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Jackson v. Morgan

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

January 6, 2020

TERRY DARNELL JACKSON, JR. Petitioner,
v.
DONNIE MORGAN, Warden, Ross Correctional Institution, Respondent.

          OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

          George Caram Steeh, United States District Judge [1]

         Petitioner Terry Darnell Jackson, Jr., seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. As discussed below, the court must dismiss Jackson's petition because his claims are procedurally defaulted.

         BACKGROUND FACTS

         Jackson, who is a state prisoner at the Ross Correctional Institution in Chillicothe, Ohio, was convicted of aggravated burglary, aggravated robbery, robbery, kidnapping, felonious assault, and carrying concealed weapons. The Court of Appeals of Ohio, First Appellate District for Hamilton County, made the following factual findings on direct appeal, which are presumed to be correct and are not disputed by Jackson. See 28 U.S.C. § 2254(e)(1).

In the case numbered B-1056803-A, Jackson pleaded guilty to two counts of aggravated burglary, two counts of aggravated robbery, two counts of kidnapping, one count of felonious assault - each with one specification - and one count of carrying a concealed weapon. The events underlying these charges are similar to each of the preceding crimes. Jackson and his accomplices followed a luxury vehicle from Kenwood to the Dlott/Chesley residence. They returned a few hours later, entering the home with firearms and a stun gun, and proceeded to burglarize the residence, returning to their car multiple times to drop their loot.
Eventually, Jackson and his accomplices confronted Dlott and Chesley, who had been asleep in their bedroom, and demanded money, jewelry, and watches from them. Dlott was forced to her nearby home-office to retrieve money from her purse before being returned to the bedroom. Jackson held a gun on Chesley while robbing him of a significant amount of cash and other items, and continued to hold a gun on him for the next 30 to 40 minutes.
Jackson next demanded to know where the safes were. Dlott and Chesley denied the existence of any safes. Jackson repeatedly attempted to stun Chesley while questioning him. The stun gun was inoperative. Dlott and Chesley remained insistent that there were no safes. Focus then shifted to Jackson's demand for the keys to the automobile Chesley drove earlier in the evening.
Jackson and his accomplices took Dlott and Chesley to the kitchen where keys for two vehicles in the attached garage were taken. The entire group then moved to the garage, where the assailant's attention was drawn to a red Ferrari. Dlott opened all four garage doors so the assailants could take the cars. Jackson pushed Chesley down the five steps into the garage. Chesley suffered a concussion, several broken bones, and other injuries. Dlott and Chesley escaped through an open garage door as Jackson and his accomplices retreated into the house.
At sentencing, Jackson argued that a number of his charges should merge as allied offenses of similar import. The trial court merged none of the counts, and imposed a sentence on each. It ordered the sentences for the crimes against Chesley to be served consecutively to each other, and the sentences for crimes against Dlott and the three earlier home invasions to be served concurrently to the crimes against Chesley. The total sentence was 34 years of incarceration.

ECF No. 6 at PageID 121-22.

         PROCEDURAL HISTORY

         On December 11, 2015, Jackson was charged with the following fifteen offenses: three counts of aggravated burglary (Counts 1-3), three counts of aggravated robbery (Counts 4-6), one count of robbery (Count 7), four counts of kidnapping (Counts 8-11), two counts of felonious assault (Counts 12-13), one count of carrying a concealed weapon (Count 16), and one count of receiving stolen property (Count 17). Counts 1 through 13 each carried 1-year and 3-year firearms specifications.

         Jackson pleaded guilty to reduced charges: two counts of aggravated burglary (Counts 1, 2); two counts of aggravated robbery (Counts 4, 6), two counts of kidnapping (Counts 8, 10), felonious assault (Count 12), carrying a concealed weapon (Count 16), and a 3-year firearm specification on each of these counts. The trial court sentenced him to a total of 34 years in prison; the total sentence is comprised of consecutive 7-year sentences for one count of aggravated burglary, one count of aggravated robbery, one count of kidnapping, and one count of felonious assault, consecutive to two 3-year specifications on the aggravated burglary and kidnapping charges. See ECF No. 6 at PageID 69. (The sentences on the remaining counts, which total 22 years, were ordered to be served concurrently.)

         On April 29, 2016, Jackson filed a timely notice of appeal to the First District Court of Appeals, Hamilton County, Ohio. He raised ...


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