Jones v. Warden, Lebanon Correctional Institution

Filing 28

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 1/7/2016. Signed by Magistrate Judge Michael R. Merz on 12/18/2015. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
RICHARD J. JONES,
Petitioner,

:

- vs -

Case No. 1:14-cv-839
District Judge Sandra S. Beckwith
Magistrate Judge Michael R. Merz

WARDEN, Lebanon
Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Richard Jones, is before the Court
for decision on the merits on the Petition (ECF No. 1), the Return of Writ and State Court Record
(ECF No. 7,8), and the Reply and Corrections to Reply (ECF No. 10,11). Petitioner’s various
motions to amend the Petition have been denied by separate Decision and Order (ECF No. 27).
Petitioner’s grounds for relief as pled in the original Petition are:
GROUND ONE: There was insufficient evidence to support a
conviction for aggravated murder; OH.R.C.2903.01(A). [Trial
transcript page citations omitted.]
Supporting Facts: By law, a required essential element of “prior
calculation and design” MUST show a scheme planned to carry out
the calculated decision to cause a death. NO scheme is offered to
satisfy the element such that a reasonable trier of fact could find all
of the elements of the offense proven beyond a reasonable doubt.
The eavesdropped recording violates the 4th Amendment to the
U[nited] S[tates] C[onstitution]. [Trial transcript page citations
omitted.] None of these calls were 911.

1

GROUND TWO: The guilty verdict for aggravated murder was
contrary to the manifest weight of the evidence.
Supporting Facts: The evidence at trial greatly weighed in favor
of a finding that this incident was not the result of a thoughtful,
calculated plan necessary to establish “prior calculation and
design” but resulted from an explosive situation initiated by the
decedent.
GROUND THREE: The trial court erred to the prejudice of
Appellant and abused its discretion in declining to provide jury
instructions, thus, violating his right to a jury trial; 6th amendment
U[nited] S[tates] C[onstitution], and his right of confrontation.
Supporting Facts: The trial court errs and the appellate court is
wrong in refusing to provide an instruction for the lesser included
offense of murder, the inferior degree offense of voluntary
manslaughter, and the affirmative defense of self-defense where
Appellant produced sufficient evidence for all of these instructions.
GROUND FOUR: The trial court erred to the prejudice of
Appellant in the admission of prejudicial hearsay evidence.
Supporting Facts: Where the trial court admits recorded hearsay
statements, and one eavesdropped recorded statement, which
statements do not meet an exception and where said statements
describe alleged prior bad acts of the accused, and the accused did
not have the opportunity to cross-examine the declarant of those
statements, violates the accused’s right of confrontation; 6th
Amendment U[nited] S[tates] C[onstitution]; and search & seizure
4th Amendment U.S.C.
GROUND FIVE: Appellant was denied the effective assistance of
counsel, violating his 6th and 14th amendments to the U[nited]
S[tates] C[onstitution].
Supporting Facts: Trial counsel did not sustain a continuous
contemporaneous objection to State’s Ex. 46.
GROUND SIX: Prosecutorial Misconduct. [Trial transcript page
citations omitted.]
Supporting Facts: Eliciting inadmissible evidence in defiance of a
court order and incorrectly referring to the summary chart/exhibit
of calls as “911 calls” when they were not. Also, misrepresenting
and misstating the testimonial evidence of the coroner regarding
2

“stomping”/”kicking.” Plus, alluding to a stroke prior to the
altercation, and a couple months stay in a hospital that is outside
the evidence, and never questioning the coroner about it.
GROUND SEVEN: (Self-Defense), Ineffective assistance of trial
counsel. [Trial transcript page citations omitted.]
Supporting Facts: Not investigating the autopsy and witness; Not
providing expert assistance. Not preparing for self-defense as was
heard by the prosecutor and judge. Failure to present defense and
character witnesses, and compelling Appellant to testify. Failure to
provide direct evidence (police reports of 2/07, etc…). Failure to
object to the use of “stomping” where the coroner testifies no
stomping took place [Trial transcript page citations omitted.]
Failure to effectively question witnesses. Not objecting about the
recordings being listed as 911 calls when they were not. Not
objecting to eavesdropping.
GROUND EIGHT: Abuse of the trial courts discretion.
Supporting Facts: Rushing the trial, and leaving an allusion of
sequester during voir dire created jury confusion while
deliberating. [Trial transcript page citations omitted.] Not granting
mistrials asked. [Trial transcript page citations omitted.] Ruling
defense witnesses as cumulative when corroboration was needed
so the prosecution couldn’t make Appellant out to be a liar as in.
[Trial transcript page citations omitted.] Failure to allow Appellant
9 peremptory challenges.

(Petition, ECF No. 1.)

Procedural History

On November 23, 2011, a Butler County grand jury indicted Jones on one count of
aggravated murder in connection with the death of his father, Richard Jones, Sr.

After a

competency and sanity evaluation, Jones withdrew his NGRI plea and proceeded to trial. A jury
found him guilty and he was sentenced to twenty-five years to life imprisonment. He appealed
3

to the Ohio Twelfth District Court of Appeals which affirmed the conviction. State v. Jones,1
2013-Ohio-654, 2013 Ohio App. LEXIS 569 (12th Dist. Feb. 25, 2013). The Ohio Supreme
Court declined to exercise jurisdiction over a subsequent appeal. State v. Jones, 136 Ohio St. 3d
1509 (2013). On May 23, 2013, Jones filed an Application to Reopen Direct Appeal under Ohio
R. App. P. 26(B). The Twelfth District denied the Application. State v. Jones, Case No.
CA2012-04-077 (12th Dist. Sept. 4, 2013)(unreported; copy at State Court Record, ECF No. 7-1,
PageID 441, et seq.). The Ohio Supreme Court again declined to exercise jurisdiction. State v.
Jones, 137 Ohio St. 3d 1444 (2014), and the United States Supreme Court denied a requested
writ of certiorari. Jones v. Ohio, 134 S. Ct. 2738 (2014). Jones then filed his Petition in this
Court.

Analysis

Ground One: Insufficient Evidence to Support a Conviction for Aggravated Murder

In his First Ground for Relief, Jones asserts there is insufficient evidence to establish
beyond a reasonable doubt the prior calculation and design element of aggravated murder under
Ohio law.
An allegation that a verdict was entered upon insufficient evidence states a claim under
the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
1

References hereinafter to State v. Jones, supra, are to this decision.

4

Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle,
200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc).
In order for a conviction to be constitutionally sound, every element of the crime must be proved
beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United
States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was recognized in
Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law which
determines the elements of offenses; but once the state has adopted the elements, it must then
prove each of them beyond a reasonable doubt. In re Winship, supra.
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,
110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to
groups who might view facts differently than we would. First, as in
all sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the
evidence, re-evaluate the credibility of witnesses, or substitute our
judgment for that of the jury. See United States v. Hilliard, 11 F.3d
618, 620 (6th Cir. 1993). Thus, even though we might have not
voted to convict a defendant had we participated in jury
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deliberations, we must uphold the jury verdict if any rational trier
of fact could have found the defendant guilty after resolving all
disputes in favor of the prosecution. Second, even were we to
conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we
must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v.
Palmer, 541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir.
2011)(en banc); Parker v. Matthews, 132 S. Ct. 2148, 2152 (2012). Notably, “a court may
sustain a conviction based upon nothing more than circumstantial evidence.” Stewart v.
Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of
judicial deference. First, on direct appeal, "it is the responsibility of
the jury -- not the court -- to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set
aside the jury's verdict on the ground of insufficient evidence only
if no rational trier of fact could have agreed with the jury."
Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d
311, 313 (2011) (per curiam). And second, on habeas review, "a
federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal
court disagrees with the state court. The federal court instead may
do so only if the state court decision was 'objectively
unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___,
130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062, (2012)(per curiam).
Before addressing separate assignments of error on direct appeal, the Twelfth District set
forth the relevant facts:

6

[*P2] In May 2011, Richard Jones, Jr. moved in with his 72-yearold father, Richard Jones, Sr. (Richard), in order to help him
recover from a recent stroke and surgery. Jones and his father had
a tumultuous relationship, and the two frequently argued. On
October 1, 2011, the two had another argument, with Richard
accusing Jones of littering the yard with beer cans while "partying"
with friends. The two men continued their argument at the local
Rally's drive-through restaurant, where they had gone to get food.
Richard told Jones that he was no longer welcome in the home
they shared, or in his life. Jones got out of his father's car and
began walking back toward the house he shared with this father,
but ultimately went to the house of an aunt who lived nearby.
[*P3] At approximately 3:00 p.m., Richard called police to report
the argument, and asked an officer to come to his home. While
Jones was at his aunt's house, he called his father, and learned that
Richard had called police and an officer was at the house listening
to Richard's complaints regarding the argument and regarding
Jones.
[*P4] During the phone conversation with his father, Jones asked
to speak to the officer, Elizabeth Stewart. Jones asked Officer
Stewart if he could come to the house in order to retrieve his
personal property. Officer Stewart permitted Jones to come to the
house in order to retrieve his belongings, and stayed there until he
did so. After retrieving his belongings, Jones went to a bar and
consumed alcohol, then later purchased beer and went to a local
park where he continued to consume alcohol.
[*P5] While Jones was intoxicated, he made several phone calls
to Richard, and to police dispatch regarding his assertion that
Richard threatened to kill him during the 3:00 phone call before
Jones spoke with Officer Stewart. Unbeknownst to Jones, the
phone calls were recorded, even when Jones was placed on a hold.
During the hold, Jones can be heard saying, "I'm gonna kill him * *
* I will kill my father because I can, the prick * * * He's a dead
man * * * I'm gonna kill him * * * He needs to die * * * We'd all
be better off * * *." Jones also called Richard several times
directly, and threatened his life. Richard then called police
dispatch, and over the course of multiple calls that night, indicated
that Jones threatened his life. Richard expressed his fear that Jones
was going to kill him, and asked officers to check on his house
periodically throughout the night. Officer Stewart later returned to
the house around 9:30 p.m. regarding the additional string of
threatening phone calls between Jones and Richard; however,
Jones did not appear at the house, and she left after speaking with
7

Richard.
[*P6] Sometime after 10:30 p.m., Jones returned to the house he
shared with Richard in order to retrieve a piece of mail related to
his Social Security Disability benefits. Jones did not see his father's
car in the drive, and later stated that he assumed that his father was
not there. Jones was unable to unlock the back door, and instead,
kicked it in in order to gain access to the house. Once inside, Jones
discovered that Richard was in the house. At 10:39 p.m., a call was
placed to 911 from inside the house. The call lasted only seconds,
during which a scuffle is heard before the call ends.
[*P7] According to Jones' rendition of the events once he kicked
in the door, Richard came at him with a knife and Jones pushed
him out of the way using a straight-arm push to Richard's head.
Jones then went upstairs to retrieve his mail. Jones stated that once
he was upstairs, he got something to drink and sat on the couch. At
that point, Richard came at Jones with a knife in one hand and a
fireplace poker in the other, and the two engaged in an altercation.
During the altercation, Jones hit his father in the head, strangled
him, stabbed him in the neck with the knife Richard supposedly
wielded against Jones, and also kicked Richard in the
chest/neck/head area. Jones stated that he remembers only pulling
the knife from Richard's neck, and that he must have placed the
bloody knife in the kitchen sink and washed his hands after killing
his father.
[*P8] Twenty-two minutes after the brief 911 call, police dispatch
sent officers to Richard's home. At 11:00 p.m., Officer Andrew
Kaylor arrived at Richard's house and noticed movement
inside the house. Officer Kaylor knocked on the door, but did not
receive an answer. Officer Kaylor's backup, Officer Shelley
Meehan, saw Jones coming to the back door near the garage, and
called Officer Kaylor to the back to investigate. The officers saw
that Jones had blood on his chin. When the officers asked Jones
whose blood was on his face, Jones told them that he "got into it"
with his father and that Richard was likely dying inside the home.
[*P9] Officers Kaylor detained Jones while Officer Meehan went
inside the home. There, he found Richard dead in the living room.
Officers located a shoe print on the door, saw that the door frame
was splintered, and located a broken hinge on the floor, all
indicating that Jones kicked in the door. Officers then noticed that
the same shoe print was imprinted with blood on Richard's shirt on
the upper left hand side of his chest and near his face. Jones was

8

arrested and given his Miranda rights, and gave a 90-minute
confession at the police station.
[*P10] The autopsy revealed that three types of injuries led to
Richard's death, blunt force trauma to the face and jaw, manual
strangulation, and stab wounds to the neck. While any or all of the
injuries could have caused death, the corner concluded that the
most likely chain of events started with Jones striking Richard in
the face, strangling him, stabbing him in the neck, and then
stomping on Richard's chest/head/neck area when Richard was
near death.
State v. Jones, supra.
Jones raised his insufficient evidence claim as his First Assignment of Error on Direct
Appeal and Respondent concedes it is preserved for merit review in habeas. The Twelfth
District decided that Assignment along with his Second Assignment of Error that the verdict was
against the manifest weight of the evidence and decided both claims as follows:
[*P12] Assignment of Error No. 1:
[*P13] THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT A CONVICTION FOR AGGRAVATED MURDER.
[*P14] Assignment of Error No. 2:
[*P15] THE GUILTY VERDICT FOR AGGRAVATED
MURDER WAS CONTRARY TO THE MANIFEST WEIGHT
OF THE EVIDENCE.
[*P16] Jones argues in his first and second assignments of error
that his conviction is against the manifest weight of the evidence
and is not supported by sufficient evidence.
[*P17] Manifest weight and sufficiency of the evidence are
quantitatively and qualitatively different legal concepts. State v.
Thompkins, 78 Ohio St.3d 380, 386, 1997 Ohio 52, 678 N.E.2d
541 (1997). When reviewing the sufficiency of the evidence
underlying a criminal conviction, an appellate court examines the
evidence in order to determine whether such evidence, if believed,
would support a conviction. State v. Wilson, 12th Dist. No.
CA2006-01-007, 2007 Ohio 2298. "The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the
9

prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt."
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus, superseded on other grounds.
[*P18] While the test for sufficiency requires an appellate court
to determine whether the state has met its burden of production at
trial, a manifest weight challenge examines the inclination of the
greater amount of credible evidence, offered at a trial, to support
one side of the issue rather than the other. Wilson, 2007 Ohio 2298.
In determining whether a conviction is against the
manifest weight of the evidence, the court, reviewing the
entire record, weighs the evidence and all reasonable
inferences, considers the credibility of the witnesses and
determines whether in resolving conflicts in the evidence,
the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Cummings, 12th Dist. No. CA2006-09-224, 2007 Ohio
4970, ¶ 12.
[*P19] While appellate review includes the responsibility to
consider the credibility of witnesses and weight given to the
evidence, "these issues are primarily matters for the trier of fact to
decide since the trier of fact is in the best position to judge the
credibility of the witnesses and the weight to be given the
evidence." State v. Walker, 12th Dist. No. CA2006-04-085, 2007
Ohio 911, ¶ 26. Therefore, an appellate court will overturn a
conviction due to the manifest weight of the evidence only in
extraordinary circumstances to correct a manifest miscarriage of
justice, and only when the evidence presented at trial weighs
heavily in favor of acquittal. Thompkins, 78 Ohio St.3d at 387.
[*P20] Because sufficiency is required to take a case to the jury, a
finding that a conviction is supported by the weight of the evidence
must necessarily include a finding of sufficiency. Thus, a
determination that a conviction is supported by the weight of the
evidence will also be dispositive of the issue of sufficiency."
Wilson, 2007 Ohio 2298 at ¶ 35, citing State v. Lombardi, 9th Dist.
No. 22435, 2005 Ohio 4942, fn. 4.
[*P21] Jones was charged with and convicted of aggravated
murder in violation of R.C. 2903.01(A), which provides, "no
person shall purposely, and with prior calculation and design,
10

cause the death of another or the unlawful termination of another's
pregnancy." According to R.C. 2901.22(A), "a person acts
purposely when it is his specific intention to cause a certain result
* * *."
[*P22] "There is no bright-line test to determine whether prior
calculation and design are present, and 'each case must be decided
on a case-by-case basis.'" State v. Adams, 12th Dist. No. CA200911-293, 2011 Ohio 536, ¶ 23 quoting State v. Braden, 98 Ohio
St.3d 354, 2003 Ohio 1325, ¶ 61, 785 N.E.2d 439.
Where evidence adduced at trial reveals the presence of sufficient
time and opportunity for the planning of an act of homicide to
constitute prior calculation, and the circumstances surrounding the
homicide show a scheme designed to implement the calculated
decision to kill, a finding by the trier of fact of prior calculation
and design is justified.
Braden at ¶ 61, quoting State v. Cotton, 56 Ohio St.2d 8, 381
N.E.2d 190 (1978), paragraph three of the syllabus.
[*P23] Some factors to be considered in determining the existence
of prior calculation and design include:
(1) whether the accused and victim knew each other, and,
if so, whether their relationship was strained, (2) whether
the accused gave thought or preparation to choosing a
murder weapon or murder site, and (3) whether the act
was drawn out as opposed to being an almost
instantaneous eruption of events. A finding that these
circumstances existed supports the conclusion that the
crimes were committed with prior calculation and design.
Braden at ¶ 62, citing State v. Taylor, 78 Ohio St.3d 15, 19, 1997
Ohio 243, 676 N.E.2d 82 (1997).
[*P24] During trial, the jury heard evidence that Jones killed his
father with prior calculation and design. The state presented
evidence that reveals the presence of sufficient time and
opportunity for the planning of the murder. The state introduced
recorded telephone calls from Jones and Richard which
demonstrated that hours before the homicide, Jones was already
planning on killing his father. The recorded phone calls indicated
that Jones, himself, stated, "I'm gonna kill him," "I will kill my
father because I can, the prick," and "He's a dead man." Jones can
also be heard stating that Richard was "a dead man" and that "he
needs to die. We'd all be better off * * *." Richard's phone calls to
11

police also indicate that Jones called Richard multiple times in
order to threaten his life, and to express Jones' intention to kill
Richard. The threats were so real to Richard that he asked police to
check on his house during the night, in fear for his life. These
statements made hours before the incident indicate that Jones was
planning his father's death hours before the murder actually
occurred.
[*P25] The jury also heard evidence that the circumstances
surrounding the homicide show a scheme designed to implement
Jones' calculated decision to kill Richard. The state presented
evidence that Jones kicked in the door to Richard's house and
entered the home. Once inside, he straight-armed and pushed
Richard, and then engaged in several actions that led to Richard's
death. The coroner testified that Richard died from a combination
of injuries including blunt force trauma, manual strangulation, and
stab wounds to the neck. The jury heard evidence that Jones struck
Richard in the head and that he then began strangling his father.
Jones then stabbed Richard in the neck twice, and then kicked
Richard's chest/neck/face area with this foot. [FN1 Richard's jaw
was fractured, and the jaw bone penetrated into the oral cavity and
through the skin so that his jaw bone was sticking into his mouth.
The corner concluded that there was "considerable force applied to
his jaw," and indicated that it was possible the force was consistent
with being "stomped" on.]
[*P26] The coroner also testified that Richard was still alive for
"a while" after the initial attack began, as evidenced by the
presence of blood in his heart and fluid in his lungs. The coroner
indicated that the likely chain of events started with Jones striking
Richard on the face, then strangling him. When Richard was near
death, but still alive, Jones stabbed him and kicked him in the chest
and face area.
[*P27] The distinct actions that led to Richard's death required
separate thought processes on Jones' part to first violently hit
Richard in the head, then strangle him, then stab him, then stomp
on his chest, neck and face. In between each action, Jones took
additional time to contemplate his next move and decide upon the
next deadly action in order to carry out his calculated plan to kill
his father. Simply stated, this was not a "spur-of-the-moment
accidental" death. See State v. Goodwin, 84 Ohio St.3d 331, 344,
1999 Ohio 356, 703 N.E.2d 1251 (1999) (finding prior calculation
and design because the murder was not a "spur-of-the-moment
accidental" death where a robber pointed his gun at a store cashier

12

and then decided to pull the trigger once the cashier's hands were
above his head).
[*P28] Moreover, we find that the factors listed by the Ohio
Supreme Court in Braden as being indicative of prior calculation
and design are also met. First, Jones and Richard obviously knew
each other, and their relationship was heavily strained. Jones
presented evidence at trial that Richard was an abusive father who
had a history of violence toward family members. The jury also
heard evidence that Richard continually berated Jones for Jones'
alcohol consumption, especially on the day of the murder. The
record also contains a plethora of evidence that Jones carried an
on-going and deep-seeded anger toward his father, and that
Richard demonstrated equal contempt for his son. [FN2 The record
contains evidence that Richard made several death threats to Jones
in the past, and on at least one occasion, ran over Jones with his
car.]
[*P29] Secondly, the record indicates that Jones gave thought and
preparation to choosing a murder weapon and murder site. The
jury heard evidence that Jones waited until nearly 11:00 p.m. to
force entry in the house. He then hit his father, manually strangled
his father, and then used a knife to stab Richard in the neck.
[*P30] Lastly and as previously discussed, the murder was drawn
out as opposed to being an almost instantaneous eruption of events.
The coroner testified that Richard's death was not instantaneous,
and was instead, drawn out over a period of time, and based upon a
chain of events that included strangulation, stab wounds, and
stomping.
[*P31] It is readily apparent from these facts that sufficient time,
reflection, and acts were involved to establish that Jones purposely
and with prior calculation and design, caused the death of his
father. Having found that Jones' conviction for aggravated murder
is supported by sufficient evidence and is not against the manifest
weight of the evidence, his first and second assignments of error
are overruled.
State v. Jones, supra.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
13

United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 100
(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002);
Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
In his lengthy argument about why there is insufficient evidence (Reply, ECF No. 10,
PageID 1194-1208), Jones never denies he killed his father, although he makes some argument
that his father could have died of a subarchnoidal hemorrhage after he was hit, kicked, strangled,
and stabbed.

He does not deny the strangulation and stabbing, although he cavils at the word

“stomping,” but the evidence established that the victim was kicked hard enough in the jaw to
fracture the mandible and drive the bone into the oral cavity. As in many murder situations, there
is only one living eyewitness who has every interest in telling the tale to suit his situation. Nor
does Jones deny that in recorded telephone conversations earlier in the day, he had said he was
going to kill his father. The evidence is manifestly sufficient to show prior calculation and
design. The First Ground for Relief should be dismissed with prejudice.

Ground Two: Conviction Against the Manifest Weight of the Evidence

In his Second Ground for Relief, Jones argues his conviction is against the manifest
weight of the evidence. Federal habeas corpus is available only to correct federal constitutional
violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497
U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida, 463 U.S. 939
(1983). A weight of the evidence claim is not a federal constitutional claim. Johnson v.
Havener, 534 F.2d 1232 (6th Cir. 1986).

14

Ground Three: Failure to Provide Jury Instructions

As noted by Respondent, not giving an instruction on a lesser included offense in a noncapital case does not present a constitutional issue. McMullan v. Booker, 761 F.3d 662, 672 (6th
Cir. 2014); Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir. 1990) (en banc); accord, Scott v. Elo,
302 F.3d 598, 606 (6th Cir. 2002).
Ground Three should therefore be dismissed.

Ground Four: Improper Admission of Hearsay

In his Fourth Ground for Relief, Jones complains that the trial court erred in admitting
prejudicial hearsay evidence. Jones argued this claim on direct appeal as a hearsay assignment
of error and the Twelfth District decided it on that basis. State v. Jones, supra, ¶¶ 51-64.
Whether or not evidence qualifies for admission under exceptions to the hearsay rule is purely a
question of state evidence law, not federal constitutional law.
As part of this Ground for Relief, Jones argues that the trial court’s admission of this
evidence deprived him of his constitutional right to confront the witnesses against him. The
Twelfth District ruled on this claim as follows:
[*P65] Jones also argues that his Sixth Amendment right to
confront the witnesses against him was violated because the trial
court admitted the recordings without his being able to crossexamine Richard. During trial, and over Jones' vigorous objections,
the trial court admitted several of the phone calls, but also found a
few tracks inadmissible based on their testimonial nature. We find
no abuse of discretion in the trial court's decision to admit the
phone calls as it did.
[*P66] The Sixth Amendment to the United States Constitution
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preserves the right of a criminal defendant "to be confronted with
the witnesses against him." Therefore, the Confrontation Clause
bars "admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination."
Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158
L. Ed. 2d 177 (2004). "The key issue is what constitutes a
testimonial statement: 'It is the testimonial character of the
statement that separates it from other hearsay that, while subject to
traditional limitations upon hearsay evidence, is not subject to the
Confrontation Clause.'" State v. Hood, Slip Opinion No. 135 Ohio
St. 3d 137, 2012 Ohio 6208, ¶ 33, 984 N.E.2d 1057, quoting Davis
v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L. Ed. 2d
224 (2006).
[*P67] The United States Supreme Court has not defined what
constitutes a "testimonial" statement, but it has given examples of
"formulations" for testimonial statements such as:
all ex parte in-court testimony or its functional equivalent;
extrajudicial statements contained in formalized
testimonial materials (e.g., affidavits, depositions, prior
testimony, confessions); and a class of statements that are
made under circumstances which would lead an objective
witness reasonably to believe that the statement would be
available for use at a later trial.
[*P68] State v. Muttart, 116 Ohio St.3d 5, 2007 Ohio 5267, ¶ 60,
875 N.E.2d 944, citing Crawford at 51-52. In determining whether
statements implicate Confrontation Clause analysis, courts are to
view them objectively and should focus on the expectation of the
declarant at the time of making the statement. State v. Stahl, 111
Ohio St.3d 186, 2006 Ohio 5482, ¶ 22, 855 N.E.2d 834. "When a
court must determine whether the Confrontation Clause bars the
admission of a statement at trial, it should determine the 'primary
purpose of the interrogation' by objectively evaluating the
statements and actions of the parties to the encounter, in light of
the circumstances in which the interrogation occurs." Michigan v.
Bryant, U.S. , 131 S.Ct. 1143, 1162, 179 L. Ed. 2d 93 (2011).
[*P69] After reviewing the record, we find that Richard's
statements during his phone calls to police were not testimonial in
nature. The statements were not made in the context of in-court
testimony or its equivalent. There is no suggestion that they were
elicited as part of a police investigation, offered in a sworn
statement with intention of preserving the statement for trial, or
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they were a pretext or façade for state action as is discussed by the
court in Muttart, 116 Ohio St. 3d 5, 2007 Ohio 5267 at ¶ 61, 875
N.E.2d 944. Instead, Richard made the phone calls to elicit police
assistance to meet an ongoing emergency.
[*P70] The United States Supreme Court has held that,
"statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency." Davis v. Washington, 547 U.S.
813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). In so holding,
the court reasoned that a call to police reporting an emergency
situation "is ordinarily not designed primarily to 'establish or
prove' some past fact, but to describe current circumstances
requiring police assistance. * * * No 'witness' goes into court to
proclaim an emergency and seek help." Id. at 827-828.
[*P71] The Court further explained this reasoning in Michigan v.
Bryant, 131 S.Ct. at 1157:
As our recent Confrontation Clause cases have explained,
the existence of an "ongoing emergency" at the time of an
encounter between an individual and the police is among
the most important circumstances informing the "primary
purpose" of an interrogation. The existence of an ongoing
emergency is relevant to determining the primary purpose
of the interrogation because an emergency focuses the
participants on something other than "prov[ing] past
events potentially relevant to later criminal prosecution."
Rather, it focuses them on "end[ing] a threatening
situation." Implicit in Davis is the idea that because the
prospect of fabrication in statements given for the primary
purpose of resolving that emergency is presumably
significantly diminished, the Confrontation Clause does
not require such statements to be subject to the crucible of
cross-examination.
This logic is not unlike that justifying the excited
utterance exception in hearsay law. Statements "relating
to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or
condition," are considered reliable because the declarant,
in the excitement, presumably cannot form a falsehood. *
* * An ongoing emergency has a similar effect of
focusing an individual's attention on responding to the
emergency.
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(Internal citations and footnote omitted.)
[*P72] The record is clear that Richard made his phone calls in an
effort to secure police assistance because of his bona fide belief
that Jones was going to kill him. While Jones argues that the calls
were not seeking emergency assistance because there was not an
emergency in progress and there was no immediate threat, we
disagree. Each time Richard called police, it was either
immediately after or, sometimes during, the time that Jones was
threatening his life.
[*P73] During the first call, Richard stated his desire to have
police come to his house because of the argument that had
occurred at Rally's, and because of his fear of Jones. Richard
specifically asked that Jones not be arrested because he feared that
Jones would come to his house during the middle of the night and
vandalize his car. Richard also stated that Jones, "right now he's
walking this way," and that "he's on his way walking toward my
house." During the second call, Richard stated that he was calling
again "because my son is threatening to kill me" and that "my son's
been calling me up threatening me * * * what should I do about
that?" The third call was deemed not admissible. The fourth call
was made after Jones called and threatened Richard's life again.
Richard asked police to drive by his house during the night, and
also stated that he was "scared to go to sleep" because of Jones
statement that he "may not wake up," which Richard told police he
believed was a threat on his life. Richard specifically stated that he
called police because of his fear and that "I don't know what else to
do." In the fifth call, Richard tells dispatch that Jones "just called"
and told Richard that he was a "dead man." Richard then described
Jones to dispatch and stated that Jones was "on foot" walking
around, so that police could be looking for Jones and stop him
before he harmed Richard. Richard also stated, "he's keeping me
from going to sleep" because of the threats and his fear that he
would not live through the night. In the sixth call, Richard told
police dispatch that Jones had called again, and "I think I can tell
you where he might be at," indicating where Jones was known to
stay. The seventh, and final call, contained no words, only sounds
of the scuffle.
[*P74] In each of the first six calls, Richard is asking the police
for help and protection and providing them with information
regarding Jones' threats so that police could respond accordingly.
Richard was not trying to prove past events potentially relevant to
a later criminal prosecution of Jones, but was focusing his
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statements on ending the threatening situation of Jones' death
threats. In fact, Richard specifically asked police not to arrest Jones
because he feared Jones' retribution. Therefore, it is abundantly
clear that Richard was not anticipating that his statement would be
used to support any future criminal prosecution of Jones, but rather
was seeking police help to ensure his safety throughout the night.
[*P75] As previously mentioned, the trial court listened to the
phone calls and determined that the admissible calls were nontestimonial in nature, whereas the portions of the calls that relayed
details not necessary to help with the ongoing emergency were
testimonial in nature and therefore inadmissible. The trial court's
analysis was well-reasoned and comports with the precedent set
forth by the United States and Ohio Supreme Courts regarding
proper Confrontation Clause jurisprudence.
State v. Jones, supra.
This decision is neither contrary to nor an objectively unreasonable application of the
relevant Supreme Court precedent, particularly Michigan v. Bryant, supra. As such it is entitled
to deference by this Court.

Ground Five: Ineffective Assistance of Trial Counsel

In his Fifth Ground for Relief, Jones claims he received ineffective assistance of trial
counsel when his attorney did not “sustain a continuous contemporaneous objection to State’s
Ex. 46.” The court of appeals concluded on Jones’ Assignment of Error Five that his trial
attorney had sufficiently objected to preserve the hearsay issue for appeal. State v. Jones, supra,
¶ 56. Because Jones suffered no prejudice from any perceived failure of his trial attorney in this
regard, he cannot established ineffective assistance of trial counsel. Strickland v. Washington,
466 U. S. 668 (1984).

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Ground Six: Prosecutorial Misconduct

In his Sixth Ground for Relief, Jones claims the prosecutor at trial engaged in numerous
instances of misconduct.
Respondent asserts this claim is procedurally defaulted because it was only raised for the
first time as part of Jones’ 26(B) Application. Jones does not offer any dispute of that claim in
his Reply.
It is well established that a 26(B) Application to reopen a direct appeal serves only to
raise claims of ineffective assistance of appellate counsel and does not preserve underlying
claims for decision on the merits. Davie v. Mitchell, 547 F.3d 297 (6th Cir. 2008)(Rogers, J.),
and Garner v. Mitchell, 502 F.3d 394 (6th Cir. 2007)(Moore, J.), both citing White v. Mitchell,
431 F.3d 517, 526 (6th Cir. 2005); Moore v. Mitchell, 531 F. Supp. 2d 845, 862 (S.D. Ohio
2008)(Dlott, J.); see also Bailey v. Nagle, 172 F.3d 1299, 1309 n. 8 (11th Cir. 1999); and
Levasseur v. Pepe, 70 F.3d 187, 191-92 (1st Cir. 1995).
Because Jones failed to raise this prosecutorial misconduct claim on direct appeal, it is
barred by that procedural default.

Ground Seven: Ineffective Assistance of Trial Counsel

In his Seventh Ground for Relief, Jones asserts his trial attorney was ineffective in a
number of different ways. Jones first presented these claims as part of his 26(B) Application.
On that basis, Respondent asserts they are procedurally defaulted in the same way as the Sixth
Ground for Relief (Return, ECF No. 8, PageID 1147-49). Jones makes no response in his Reply

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and Respondent’s position is well taken for the same reason as Ground Six.

Ground Eight: Abuse of Trial Court Discretion

As with Grounds Six and Seven, this Ground for Relief is procedurally defaulted because
it was never presented prior to the 26(B) Application. Furthermore, a claim of abuse of trial
court discretion does not state a claim cognizable under the federal Constitution. Sinistaj v. Burt,
66 F.3d 804 (6th Cir. 1995).

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein
be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and therefore should not be permitted to
proceed in forma pauperis.

December 18, 2015.
s/ Michael R. Merz
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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