United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE
habeas corpus case under 28 U.S.C. § 2254 is before the
Court on Petitioner's Objections (ECF No. 18) to the
Magistrate Judge's Report and Recommendations on the
merits (ECF No. 17). District Judge Rice has recommitted the
case for reconsideration in light of the Objections (ECF No.
was convicted on one count of endangering children by
recklessly causing serious harm and given an eight-year
sentence. He pleads one ground for relief:
Ground One: Adam Jones received
constitutionally ineffective assistance of counsel at trial
due to counsel's failure to secure and present medical
expert and biomechanics expert testimony on shaken baby
Supporting Facts: Trial counsel failed to
secure and present medical expert testimony and biomechanics
expert testimony on shaken baby syndrome at trial.
(Amended Petition, ECF No. 3, PageID 89). After his
conviction was upheld on direct appeal, he obtained
assistance from the Ohio Public Defender who represented him
in post-conviction and continues to be his counsel in this
proceeding. The trial court conducted a three-day evidentiary
hearing on his ineffective assistance of trial counsel claim,
but declined to grant relief. On appeal, the Second District,
Judge Hall wrote a sixty-three page opinion for the majority
of a Second District panel; Judge Froelich dissented.
Applying Strickland v. Washington, 466 U.S. 668
(1984), the Second District found trial counsel had performed
deficiently, but that Jones had suffered no prejudice
thereby. State v. Jones, 2nd Dist. Miami
No. 2016-CA-22 2018-Ohio-673, ¶¶ 52-69 (Feb. 23,
2018), jurisdiction declined, 153 Ohio St.3d 1403,
2018-Ohio-2380 (Jun. 20, 2018); see also id. at
¶¶ 70-73 (Froelich, J., dissenting). Importantly,
the Second District evaluated prejudice not against
“the universe of possible experts who could have been
called, but the experts actually put forward by Jones in
post-conviction. It found those particular experts - not some
hypothetical other experts - not to be credible on the
causation issue.” (Report, ECF No. 17, PageID 1534).
there was no direct testimony of the child abuse, the case
depended on circumstantial evidence. Applying the
medical/scientific tool of differential diagnosis, the
experts testifying at trial eliminated any other possible
causation for the injuries here. Jones' experts in
post-conviction did not provide a compelling refutation of
Report therefore recommended deferring to the Second
District's opinion under AEDPA, but granting a
certificate of appealability based on Judge Froelich's
dissent (ECF No. 17, PageID 1536).
objects (ECF No. 18).
Strickland Prejudice Standard
gravamen of Petitioner's Objections is that, in order to
establish prejudice under the Strickland standard,
“the defense-favorable expert testimony developed in
the state-court postconviction proceedings . . . simply had
to create enough uncertainty regarding the abuse-causation
conclusion through the differential-diagnosis process to
cause at least one juror to be unable to reach a finding of
guilt beyond a reasonable doubt.” (Objections, ECF No.
18, PageID 1539-40).
counsel posits that
[T]his case is entirely about Strickland
reasonable-probability prejudice. In Strickland
itself the Supreme Court of the United States established
that that standard is neither a preponderance-of-the-evidence
standard, nor a more-likely-than-not standard, but is
instead, less than both of those. Strickland, 466
U.S. at 693-94.
Consequently, the question for this Court is whether Mr.
Jones has demonstrated a reasonable probability (which is
less than both the preponderance and more-likely-than-not
standards) that, with testimony from his medical and
biomechanical experts, at least one juror would have harbored
a reasonable doubt about whether or not he caused the
child's injuries. See Buck v. Davis, 580 U.S.,
137 S.Ct. 759, 776 (2017). In other words, using a calculus
at somewhere less than fifty percent, would the testimony
provided in postconviction litigation by Mr. Jones's
expert witnesses have caused one juror to “strike a
different balance” ...