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Jewett v. Warden, Noble Correctional Institution

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

August 20, 2019

TYRONE JEWETT, Petitioner,
v.
WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.

          Barrett, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge

         Petitioner, an inmate in state custody at the Chillicothe Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before the Court on the petition, respondent's motion to dismiss (Doc. 7), and petitioner's response in opposition (Doc. 9). For the reasons stated below, the undersigned recommends that the motion to dismiss be granted and the petition be dismissed.

         I. FACTUAL BACKGROUND

         The Ohio Court of Appeals set forth the following set of facts leading to petitioner's conviction and sentence:[1]

{¶8} The Scioto County Grand Jury returned a 46-count indictment against Tyronne Jewett and 23 other defendants. The indictment charged Jewett with 41 counts and various specifications. All of the defendants, including Jewett, were charged with engaging in a pattern of corrupt activities, conspiracy to engage in corrupt activities, and conspiracy to traffic in drugs (heroin and cocaine). The indictment also charged Jewett with multiple trafficking in heroin and cocaine offenses. After the trial court appointed counsel for Jewett, he entered a plea of not guilty to the charges.
{¶9} The remaining facts are based upon the evidence produced at a jury trial. The Southern Ohio Drug Task Force received information that Jewett (also known as “Blue” or “Ty”), who came from Dayton, was dealing heroin and cocaine in the Portsmouth area from 2014 until early 2015. Jewett purchased heroin and cocaine from Taevon Turnage in Dayton through Steven North, who acted as a middleman. Jewett sold the heroin and cocaine from several different residences in Scioto County. He then had the proceeds of the drug sales delivered or wired to Dayton in return for more drugs. Jewett instructed several individuals to wire the money to North. And several people drove Jewett or others on his behalf to obtain the drugs from Dayton.
{¶10} In January 2015 the police arranged six different controlled purchases of heroin and cocaine from Jewett by a confidential informant. The drugs seized from those transactions went to the Bureau of Criminal Investigation (“BCI”) where the lab found varying amounts of heroin and cocaine. BCI forensic scientist Megan Koentep testified that the laboratory did not quantitate submitted substances, i.e., BCI did not determine what percentage of the substance tested is actually heroin or cocaine-it did not test for the purity of the drug.
{¶11} Many of Jewett's co-defendants, who were almost all drug addicts, testified that they purchased heroin and cocaine from him, drove to Dayton to get the drugs for him and to give money to North, and permitted Jewett to use their houses in Scioto County to deal drugs. They provided testimony, mostly without objection, about the types and amounts of drugs purchased from Jewett and transported by or on behalf of him.
{¶12} After the task force had evidence of the six controlled purchases of heroin and cocaine, the police stopped an SUV driven by Jewett's accomplice, Christopher Wolfe, based on Wolfe's driving while under suspension. Jewett was in the front passenger seat. They discovered that Jewett had an arrest warrant on an unrelated Gallia County indictment and found a loaded semiautomatic handgun underneath Jewett's seat, multiple cellphones in his possession, including the one, on which he made the drug transactions, digital scales and hypodermic needles in his coat, and $1, 563 on his person. They arrested him and took him to jail.
{¶13} Portsmouth Police Detective Lee Bower testified that based on his experience, he was able to look at various quantities of drugs and estimate how much they weighed. Jewett did not object to the trial court qualifying him as an expert on giving estimates of weights of drugs based on appearance. By contrast BCI forensic scientist Koentep testified that the BCI weighs the submitted substances because they cannot be sure of the weight if they just looked at it.

(Doc. 6, Ex. 14).

         II. PROCEDURAL HISTORY

         State Trial Proceedings and Direct Appeal

         On April 16, 2015, the Scioto County, Ohio, grand jury returned a forty-six-count indictment against petitioner and twenty-three co-defendants. Petitioner was charged with forty-one counts, including twenty-seven counts of drug trafficking, two counts of trafficking in drugs/major drug offender, two counts of possession of criminal tools, five counts of money laundering, and one count each of engaging in a pattern of corrupt activities, conspiracy to engage in corrupt activities, weapon under disability, illegal conveyance of a drug of abuse into a detention facility, receiving stolen property, and conspiracy to traffic in drugs. (Doc. 6, Ex. 1). Petitioner, through counsel, entered a plea of not guilty to all counts. (Doc. 6, Ex. 2).

         Prior to trial, petitioner filed a motion to suppress and supplemental motion to suppress evidence and statements made to the police. (Doc. 6, Ex. 3, 4). The trial court denied petitioner's motions after holding a hearing on the matter. (Doc. 6, Ex. 5).

         On September 8, 2015, following a jury trial, petitioner was found guilty of thirty-three counts, including twenty-two counts of trafficking in heroin or cocaine, two counts of possession of criminal tools, three counts of money laundering, and one count each of engaging in a pattern of corrupt activity, conspiracy to engage in a pattern of corrupt activity, weapons under disability, illegal conveyance of a drug of abuse into a detention facility, receiving stolen property, and conspiracy to traffic in drugs. (Doc. 6, Ex. 7). Petitioner was sentenced to serve a total aggregate prison sentence of forty years in the Ohio Department of Corrections, with sixteen years being mandatory. (Doc. 6, Ex. 8).

         On October 2, 2015, petitioner, through counsel, filed notice of appeal to the Ohio Court of Appeals. (Doc. 6, Ex. 9). Petitioner raised the following five assignments of error:

Assignment of Error One: The trial court erred in not granting Defendant-Appellant's motion to amend the indictment made at the close of the State's case.
Issue One. In prosecuting cocaine offenses involving mixed substances under R.C. 2925.11(C)(4)(a) through (f), it must be proven that the weight of pure cocaine meets the statutory threshold. Herein, the state failed to prove the weight of pure cocaine in Counts Four, Nine, Thirteen, Fifteen, Sixteen, Seventeen and Thirty. Since the language in R.C. 2925.11 and R.C. 2925.03 as to cocaine offenses is the same the penalty enhancement in these counts must be reversed and vacated.
Assignment of Error Two: The trial court erred in not granting Defendant-Appellant's motion for acquittal.
Issue One. If reasonable minds could not reach the conclusion that the trier of fact did then a conviction must be overturned. Herein, Defendant-Appellant's convictions as to certain counts are based exclusively upon lay testimony of the identity and weight of controlled substances. Without the drugs, there is insufficient evidence they were controlled substances and what they weighed. Defendant-Appellant's conviction must be overturned.
Assignment of Error Three: Defendant-Appellant's convictions are against the manifest weight of the evidence.
Issue One. When a conviction is against the manifest weight of the evidence it must be reversed and a new trial ordered. Herein, Defendant-Appellant's conviction is based upon the testimony of drug addicts and co-defendants who made plea agreements with the state, plus expert witnesses who gave conflicting opinions of how to identify and weigh controlled substances. Defendant-Appellant's convictions are against the manifest weight of the evidence and must be reversed and a new trial ordered.
Assignment of Error Four: Trial counsel provided constitutionally ineffective assistance in violation of Defendant-Appellant's rights under the Sixth, and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.
Issue One. Under R.C. 2945.71 a person charged with a felony must be brought to trial within 90 days after arrest if he is incarcerated the entire time prior to trial. Herein, Defendant-Appellant was arrested on January 25, 2015, tried starting on August 31, 2015 and incarcerated the entire time. This is a period of 228 days. Trial counsel failed to move for dismissal. Trial counsel provided constitutionally ineffective assistance.
Issue Two. Ineffective assistance of counsel occurs where a lawyer has a duty to one client to contend for that which his duty to another client requires him to oppose. Herein, trial counsel's cross-examination failed to ask necessary questions of a witness with whom he had a conflict of interest with his representation of Defendant-Appellant. Trial counsel provided constitutionally ineffective assistance of counsel.
Assignment of Error Five: The trial court erred and denied Defendant-Appellant a fair trial and due process of law when it gave curative instructions that incorrectly stated Ohio law and were simplified from those given in its final charge to the jury and final jury instructions that were incorrect statements of Ohio law.
Issue One. Juries are presumed to follow curative instructions and an inadequate instruction that misleads the jury constitutes reversible error. Herein, the trial court gave two curative instructions as to the way to prove identity and weight of controlled substances. The instructions were incorrect statements of law. Defendant-Appellant was denied a fair trial and due process of law.
Issue Two. In prosecuting cocaine offenses involving mixed substances under R.C. 2925.11(C)(4)(a) through (f), it must be proven the weight of pure cocaine meets the statutory threshold. Herein, the trial court gave a final jury instruction that weight of pure cocaine did not need to be proven. Since the language in R.C. 2925.11 and R.C. 2925.03 as to cocaine offenses is the same the jury instruction was an incorrect statement of Ohio law.

(Doc. 6, Ex. 10). Petitioner subsequently filed a motion to amend his brief. Therein, petitioner sought to add the following language to his second assignment of error:

Defendant-Appellant contends his convictions as to Counts Three (F-1), Four (F-3), Five (F-3), Six (F-1), Twelve (F-1), Twenty-five (F-1), Twenty-seven (F-1), Twenty-eight (F-1), Twenty-nine (F-1), Thirty (F-1), Thirty-one (F-1), Thirty-three (F-1), Forty (F-2), and Forty-one (F-1) are based upon the exclusive testimony of lay witnesses and not upon expert analysis and should therefore be reversed.

(Doc. 6, Ex. 11). On April 14, 2017, the Ohio Court of Appeals overruled petitioner's assignments of error and affirmed the judgment of the trial court. (Doc. 6, Ex. 14).

         Ohio Supreme Court

         On May 30, 2017, petitioner filed a pro se notice of appeal to the Ohio Supreme Court. (Doc. 6, Ex. 15). In his memorandum in support of jurisdiction, petitioner raised the following three propositions of law:

1. The trial court erred in not granting the Appellant's motion to amend the indictment made at the close of the state's case, and in not granting his motion for acquittal, thus, the Appellant's conviction is against the sufficiency and manifest weight of the evidence.
2. The trial court denied the Appellant a fair trial and due process of law when it gave curative instructions that incorrectly stated Ohio law and final jury instructions that were incorrect statements of Ohio law.
3. Trial counsel was constitutionally ineffective when he failed to move for dismissal of all counts pursuant to Appellant's right to a speedy trial.

(Doc. 6, Ex. 16). On September 27, 2017, the Ohio Supreme Court declined jurisdiction of the appeal. (Doc. 6, Ex. 18).

         Application to Reopen Appeal

         Meanwhile, on June 26, 2017, petitioner filed an application to reopen his appeal pursuant to Ohio App. R. 26(B).[2] (Doc. 6, Ex. 19). Petitioner claimed that his appellate counsel was ineffective for failing to raise an assignment of error challenging the trial court's decision during voir dire to allow two allegedly biased jurors to sit for his trial. On September 6, 2017, the Ohio Court of Appeals denied petitioner's ...


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