35 F.3d 566 (6th Cir. 1994), 93-3589, Jones v. Baker

Docket Nº:93-3589, 93-3625.
Citation:35 F.3d 566
Party Name:Lonnie JONES, Petitioner-Appellee, Cross-Appellant, v. Dennis BAKER, Warden, Respondent-Appellant, Cross-Appellee.
Case Date:August 26, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 566

35 F.3d 566 (6th Cir. 1994)

Lonnie JONES, Petitioner-Appellee, Cross-Appellant,

v.

Dennis BAKER, Warden, Respondent-Appellant, Cross-Appellee.

Nos. 93-3589, 93-3625.

United States Court of Appeals, Sixth Circuit

August 26, 1994

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

On Appeal from the United States District Court for the Northern District of Ohio, No. 92-00005; David D. Dowd, Jr., District Judge.

N.D.Ohio, 1991 WL 35104.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Before: MARTIN, NELSON, and DAUGHTREY, Circuit Judges.

PER CURIAM.

This is an appeal from a judgment granting habeas corpus relief under 28 U.S.C. § 2254. The district court issued the writ on the ground that the petitioner's prosecution and conviction on a charge of felonious assault, following a mistrial on a factually related charge of aggravated robbery, violated the Double Jeopardy Clause of the Fifth Amendment as interpreted in Grady v. Corbin, 495 U.S. 508 (1990). The petitioner cross-appeals from the district court's denial of other claims raised in the habeas petition. Grady has now been overruled by the Supreme Court, and we shall reverse the district court's judgment insofar as it granted relief on double jeopardy grounds. The denial of the petitioner's other claims will be affirmed.

I.

The petitioner, Lonnie Jones, was convicted of three offenses under Ohio law. The convictions arose out of a chain of events that occurred in Akron, Ohio, on June 15, 1989.

The petitioner jumped into a woman's car while she was stopped at a red light and ordered her to drive away from the area. She did so, with the petitioner punching and kicking her as she drove. The petitioner eventually forced the victim into the back seat and took control of the car, driving it to a secluded area. He then ordered the victim to get out of the car. She leaned over the front seat at this point, grabbed her keys, and attempted to run away. The petitioner chased her for a distance and struck her several times in the course of a struggle over the keys. He then threw her to the ground, took the keys, and drove away. He was apprehended after a high speed chase that culminated in a collision which badly damaged the victim's car.

An indictment was handed up charging the petitioner with one count of aggravated robbery (a violation of Ohio Rev. Code § 2911.01), one count of kidnapping (a violation of Ohio Rev. Code § 2905.01), and one count of drug abuse (a violation of Ohio Rev. Code § 2925.11). Prior to trial on these charges, the grand jury issued a supplemental indictment charging the petitioner with one count of felonious assault. Because the supplemental indictment came on the eve of trial, the trial court granted a request by the petitioner that the additional count be tried separately at a later date.

Following a trial on the original charges, the jury found the petitioner guilty of the drug abuse charge and not guilty of the kidnapping charge. The jury was unable to reach a verdict on the aggravated robbery count, and the court declared a mistrial as to this count.

The petitioner was subsequently retried on the aggravated robbery count. The felonious assault charge that had previously been deferred was tried at the same time. The new trial resulted in a verdict of guilty on both counts.

The petitioner perfected a timely appeal in which he presented six assignments of error. The only one relevant here involved an assertion that the felonious assault conviction was invalid because felonious assault is a lesser included offense of aggravated robbery. Not persuaded by any of the petitioner's arguments, the state court of appeals affirmed the conviction. The petitioner sought leave to appeal to the Ohio Supreme Court, repeating his contention that he had been convicted of felonious assault improperly. He further asserted that he had not received effective assistance of counsel from his appellate lawyer. The Supreme Court dismissed the appeal for failure to raise a substantial constitutional question.

The petitioner then sought a writ of habeas corpus in the United States District Court for the Northern District of Ohio, contending among other things that the felonious assault arose out of the same conduct as the kidnapping charge. That being so, he argued, his acquittal on the kidnapping charge should have precluded a subsequent trial on the felonious assault charge. He also argued that he could not properly be convicted of both aggravated robbery and kidnapping.

The case was submitted to a magistrate judge, who recommended that the petition be denied. The magistrate judge found that the petitioner had not presented his double jeopardy claims--at least as phrased in his petition--to any Ohio court. The magistrate judge further found that none of the claims presented in the petition was meritorious in any event.

The petitioner filed...

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