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Jones v. Warden, Ross Correctional Institution

United States District Court, S.D. Ohio, Western Division

March 31, 2017

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

          Walter Herbert Rice District Judge


          Michael R. Merz United States Magistrate Judge

         This habeas corpus case was dismissed with prejudice on March 31, 2016 (ECF No. 25, 26). On March 13, 2017, Petitioner moved the Court under Fed.R.Civ.P. 60(b) to reopen the case (ECF No. 38). The Magistrate Judge recommended the motion to reopen be denied (report and Recommendations, ECF No. 39). Petitioner has objected (Objections, ECF No. 40), the Warden has responded to those Objections (Response, 41), and Judge Rice has recommitted the case for reconsideration in light of the Objections (ECF No. 42).

         Procedural History

         In the original Report and Recommendations in this case, the Magistrate Judge recited the procedural history as follows:

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 (2nd 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.

(Report and Recommendations, ECF No. 15, PageID 1962-63.) Mr. Jones pleaded eleven grounds for relief in habeas corpus. Id. at PageID 1963-66. The Report recommended dismissing the Petition with prejudice either on the merits or because of procedural default. Id. at PageID 1981. After additional consideration and briefing, Judge Rice adopted that recommendation and dismissed the case with prejudice on March 31, 2016 (ECF No. 25).

         Mr. Jones filed a late appeal which the Sixth Circuit dismissed as untimely on September 21, 2016 (ECF No. 36). Mr. Jones filed his Motion to Reopen on March 13, 2017. The case is now before the Court on his Objections to the Magistrate Judge's Report and Recommendations that the Motion to Reopen be denied (ECF No. 39).


         Mr. Jones argues that when the Ohio Second District Court of Appeals remanded his case for proper findings to support consecutive sentences, the Clark County Common Pleas Court did not do so in a final appealable order. Mr. Jones raised the issue of insufficient findings to support consecutive sentences in his Petition as Ground Three for Relief:

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 this case I was not given that right.

(Quoted at Report, ECF No. 15, PageID 1964.) The Report found that the Clark County Common Pleas Court had made findings on remand on this issue and that, if they were in error, Mr. Jones had procedurally defaulted the claim by never appealing. If at PageID 1974. The Report further cited Oregon v. Ice, 555 U.S. 160 (2009), as holding there was no constitutional right to particular findings of fact before consecutive sentences ...

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