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Jones v. Noble

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

December 27, 2019

ADAM JONES, Petitioner,
v.
JEFF NOBLE, Warden, Madison Correctional Institution, Respondent.

          Walter H. Rice District Judge

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This 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. 19).

         Petitioner 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 syndrome.
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).

         Because 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 their analysis.

         The 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).

         Jones objects (ECF No. 18).

         Analysis

         The Strickland Prejudice Standard

         The 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).

         Jones' 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” ...

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