Jones v. Warden

• Decision Date: 29 October 2015
• Docket Number: Case No. 3:15-cv-164
• Parties: TIMOTHY JONES, Petitioner, v. WARDEN, Ross Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

TIMOTHY JONES, Petitioner, v. WARDEN, Ross Correctional Institution, Respondent.

Case No. 3:15-cv-164

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

October 29, 2015

District Judge Walter Herbert Rice

Magistrate Judge Michael R. Merz

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 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 (2^nd 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 isconflict 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 cross-examination. First admitting to see the incident and then claimingto 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.

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

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

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