Waller v. Tibbals
| Decision Date | 19 July 2016 |
| Docket Number | Case No. 3:15-cv-310. |
| Parties | JASON W. WALLER, Petitioner, v. TERRY TIBBALS, WARDEN, London Correctional Institution, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
JASON W. WALLER, Petitioner,
v.
TERRY TIBBALS, WARDEN,
London Correctional Institution, Respondent.
Case No. 3:15-cv-310
.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON
July 19, 2016
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Jason W. Waller, is before the Court for decision on the merits on the Petition (ECF No. 1), the Amended Petition (ECF No. 5), the State Court Record (ECF No. 17), the Return of Writ (ECF No. 18), and the Reply (ECF No. 21).
Petitioner's grounds for relief as pled in the first Amended Petitions are:
GROUND ONE: The jury instruction [sic] were improper depriving appellant of his right to process and a fair trial
Supporting Facts:
A. The trial court was required to instruct the jury for the inferior offense of aggravated assault and failure to do so constitutes plain error.
B. The trial court erred in refusing to instruct the jury on self-defense.
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1. Appellant was entitled to Castle Doctrine instruction and presumption
2. Appellant was entitled to a self-defense instruction
3. Appellant was entitled to an instruction for reckless homicide
GROUND TWO: The denial of Waller's motion to dismiss the indictment was an error because the indictment contained structural errors which were not remedied by the bill of particulars.
Supporting Facts:
A. Appellant's indictment must be dismissed because it failed to state all of the elements of the offense of felony murder.
B. The Bill of Particulars did not remedy this because it alleged two theories of felonious assault, failing to put Appellant on notice of the elements of the offense for which he was charged.
GROUND THREE: The Prosecutor engaged in misconduct throughout the entire trial, tainting the whole proceedings, depriving appellant of a fair trial.
Supporting Facts: ...throughout the entire trial, tainting the whole proceedings, depriving appellant of a fair trial.
GROUND FOUR: Ineffective assistance of trial counsel.
Supporting Facts: The petitioner states that his attorney did not come enough times and spend enough time in helping to prepare him for trial in violation of his six [sic] amendment right to effective assistance of counsel guaranteed by the United States Constitution. His attorney only spent seven days about 45 minutes each time, and the Saturday and Sunday the weekend before he was to start the trial the attorney was to come and see him and go over what was to be said at trial and never showed.
GROUND FIVE: Ineffective assistance of trial counsel.
Supporting Facts: The petitioner was denied effective assistance of counsel guaranteed by the United States Constitution because of
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his counsel never asked the petitioner did he have any character witnesses, something that would prove his character for meekness, peacefulness, and accommodating character and how he try [sic] to talk his way out of situations peacefully. How he the petitioner likes to help people when he can. How petitioner would not stab an unarmed person without just cause.
GROUND SIX: Ineffective assistance of trial counsel.
Supporting Facts: The petitioner was denied effective assistance of counsel guaranteed by the United States Constitution because of his counsel['s] stipulation to the prosecutor's motion in limine not to allow deceased['s] violent past to be brought up when specific acts would be helpful petitioner state of mind and impeachment of state's key witnesses. [sic]
GROUND SEVEN: Ineffective assistance of trial counsel.
Supporting Facts: The petitioner was denied effective assistance of counsel guarantee[d] by the United States Constitution because of his counsel['s] failure to properly challenge state's key witnesses inconsistent statements and testimony and fabrication of evidence.
GROUND EIGHT: Ineffective assistance of trial counsel.
Supporting Facts: The petitioner was denied effective assistance of counsel guaranteed by the United States Constitution because of his counsel['s] failure to properly bring out the evidence to show self-defense and properly argue it so that it would warrant an instruction for self-defense. It was the petitioner's property he was trying to get back peacefully he had given the deceased a three day noticed [sic] on the phone and waited two to three weeks to give him a chance to clam [sic] down before going to the house to give him a written notice pursuant to Ohio Revised Code 1923.04. Counsel failed to bring out that in Ohio there is no duty to retreat when one's intent is not to use deadly force once the decease [sic] picked up the stone/rock with the distant [sic] they were from each other there was no reasonable means of escape running or backing away was not an option because a stone/boulder/rock can cause serious physical harm and death in a hand or thrown. the decease [sic] could have easily chased him down, with a careful look at the crime scene drawing and pictures you could see that.
(Amended Petition, ECF No. 5, PageID 30, et seq.)
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On January 20, 2016, the Court granted Waller leave to amend to add the following claims:
Ground Nine: Ineffective Assistance of Trial Counsel in violation of the 6th Amendment of the U.S. Constitution for failure to object to the trial court's erroneous jury instruction.
Supporting Facts: During the stage for instructing jurors on which violation of the requisite statutes to convict or acquit petitioner, the instruction involving voluntary manslaughter's predicate offense of aggravated assault was omitted by the Court. Wherein trial counsel failed to timely object to this erroneous instruction, denying the petitioner constitutionally effective assistance.
Ground Ten: Ineffective assistance of counsel for failure to file motion to dismiss for due process violation of speedy trial right guaranteed by the 6th and 14th Amendment[s] of the U.S. Constitution.
Supporting Facts: Trial counsel's performance fell below the objective standard of reasonableness when, upon request, counsel failed to file an motion to dismiss based on the fact that the petitioner was not afforded a preliminary hearing within the specified statutory time requirement under Ohio law; violating his due process and equal protection right protected by the 6th and 14th Amendment of the U.S. Constitution.
Ground Eleven: Trial court's abuse of discretion for failure to instruct jury on self-defense in violation of Due Process Clause of the 14th Amendment of the U.S. Constitution.
Supporting Facts: During the course of the trial proceedings the petitioner requested the trial court instruct the jury on self-defense. Sufficient evidence, on the record, was presented to warrant such instruction. Moreover, the evidence sufficed the three prongs required to receive the aforementioned instruction, however, the trial court arbitrarily refused to instruct jury.
(Motion to Amend, ECF No. 15, PageID 98-100.)
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Procedural and Factual History
On April 23, 2012, the Clark County Grand Jury indicted Waller on one count of purposeful murder with firearm specifications in violation of Ohio Revised Code § 2903.02(A); one count of felony murder with firearm specification in violation of Ohio Revised Code § 2903.02(B); one count of tampering with evidence in violation of Ohio Revised Code § 2921.12(A)(1); and one count of carrying a concealed weapon in violation of Ohio Revised Code § 2923.12(A).
Prior to trial, Waller, through counsel, filed motions to suppress statements and photo identification which were denied (State Court Record, ECF No. 17, PageID No. 122). In addition, Waller changed his plea to Not Guilty by Reason of Insanity and Suggestion of Incompetency to Stand Trial which the court later permitted him to withdraw. Id. at 129. Waller proceeded to file a motion to dismiss count two of the indictment, felony murder, since it was defective because of the failure to specify the lesser included offense of felonious assault. Following a hearing on the matter, the trial court denied the motion.
Waller was tried by a jury and found not guilty of purposeful murder and guilty of felony murder without a firearm, tampering with evidence, and one count of carrying a concealed weapon. Id. at 134. On February 12, 2013, Waller was sentenced to an aggregate term of fifteen years to life with sentences to be served concurrently. Id. at 138.
Waller, through counsel, appealed to the Court of Appeals of Ohio, Second Appellate District, Clark County, raising the following assignments of error:
I. The Jury Instructions were improper, depriving appellant of his rights to due process and a fair trial.
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A. The trial court was required to instruct the jury for the inferior offense of aggravated assault and failure to do so constitutes plain error.
B. The trial court erred in refusing to instruct the jury on self-defense.
1. Appellant was entitled to the Castle Doctrine instruction and presumption.
2. Appellant was entitled to a self-defense instruction
C. Appellant was entitled to an instruction to reckless homicide.
II. The denial of Waller's Motion to Dismiss the Indictment was an error because the indictment contained structural errors which were not remedied by the Bill of Particulars.
A. Appellant's indictment must be dismissed because it failed to state all of the elements of the offense of felony murder.
B. The Bill of Particulars did not remedy this because it alleged two theories of felonious assault, failing to put Appellant on notice of the elements of the offense for which he was charged.
III. The prosecutor engaged in misconduct throughout the entire trial, tainting the whole proceedings, depriving appellant of a fair trial.
(State Court Record, ECF No. 17, PageID No. 151.)
The Second District set forth the facts of this case on direct appeal as follows:
[*P4] Waller purchased the house at 154 Kewbury, in Springfield, in 2006. He was employed as a radiographer at Mercy Medical Center, and later worked a...
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