Jones v. Warden, Noble Correctional Institution

Filing 32

OPINION and ORDER adopting 28 the Report and Recommendation; denying 27 Motion to Alter Judgment. Signed by Judge Michael H. Watson on 9/7/2021. (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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Case: 2:20-cv-05504-MHW-MRM Doc #: 32 Filed: 09/07/21 Page: 1 of 3 PAGEID #: 511 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION JAMES J. JONES, Petitioner, V. Case No. 2:20-cv-5504 Judge Michaei H. Watson Magistrate Judge Merz WARDEN, Nobie Correctionai Institution, Respondent. OPINION AND ORDER This habeas corpus case is before the Court on Petitioner's Objections, EOF No. 31,to the Magistrate Judge's Report and Recommendations("R&R"), EOF No. 28, recommending denial of Petitioner's Motion to Alter or Amend the Judgment, EOF No. 27. Under Federal Rule of Civil Procedure 72(b)(3), a litigant who objects to a Magistrate Judge's R&R on a dispositive motion, such as a motion under Federal Rule of Civil Procedure 59(e), is entitled to de novo review by a District Judge of those portions of the R&R to which substantial objection is made. The Court has conducted that review, and this Opinion and Order embodies the results. Petitioner expressly agrees with the standard for deciding a Rule 59(e) motion set forth in the R&R. Obj., EOF No. 31, PAGEID # 505. However, he argues the Magistrate Judge's findings of fact are contrary to clear and convincing Case: 2:20-cv-05504-MHW-MRM Doc #: 32 Filed: 09/07/21 Page: 2 of 3 PAGEID #: 512 evidence. Id. at 506. In particular, he objects to the Magistrate Judge's finding that the Tenth District Court of Appeals held Petitioner's First Ground for Reliefineffective assistance of trial counsel for failure to file a motion to suppress—could have been raised on direct appeal. ObJ., EOF No. 31, PAGEID # 506(citing R&R, EOF No. 28 at PAGEID # 500). In fact, Petitioner argues, the Magistrate Judge's finding is contrary to this Court's own finding in the decision on the merits. Id. at PAGEID # 506(citing Opinion and Order, EOF 25 at PAGEID # 483). Petitioner misunderstands this Court's holding in the Opinion on the merits. The Court and the Magistrate Judge agree, and have agreed throughout, that Petitioner could not have raised on direct appeal the asserted deficiencies in the grounds for the searches. The reason he could not was that his trial attorney had made no record. But his claim that his trial attorney provided ineffective assistance when she did not make that record was available on direct appeal. Therefore, as the Tenth District, the Magistrate Judge, and the Court have all held. Petitioner procedurally defaulted on this claim when he did not file a timely notice of appeal. Petitioner next claims the Magistrate Judge erred in finding Petitioner knew of the "underlying discrepancies in the searches" at the time he pleaded guilty. ObJ., ECF No. 31 at PAGEID # 507 (citing R&R, ECF No. 28 at PAGEID # 500). What the Magistrate Judge actually wrote is that "[a]t the time he pleaded guilty, Jones knew of the circumstances under which evidence against him had been obtained. Id. As Jones has repeatedly stated in the course of these proceedings and states again in his current Objections, the first search warrant was based on Case: 2:20-cv-05504-MHW-MRM Doc #: 32 Filed: 09/07/21 Page: 3 of 3 PAGEID #: 513 evidence seized in the warrantless search, and the second search warrant was based on what was seized In executing the first search warrant. The relevant search warrant affidavits certainly were available to Petitioner and his counsel before he pleaded guilty, so It is at least a fair inference that Petitioner knew what was in those affidavits. As the R&R points out, the fact that Petitioner may not have known of the decision in United States v. Townsend, 394 F. Supp 736 (E.D. Mich. 1975), before pleading guilty is immaterial. Petitioner's theory based on Townsend is without merit, but even if it were on point, the fact that a person pleading guilty is not aware of a district court decision in another district which he later argues applies to his case does not render his plea involuntary. Petitioner continues to complain that neither this Court nor the state courts have ever dealt with the "underlying deficiencies" in the searches. That is because Petitioner procedurally defaulted in presenting those claims to the state courts. "[A] federal court may not review federal claims that were procedurally defaulted in state courts." Theriot v. Vashaw, 982 F.3d 999(6th Cir. 2020)(citing Maslonka V. Hoffner, 900 F.3d 269, 276(6th Cir. 2018)). Based on the foregoing analysis. Petitioner's Objections, ECF No. 31, are OVERRULED, and the Magistrate Judge's R&R, ECF No. 28, is ADOPTED. Petitioner's Motion to Alter or Amend the Judgment, ECF No. 27, is DENIED. IT IS SO ORDERED. MICHAEL H. WATSON,JUDGE UNITED STATES DISTRICT COURT

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