Jones v. Warden, Lebanon Correctional Institution

Filing 44

ORDER granting 41 Report and Recommendations. The action is hereby Dismissed. Signed by Judge Gregory L Frost on 10/9/14. (kn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LAVELLE JONES,
CASE NO. 2:13-CV-00155
JUDGE GREGORY L. FROST
MAGISTRATE JUDGE KEMP

Petitioner,
v.
WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On September 19, 2014, the Magistrate Judge issued a Report and Recommendation
recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be dismissed.

Petitioner has filed an Objection to the Magistrate Judge’s Report and

Recommendation.

For the reasons that follow, Petitioner’s Objection, Doc. No. 42, is

OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This
action is hereby DISMISSED.
Petitioner asserts that his guilty plea was not knowing, intelligent or voluntary, that he
was denied the effective assistance of trial and appellate counsel, and that he was denied due
process because the trial court refused to grant his motion to withdraw guilty plea.

The

Magistrate Judge recommends dismissal of all of these claims on the merits.
Petitioner objects to the Magistrate Judge’s recommendation of dismissal of his claims
that he was denied effective assistance of counsel and that his guilty plea was not knowing,
intelligent or voluntary.

He complains that the Magistrate Judge improperly relied on his

Traverse for consideration of his claims and failed to recognize his objection(s) to the state
court’s determinations. As to his claim of ineffective assistance of appellate counsel, Petitioner
1

argues that the trial court improperly sentenced him as a repeat violent offender because he
lacked the requisite prior criminal convictions. He contends that the Magistrate Judge erred in
referring to State v. Foster, 109 Ohio St.3d 1 (2006)(excising fact-finding provisions of Ohio’s
sentencing statutes in view of Blakely v. Washington, 542 U.S. 296 (2004)), in resolving this
claim. Petitioner argues that his convictions on aggravated robbery and kidnapping should have
been merged under State v. Winn, 121 Ohio St.3d 413 (Ohio 2009). He objects to the Magistrate
Judge’s conclusion that he waived any challenge to the validity of the basis for his convictions
by entry of his guilty plea and again argues that the record shows that his guilty plea is
constitutionally invalid. Petitioner incorporates all of the arguments he has previously raised in
support of his Objection.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review.

The

Magistrate Judge did not err in referring to Petitioner’s Traverse (see Doc. No. 40) in reviewing
Petitioner’s claims, nor does the record reflect that the Magistrate Judge did not take Petitioner’s
initial § 2254 petition into account in determining whether those claims warrant relief.
Petitioner’s initial filing provides little in the grounds for support of his claims and the Traverse
is helpful in this regard. Further, the form filing of the initial petition does not provide any basis
for relief that has not already been addressed.

Recognizing that Petitioner objects to the

reasonableness of that the state court’s decision denying his claims Petitioner nonetheless has
failed to establish he is entitled to relief under the deferential standard of review required under
the Antiterrorism and Effective Death Penalty Act.

This Court disagrees with Petitioner’s

argument that the Magistrate Judge improperly recommended dismissal of his claim of
ineffective assistance of appellate counsel. The state appellate court, in rejecting Petitioner’s
argument that he did not meet the requirements for sentencing as a repeat violent offender,

2

concluded that this claim failed, in part, because Foster had eliminated the requirement that a
trial court make certain factual findings prior to imposition of an enhanced sentence. Doc. No.
7-3, PageID# 301-02. The Magistrate Judge therefore did not improperly refer to the Ohio
Supreme Court’s decision in Foster in reviewing Petitioner’s claim. Moreover, this Court is
bound by the state court’s interpretation of its own laws. See Miskel v. Karnes, 397 F.3d 446,
453 (6th Cir. 2005) (this court must “defer to a state court's interpretation of its own rules of
evidence and procedure”) (citations omitted); Bennett v. Warden, Lebanon Correctional Inst.,
782 F.Supp.2d 466, 478 (S.D. Ohio March 15, 2011) (“[T]he state courts are the final authority
on state-law issues, the federal habeas court must defer to and is bound by the state court's
rulings on such matters.”) (citing Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“it is not the
province of a federal habeas court to re-examine state-court determinations on state law
questions.”)). For this same reason, Petitioner’s argument that State v. Winn, as opposed to State
v. Johnson, should have applied to determine whether Petitioner’s convictions on robbery and
kidnapping merged, fails.

The state appellate court applied Johnson, decided after it had

released its decision on direct appeal, see Doc. No. 7, PageID# 301-02, and this Court defers to
that decision here. For these reasons, and for the reasons already well detailed in the Magistrate
Judge’s Report and Recommendation, Petitioner has failed to persuade the Court that he is
entitled to relief.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. Petitioner’s
Objection, Doc. No. 42, is OVERRULED. The Report and Recommendation is ADOPTED
and AFFIRMED. This action is hereby DISMISSED.

3

IT IS SO ORDERED.
/s/ Gregory L. Frost_
GREGORY L. FROST
United States District Judge

4