Jordan v. Warden, Chillicothe Correctional Institution

Filing 11

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition 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 1/12/2017. Signed by Magistrate Judge Michael R. Merz on 12/29/2016. (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
JOSEPH JORDAN,
Petitioner,

:

- vs -

Case No. 1:15-cv-773
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

WARDEN, Chillicothe Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Joseph Jordan, is before the Court
for decision on the merits on the Petition (ECF No. 1) and Traverse (ECF No. 9), the State Court
Record and Return of Writ (ECF No. 6). The reference in the case was recently transferred to
the undersigned to balance the workload among Western Division Magistrate Judges (ECF No.
10).
Jordan pleads the following grounds for relief
GROUND ONE: Trial counsel provided ineffective assistance of
counsel by failing to inform the Petitioner of his possible defenses
of insufficient indictment and venue evidence in violation of his 6th
and 14th amendment rights to the United States Constitution.
Supporting Facts: The indictment had offenses and bill of
particulars had offenses that were not from the charging county
and were not proven beyond a reasonable doubt to be connected to
that charging county. Counsel failed to inform the Petitioner of
this fact before the plea.
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GROUND TWO: Trial counsel provided ineffective assistance of
counsel for failing to request an acquittal after the Petitioner pled
guilty to charges that venue was not proven in violation of the
Petitioner’s 6th and 14th amendment rights to the United States
Constitution.
Supporting Facts: Trial counsel failed to request an acquittal for
the state’s failure to prove venue and to argue double jeopardy
from prosecution for the invalid indictment.
(Petition, ECF No. 1.)

Procedural History

On October 12, 2009, the Warren County Grand Jury indicted Jordan on one count of
trafficking in cocaine in violation of Ohio Revised Code § 2925.03(A)(2)(Count 1); one count of
possession of cocaine in violation of Ohio Revised Code § 2925.11(A)(Count 2); two counts of
aggravated trafficking in drugs in violation of Ohio Revised Code § 2925.03(A)(2) (Counts 3
and 4); two counts of aggravated possession of drugs in violation of Ohio Revised Code §
2925.11(A) (Counts 5 and 6); two counts of possession of criminal tools in violation of Ohio
Revised Code § 2923.24(A)(Count 7 and 8); one count of having weapons while under disability
in violation of

Ohio Revised Code § 2923.13(A)(3) (Count 9); and one count of illegal

manufacture of drugs in violation of Ohio Revised Code § 2925.04(A)(Count 10).
Jordan filed a host of pretrial motions, including a motion to suppress. The trial court
held a hearing and denied the motion to suppress. Following the resolution of the pre-trial
issues, Jordan entered into a negotiated plea agreement, entered a plea of guilty to one third
degree felony charge of trafficking in cocaine, one third degree felony charge of having weapons
under disability, and one second degree felony charge of illegal manufacture of drugs.

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The

State agreed to dismiss the remaining charges. The trial court sentenced Jordan to an aggregate
10-year prison sentence (State Court Record, ECF No. 6-1, PageID No. 94). Thereafter, the trial
court filed an Amended Agreed Order and a Nunc Pro Tunc Agreed Order to correct clerical
errors (State Court Record, ECF No. 6-1, PageID No. 96-98).
On August 29, 2011, Jordan, pro se, filed a motion for leave to file a delayed appeal, a
motion for appointment of counsel, and a notice of appeal in the Court of Appeals of Ohio,
Twelfth Appellate District, and Warren County. The court of appeals denied Jordan’s motion for
leave to file a delayed appeal and dismissed the action with prejudice. Jordan did not appeal to
the Ohio Supreme Court.
On January 13, 2014, Jordan, through new counsel, filed a motion pursuant to Ohio
Crim.R. 32.1 to withdraw his guilty pleas based on his argument of ineffective assistance of
counsel. After briefing, the trial court denied the motion (State Court Record, ECF No. 6-1,
PageID No. 129).
On April 7, 2014, Jordan, through counsel, filed a notice of appeal in the Court of
Appeals of Ohio, Twelfth Appellate District, Warren County and a motion for appellate counsel
to withdraw. The Twelfth District Court of Appeals granted appellate counsel’s request to
withdraw and Jordan filed his appellate brief pro se raising the following assignments of error:
1. Trial counsel provided ineffective assistance of counsel by
failing to inform the Defendant of his possible defenses of
insufficient indictment and venue evidence in violation of his 6th
and 14th Amendments to the United States Constitution and
Article I, Section 10, of the Ohio Constitution.
2. Trial counsel provided ineffective assistance of counsel for
failing to request an acquittal after the Appellant pled guilty to
charges that venue was not proven in violation of the Appellant’s
6th and 14th Amendment rights to the United States Constitution,
and Article I, Section 10, of the Ohio Constitution.

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3. The cumulative effect of the errors violated the 6th and 14th
Amendments to the United States Constitution and the cumulative
effect doctrine.
(Appellant’s Brief, State Court Record, ECF No. 6-1, PageID No. 137.)

The Twelfth District Court of Appeals made the following factual findings:
[*P2] On October 12, 2009, the Warren County Grand Jury
indicted Jordan on ten counts related to his alleged activities in
trafficking in drugs. On April 28, 2010, pursuant to a plea
agreement, Jordan pled guilty to the following five counts (1)
Count 1, trafficking in cocaine in violation of R.C. 2925.03(A)(2),
a third-degree felony; (2) Count 3, aggravated trafficking in drugs
(ecstasy), in violation of R.C. 2925.03(A)(2), a second-degree
felony; (3) Count 5, aggravated trafficking in drugs (methadone) in
violation of R.C. 2925.03(A)(2), a second-degree felony; (4) Count
8, having weapons while under disability in violation of R.C.
2923.13(A)(3), a third-degree felony; and (5) Count 9, illegal
manufacture of drugs, in violation of R.C. 2925.04(A), a seconddegree felony. In exchange for pleading guilty, the remaining five
counts were dismissed. Jordan was sentenced on the same day he
entered his guilty plea. As part of the plea agreement, Jordan
received five years each on Counts 1, 3, 5, and 8, which were to be
served concurrent to one another. Jordan also received five years
on Count 9, which was ordered to be served consecutively to the
other counts. Jordan was therefore sentenced to a total prison term
of ten years, with five years being mandatory.
State v. Jordan, 2015-Ohio-575 (12th Dist. Feb. 17, 2015). On February 17, 2015, the Twelfth
District affirmed the trial court’s decision. Id.
Jordan filed a pro se appeal in the Ohio Supreme Court which declined to accept
jurisdiction pursuant to Ohio S.Ct.Prac. 7.08(B)(4). State v. Jordan, 142 Ohio St.3d 1519 (Ohio
2015).
On October 2, 2015, Jordan, through new counsel, filed a motion for judicial release in
the trial court which the state opposed. On November 13, 2015, the trial court granted Jordan’s
motion to withdraw his motion for judicial release.
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ANALYSIS
Statute of Limitations

The Warden asserts that the Petition should be dismissed with prejudice because it was
untimely filed (Return of Writ, ECF No. 6, PageID 31-38). As the Warden counts the time, it
commenced when Jordan’s conviction became final when no notice of appeal was filed by June
1, 2010. Id. at PageID 32. The statute would then have expired one year later on June 2, 2011,
and Jordan did not file here until December 1, 2015, more than four years later. Id. at PageID
33.
Jordan seeks to excuse his delay by blaming it on ineffective assistance of trial counsel.
He asserts counsel failed to file a timely appeal raising the claims he makes in this habeas corpus
case (Traverse, ECF No. 9, PageID 367). Jordan did not file his Motion for Delayed Appeal
until August 29, 2011, almost fifteen months after his conviction became final (Motion, ECF No.
6-1, PageID 101). In it he claimed he asked his attorney to file an appeal but “counsel failed to
do so.” The Twelfth District did not give a reasoning for its denial, but Jordan’s own Motion
acknowledges that an applicant for delayed appeal must offer a legitimate explanation of (1) why
he did not file a timely notice and (2) why he did not submit the motion for delayed appeal
within a reasonable time after expiration of the time to appeal of right. Id. at PageID 104.
Jordan offers an explanation of why he did not file within thirty days of his conviction’s
becoming final, but he offers no explanation of why he waited another fifteen months to seek a
delayed appeal. Certainly he has shown no abuse of discretion on the part of the Twelfth District
in failing to grant the delayed appeal after that much delay. Indeed he did not appeal that
decision to the Ohio Supreme Court.
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In order to rely on ineffective assistance of trial counsel to excuse a procedural default in
the state courts, a habeas petitioner must exhaust the ineffective assistance of trial counsel claim
in the state courts first. Edwards v. Carpenter, 529 U.S. 446 (2000). That Jordan also has not
done. His claim of ineffective assistance of trial counsel depends on facts outside the record, to
wit, his claim that he told his trial attorney to appeal and the attorney failed to do so. That claim
of ineffective assistance of trial counsel could have been presented to the Ohio courts by way of
a petition for post-conviction relief under Ohio Revised Code § 2953.21, but Jordan has never
filed such a petition and the time for doing so has long since expired.
Jordan relies heavily on the arguments made in his Motion to Withdraw Guilty Plea, filed
January 13, 2014, that trial counsel allowed him to plead guilty to counts arising in Montgomery
and Butler Counties as well as in Warren County (Motion, ECF No. 6-1, PageID 111). His new
counsel on the Motion to Withdraw characterized this as “an absolute constitutional and statutory
defense to prosecution in Warren County.” Id.

While as Jordan notes a motion to withdraw

does not have an absolute time limit for filing, neither does such a filing reopen the federal
statute of limitations for a habeas corpus petition.
Jordan has simply not proved the due diligence necessary to invoke equitable tolling.
Due diligence requires not just acting promptly when a defendant finds out about a possible new
motion or appeal, but acting promptly to find out about the underlying claim. Jordan offers no
explanation for why it took him fifteen months to learn no appeal had been filed or more than
two additional years to learn about the venue argument.
Because Jordan has not met the due diligence requirements for equitable tolling, his
Petition is barred by the statute of limitations.

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Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition 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 29, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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 mail. .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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