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Jackson v. Sloan

United States District Court, N.D. Ohio, Eastern Division

September 24, 2019

DARRELL L. JACKSON, JR., Petitioner,
v.
BRIGHAM SLOAN, Warden Respondent.

          JACK ZOUHARY, JUDGE.

          REPORT & RECOMMENDATION

          Jonathan D. Greenberg, United States Magistrate Judge.

         This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the Petition of Darrell L. Jackson (“Jackson” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Jackson is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Jackson, Lorain County Court of Common Pleas No. 14-CR-090543. For the following reasons, the undersigned recommends that the Petition be DISMISSED.

         I. Summary of Facts

         In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the facts underlying Jackson's conviction as follows:

{¶ 2} Following an investigation into drug trafficking, the Lorain Police Department executed a search warrant at Jackson's home. During the search, officers discovered a firearm, multiple cell phones, United States currency, a scale, a hydraulic press, Pyrex jars with residue, a grinder with residue, crack cocaine, and a large amount of white powder in different baggies, some of which field tested positive for cocaine. Consequently, Jackson was indicted by the Lorain County Grand Jury and charged with several counts of trafficking and possession of cocaine with specifications, tampering with evidence, having weapons while under disability, possession of criminal of tools, and drug paraphernalia. At arraignment, Jackson pleaded not guilty to the charges.
{¶ 3} The Lorain Police Department then submitted the white powder to a forensic analyst to test for licit and illicit substances. The forensic analyst testified that her analysis found three different specimens that tested positive for Benzocaine and caffeine, but no controlled substances, one specimen weighing .38 grams that tested positive for cocaine and Levamisole, and one specimen weighing 38.2 grams that tested positive for cocaine and Levamisole. Her analysis also found that out of five baggies with a total combined weight of 137.89 grams, four tested positive for cocaine and Levamisole. The fifth baggie was not tested due to the lab's policy of using hypergeometric distribution, which calls for the lab to test a statistical amount to give them a ninety-five percent confidence that all of the samples will have the same contents.
{¶ 4} Subsequently, Jackson pleaded guilty to several counts in the indictment, waived his right to a jury trial, and proceeded to a bench trial on counts three and four of the indictment. Count Three charged Jackson with trafficking in cocaine in violation of R.C. 2925.03(A)(2), a felony of the first degree. The offense carried a major drug offender specification and a forfeiture of property specification ($2, 978.00 in cash). Count Four charged Jackson with possession of cocaine in violation of R.C. 2925.11(A), a felony of the first degree. The offense carried a major drug offender specification. At the conclusion of the State's case-in-chief, Jackson raised a Crim.R. 29 motion for judgment of acquittal, arguing that R.C. 2925.03(C)(4) and R.C. 2925.11(C)(4) required the State to prove the weight of the pure cocaine involved in order to convict him of anything above a fifth degree felony. The trial court summarily denied the motion. The defense then rested and renewed its Crim.R. 29 motion. The trial court subsequently found Jackson guilty of both counts and sentenced him on all counts in the indictment to an aggregate term of eleven years in prison.

State v. Jackson, No. 15CA010828, 2016 WL 6599423, at *1 (Ohio App. 9th Dist. Nov. 7, 2016).[1]

         II. Procedural History

         A. Trial Court Proceedings

         In October 2014, the Lorain County Grand Jury indicted Jackson on the following charges: five counts of trafficking in drugs in violation of Ohio Rev. Code §2925.03(A)(1) (Counts One, Two, Three, Five, and Six); one count of possession of drugs in violation of Ohio Rev. Code §2925.11(A) (Count Four); one count of tampering with evidence in violation of Ohio Rev. Code §2921.12(A)(1) (Count Seven); one count of having weapons while under a disability in violation of Ohio Rev. Code §2923.13(A)(3) (Count Eight); one count of possessing criminal tools in violation of Ohio Rev. Code §2923.24(A) (Count Nine); and one count of drug paraphernalia offenses in violation of Ohio Rev. Code §2925.14(C)(1) (Count Ten). (Doc. No. 8-1, Exh. 1.) Jackson initially entered pleas of not guilty to all charges. (Doc. No. 8-1, Exh. 2.)

         On January 21, 2015, the State filed a Notice of Intent to submit a laboratory report as evidence at trial. (Doc. No. 8-1, Exh. 3.) On May 12, 2015, Jackson, through counsel, filed a Motion to Permit Independent Drug Testing, requesting the state trial court allow for an “independent test performed on the drugs involved.” (Doc. No. 8-1, Exh. 4.) The trial court granted this Motion on May 20, 2015. (Doc. No. 8-1, Exh. 5.)

         On June 1, 2015, Jackson, through the assistance of counsel, withdrew his not guilty plea and entered guilty pleas as to Counts One, Two, Five, Six, Seven, Eight, Nine, and Ten. (Doc. No. 8-1, Exh. 6.) Counts Three and Four remained pending. (Id.)

         On June 1, 2015, Jackson waived his right to jury trial as to Counts Three and Four and the case proceeded to a bench trial that same date. (Doc. No. 8-1, Exh. 8, 9.) On June 5, 2015, the State submitted supplemental authority to the state trial court, in support of its argument it “has never been required to prove the purity of cocaine, or any other drug.” (Doc. No. 8-1, Exh. 10.) Jackson, through counsel, also filed a post-trial brief, arguing the opposite. (Doc. No. 8-1, Exh. 11, 12.)

         On June 24, 2015, the state trial court returned its verdict, finding Jackson guilty of all remaining charges. (Doc. No. 8-1, Exh. 13; Doc. No. 8-2, Tr. 131.) The state trial court immediately proceeded to sentencing after returning its verdict. (Doc. No. 8-1, Tr. 132.) The trial court merged Counts Three and Four and sentenced Jackson to six years in prison on Count One, six years on Count Two, eleven years on Count Three, six years on Count Five, six years on Count Six, two years on Count Seven, two years on Count Eight, 10 months on Count Nine, and one month on Count Ten. (Id. at Tr. 132-133.) The trial court ordered these sentences to be served concurrently, for an aggregate sentence of eleven years. (Id. at Tr. 133.) The trial court also ordered Jackson forfeit $2, 978 to the State of Ohio. (Doc. No. 8-1, Exh. 15.)

         B. Direct Appeal

         Jackson, through counsel, filed a timely notice of appeal to the Ohio Ninth District Court of Appeals, Lorain County. (Doc. No. 8-1, Exh. 16.) In his appellate brief, he raised the following assignments of error:

I. The trial court erred in convicting Jackson based on insufficient evidence.
II. The trial court's entry of conviction was against the manifes t w e i g h t o f the evidence.

(Doc. No. 8-1, Exh. 17) (capitalization altered.) The State filed a brief in response. (Doc. No. 8-1, Exh. 18.)

         On November 7, 2016, the state appellate court affirmed Jackson's convictions and prison sentences. (Doc. No. 8-1, Exh. 19.) See also State v. Jackson, No. 15CA010828, 2016 WL 6599423 (Ohio App. 9th Dist. Nov. 7, 2016).

         On December 21, 2016, Jackson, through counsel, filed a Notice of Appeal with the Supreme Court of Ohio. (Doc. No. 8-1, Exh. 20.) Within his Memorandum in Support of Jurisdiction, Jackson raised the following Proposition of Law:

I. In prosecuting cocaine offenses involving mixed substances under R.C. 2925.11(C)(4)(a) through (f), the State must prove that the weight of the cocaine meets the statutory threshold, excluding the ...

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