Jones v. Warden, Ross Correctional Institution
SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON MOTION FOR RELIEF FROM JUDGMENT - The Motion for Relief from Judgment (ECF No. 38) should be denied. Objections to R&R due by 4/17/2017. Signed by Magistrate Judge Michael R. Merz on 3/31/2017. (kpf)(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
- vs -
Case No. 3:15-cv-164
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON
MOTION FOR RELIEF FROM JUDGMENT
This habeas corpus case was dismissed with prejudice on March 31, 2016 (ECF No. 25,
26). On March 13, 2017, Petitioner moved the Court under Fed. R. Civ. P. 60(b) to reopen the
case (ECF No. 38). The Magistrate Judge recommended the motion to reopen be denied (report
and Recommendations, ECF No. 39). Petitioner has objected (Objections, ECF No. 40), the
Warden has responded to those Objections (Response, 41), and Judge Rice has recommitted the
case for reconsideration in light of the Objections (ECF No. 42).
In the original Report and Recommendations in this case, the Magistrate Judge recited
the procedural history as follows:
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 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.
(Report and Recommendations, ECF No. 15, PageID 1962-63.) Mr. Jones pleaded eleven
grounds for relief in habeas corpus.
at PageID 1963-66.
The Report recommended
dismissing the Petition with prejudice either on the merits or because of procedural default. Id.
at PageID 1981.
After additional consideration and briefing, Judge Rice adopted that
recommendation and dismissed the case with prejudice on March 31, 2016 (ECF No. 25).
Mr. Jones filed a late appeal which the Sixth Circuit dismissed as untimely on September
21, 2016 (ECF No. 36). Mr. Jones filed his Motion to Reopen on March 13, 2017. The case is
now before the Court on his Objections to the Magistrate Judge’s Report and Recommendations
that the Motion to Reopen be denied (ECF No. 39).
Mr. Jones argues that when the Ohio Second District Court of Appeals remanded his case
for proper findings to support consecutive sentences, the Clark County Common Pleas Court did
not do so in a final appealable order. Mr. Jones raised the issue of insufficient findings to
support consecutive sentences in his Petition as Ground Three for Relief:
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 this case I
was not given that right.
(Quoted at Report, ECF No. 15, PageID 1964.) The Report found that the Clark County
Common Pleas Court had made findings on remand on this issue and that, if they were in error,
Mr. Jones had procedurally defaulted the claim by never appealing. If at PageID 1974. The
Report further cited Oregon v. Ice, 555 U.S. 160 (2009), as holding there was no constitutional
right to particular findings of fact before consecutive sentences are imposed. Judge Rice adopted
this conclusion and dismissed the Third Ground for Relief with prejudice.
As best the Court can understand it, Mr. Jones is arguing this Court’s dismissal of his
Third Ground for Relief is void for want of jurisdiction because Judge Rastatter’s resentencing
order is not a “final appealable order” and that fact destroys the jurisdiction of any subsequent
reviewing Court, including this one (Motion, ECF No. 38, PageID 2172). That is not a valid
proposition of federal law. As pointed out in the Report, our habeas jurisdiction arises directly
from 28 U.S.C. § 2241 and does not depend on whether an Ohio trial court satisfied the Ohio
final appealable order rule (Report, ECF No. 39, PageID 2182.
In his Objections Mr. Jones does not take issue with this reference to our habeas
jurisdiction. Instead, he “simply seeks fair review of any and all errors in his case. . .” ECF No.
40, PageID 2188. This Court did provide review of all the errors Mr. Jones submitted in his
Petition and it had jurisdiction to do so under 28 U.S.C. § 2241. Whether or not the resentencing
entry is a final appealable order under Ohio law has no impact on this Court’s habeas corpus
Therefore the Motion for Relief from Judgment should be DENIED.
March 31, 2017.
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 mail. .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,
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