United States District Court, S.D. Ohio, Western Division
Herbert Rice District Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON MOTION FOR
RELIEF FROM JUDGMENT
Michael R. Merz United States Magistrate Judge
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).
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).
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).
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 ...