Jones v. Warden, Lebanon Correctional Institution
Filing
13
REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein 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. Objections to R&R due by 11/29/2013. Signed by Magistrate Judge Michael R Merz on 11/12/2013. (kpf1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ROBERT L. JONES,
Case No. 3:13-cv-085
Petitioner,
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
ERNIE MOORE, Warden,
Lebanon Correctional Institution,
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on the Petition (Doc. No. 2), and Answer and
state court record (Doc. Nos. 9, 10), and the Petitioner’s Treverse [sic] (Doc. No. 12). The
pleadings being complete, the case is ripe for decision.
Petitioner pleads three Grounds for Relief:
Ground One: Ineffective Assistance of Trial Counsel (6th
Amendment)
Supporting Facts: Trial counsel failed to try weapons under
disability count to the bench which deprive [sic] petitioner of Fair
Trial. Trial counsel failed to object to Prosecutor’s Misconduct.
Trial counsel failed to file a timely motion to suppress.
Ground Two: Convictions Are Against the Manifest Weight of
the Evidence (6th Amendment)
Supporting Facts: Victim-eyewitness testimony was inconsistant
[sic] and unreliable, not crediable [sic]. All evidence not reliable or
crediable [sic] regarding latent fingerprint evidence, expert
testimony, and cell phone evidence. No evidence connects
petitioner in any way to this issue, only allegations.
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Ground Three: Ineffective Assistance of Appellate Counsel
Supporting Facts: Appellate counsel failed to challenge the
sufficiency of the evidence. The prosecution failed to prove every
element of the charges against the petitioner in regards to all
charges especially the aggravated robbery, aggravated burglary,
weapons under disability, 3-year firearm specification.
(Petition, Doc. No. 2, PageID 25- 28.)
Analysis
Ground One: Ineffective Assistance of Trial Counsel
In his First Ground for Relief, Jones asserts he received ineffective assistance of trial
counsel in that his trial attorney did not waive a jury trial on his weapons under disability charge,
did not object to prosecutorial misconduct, and failed to timely file a motion to suppress. This
claim was raised on direct appeal and decided adversely to Jones. He then failed to file a timely
appeal to the Ohio Supreme Court. On the basis of this failure, Respondent asserts this Ground
for Relief is procedurally defaulted.
The procedural default defense in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted
his federal claims in state court pursuant to an
adequate and independent state procedural rule,
federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default
and actual prejudice as a result of the alleged
violation of federal law; or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
2
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right
he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72
(1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas
petitioner who fails to comply with a State’s rules of procedure waives his right to federal habeas
corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v.
Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963).
Coleman, 501 U.S. at 724.
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir.); Reynolds v. Berry, 146 F.3d 345,
347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v.
Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).
3
Jones responds to the procedural default defense by claiming that the procedural rule in
question – the forty-five day time limit on filing an appeal to the Ohio Supreme Court – is not an
adequate and independent state ground of decision (Treverse [sic], Doc. No. 12, PageID 930).
However, the Sixth Circuit has expressly held that time limit on appeal to Ohio Supreme Court is
an adequate and independent state ground. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir.
2004)(citations omitted). Lack of counsel at that stage, lack of a trial transcript, unfamiliarity
with the English language, and short time for legal research in prison do not establish cause to
excuse this default. Bonilla, citing Murray v. Carrier, 477 U.S. 478, 494-95 (1986). Where a
state court is entirely silent as to its reasons for denying requested relief, as when the Ohio
Supreme Court denies leave to file a delayed appeal by form entry, the federal courts assume that
the state court would have enforced any applicable procedural bar. Bonilla, 370 F.3d at 497,
citing Simpson v. Sparkman, 94 F.3d 199, 203 (6th Cir. 1996).
Petitioner relies on Deitz v. Money, 391 F.3d 804 (6th Cir. 2004), where the Sixth Circuit
held that the rule regarding delayed appeals to the Ohio intermediate court of appeals was not an
adequate and independent state ground of decision. Jones reasons that since the two rules are
identically worded, one cannot be adequate and the other inadequate (Treverse [sic], Doc. No.
12, PageID 931).
That does not necessarily follow:
identically-worded rules might be
differentially enforced by the different courts to which they apply and the Ohio Supreme Court
has more need to restrict the number of delayed appeals it grants because it has many more such
requests than the intermediate courts of appeals.
Moreover, the viability of Deitz as precedent has been undercut by later United States
Supreme Court decisions holding that reservation of discretion in a state court rule to grant
exceptions does not necessarily mean the rule is not adequate and independent. See Beard v.
4
Kindler, 558 U.S. 53, 54 (2009)(“a discretionary rule can serve as an adequate ground to bar
federal habeas review.”); Walker v. Martin, 562 U.S. ___, 131 S. Ct. 1120 (2011)(California rule
requires state habeas to be filed “as promptly as the circumstances allow” and without
“substantial delay.” The discretion this allows the California courts does not mean the rule is not
firmly established and regularly followed.)
The Sixth Circuit has expressly recognized that
Deitz is no longer good law in light of these Supreme Court cases.
Beard and Walker, when read together, permit a state procedural
rule to serve as an adequate state ground for preventing review of a
habeas petition even if the state rule accords courts broad
discretion. As a result of the Supreme Court’s decision in Walker,
Deitz is no longer the controlling law on this issue in our Circuit,
and a petitioner’s failure to follow Ohio Rule of Appellate
Procedure 5(A) can serve as the basis for a procedural default of a
petitioner’s habeas claims.
Stone v. Moore, 644 F.3d 342, 348 (6th Cir. 2011).
Based on this analysis, the First Ground for Relief should be dismissed with prejudice.
Ground Two: Convictions Against the Manifest Weight of the Evidence
In his Second Ground for Relief, Jones contends his convictions are against the manifest
weight of the evidence presented. As Respondent points out, the United States Constitution does
not require that a conviction be supported by the manifest weight of the evidence; a claim that it
is not thus supported does not state a claim for relief which is cognizable in habeas corpus.
Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. §
2254(a); Wilson v. Corcoran, 562 U.S. ___, 131 S. Ct. 13; 178 L. Ed. 2d 276 (2010); Lewis v.
Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida,
5
463 U.S. 939 (1983).
Jones acknowledges that a manifest weight claim is not cognizable in habeas (Treverse
[sic], Doc. No. 12, PageID 932). He counters, however, that a state court holding that a verdict
is supported by “the manifest weight of the evidence implicitly also holds there is sufficient
evidence.” Based on that understanding, Jones asks the Court to construe his Second Ground for
Relief as raising a sufficiency of the evidence claim. The Court is willing to do so without a
formal motion to amend because there is no prejudice to Respondent and an amendment of this
sort would sufficiently relate back to the original claim to avoid any bar of the statute of
limitations.
The Supreme Court has elaborated on the standard of review of state court decisions on
claims later raised in federal habeas corpus:
The Antiterrorism and Effective Death Penalty Act of 1996
modified a federal habeas court's role in reviewing state prisoner
applications in order to prevent federal habeas "retrials" and to
ensure that state-court convictions are given effect to the extent
possible under law. See Williams v. Taylor, 529 U.S. 362, 403404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). To these ends, §
2254(d)(1) provides:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim-"(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States."
As we stated in Williams, § 2254(d)(1)'s "contrary to" and
"unreasonable application" clauses have independent meaning.
529 U.S., at 404-405, 120 S.Ct. 1495. A federal habeas court may
issue the writ under the "contrary to" clause if the state court
applies a rule different from the governing law set forth in our
cases, or if it decides a case differently than we have done on a set
of materially indistinguishable facts. Id., at 405-406, 120 S. Ct.
6
1495.
The court may grant relief under the "unreasonable
application" clause if the state court correctly identifies the
governing legal principle from our decisions but unreasonably
applies it to the facts of the particular case. Id., at 407-408, 120
S.Ct. 1495. The focus of the latter inquiry is on whether the state
court's application of clearly established federal law is objectively
unreasonable, and we stressed in Williams that an unreasonable
application is different from an incorrect one. Id., at 409- 410, 120
S.Ct. 1495. See also id., at 411, 120 S.Ct. 1495 (a federal habeas
court may not issue a writ under the unreasonable application
clause "simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly").
Bell v. Cone, 535 U.S. 685, 693-94 (2002).
AEDPA [the Antiterrorism and Effective Death Penalty Act of
1996] provides that, when a habeas petitioner's claim has been
adjudicated on the merits in state-court proceedings, a federal court
may not grant relief unless the state court's adjudication of the
claim "resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." 28 U.S.C.
§ 2254(d)(1). A state-court decision is contrary to this Court's
clearly established precedents if it applies a rule that contradicts
the governing law set forth in our cases, or if it confronts a set of
facts that is materially indistinguishable from a decision of this
Court but reaches a different result. Williams v. Taylor, supra, at
405; Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d
263 (2002) (per curiam). A state-court decision involves an
unreasonable application of this Court's clearly established
precedents if the state court applies this Court's precedents to the
facts in an objectively unreasonable manner. Williams v. Taylor,
supra, at 405; Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct.
357, 154 L.Ed.2d 279 (2002) (per curiam).
Brown v. Payton, 544 U.S. 133, 134 (2005).
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,
110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
7
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to
groups who might view facts differently than we would. First, as in
all sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the
evidence, re-evaluate the credibility of witnesses, or substitute our
judgment for that of the jury. See United States v. Hilliard, 11 F.3d
618, 620 (6th Cir. 1993). Thus, even though we might have not
voted to convict a defendant had we participated in jury
deliberations, we must uphold the jury verdict if any rational trier
of fact could have found the defendant guilty after resolving all
disputes in favor of the prosecution. Second, even were we to
conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we
must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v.
Palmer, 541 F.3d 652 (6th Cir. 2008).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of
judicial deference. First, on direct appeal, "it is the responsibility of
the jury -- not the court -- to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set
aside the jury's verdict on the ground of insufficient evidence only
if no rational trier of fact could have agreed with the jury."
Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d
311, 313 (2011) (per curiam). And second, on habeas review, "a
federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal
court disagrees with the state court. The federal court instead may
do so only if the state court decision was 'objectively
unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___,
130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
8
Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062, (2012)(per curiam).
A state court finding that the verdict is not against the manifest weight of the evidence
implicitly also holds that there is sufficient evidence. Nash v. Eberlin, 258 Fed. Appx. 761, 2007
U.S. App. LEXIS 29645 (6th Cir. 2007); Ross v. Miller, No. 1:10-cv-1185, 2011 U.S. Dist.
LEXIS 65082 (N.D. Ohio 2011)(White, M.J.); Hughes v. Warden, No. 1:10-cv-091, 2011 U.S.
Dist. LEXIS 54131 (S.D. Ohio 2011)(Merz, M.J.).
While Nash is not a published opinion of the Sixth Circuit and
therefore not binding precedent, the Magistrate Judge will follow it
and (1) not find any procedural default from Hughes' limitation of
his state court argument to manifest weight, (2) liberally construe
the Petition as making a claim of insufficiency of the evidence and
(3) read the state court of appeals' decision that the conviction was
not against the manifest weight of the evidence as "necessarily
impl[ying] a finding that [Hughes'] conviction was also supported
by sufficient evidence." Id. at 762. See also State v. Lee, 158
Ohio App. 3d 129, 2004 Ohio 3946, 814 N.E.2d 112, 115 (Ohio
App. 9th Dist. 2004), cited in Nash at 765.
Hughes v. Warden, 2011 U.S. Dist. LEXIS 54131(S.D. Ohio 2011.)
In denying Jones’ weight of the evidence assignment of error, the Second District Court
of Appeals wrote:
[*P2] On April 4, 2010, Willie Hicks was robbed and kidnapped at
gun-point from his Dayton home. When Hicks walked up to the
door of his apartment building, in the early morning hours, a man
with a bandana covering his mouth ran up behind him and pressed
a gun to the back of Hicks's head. When the two went inside the
building, Hicks saw another man wearing a ski mask. The three
men entered Hicks's apartment, and the two assailants ransacked
the premises, taking money and objects. They repeatedly
demanded Hicks's drugs and money. The assailants then forced
Hicks outside and into the backseat of his car, where they told him
to lay face down. The two assailants got in the front, and they
drove to a desolate area nearby. A third person followed in another
car.
[*P3] Hicks owned a truck, which he kept at a storage facility in
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Drexel, Ohio (just outside Dayton). The assailants demanded to
know where the truck was. Hicks lied and told them it was parked
inside a Dayton storage facility on Third Street. At that facility, the
assailants could not open the locked gate. Hicks told them that the
access code was written on a slip of paper that was either in his car
or back at his apartment. After the assailants ransacked Hicks's car
looking for the paper, they locked Hicks in the trunk while two of
them went back to search his apartment. When the two returned
without finding the paper, Hicks heard one of them say, "'I been
[sic] locked up.' * * * 'I just got out. You know I got out from
doing seven years, so I know what I'm doing.'" (Tr. 143). He then
heard the same one say, "'He playing [sic] too much. Let's kill
him.'" (Tr. 144). The trunk opened and Hicks saw the man wearing
the bandana pointing a gun at him. Hicks quickly agreed to take
the men to the place he stored the money, his cousin's house. Hicks
was lying again.
[*P4] They all piled into Hicks's car with Hicks in the driver's seat
and the bandana wearing man in the passenger seat pressing the
gun into Hicks's ribs. While he was driving, Hicks told the man
that riding in the car with his face half covered was a sure way to
get stopped by the police. The man pulled the bandana down.
Hicks did not recognize the man at the time, but later learned that
his name was Robert Jones.
[*P5] When they arrived at Hicks's cousin's house, Hicks told
Jones that he needed a phone to call his cousin to let him know he
was outside. Jones gave Hicks his cell phone. Hicks told his
cousin, Pete Smith, that he needed the keys to the safe. Smith, of
course, had no idea what Hicks was talking about. After Smith
hung up, he checked the monitors connected to the security-system
cameras installed on his house. Smith saw Jones pull his bandana
back up and then push Hicks toward the house with a gun pressed
into his back. Smith's wife called the police. When a police cruiser
pulled up, Jones bolted. Hicks still had Jones's cell phone.
[*P6] The next day, Hicks began his own investigation. He
obtained the cell phone number using the caller-ID feature on
Smith's home phone. Hicks used the number to obtain from the
service provider the name on the service account, which was
Jones's. Remembering what he overheard Jones say, Hicks then
searched an online database of offenders, available on the Ohio
Department of Rehabilitation and Corrections's website. He
immediately recognized the photo of the fourth offender listed.
Hicks printed out the photo and gave it to police, telling them that
it was the man they were looking for.
10
[*P7] The police department's own investigation corroborated
Hicks's findings. Police confirmed that the cell phone was Jones's
and that Jones had been convicted for aggravated robbery,
felonious assault, and kidnaping. Police also found one of Jones's
palm prints and one of his fingerprints on the trunk of Hicks's car.
***
[*P102] Jones asserts that Hicks gave conflicting testimony about
the condition of his second bedroom. At the preliminary hearing,
he testified that his assailants did not search it, but at trial, Hicks
testified that they did. Jones also says that Hicks gave conflicting
testimony about which assailants had guns. At the preliminary
hearing, Hicks testified that only Jones had a gun, but at trial, he
testified that one of Jones's accomplices also had a gun. According
to Jones, Hicks further gave conflicting testimony about what part
of Jones's face the bandana covered. At the preliminary hearing,
Hicks said that Jones's bandana covered his nose, but at trial, Hicks
testified that the bandana was below his nose. Finally, Jones points
to Hick's preliminary-hearing testimony describing Jones's gun as a
black 9-millimeter semiautomatic. At trial Hicks described the gun
as a silver or chrome revolver.
[*P103] Only Hicks's trial testimony was evidence. Hicks's trial
testimony itself was not conflicting or inconsistent. Rather, Jones
points to instances on cross examination where defense counsel
challenged Hicks's credibility with inconsistent preliminaryhearing statements. The jury had to decide the extent to which it
would credit Hicks's testimony. It is not patently apparent that the
jury lost its way by deciding to believe Hicks's testimony on the
critical matters.
[*P104] Jones also contends that the police testimony about the
prints found on Hicks's car was inconsistent. We disagree.
[*P105] John Malott, a police crime-scene investigator, testified
that he found prints on Hicks's car's hood, interior door-frame, and
trunk. He testified that on the trunk he found a palm print and
partial fingerprints. Carl Steele, the Montgomery County Sheriff's
Office corrections officer who fingerprints and photographs
inmates, explained that AFIS, an automated fingerprint
identification system, stores images of fingerprints and palm prints
in a database. Steele testified that palm prints are first taken with
actual ink and later scanned into AFIS but fingerprints are scanned
11
directly into the system. Steele testified that he fingerprinted Jones
this time and when Jones was arrested back in 2000.
[*P106] Ronald Swank, a Dayton police officer assigned to the
Bureau of Identification, testified as the State's expert in the field
of fingerprint and palm print examination and comparison.
[*P107] Swank testified that he reviewed the latent print cards that
Malott submitted. Swank found that only one fingerprint and two
palm prints had any evidentiary value, and he ran them through
AFIS. Swank explained that AFIS does not itself make a match.
Rather, it returns what it concludes are the best candidates for a
match. The user then has to manually compare the candidates to
the subject print. Swank testified that on two palm prints and the
fingerprint, the number one candidate was Robert Jones. Swank
obtained Jones's 2000 fingerprint card and compared the palm and
finger prints found on Hicks's trunk to it. He concluded that one
palm print was Jones's and that the fingerprint was Jones's too.
Another officer then reviewed Swank's work as part of an
established peer-review process.
[*P108] We find that the fingerprint testimony is consistent and
coherent. We note that, even if we had concluded that the jury
should not have credited any of it, Hicks's testimony alone would
be enough to support the jury's verdict.
[*P109] The second assignment of error is overruled.
State v. Jones, 2011-Ohio-5966, 2011 Ohio App. LEXIS 4880, ¶¶ 3-7, 102-09 (2nd Dist. Nov. 18,
2011).
[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Paige, 470 F.3d 603, 608 (6th
Cir. 2006); United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007).
Jones makes no argument why the evidence recited by the Second District Court of
12
Appeals is not sufficient for conviction. Because the conclusion of the state court is entitled to
deference under 28 U.S.C. § 2254(d)(1) and (2), the Second Ground for Relief should be
dismissed with prejudice.
Ground Three: Ineffective Assistance of Appellate Counsel
Jones asserts his appellate attorney was ineffective for failure to raise a sufficiency of the
evidence assignment of error on direct appeal. Jones raised this claim in his Application for
Reopening under Ohio R. App. P. 26(B) and the Second District denied it on the merits. State v.
Jones, Case No. 24409 (Ohio App. 2nd Dist. Apr. 23, 2012)(unreported; copy at Doc. No. 9-1,
PageID 274-76). That court held:
Whether or not counsel should have challenged the sufficiency of
the evidence, Jones falls to demonstrate a probability that such a
challenge would have been successful. "In reviewing a claim of
insufficient evidence, the relevant inquiry is whether, after
reviewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt." State v. Bray, 2d
Dist. Clark App. No. 2010 CA 14, 2011-0hio-4660, 1]39, citing
State v. Britton, 181 Ohio App.3d 415, 2009-0hio-1282, 909
N.E.2d 176, 1]13 (2d Dist.). The jury that found Jones guilty likely
did so based on the testimony of the victim himself, who recounted
being held at gunpoint by Jones and his accomplices. Jones asserts
that the victim's testimony was not enough. Physical evidence, says
Jones, was needed-the gun, the stolen property, or other real
evidence. Jones is incorrect. The state may rely on circumstantial
evidence to prove an essential element of an offense. State v.
Jenks, 61 Ohio St. 3d 259, 272-273, 574 N.E.2d 492 (1991). The
victim's testimony here is sufficient to prove the essential elements
of the offenses Jones was convicted of, even those of the firearm
specification, see State v. Murphy, 49 Ohio St. 3d 206, 551 N.E.2d
932 (1990), at the syllabus (holding that the state may prove the
operability of a firearm "by the testimony of lay witnesses who
were in a position to observe the instrument and the circumstances
surrounding the crime"). Indeed, rejecting the challenge that
13
appellate counsel brought to the evidence's manifest weight, we
said that "[the victim's] testimony alone would be enough to
support the jury's verdict." Jones, 2011-0hio-5966, at ¶ 108.
Id., PageID 275.
While a criminal defendant is entitled to effective assistance of counsel on his first appeal
of right, to evaluate a claim of ineffective assistance of appellate counsel, then, the court must
assess the strength of the claim that counsel failed to raise. Henness v. Bagley, 644 F.3d 308 (6th
Cir. 2011), citing Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008). Counsel's failure to raise
an issue on appeal amounts to ineffective assistance only if a reasonable probability exists that
inclusion of the issue would have changed the result of the appeal. Id., citing Wilson. If a
reasonable probability exists that the defendant would have prevailed had the claim been raised
on appeal, the court still must consider whether the claim's merit was so compelling that the
failure to raise it amounted to ineffective assistance of appellate counsel. Id., citing Wilson. The
attorney need not advance every argument, regardless of merit, urged by the appellant. Jones v.
Barnes, 463 U.S. 745, 751-752 (1983)("Experienced advocates since time beyond memory have
emphasized the importance of winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues." 463 U.S. 751-52).
Here the very court which would have had to decide a sufficiency of the evidence claim if
it had been raised decided that such a claim would not have been likely to succeed. As it noted,
the manifest weight of the evidence assignment of error, which places a lesser burden on an
appealing defendant, was not satisfied in this case. A fortiori, the higher burden of showing an
insufficiency of the evidence claim would not have been successful.
It is neither deficient performance nor prejudicial to fail to make an argument which
would not have succeeded. The Second District applied the standard required by Supreme Court
14
precedent and its application was not objectively unreasonable. Therefore the Third Ground for
Relief should be dismissed with prejudice.
Conclusion
Based on the foregoing analysis, it is respectfully recommended that the Petition herein
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.
November 12, 2013.
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 one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). 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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