Jones v. Lazaroff

• Decision Date: 09 December 2015
• Docket Number: CASE NO. 1:14CV2549
• Court: U.S. District Court — Northern District of Ohio
• Parties: DEMETRIUS JONES, Petitioner, v. ALAN LAZAROFF, WARDEN, Respondent.

DEMETRIUS JONES, Petitioner, v. ALAN LAZAROFF, WARDEN, Respondent.

CASE NO. 1:14CV2549

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION

December 9, 2015

JUDGE JACK ZOUHARY

MAGISTRATE JUDGE GREG WHITE

REPORT AND RECOMMENDATION

Petitioner, Demetrius Jones, ("Jones"), challenges the constitutionality of his conviction in the case of State v. Jones, Cuyahoga County Court of Common Pleas Case No. CR-524453. Jones, pro se, filed his Petition for a Writ of Habeas Corpus (Doc. No. 1) pursuant to 28 U.S.C. § 2254 on November 19, 2014. On February 10, 2015, Warden Alan Lazaroff ("Respondent") filed his Answer/Return of Writ. (Doc. No. 7.)

Meanwhile, on November 21, 2014, on behalf of Jones, the Office of the Federal Public Defender ("FPD"), filed a Motion seeking appointment as counsel. (Doc. No. 3.) On February 13, 2015, the Court ordered the FPD to provide "a more detailed and meaningful explanation of why it believes the interests of justice require appointment of counsel in the instant case." (Doc. No. 8.) On February 27, 2015, a Supplement to the Motion was filed that provided further argument regarding the basis for the request. (Doc. No. 10.) Respondent filed a brief in opposition on March 6, 2015. (Doc. No. 11.)

Thereafter, on March 10, 2015, the Court issued an Order granting Jones' motion in part. (Doc. No. 12.) Specifically, the Court found that "the FPD appears to acknowledge that Jones' claims would be procedurally defaulted unless he can establish cause for said default pursuant to the recent decision of the United States Supreme Court in Martinez v. Ryan, 133 S.Ct. 1309 (2012)." Id. at 2. The Court then granted a limited appointment of counsel as follows:

Given the uncertainty over whether Jones' potential default may be excused, the Court finds the interests of justice require a limited appointment of counsel in this matter. Counsel's appointment is confined to addressing the issue of whether Jones' claims are procedurally defaulted and whether Jones can establish cause and prejudice to excuse any default. Petitioner's Traverse must be filed within thirty (30) days of this Order. The Respondent shall have fourteen (14) days thereafter to file a reply, which also must be confined to the issue of procedural default. In the event the petition is found not to be procedurally defaulted, the Court will determine whether the interests of justice require appointment of counsel to address the merits of any claims.

Id. at 3.

On May 22, 2015, Jones, through counsel, filed a "Brief As to Whether His Habeas Claims are Defaulted." (Doc. No. 15.) After receiving two extensions, Respondent replied on June 25, 2015. (Doc. No. 18.)

Thereafter, on September 14, 2015, the Court issued an Order as follows:

The Court has reviewed the parties' submissions and is prepared to rule on the issue of procedural default. In the meantime, the Court directs Petitioner to brief the merits of Grounds One and Two only, which the Court construes as a single ground challenging the constitutionality of Jones' conviction on the basis that the allegedly inconsistent jury verdicts violated his federal due process rights. Specifically, Petitioner is directed to address Respondent's arguments that this claim is noncognizable or, in the alternative, without merit under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254.

The limited appointment of the Office of the Federal Public Defender is extended to include the merits briefing noted above. Petitioner, through counsel, shall have thirty (30) days to submit his merits briefing on this claim.

(Doc. No. 19 at 2-3.) Jones filed his "Merit Brief for Claims One and Two" on October 13, 2015. (Doc. No. 20.) After obtaining leave to do so, Respondent filed a Reply on November 2, 2015. (Doc. No. 22.)

For the following reasons, it is recommended that Grounds 3, 4, 5 and 6 of Jones' Petition be dismissed as procedurally defaulted. With respect to Grounds 1 and 2, it is recommended the Court find that these grounds assert the same claim; i.e., that Jones' federal due process rights were violated by the alleged inconsistency of the jury's verdicts in his underlying state court trial. It is further recommended that Grounds 1 and 2 be dismissed as non-cognizable. Accordingly, it is recommended Jones' Petition be DENIED.

I. Summary of Facts

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6^th Cir. 2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6^th Cir. 2011). The state appellate court summarized the facts underlying Jones's conviction as follows:

Jones was charged with one count of murder in violation of R.C. 2903.02(B), and one count of felonious assault in violation of R.C. 2903.11(A)(1). The charges arose from the homicide of his girlfriend's one-year-old baby. The murder count alleged that Jones "did cause the death of [C.G.], as a proximate result of the offender committing or attempting to commit an offense of violence that is a felony of the first or second degree, to wit: Felonious Assault, in violation of Section 2903.04(A)(9) of the Revised Code." The felonious assault count alleged that Jones "did knowingly cause serious physical harm to [C.G.]."

State v. Jones, 2012 WL 760446 at * 1 (Ohio App. 8^th Dist. March 8, 2012).¹

II. Procedural History

A. Conviction

In May 2009, a Cuyahoga County Grand Jury charged Jones with one count of murder in violation of Ohio Revised Code ("O.R.C.") § 2903.02(B) together with a specification that the victim was under the age of 13; and, one count of felonious assault in violation of O.R.C. § 2903.11(A)(1). (Doc. No. 7-1, Exh. 1.) Jones pled not guilty. (Doc. No. 7-1, Exh.2.)

On August 19, 2009, Jones (through appointed counsel William W. Thompson IV) filed a Motion for Appointment of Forensic Pathologist, arguing "it is beyond contention that evidence relating to the cause and manner of death is the critical issue in this case." (Doc. No. 7-1, Exh. 3.) The trial court granted Jones' motion, over the objection of the prosecutor.² (Doc. No. 7-1, Exh. 4.) Jones then filed a motion for appointment of a criminal investigator, which was granted on July 15, 2010. (Doc. No. 7-1, Exhs. 5, 6.) Subsequently, in August 2010, Jones' request to refer him for a sanity and competency evaluation was also granted. (Doc. No. 7-1, Exh. 7.)

In October 2010, Jones filed a motion to continue the case until he had secured an additional medical expert. See Docket for State v. Jones, Cuyahoga County Case No. 09-524453. The trial court granted the motion, allowing Jones an additional 45 days in which to locate a second medical expert.³ Id.

The case proceeded to jury trial on May 4, 2011. See Docket for State v. Jones, Cuyahoga County Case No. 09-524453. Seven days later, on May 11, 2011, the jury found Jones guilty of murder in violation of Ohio Rev. Code § 2903.02(B), but not guilty of felonious assault in violation of Ohio Rev. Code § 2903.11(A)(1).⁴ (Doc. No. 7-1, Exh. 12.) After the verdict was delivered, Jones orally moved for an acquittal, arguing "[i]t would appear that the verdicts are so inconsistent, if you're not guilty of felonious assault, you can't be guilty of the murder." (Doc. No. 7-8 at Tr. 1069-1070.) The trial court held the motion in abeyance and asked the parties to brief the issue. Id. See also Doc. No. 7-8 at Tr. 1070-1073.

On May 13, 2011, Jones filed a Motion for Acquittal under Criminal Rule 29(C) or, in the alternative, Motion for New Trial pursuant to Ohio Rev. Code § 2945.80. (Doc. No. 7-1, Exh. 13.) Therein, Jones argued that "the jury made a mistake in their verdict" because, in order to be convicted of murder under Ohio Rev. Code § 2903.02(B), he would have had to have also been found guilty of felonious assault. Id. The State opposed Jones' motions. (Doc. No. 7-1, Exhs. 14, 15.)

The trial court conducted hearings on Jones' motions on May 13 and 23, 2011. (Doc. No. 7-1, Exh. 16; Doc. No. 7-8 at Tr. 1074-1089.) During these hearings, the trial court indicated it did not consider the jury's murder and felonious assault verdicts to be legally inconsistent but expressed concern about "a miscarriage of justice, with a fair trial being given to Mr. Jones." (Doc. No. 7-8 at Tr. 1082.) On May 23, 2011, the trial court issued a Judgment Entry denying Jones' motion for acquittal but granting his motion for new trial, as follows:

Hearing held in open Court and on the record. Defendant's motion for acquittal pursuant to Crim. R. 29(C) is hereby denied. Defendant's motion for a new trial pursuant to Crim. R. 33 and R.C. 2945.80 is hereby granted. As stated in the oral hearing on May 13, 2011 and May 23, 2011, the Court reiterates that the verdicts returned by the jury are not inconsistent verdicts in accordance with Ohio law. Trial is set for 8-29-11 which is the earliest date possible for prosecutor and defense counsel.

(Doc. No. 7-1, Exh. 16.)

B. Direct Appeal

On June 14, 2011, the State filed a Notice of Appeal and Motion for Leave to Appeal with the Court of Appeals for the Eighth Appellate District ("state appellate court"). (Doc. No. 7-1, Exhs. 17, 18.) On July 12, 2011, the state appellate court granted the State's motion for leave to appeal. (Doc. No. 7-1, Exh. 19.)

In its appellate brief, the State raised the following sole assignment of error:

I. Because Ohio law precludes a finding of inconsistency between a jury's verdicts for multiple counts within the same indictment, the trial court abused its discretion when it granted a new trial on the felony murder count following the jury's verdict of acquittal on the felonious assault count.

(Doc. No. 7-1, Exh. 20.)

Jones (through appellate counsel David L. Doughten) thereafter filed a brief, in which he raised his own assignment of error, as follows:

I. Where a defendant is

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