Jordan v. Warden, Franklin Medical Center

Filing 14

REPORT AND RECOMMENDATIONS re 9 MOTION to Dismiss for Lack of Exhaustion filed by Warden, Franklin Medical Center. It is RECOMMENDED that Respondents Motion to Dismiss for Lack of Exhaustion (ECF No. 9 ) be GRANTED and that this acti on be dismissed, without prejudice, for failure to exhaust all claims asserted in the Petition. Objections to R&R due by 9/26/2016. Signed by Magistrate Judge Norah McCann King on 9/8/2016. (pes)(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
EASTERN DIVISION

JASON R. JORDAN,
Petitioner,
Civil Action 2:16-cv-0091
Chief Judge Sargus
Magistrate Judge King

vs.

WARDEN, FRANKLIN MEDICAL CENTER,
Respondent.

REPORT AND RECOMMENDATION

This is an action for a writ of habeas corpus under 28 U.S.C. §
2254. This matter is now before the Court on the Petition (ECF No. 1),
and on Respondent’s Motion to Dismiss for Lack of Exhaustion (ECF No.
9)(“Motion

to

Dismiss”).

Although

Petitioner

was

granted

an

opportunity to respond to the Motion to Dismiss, see Order (ECF No.
10); Order (ECF No. 12), the Motion to Dismiss is unopposed. For the
following reasons, the Court recommends that the Motion to Dismiss be
granted.
Before a federal habeas court may grant habeas corpus relief
under 28 U.S.C. § 2254, a state prisoner must exhaust his available
state court remedies. 28 U.S.C. § 2254(d)(1); Castille v. Peoples, 489
U.S. 346, 349 (1989); Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir.
1993). If the petitioner has the right under state law to raise a
claim by any available procedure, he has not exhausted that claim.
U.S.C. § 2254 (b), (c).

28

Moreover, a constitutional claim for relief

1

must be presented to the state’s highest court in order to satisfy the
exhaustion requirement.
Ordinarily,
unexhausted

a

claim

O’Sullivan v. Boerckel, 526 U.S. 838 (1999).

habeas

must

be

corpus

case

dismissed,

Rose

that
v.

presents
Lundy,

455

even
U.S.

one
509

(1982), and a dismissal for failure to exhaust is without prejudice to
the institution of a new action once all claims have been exhausted.
However, recognizing that the statute of limitations may preclude that
new filing, the United States Supreme Court has held that a federal
court may, under some circumstances, stay an action presenting both
exhausted and unexhausted claims pending exhaustion of all claims.
Rhines v. Weber, 544 U.S. 269 (2005); see also Griffin v. Rogers, 308
F.3d 647, 652 (6th Cir. 2002).
The

state

court

of

appeals

summarized

the

facts

underlying

Petitioner’s criminal case as follows:
{¶ 2} On June 25, 2013, the state indicted defendant on one
count of robbery, a felony of the second degree, and one count
of robbery, a felony of the third degree. The events giving rise
to the indictment occurred on June 10, 2013.
{¶ 3} On June 10, 2013, Zachary West was working as a mail
carrier for the United States Postal Service. He wore his
mail carrier’s uniform and carried his mail bag on his shoulder.
At around noon that day, West was delivering mail to homes
and businesses located around the 2600 block of North High
Street, in the Clintonville area of Columbus, Ohio. West was
walking on foot delivering mail and had almost completed his
route. Before returning to his vehicle, he had to “go down a
back alley towards another back alley to do a business drop in
their back of the business.” (Tr. 73.) It was a rainy day
and there were few people outdoors.
{¶ 4} As West turned the corner to go from one alley to the
next, defendant confronted him. West stated that defendant
initially was four or five feet away from him, but that defendant

2

then approached West, coming close enough to West that the men
were “face to face.” (Tr. 75.) Defendant reached for West’s
mail bag, “grabbed the bag, and said, ‘Give me the bag.’”
(Tr. 75.) West told defendant “‘No,’” and defendant then
struck West in the face and ran off. (Tr. 75.)
{¶ 5} After the altercation, West went back to his vehicle
and called his manager to report the incident. West’s manager
said that he would call the police, and told West that the
olice would meet West at his vehicle. When the police arrived,
West spoke to Detective Kim Atwood of the Columbus Police
Department. Detective Atwood noted that when she encountered
West he had “a small laceration below his right eye” and his
“cheek was a little puffy,” injuries which West attributed to
defendant striking him. (Tr. 39.) West provided Detective
Atwood with a description of the individual who struck him.
West described the suspect as a short, black male, in his mid
to late thirties, with an unruly Afro and a long goatee.
Detective Atwood placed West’s description of the suspect into
her report, and provided the description to other uniformed
officers in the area.
{¶ 6} When Officer Daniel Brown began his shift later that
day, he saw Detective Atwood’s description of the robbery
suspect. Officer Brown explained that defendant came to his
mind as a potential suspect, as Officer Brown had come into
contact with defendant on other occasions, and knew that
defendant’s features matched Detective Atwood’s description
of the suspect. Accordingly, the police compiled a photo
array which included defendant’s photograph, and a blind
administrator who was unfamiliar with the case presented
the photo array to West the following day. The blind
administrator told West that if he saw the person who had
assaulted him in the photo array to circle that person’s
photo, but emphasized that West “did not have to circle
anybody” if he was uncertain. (Tr. 87.) West selected
defendant’s photo from the array. West testified at trial
that, as a result of this incident, he resigned from the
post office because he “felt [he] was unsafe” at his job. (Tr.
91.)
{¶ 7} The jury heard the above noted evidence, and found
defendant guilty on both counts of robbery charged in the
indictment. At the sentencing hearing, the court determined that
the third degree felony robbery count merged into the second
degree felony robbery count, and sentenced defendant to a fouryear term of imprisonment on the second degree felony robbery
conviction.

3

Ohio v. Jordan, No. 14AP-01 (Ohio Ct. App. 10th Dist. July 22, 2014),
Decision, Exhibit 6 attached to Motion to Dismiss, PAGEID# 93-94.
Petitioner, assisted by different counsel, filed a timely appeal
from the December 4, 2013, judgment of conviction, raising the
following assignments of error:
I.

THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE
PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND
ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION BY
FINDING HIM GUILTY OF ROBBERY AS THAT VERDICT WAS NOT
SUPPORTED BY SUFFICIENT EVIDENCE AND WAS ALSO AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.

II.

APPELLANT WAS DENIED OF [sic] HIS RIGHT TO BE PRESENT
AND TO THE PRESENCE AND ASSISTANCE OF HIS COUNSEL
DURING A CRITICAL STAGE OF HIS JURY TRIAL, AND HIS
RIGHT TO DUE PROCESS AND A FUNDAMENTALLY FAIR JURY
TRIAL, AS REQUIRED BY THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE ONE SECTIONS FIVE, TEN AND SIXTEEN OF THE OHIO
CONSTITUTION AND OHIO RULE OF CRIMINAL PROCEDURE
43(A).

Brief of Appellant, Exhibit 4 attached to Motion to Dismiss, PAGEID#
57. The state court of appeals affirmed the judgment of the trial
court on July 22, 2014. Ohio v. Jordan, No. 14AP-01 (Ohio Ct. App. 10th
Dist. July 22, 2014). Petitioner, acting pro se, filed a timely notice
of appeal from that decision to the Ohio Supreme Court on September 4,
2014. Notice of Appeal of Appellant Jason R. Jordan, Exhibit 7
attached to Motion to Dismiss, PAGEID# 100-02. Petitioner raised the
following issues for consideration:
I.

The trial court erred, and deprived appellant of due
process of law as guaranteed by the fourteenth
amendment to the United States Constitution, and
article one section [sic] of the Ohio Constitution by
finding him (me) guilty of robbery as that verdict was

4

not supported by sufficient evidence and was also
against the manifest weight of the evidence.
II.

Appellant was denied of [sic] his right to be present
and to the presence and assistance of his counsel
during a critical stage of his jury trial . . . and
his right to due process, and a fundamentally fair
jury trial as required by the Fifth, Sixth, and
Fourteenth amendments to the United States
Constitution, and ariticle [sic] one, Section five,
ten, and sixteen of the Ohio Constitution, and Ohio
rule of Criminal procedure 43(A).

Memorandum in Support of Jurisdiction of Appellant Jason R. Jordan
attached as Exhibit 8 to Motion to Dismiss, PAGEID# 108. On January
28, 2015, the Ohio Supreme Court declined to accept jurisdiction of
the appeal pursuant to S.Ct.Prac.R. 7.08(B)(4). State of Ohio v.
Jordan, Case No. 2014-1543 (Ohio Jan. 28, 2015), Entry attached as
Exhibit 10 to Motion to Dismiss, PAGEID# 125.
On May 13, 2014, and while his direct appeal was still pending,
Petitioner, acting pro se, filed in the trial court a petition to
vacate or set aside the judgment of conviction pursuant to O.R.C. §
2953.21, alleging the following:
Attorney did not do her job. The trial attorney did not
object to anything, nor ask about DNA, camera surveillance;
did not question postal supervisor.
No witnesses. Why didn’t the FCPD check traffic light
cameras, ATMs, stores, restaurants, parking lot
surveillance, any footage in that area that time of day. It
is their job to find out the truth (Due Process violation).
Petition to Vacate or Set Aside Judgment of Conviction or Sentence,
attached as Exhibit 11 to Motion to Dismiss, PAGEID# 127-28.
Petitioner’s motion for post-conviction relief remains pending in the

5

state trial court. See Docket attached as Exhibit 13 to Motion to
Dismiss.
The Petition alleges the following grounds for habeas corpus
relief:
GROUND ONE: Sufficiency and manifest weight (no evidence).
Supporting Facts: Inconsistencies in the description of the
accused (me) before and during trial; no DNA test taken off
the postal bag for positive ID; no skin graph done to
laceration on victim; no witnesses; no one saw or heard
anything; no one knocked on doors; checked cameras on
traffic lights, ATM machines, stores, restaurants, business
parking lot surveillance which are shown in Exhibits P-3
and P-4 that the Columbus, Ohio division of police robbery
squad did not investigate.
GROUND TWO: Right to be present at all stages of the
proceedings between trial judge and jury.
Supporting Facts: Counsel and the trial court agreed to
answer questions without objection from either side, which
I was not present; the trial court provided the jury with
instructions or substantive information without my presence
and prejudice should be presumed, and a new trial should be
ordered. I was denied my right to due process.
GROUND THREE: Ineffective counsel.
Supporting Facts: The jury sent 3 questions to the trial
court and the counsel and trial court discussed and agreed
to answer each question without objection from either side.
My court appointed attorney did not ask about DNA on postal
bag. Why didn’t Franklin County Police Department robbery
squad check traffic light camera, ATMs, stores,
restaurants, parking lot surveillance from surrounding
businesses as shown on Exhibits P-3, P-4, to do their job
and find any footage in the area that would have proved my
innocence.
Petition.
Although the first two claims presented in the Petition were
presented to the Ohio Supreme Court, and are therefore exhausted,

6

Petitioner’s third claim, which is the subject of Petitioner’s postconviction action that remains pending in the trial court, is
unexhausted.

The Petition is therefore a “mixed” petition.

Respondent asks either that the Petition be dismissed or, in the
alternative, that the case be stayed pending exhaustion of
Petitioner’s third claim. Motion to Dismiss. This Court concludes that
the action should be dismissed, without prejudice to the filing of a
new action upon complete exhaustion of Petitioner’s third claim.
As noted supra, a “mixed” petition, such as the Petition filed in
this case, must ordinarily be dismissed without prejudice to re-filing
upon exhaustion of all asserted claims. See Rose v. Lundy, 455 U.S.
509. It is only when the statute of limitations may foreclose the refiled action that a stay of proceedings may be warranted. Rhines, 544
U.S. 269. Dismissal of this action pending exhaustion of Petitioner’s
third claim will not present a statute of limitations problem.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
imposes a one-year statute of limitations on the filing of habeas
corpus petitions. 28 U.S.C. § 2244(d)(1). However, the clock does not
run during the time that a properly filed post-conviction petition
pends in the state courts. 28 U.S.C. § 2244(d)(2)(“The time during
which a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation under
this subsection.”).

7

Petitioner’s post-conviction action, which remains pending in the
state trial court, was filed during the pendency of Petitioner’s
direct appeal and Respondent concedes that that action was timely and
properly filed. Motion to Dismiss, PAGEID# 42. See O.R.C. §
2953.21(A)(2).1 Thus, the statute of limitations established by 28
U.S.C. § 2244(d)(1) will not begin to run until Petitioner’s postconviction action, and any appeal therefrom, has been resolved.2 It is
at that point that Petitioner’s third claim will be exhausted and
Petitioner may properly file a new habeas corpus action in this Court.
Under these circumstances, the Court concludes that dismissal of the
action, without prejudice, is appropriate.
It is therefore RECOMMENDED that Respondent’s Motion to Dismiss
for Lack of Exhaustion (ECF No. 9) be GRANTED and that this action be
dismissed, without prejudice, for failure to exhaust all claims
asserted in the Petition.

If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,

1

O.R.C. § 2953.21(A)(2) was amended effective March 23, 2015 to provide
that a post-conviction petition, to be timely, must “be filed no later than
three hundred sixty-five days after the date on which the trial transcript is
filed in the court of appeals in the direct appeal of the judgment of
conviction. . . .” Prior to that time, a post-conviction action was timely if
filed within 180 days from the date that the criminal trial transcript was
filed in connection with the direct appeal. See Vroman v. Brigano, 346 F.3d
598, 602 (6th Cir. 2003).
2

Petitioner remains free, of course, to inquire of the state trial
court as to the status of his post-conviction petition.

8

specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
September 8, 2016

9

to