Jones v. Warden, Ross Correctional Institution

Filing 15

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Timothy Jones Objections to R&R due by 11/16/2015. Signed by Magistrate Judge Michael R. Merz on 10/29/2015. (srb)(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
WESTERN DIVISION AT DAYTON
TIMOTHY JONES,
Petitioner,

:

- vs -

Case No. 3:15-cv-164
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

WARDEN, Ross
Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for decision on the merits. Jones filed his
Petition on May 6, 2015 (ECF No. 1). On the Court’s order, Respondent filed the State Court
Record (ECF No. 8) and a Return of Writ (ECF No. 9). Jones has now filed a Reply (Traverse,
ECF No. 14), rendering the case ripe for decision.

Procedural History

Jones was indicted by the Clark County grand jury on two counts of aggravated murder
in connection with the deaths of Dovon Williams and Arbrie Smith. These counts carried a
firearm specification and Jones was also charged with having weapons while under a disability.
A trial jury convicted him on all counts and he was sentenced to life imprisonment without
possibility of parole. Jones appealed and the Second District Court of Appeals overruled his first
two assignments of error, but remanded for the trial court to make appropriate findings to support
1

running the murder sentences consecutively and to consider waiver of court costs and attorney
fees. State v. Jones, 2013-Ohio-4820, 2013 Ohio App. LEXIS 5028 (2nd Dist. Nov. 1, 2013).
The Ohio Supreme Court declined jurisdiction over a further appeal. State v. Jones, 139 Ohio St.
3d 1430 (2014).
On January 29, 2015, Jones filed an Application for Reopening his direct appeal to raise
claims of ineffective assistance of appellate counsel. The Second District denied reopening and
Jones did not appeal to the Ohio Supreme Court.
Jones pleads the following eleven grounds for relief in habeas corpus:
Ground One: The trial court erred by instructing the jury that it
could find Mr. Jones guilty of Aggravated Murder if the ‘Gist of
the Offense’ was to cause a death, ‘Regardless of what [Mr. Jones]
may have intended to accomplish by his conduct.”
Supporting Facts: While instructing the jury the trial court gave a
misleading instruction by using the phrase "gist of the offense"
instead of properly defining "purpose". To clearly convey the
"mens rea" of an offense to the jury a jury instruction should be
clear. The trial court stated, ''When the 'gist of the offense' is a
prohibition against conduct of a certain nature, a person acts
purposefully if his specific intention was to engage in conduct of
that nature, regardless of what he may have intended to accomplish
by his conduct." When a court states that a person engages into
conduct "regardless of what he may have intended to accomplish
by his conduct,” but yet continues to define Aggravated Murder
instructions to constitute "prior calculation" such combinations of
definitions can confuse the jury. You cannot prior calculate
something and have no regards of what ones conduct is intended to
accomplish at the same time. A "prior calculation" is a specific
"intent" where as if it is regardless of what a person may intend
could mean a whole host of different conducts. Such a confusing
combination of instructions has a strong possibility of 'reasonable
doubt' to the actions of the conduct assumed to have been partaken.
Ground Two: The Trial Court Abused its Discretion by imposing
Sentences of Life without Parole.
Supporting Facts: The appellate court showed bias by declining
to review my Life sentence on an evidetiary [sic] basis. There is
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conflict within Ohio law where one law says it can be reviewed
while another law says that it cannot be reviewed. The trial court,
based upon evidence adduced at trial and noted within the
transcripts, showed mitigating evidence that diminished the
sentence of Life without Parole being eligible for the petitioner.
Ground Three: The trial court erred by imposing consecutive
sentences without making the findings required by R.C.
2929.14(C) and Crim. R. 32(A)(4) at the sentencing hearing, and
without having the factual basis to make those findings.
Supporting Facts: The trial record does not support the
imposition of consecutive sentences. Being sentenced to two Life
without Parole sentences is excessive and highly against the
manifest weight of the evidence that was presented at trial. The
factors needed to impose Life without Parole sentences wasn't
determined. The appeals court reversed and remanded my case in
regards to this issue, but I wasn't ever given a chance to address the
issue because I wasn't ever tooken [sic] back to court on the issue.
The trial court was ordered to make the requisite findings and I
have a right to be present during such findings in which in this case
I was not given that right.
Ground Four: The petitioners conviction is against the manifest
weight of evidence in violation of the 5th, 6th, and 14th
amendment of the U.S. Constitution.
Supporting Facts: There were no witnesses that came forward to
place the petitioner at the scene of the crime, no weapon was
recovered, and during trial the video evidence used against the
petitioner was illegally obtained by a State witness and used to
convict me. States witnesses testified that the State helped prepare
their testimony by showing them the video which allowed State
witnesses to re-create events on that day that may or may have not
occurred instead of allowing State witnesses to recount such events
from memory which would have gave the defense a better
opportunity to cross-examine witnesses to detect lies,
exaggerations, or coached testimony.
Ground Five: The State presented perjured testimony at trial that
it knew to be false and contradictory.
Supporting Facts: The State allowed a State Witness, Tanisha
Lee, to present false testimony in which she was coached to admit,
and blatantly changed her story on the stand during crossexamination. First admitting to see the incident and then claiming
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to not have. A witness is available to admit that this witness was
coerced into presenting false testimony.
Ground Six: The trial court erred when it did not hold an inquiry
into potential juror misconduct, abusing its discretion.
Supporting Facts:
One of the Jurors gave confessional
information that she was somehow related to one of the victims on
my case. No independent hearing was held to determine the
amount of prejudice that amounted from this eliminating whether
or not the petitioner had a fair trial.
Ground Seven: The trial court committed an abuse of discretion
when it overruled defense motions to excuse jurors for cause
violating the 5th, 6th, and 14th amendment.
Supporting Facts: The trial court biasly [sic] excused jurors
requested by the prosecution, but denied petitioners request to
excuse jurors who had presented evidence that they posed some
sort of familial relationship with one of the victims.
Ground Eight: The trial court erred when it allowed Juror No. 5
to continue to serve on the jury after there was clear and
convincing evidence of juror misconduct in violation of the 5th,
6th and 14th amendments.
Supporting Facts: The trial court erred when it did not cure a
fatal flaw in the proceedings when it allowed Juror #5 to discuss
the case outside of the Jury Pool, violating the court’s instructions.
Ground Nine: The complaint was not Notarized by a neutral party
which violated petitioners Due Process right under the 14th
Amendment.
Supporting Facts: The complaint that authorized the arrest of
petitioner was not notarized by a neutral party. The Springfield
Pol;ice [sic.] Sergeant who signed and compiled it was the
supervisor of individuals investigating the case causing him to
engage into competitive enterprise. The complaint should have
been issued by a neutral and detached magistrate.
Ground Ten: The Trial court erred by granting the States request
to not disclose exculpatory evidence without holding a hearing
violating petitioners due process rights.

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Supporting Facts: The courts actions in not holding a hearing
seperate [sic] from the trial judge by a neutral and unbias [sic]
judge violated petitioners due process rights because it involved a
motion for disclosure in which the court prejudicially sided with
the prosecution barring the petitioner from receiving a fair trial,
impairing his ability to properly prepare a defense that stood up to
the adversarial process.
Ground Eleven: Ineffective Assistance of Appellate counsel
where appellate counsel failed to raise an inadmissible evidence
claim where petitioner objected to, and moved for such motion
during trial, violating petitioners due process rights.
Supporting Facts: Petitioners appellate counsel was ineffective
for not raising my claim of inadmissable evidence where such
claims were objected to during trial. The Trial court allowed
illegally obtained evidence to be used to convict petitioner. Such
evidence was illegally obtained through a criminal act on behalf of
a witness who was acting on behalf of the State.
(Petition, ECF No. 1, PageID 6-15.)

ANALYSIS

Ground One: Erroneous Jury Instructions

In his first ground for relief, Jones asserts the trial court gave an erroneous mens rea
instruction. This claim was raised as the first assignment of error on direct appeal and the
Second District decided it as follows:
[*P6]

Jones'

first

assignment

of

error

is

as

follows:

[*P7] "THE TRIAL COURT ERRED BY INSTRUCTING THE
JURY THAT IT COULD FIND MR. JONES GUILTY OF
AGGRAVATED MURDER IF THE 'GIST OF THE OFFENSE'
WAS TO CAUSE A DEATH, 'REGARDLESS OF WHAT [MR.
JONES] MAY HAVE INTENDED TO ACCOMPLISH BY HIS
5

CONDUCT.'"
[*P8] In his first assignment, Jones contends that the trial court
erred when it instructed the jury regarding the definition of
"purpose" as it applied to the charges for aggravated murder.
Specifically, Jones argues that the trial court's use of the "gist of
the offense" instruction in a conviction for aggravated murder was
confusing and rose to the level of plain error.
[*P9] In State v. Kleekamp, 2d Dist. Montgomery No. 23533,
2010-Ohio-1906, this court stated:
[*P10] "'A criminal defendant has the right to expect that the trial
court will give complete jury instructions on all issues raised by
the evidence.' State v. Williford (1990), 49 Ohio St.3d 247, 251,
551 N.E.2d 1279; State v. Mullins, Montgomery App. No. 22301,
2008-Ohio-2892, ¶ 9. As a corollary, a court should not give an
instruction unless it is specifically applicable to the facts in the
case. State v. Fritz, 163 Ohio App.3d 276, 837 N.E.2d 823, 2005Ohio-4736, ¶ 19. The decision to give a requested jury
instruction is a matter left to the sound discretion of the trial court,
and the court's decision will not be disturbed on appeal absent an
abuse of discretion. State v. Davis, Montgomery App. No. 21904,
2007-Ohio-6680, ¶ 14."
[*P11] "Abuse of discretion" has been defined as an attitude that
is unreasonable, arbitrary or unconscionable. Huffman v. Hair
Surgeon, Inc., 19 Ohio St.3d 83, 87, 19 Ohio B. 123, 482 N.E.2d
1248, 1252 (1985). It is to be expected that most instances of abuse
of discretion will result in decisions that are simply unreasonable,
rather than decisions that are unconscionable or arbitrary.
[*P12] A decision is unreasonable if there is no sound reasoning
process that would support that decision. It is not enough that the
reviewing court, were it deciding the issue de novo, would not
have found that reasoning process to be persuasive, perhaps in
view of countervailing reasoning processes that would support a
contrary result. AAAA Enterprises, Inc. v. River Place Community
Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
[*P13] Regarding the definition of "purpose," the trial court gave
the jury the following instructions:
A person acts purposely when it is his specific
intention to cause a certain result. It must be
established beyond a reasonable doubt that at the
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time in question there was present in the mind of the
defendant a specific intention to cause the death of
Dovon Williams.[Footnote omitted]
When the gist of the offense is a prohibition against
conduct of a certain nature, a person acts purposely
if his specific intention was to engage in conduct of
that nature, regardless of what he may have
intended to accomplish by his conduct.
Purpose is a decision in the mind to do an act with a
conscious objective of producing a specific result or
engaging in specific conduct. To do an act
purposely is to do it intentionally and not
accidentally.
Purpose and intent mean the same thing. The
purpose with which a person does an act is known
only to himself unless he expresses it to others or
indicates it by his conduct.
The purpose with which a person does an act is
determined from the manner in which it is done, the
means used, and all the other facts and
circumstances in evidence.
If a wound is inflicted upon a person with a deadly
weapon in a manner calculated to destroy life, the
purpose to cause his death may be, but is not
required to be, inferred from the use of the weapon.
The inference, if made, is not conclusive.
***
Prior calculation and design means that the purpose
to cause the death of another was reached by a
definite process of reasoning in advance of the
homicide, which process of reasoning must have
included a mental plan involving studied
consideration of the method and means with which
to cause the death.
To constitute prior calculation there must have been
sufficient time and opportunity for the planning of
an act of homicide and the circumstances
surrounding the homicide must show scheme
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designed to carry out the calculated decision to
cause the death.
[*P14] Initially, we note that Jones failed to object to the jury
instruction, nor did he request another instruction be substituted in
its place. Thus, for purposes of appellate review, Jones has waived
all but plain error. State v. Parrish, 2d Dist. Montgomery No.
21206, 2006-Ohio-4161. Plain error may be noticed if a manifest
injustice is demonstrated. Crim.R. 52(B); State v. Howard, 2d Dist.
Montgomery No. 23795, 2011-Ohio-27. In order to find a
manifest miscarriage of justice, it must appear from the record as a
whole that but for the error, the outcome of the trial clearly would
have been otherwise. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d
804 (1978).
[*P15] Jones argues that the court erred when it gave the jury the
"gist of the offense" instruction set forth above. Specifically, he
argues that by instructing the jury that a person acts purposefully
"regardless of what he may have intended to accomplish by his
conduct" the court failed to provide adequate instructions
regarding a "specific intent to kill" which a defendant must possess
when charged with aggravated murder. State v. Wilson, 74 Ohio
St.3d 381, 1996-Ohio-103, 659 N.E.2d 292. In Wilson, the Ohio
Supreme Court has characterized similar language as "confusing in
a murder prosecution which requires purpose." Id. at 393, 659
N.E.2d 292. However, we must remain mindful of the fact that
reviewing courts must consider jury instructions in their entirety.
State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 772 (1979), ¶ 4 of
the syllabus. "[A] single instruction to a jury may not be judged in
artificial isolation, but must be viewed in the context of the
overall charge." Id. at 141. In Wilson, the Ohio Supreme Court
rejected an argument that the trial court committed plain error by
using the "gist of the offense" language in an aggravated murder
trial, in part because "[i]n the context of all the instructions given
the jury, the court provided adequate instructions on the element of
specific intent to kill." Wilson, 74 Ohio St.3d at 393.
[*P16] Like the Wilson Court, we acknowledge that when read in
isolation, the "gist of the offense" language could be confusing and
misleading to a jury.[footnote omitted.] When read in context with
the rest of the charge, however, it is clear the court provided the
jury with adequate instructions on the specific intent to cause
death. The court specifically told the jury that "[a] person acts
purposely when it is his specific intention to cause a certain
result." The court also told that jury that: "It must be established
beyond a reasonable doubt that at the time in question there was
8

present in the mind of the defendant a specific intention to cause
the death of Dovon Williams." Therefore, the "gist of offense
language" instruction did not amount to plain error in light of all
the instructions given to the jury.
[*P17] Jones' first assignment of error is overruled.
State v. Jones, supra.
The State first asserts this Ground for Relief is barred by procedural default in that Jones
made no objection to the instruction at the time it was given nor did he request a different
instruction (Return, ECF No. 9, PageID 1869).
The procedural default doctrine 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
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional
rights claim 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
9

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. 2010); 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, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
Under Ohio’s contemporaneous objection rule parties must preserve errors for appeal by
calling them to the attention of the trial court at a time when the error could have been avoided or
corrected, as set forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus;
see also State v. Mason, 82 Ohio St. 3d 144, 162 (1998) — is an adequate and independent state
ground of decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012), citing Keith v.
Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir.
2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields v. Bradshaw, 482 F.3d 442
10

(6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d
604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell,
209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also
Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315
(6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert. denied, 131 S. Ct. 185
(2010).
The Second District Court of Appeals enforced this procedural rule against Jones by
conducting only plain error review. An Ohio state appellate court’s review for plain error is
enforcement, not waiver, of a procedural default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th
Cir. 2012); Jells v. Mitchell, 538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d
754, 765 (6th Cir. 2006); White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley,
422 F.3d 379, 387 (6th Cir. 2005); Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001), citing Seymour
v. Walker, 224 F.3d 542, 557 (6th Cir. 2000)(plain error review does not constitute a waiver of
procedural default); accord, Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003).
Jones has not shown cause and prejudice to excuse his procedural default on the jury
instruction issue, so his First Ground for Relief should be dismissed with prejudice on that basis.
In addition to being procedurally defaulted, the First Ground for Relief does not state a
claim 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. 1 (2010); Lewis v.
Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida,
463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court
determinations on state law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States."

11

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
In order for habeas relief to be warranted on the basis of incorrect jury instructions, a
petitioner must show more than that the instructions are undesirable, erroneous, or universally
condemned; taken as a whole they must be so infirm that they rendered the entire trial
fundamentally unfair. Henderson v. Kibbe, 431 U.S. 145 (1977). The only question for a habeas
court to consider is "whether the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process." Estelle, 502 U.S. at 72, quoting Cupp v. Naughten,
414 U.S. 141 (1973). The category of infractions that violate fundamental fairness is very
narrow. Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000), citing Dowling v. United States, 493 U.S.
342, 352 (1990).
The Warden made this argument in the Return and Jones presents no contrary argument
in his Reply (Traverse). In particular, he has cited no Supreme Court precedent requiring a
particular instruction for the offenses charged and the Court is not aware of any. The First
Ground for Relief should therefore be dismissed for failure to state a claim under the
Constitution.

Ground Two: Abuse of Discretion in Imposing Sentence

In his Second Ground for Relief, Jones complains that the trial judge abused his
discretion in sentencing him to life without the possibility of parole on the aggravated murder
convictions. He also claims the Second District should have reviewed the evidence on this
question.
Jones presented a parallel claim to the Second District on direct appeal which that court

12

found to be without merit, finding that as a matter of state law a sentence of life without parole
was authorized by Ohio Revised Code § 2929.03(A)(1)(a) and that it was precluded from
considering evidence on the propriety of the sentence by Ohio Revised Code § 2953.08(D)(3).
State v. Jones, supra, ¶¶ 18-26. Both of those questions are matters of state law which this Court
cannot review for the reasons given above with respect to the First Ground for Relief. Abuse of
discretion is not a denial of due process Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).
While the question of whether life without parole is cruel and unusual punishment would
state a claim under the Eighth Amendment, Jones did not make that claim in the state courts and
does not make it here. And any such claim would be without merit as the Supreme Court of the
United States has never held that such a sentence for an adult violates the Eighth Amendment.
The Second Ground for Relief should therefore be dismissed.

Ground Three: Failure to Make Findings Needed to Support Consecutive Sentences

In his Third Ground for Relief, Jones asserts the trial court did not make the factual
findings required by Ohio law to support consecutive sentences. Jones presented this claim to
the Second District on direct appeal and they agreed, vacating the judgment of consecutive
sentences and remanding for correction. State v. Jones, supra, ¶¶ 29-35. On remand the trial
court made the requisite findings and reimposed consecutive sentences. Jones took no appeal
from that decision and thus has procedurally defaulted this claim.

Moreover, there is no

constitutional right to have a trial court make particular findings of fact before consecutive
sentences are imposed. See Oregon v. Ice, 555 U.S. 160 (2009). The Third Ground for Relief
should therefore be dismissed.

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Ground Four: Conviction Against the Manifest Weight of the Evidence

In his Fourth Ground for Relief, Jones asserts his conviction is against the manifest
weight of the evidence.
In the Return of Writ, the Warden asserts this claim is not cognizable in habeas corpus
because a conviction against the manifest weight of the evidence does not offend the Fourteenth
Amendment.

Jones makes no response to this argument in his Traverse and it is well taken. A

weight of the evidence claim is not a federal constitutional claim. Johnson v. Havener, 534 F.2d
1232 (6th Cir. 1986). Therefore the Fourth Ground for Relief should be dismissed.

Ground Five: Prosecutorial Misconduct by Presenting Perjured Testimony

In his Fifth Ground for Relief, Jones claims his conviction is based in part on the perjured
testimony of Tanisha Lee which the State allowed to be presented knowing it was perjured.
The State asserts this claim for relief is procedurally defaulted because it was never
presented to the state courts (Return, ECF No. 9, PageID 1880). In his Traverse, Jones asserts
“Petitioner presented every claim in front of this court to the state courts.” (ECF No. 14, PageID
1950.) However, he fails to cite any place in the State Court Record where he raised his Fifth
Ground for Relief. He certainly did not include this claim in his direct appeal. From his
argument in the Traverse, the Court infers that he believes he presented this claim appropriately
in his Application for Reopening under Ohio R. App. P. 26(B) and indeed it was his second
assignment of error in that document (State Court Record, ECF No. 8, PageID 249.)

14

A state court defendant procedurally defaults on a constitutional claim when he omits it
from his direct appeal. He can show excusing cause and prejudice regarding that default if he
suffered ineffective assistance of appellate counsel because a criminal defendant is entitled to
effective assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387 (1985); Penson v.
Ohio, 488 U.S. 75 (1988); Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir. 2008).
Before ineffective assistance of appellate counsel can be used as excusing cause, the
claim of ineffective assistance of appellate counsel must itself be presented to the state courts.
Edwards v. Carpenter, 529 U.S. 446 (2000).

In Ohio, the only appropriate method for

presenting a claim of ineffective assistance of appellate counsel is by filing an application for
reopening under Ohio R. App. P. 26(B). See State v. Murnahan, 63 Ohio St. 3d 60 (1992),
directing the Ohio Supreme Court Rules Advisory Committee to draft an appropriate rule and
determining that an ineffective assistance of appellate counsel claim could not be raised under
Ohio Revised Code § 2953.21.
Under Ohio R. App. P. 26(B)(1), an application for reopening must be filed within ninety
days of the date of judgment in the court of appeals “unless the applicant shows good cause for
filing at a later time.” In this case the 26(B) Application was filed January 29, 2015 (See Clerk’s
time stamp, State Court Record, ECF No. 8, PageID 244.) Judgment had been entered in the
court of appeals on November 1, 2013. January 29, 2015, is 454 days later.
Jones attempted to show good cause for his delay, as the Rule requires. The Second
District rejected that claim, writing as follows:
The Appellant lists several "constant hindrances" that he maintains
establish good cause for why this Court should ignore the ninetyday limitation. The Appellant lists the following as reasons for
good cause: (1) he did not receive law library passes until April
2014; (2) he needed to purchase a copy card to make copies to file
motion; (3) during the period for timely filing, he had only
15

minimum law library access; (4) the lack of law library assistance;
(5) the computers were disconnected for forty-five days; (6) the
limited number of computers with LexisNexis access; (7) the
appellant's original 26(B) motion was deleted by prison staff; (8)
his appellate counsel gave an order not to file the 26(B) motion; (9)
the appellant's counsel gave misleading information that he would
have a better chance in the Ohio Supreme Court since there was no
final appealable order, and that no motion could be filed without
such an order; and (10) the Appellant found laws contrary to his
appellate counsel's advice that appellant's arguments were not
winnable.
A. Law Library Access
The majority of the Appellant's claims for good cause center on his
ability to access and use the law library at Ross Correctional
Facility. A defendant's limited access to legal materials or a library
does not constitute good cause for the late filing of an application
for reopening. State v. Quinn, 6th Dist. No. L-06-1003, 2008-0hio3579, 2008 WL 2780331, *1 (July 17, 2008); See also Smith v.
Warden, Lebanon Correctional Institution, S.D. Ohio No. 3:06-cv326, 2007 WL 2080468 *4 (May 4, 2007) (quoting State v.
Sweany, 2nd Dist. Montgomery No. 16181, 131 Ohio App.3d 765,
768, 723 N.E.2d 655 (2nd Dist. 1999); State v. Kitchen, 8th Dist.
Cuyahoga No. 69430, 1997 WL 284822 (May 22, 1997)(rejecting
the defendant's argument that limited access to research materials
excuses untimeliness). Ohio courts have repeatedly rejected the
claim that limited law library access is a ground for a showing of
good cause. State v. Kinder, 8th Dist. No. 94722, 2012-0hio-1339,
2012 WL 1067221 (Mar. 26, 2012), 116. This Court, in Sweeny,
follows this trend, holding that restrictions to research materials do
not provide good cause. Id., at 768. In Sweeny, we reasoned that
inmates would be subject to restrictions to access research
materials. Id. Here, the Appellant's claims of limited law library
access are no different or unique than any other inmate claim that
access to research materials was limited. As stated in Sweeny, it is
a logical assumption that a prison will have restrictions on access
to research materials. Consequently, the Appellant's claims of good
cause as a result of limited law library access fail.
B. Claims of Good Cause for Statements Made to the
Appellant by Counsel
The Appellant makes three arguments that the Court should
consider as good cause for an untimely application that relate to
statements made to him by his appellate counsel. First, his
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appellate counsel advised him not to file his 26(B) application for
reopening because his case had no final appealable order. Second,
his appellate counsel gave misleading information that he would
have a better chance in the Ohio Supreme Court, and that no
motion could be filed without such an order. Third, his appellate
counsel advised the Appellant that his arguments were not
winnable, even though the Appellant found laws to the contrary.
The right to effective counsel in an application for reopening has a
storied history. See Lopez v. Wilson, 426 F.3d 339 (6th Cir. 2005).
Ultimately, the Ohio Supreme Court has held that while there is a
constitutional right to effective assistance of counsel during a
direct appeal, there is no such right during the application for
reopening. Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110,
818 N.E.2d 1157, ¶¶ 15-23: see also Lopez v. Wilson, 426 F.3d
339, 353 (6th Cir. 2005) (holding, "Ohio's Rule 26(8) procedure is
a collateral post-conviction remedy and not a direct appeal."). But,
we are still left with the question of whether statements made by
original appellate counsel to his client, when the client is in the
process of applying to reopen, amount to a showing of good cause.
The Ohio Supreme Court has rejected claims of good cause for an
untimely filing because his original appellate counsel was still
representing the appellant. See State v. Keith, 119 Ohio St.3d 161,
2008-Ohio-3866, 892 N.E.2d 912, ¶ 6 (citing, State v. Gumm, 103
Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861; State v. LaMar,
102 Ohio St.3d 467, 2004-OQhio-3976, 812 N.E.2d 970).
Additionally, actions by the original appellate counsel have been
found to not be grounds for good cause. See, e.g., State v. Gumm,
103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861 (holding
that because appellate attorney was occupied with other appeals
was not grounds with good cause); State v. Dingress, 10th Dist.
Franklin No. 10AP-848, 2013-Ohio-801 (holding that failure by
appellate counsel to inform him of status of appeal did not excuse
App. R.26(B) deadline). In State v. Gumm, the Ohio Supreme
Court observed that the appellant could have filed the application
for reopening on his own regardless of his appellate attorney's
actions. State v. Gumm, 103 Ohio St. 3d 162, 2004-O0hio-4755,
814 N.E.2d 861 ¶ 9; see also State v. LaMar, 102 Ohio St. 3d 467,
2004-O0hio-3976, 812 N.E.2d 970118 (holding that attorney
negligence of App.R. 26(6) is not good cause). 'What he could not
do was ignore the rule's filing deadline." State v. Gumm, 103 Ohio
St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861 at ¶ 8.
Here, the Appellant could have filed his application to reopen his
appeal on his own regardless of what his appellate attorney told
him. There is nothing in the record that reflects that the Appellant
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could not file the motion on his own initiative. The Appellant
stated in his brief that he did have a completed application saved
on a prison computer. As such, the Appellant was using his own
initiative to apply for reopening. There is nothing in the record that
leads us to conclude he was prevented from being able to send his
original application before it was negligently erased from the
prison computer. Although the Appellant could ignore working on
his application to reopen his application, he could not ignore the
ninety-day deadline.
Since the Appellant knew that there was a motion for
reconsideration filed, he had to have known that there had been an
appealable order in his case. Further, the Appellant could have read
the App.R. 28(B8) himself and discovered that his ninety days
began on November 1, 2013. Consequently, the Appellant has not
established good cause under the rule for an untimely filing.
***
V. Conclusion
The Appellant failed to make a timely application to reopen.
Appellant has not established good cause for an untimely
application. Accordingly, the Appellant's Application for
Reopening is DENIED.
State v. Jones, No. 2012 CA 61 (2nd Dist. Apr. 16, 2015)(unreported, copy at State Court Record,
ECF No. 8, Ex. 32, PageID 298-30367-73.)
Applying the test for procedural default in Maupin, supra, the Court finds that Ohio does
have a procedural rule applicable to claims of ineffective assistance of appellate counsel w3hich
is that those claims must be filed within ninety days of judgment. The Second District enforced
that rule against Jones as shown by the above quotation. The time limit had become firmly
established and regularly followed long before Jones’ case. Landrum v. Mitchell, 625 F.3d 905
(6th Cir. 2010). In noncapital cases, the timeliness rule for filing a 26(B) application is an
adequate and independent state ground of decision. Parker v. Bagley, 543 F.3d 859 (6th Cir.
2008)(noting that Franklin was a capital case); Scuba v Brigano, 527 F.3d 479, 488 (6th Cir.

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2007)(distinguishing holding in capital cases); Monzo v. Edwards, 281 F.3d 568 (6th Cir. 2002);
Tolliver v. Sheets, 594 F.3d 900 (6th Cir. 2010), citing Rideau v. Russell, 2009 WL 2586439 (6th
Cir. 2009).
On the facts he presented to the Second District Court of Appeals, Jones has not shown
good cause to excuse is failure to timely file. Therefore his Fifth Ground for Relief should be
dismissed with prejudice.

Grounds Six through Eleven

The remaining grounds for relief in the Petition are subject to the same analysis as
Grounded Five. Each of them was omitted on direct appeal and presented to the state courts for
the first time in the 26(B) Application. Each of them is therefore procedurally defaulted on the
same basis as Ground Five.

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 and therefore should not be permitted to
proceed in forma pauperis.

October 29, 2015.

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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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