismissal of Ground Two. (ECF No. 14, PageID
#1444.) In his objection, Petitioner points to State law and cases from the Fifth, Sixth,
and Eighth Circuits. (ECF No. 17, PageID #1467.) But Petitioner makes only a
generalized claim of prejudice and fails to explain why the evidence admitted at trial
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prejudiced him. In short, Petitioner fails to carry his burden of showing that the
State appellate court’s affirmance of the trial court’s denial of the severance motion
is contrary to Supreme Court precedent. For these reasons, the Court OVERRULES
Petitioner’s objections regarding Ground Two.
III.

Ground Three
On Ground Three, Petitioner argues that his appellate counsel was ineffective

for failing to:
accentuate the other genuine instead of the common arguable error
stated on the direct appeal that involves minimal investigative work on
the case, less discovery of pertinent issues of deception inconsistencies,
fraudulent evidence, contaminated DNA, prosecutorial misconduct,
police misconduct, judicial error, or structural error and biased jury also
prosecutorial ABA standard violations.
(ECF No. 1, PageID #8.)
Both the State courts and the Magistrate Judge found that Petitioner’s claim
of ineffective assistance of appellate counsel lacked merit. (ECF No 14, PageID
#1452.) Under Strickland v. Washington, 466 U.S. 668, 687 (1994), Petitioner must
establish that (1) the performance of counsel was deficient, meaning that “counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
by the Sixth Amendment,” and (2) the ineffectiveness of the counsel prejudiced the
petitioner’s defense. Counsel enjoy a presumption that they discharge their duties in
a sufficiently effective manner and exercise reasonable professional judgment based
on the circumstances at the time. Id. at 690.
These standards also apply to appellate counsel. Smith v. Robbins, 528 U.S.
259, 285 (2000). “[E]ffective appellate counsel should not raise every nonfrivolous
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argument on appeal, but rather only those arguments most likely to succeed.” Davila
v. Davis, 582 U.S. 521, 533 (2017). Counsel performs deficiently in declining to raise
an issue on appeal only where the issue he failed to raise is clearly stronger than the
claims actually raised. Id. To establish prejudice for ineffective appellate counsel, a
petitioner must show that, but for his counsel’s “unreasonable failure to raise a claim,
he would have prevailed on his appeal.” Gordon v. May, No. 22-4003, 2023 WL
3719069, at *4 (6th Cir. Apr. 25, 2023) (citation omitted).
Petitioner does not explain how the State appellate court’s decision was
contrary to or an unreasonable application of Strickland.

Further, the Court’s

independent review of the record does not reveal any violation of Petitioner’s
substantial rights. Nothing in the record overcomes the presumption that counsel
discharge their duties in a sufficiently effective manner or shows that the State courts
applied the Strickland standard unreasonably or contrary to clearly established law.
Nor can Petitioner show prejudice from his appellate counsel’s performance. For
these reasons, the Court OVERRULES Petitioner’s objections regarding Ground
Three.
IV.

Grounds Four through Nine
Petitioner alleges in Grounds Four and Eight that prosecutorial misconduct

occurred. (ECF No. 1, PageID #10, 13–14.) Ground Six alleges judicial error based
on the trial judge’s allowance of the alleged prosecutorial misconduct and for failure
to be impartial. (Id., PageID #11–12.) Ground Seven alleges that the trial court
committed plain error through various aspects of managing the trial. (Id., PageID

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#12–13.) Ground Nine alleges ineffective assistance of trial counsel. (Id., PageID
#14–16). Respondent argues that all of these grounds are procedurally defaulted.
Generally, a petitioner must demonstrate that he has “exhaust[ed] all
available opportunities to pursue his claim in state court.” Gerth v. Warden, Allen
Oakwood Corr. Inst., 938 F.3d 821, 826–27 (6th Cir. 2019). Further, a federal court
may not consider a habeas petition from a State prisoner unless he has presented his
claim to the State courts in accordance with their procedural rules. See Shinn v.
Ramirez, 142 S.Ct. 1718, 1727 (2022). A petitioner may procedurally default a claim
by failing to raise it in State court and pursue it through the State’s appellate review
procedures. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). If State law no
longer allows the petitioner to raise or appeal the claim at the time of the habeas
petition, the claim is procedurally defaulted. Id.; see also Shinn, 142 S.Ct. at 1727–28.
A court may excuse a procedural default where the petitioner can show that an
external factor prevented him from complying with the procedural rule at issue,
through no fault of his own, and that the alleged constitutional violation resulted in
actual prejudice. Coleman v. Thompson, 501 U.S. 722, 753 (1991).
Respondent argues that Petitioner’s application to reopen his appeal was the
inappropriate mechanism for raising his claims for ineffective assistance of counsel.
(ECF No.5, PageID #60.) Because these claims rely on evidence not evident from the
record, Petitioner needed to raise them in a petition for postconviction relief. But he
did not pursue such a petition. Therefore, Petitioner has failed to exhaust these
claims, and they are procedurally defaulted.

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The Magistrate Judge determined that, on direct appeal, Petitioner only
argued two claims: (1) his manifest-weight-of-the-evidence claim; and (2) his claim
that the State trial court erred in declining to sever the robbery counts. (ECF No. 14,
PageID #1435.) Because Petitioner failed to raise on direct appeal the additional
claims he asserted when he sought discretionary review at the Ohio Supreme Court,
any claims other than the two he raised on the merits were not properly presented to
the Ohio Supreme Court, which did not address their merits in any event. Therefore,
they are procedurally barred. See Moore v. Edwards, No. 23-3844, 2024 WL 1636585
at *3 (6th Cir. Apr. 1, 2024) (finding the petitioner’s claims procedurally barred where
he raised them for the first time at the Ohio Supreme Court); State v. Jester, 32 Ohio
St. 3d 147, 512 N.E.2d 962, 970 (1987). Because “a Rule 26(B) application preserves
only

ineffective-assistance-of-appellate-counsel

claims,

not

the

underlying

substantive claims,” Petitioner has not presented these claims to the State court
according to their procedural rules.

Somers v. Forshey, No. 20-3690, 2020 WL

7706399, at *2 (6th Cir. Oct. 1, 2020) (citing Wogenstahl v. Mitchell, 688 F.3d 307,
338 (6th Cir. 2012)).

Therefore, Grounds Four through Nine are procedurally

defaulted.
Further, the Court agrees with the Magistrate Judge’s determination that
Petitioner failed to show either cause and prejudice or actual innocence as a
justification for excusing the procedural default. Petitioner had sufficient time (365
days from the date the transcript was filed in his direct appeal) to file a petition for
post-conviction relief. Ohio Rev. Code § 2953.21(A)(2)(a). Petitioner fails to offer any

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explanation for his failure to pursue these claims during the entirety of that period.
For these reasons, the Court OVERRULES Petitioner’s objections regarding
Grounds Four through Nine.
V.

Certificate of Appealability
Without a certificate of appealability, a habeas petitioner cannot appeal a final

order in a habeas proceeding. 28 U.S.C.S. § 2253(c)(2). A petitioner need not show
that the appeal would succeed to be eligible to obtain a certificate of appealability.
Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). However, the petitioner must show
that reasonable jurists could find the district court’s determination of the relevant
constitutional claims debatable or incorrect. Tennard v. Dretke, 542 U.S. 274, 282
(2004).

Under this standard, Petitioner does not qualify for a certificate of

appealability. Therefore, the Court declines to issue one.
CONCLUSION
For the foregoing reasons, the Court OVERRULES Petitioner’s objections
(ECF No. 17), ADOPTS the Magistrate Judge’s Report and Recommendation
(ECF No. 14), and DENIES and DISMISSES the petition for a writ of habeas corpus.
Further, the Court DECLINES to issue a certificate of appealability under 28 U.S.C.
§ 2253(c).
SO ORDERED.

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Dated: January 3, 2024

J. Philip Calabrese
United States District Judge
Northern District of Ohio

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