Jones v. Warden, Noble Correctional Institution
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.)
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
JAMES J. JONES,
Case No. 2:20-cv-5504
Judge Michaei H. Watson
Magistrate Judge Merz
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.
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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