Jones v. Warden Mansfield Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

TIMOTHY JONES,

Petitioner, : Case No. 3:20-cv-485

- vs - District Judge Michael J. Newman

Magistrate Judge Michael R. Merz

EDWARD SHELDON, Warden,

Mansfield Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by petitioner Timothy Jones pursuant to 28 U.S.C.

§ 2254, is before the Court for decision on the merits of Petitioner’s Amended Petition (ECF No.

11).

When Petitioner initially filed this case, the Magistrate Judge ordered it transferred to the

Sixth Circuit upon a determination that it was second or successive and required circuit court

permission to proceed under 28 U.S.C. § 2244(b)(ECF No. 6). After transfer, Petitioner changed

the claims as to which he sought permission and the Sixth Circuit determined it would not grant

permission for challenges to the underlying conviction and Petitioner needed no permission as to

claims challenging his resentencing. In re: Timothy Jones, Case No. 20-4284 (6th Cir. Apr. 30,

2021)(unpublished; copy at ECF No. 9). Because the claims on which the circuit court decided

Jones could proceed without permission were not those he initially pleaded, the Court ordered him

to file an amended petition (ECF No. 10), which he has now done.

Upon initial review of the Amended Petition under Rule 4 of the Rules Governing § 2254

Cases, the Magistrate Judge ordered Respondent to answer and file the State Court Record (ECF

No. 12). Respondent has complied that that Order (State Court Record, ECF No. 17; Return of

Writ, ECF No. 18). In the same Order, the Court set a deadline for Petitioner’s reply of twenty-

one days after the Return was filed (ECF No. 12, PageID 36-37). The Court later reminded

Petitioner that the relevant date was September 8, 2021 (ECF No. 16). That deadline has passed

and Petitioner has filed no reply.

Litigation 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

running the murder sentences consecutively and to consider waiver of court costs and attorney

fees. State v. Jones, 2013-Ohio-4820 (2nd Dist. Nov. 1, 2013), appellate jurisdiction declined, 139

Ohio St. 3d 1430 (2014)(Report and Recommendations in Case No. 3:15-cv-658, ECF No. 18 (S.

D. Ohio Oct. 29, 2015), adopted ECF No. 25 (Mar. 31, 2016).

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 Supreme Court of Ohio. Id.

Jones filed his prior habeas corpus case in this Court on May 6, 2015, pleading eleven

grounds for relief (Petition, ECF No. 1, in Case No. 3:15-cv-658). District Judge Rice adopted a

recommendation that the case be dismissed. Id. at ECF No. 25. Jones appealed but the Sixth

Circuit dismissed the appeal as untimely. Jones v. Hooks, No. 16-3798, 2016 WL 9505989 (6th

Cir. Sept. 21, 2016). Jones later filed a motion for relief from judgment (ECF No. 38). On

recommendation from the undersigned, Judge Rice denied that motion (ECF No. 50). Jones

appealed, but the Sixth Circuit denied him a certificate of appealabilty. Jones v. Warden, Case

No. 17-3518 (6th Cir. Dec. 4. 2017)(copy at ECF No. 59 in Case No. 3:15-cv-658).

Jones filed the instant case on July 10, 2020 (Petition, ECF No. 1). His Amended Petition,

filed after remand from the Sixth Circuit, pleads the following grounds for relief:

Ground One: The Petitioner was deprived of the effective

assistance of trial counsel in failing to object to the imposition of

sentence as unduly delayed, against petitioner’s wishes, in violation

of the 5th, 6th, and 14th Amendments to the United States

Constitution and Article I, Section[s] 10 and 16 of the Ohio

Constitution.

By the time the Petitioner was sentenced in 20-198, the issue of

undue delay in sentence had become fully ripe. Because counsel

failed to object, the petitioner was denied his constitutional rights

and received a sentence he would not otherwise have received.

Ground Two. The petitioner was deprived of the effective

assistance of counsel in the court of appeals in failing to seek

enforcement of the mandate of the court of appeals in violation of

the Fifth, Sixth and Fourteenth amendments to the United States

Constitution, as well as Article I, [§§] 10 & 16 of the Ohio

Constitution.

Ground Three: Petitioner is entitled to release from state custody

because his right to fundamental and procedural due process, and

right to speedy trial was infringed upon when sentence was imposed

over four years after the specific mandate of resentencing and over

two years after petitioner's extraordinary writ of mandamus to

effectuate the same.

(Amended Petition, ECF No. 11).

Analysis

Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief, Jones argues he received ineffective assistance of trial

counsel when his attorney did not argue on remand from the Second District that the delay in re-

sentencing violated his speedy trial rights and entitled him to release.

As noted above, that remand occurred November 1, 2013. State v. Jones, 2013-Ohio-4820

(Ohio App. 2nd Dist. Nov. 1, 2013). The Clark County Court of Common Pleas entered a judgment

in purported compliance with the remand on January 29, 2018 (State Court Record, ECF No. 17,

PageID 64). Petitioner appealed again to the Second District. After his appointed attorney was

permitted to withdraw under Anders v. California, 386 U.S. 738 (1967), Petitioner filed a pro se

brief in which he raised this ineffective assistance of trial counsel claim as his first assignment of

error (State Court Record, ECF No. 17, Ex. 9). The Second District Court of Appeals decided this

claim on the merits. State v. Jones, 2019-Ohio-238 (2nd Dist. Jan. 25, 2019), appellate jurisdiction

declined, 155 Ohio St. 3d 1439 (2019).

When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is

contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.

Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-

94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28

U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceedings. The question

presented to this Court, then, is whether the Second District’s decision on this claim is or is not a

reasonable application of governing Supreme Court precedent.

The governing standard for ineffective assistance of counsel is found in Strickland v.

Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so

defective as to require reversal of a conviction or death sentence has

two components. First, the defendant must show that counsel's

performance was deficient. This requires showing that counsel was

not functioning as the "counsel" guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires

showing that counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable. Unless a

defendant makes both showings, it cannot be said that the conviction

or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing

Knowles v. Mirzayance, 556 U.S.111 (2009).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly

deferential. . . . A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at

the time. Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption that counsel's

conduct falls within a wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action "might be

considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held: “The defendant must show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to overcome

confidence in the outcome.” 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184

(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing

Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland,

466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.”

Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S.

86, 111-12 (2011).

In assessing prejudice under Strickland, the question is not whether

a court can be certain counsel's performance had no effect on the

outcome or whether it is possible a reasonable doubt might have

been established if counsel acted differently. See Wong v.

Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328

(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,

80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably

likely” the result would have been different. Id., at 696, 104 S. Ct.

2052, 80 L. Ed. 2d 674. This does not require a showing that

counsel's actions “more likely than not altered the outcome,” but the

difference between Strickland's prejudice standard and a more-

probable-than-not standard is slight and matters “only in the rarest

case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The

likelihood of a different result must be substantial, not just

conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).

In denying relief on this claim, the Second District held trial counsel was not ineffective

in failing to move to dismiss the case for delay in resentencing because such a motion would not

have been meritorious: numerous Ohio cases had held lengthier delays in resentencing did not

entitled a defendant to discharge, particularly where the defendant had been imprisoned for the

entire time. Here Petitioner was sentenced to two consecutive life sentences, but would have

remained in prison even if those sentences had been made to run concurrent. Judge Hall in

concurrence noted that Petitioner bore substantial responsibility for the delay in that he had never

even notified the Second District that their mandate had not been obeyed. During the same time,

Petitioner had conducted substantial pro se habeas corpus proceedings in this Court and in the

Sixth Circuit.

The Magistrate Judge concludes the Second District’s opinion is a reasonable application

of Strickland and therefore entitled to deference. It cannot be ineffective assistance of trial counsel

to fail to file a motion that is without merit and Petitioner was not in any event prejudiced by the

failure.

Ground Two: Ineffective Assistance of Appellate Counsel

In his Second Ground for Relief, Petitioner claims he received ineffective assistance of

appellate counsel when his appellate attorney failed to seek enforcement of the mandate for

resentencing. From the Petition it is clear that the appellate attorney whose conduct is in question

is Robert Brenner who was counsel on the appeal from resentencing (Petition, ECF No. 1, PageID

11). The alleged deficiency in practice is Brenner’s filing an Anders brief which Jones asserts

created a structural error depriving him of his right to effective appellate counsel under the Eighth

Amendment. Id.

Jones procedurally defaulted this Ground for Relief by failing to present it to the Ohio

courts. Although Jones did raise this claim as his second proposition of law on appeal to the

Supreme Court of Ohio, he has never filed an Application for Reopening the direct appeal under

Ohio R. App. P. 26(B) to raise this claim and the time within which he might have filed such an

application expired on April 25, 2019, ninety days after January 25, 2019, when the Second District

rendered its decision.

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).

The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a

habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786

F.3d 450, 464 (6th Cir. 2015), 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 v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357

(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). These is no doubt

that Ohio has a relevant procedural rule requiring 26(B) applications to be filed within ninety days

of the appellate judgment. Since it has been more than two years since that deadline passed, the

Magistrate Judge has no doubt the Second District would enforce the rule if Jones attempted to file

now. Finally, the Sixth circuit has repeatedly held the filing deadline 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. 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). Petitioner’s

Second Ground for Relief is barred by procedural default.

Alternatively, the Second Ground for Relief is without merit. As the Second District held

in ruling on Petitioner’s pro se assignments of error, the delay in re-sentencing did not violate

Jones’s rights under the Eighth Amendment. Jones has not suggested any way in which an attorney

could possibly have changed that result.

Ground Three: Failure to Timely Re-Sentence

In his Third Ground for Relief, Jones comes to the claim which underlies his first two: trial

court error in delaying more than four years to re-sentence him. The Second District decided this

claim indirectly when it held it was not ineffective assistance of trial counsel to fail to raise it

because it was without merit. Under Ground One, this Report analyzed that holding as a reasonable

application of Strickland. It is also a reasonable holding under Supreme Court precedent on the

merits.

The Sixth Amendment speedy trial guarantee does not apply once a defendant has

been found guilty at trial or has pleaded guilty. Betterman v. Montana, 578 U.S. 968, 136 S.Ct.

1609 (2016). In Betterman, the Supreme Court found “it would be an unjustified windfall to

remedy sentencing delay by vacating validly obtained convictions.” 136 S. Ct. at 1615. That

is at least doubly so in a resentencing where the question is whether two life sentences shall be

served consecutively or concurrently. The Court suggested that the “more pliable standard” of the

Due Process Clause might support relief from delay in initial sentencing, but made no holding at

all on delay in resentencing.

Petitioner has not suggested any way in which the Second District’s decision of this claim

is contrary to or an objectively unreasonable application of any relevant Supreme Court precedent.

His Third Ground for Relief should therefore be dismissed.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the

Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this

conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that

the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not

be permitted to proceed in forma pauperis.

September 20, 2021.

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. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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. 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.

.