HABEAS CORPUS LAWYER

IN THE COURT OF APPEALS

NINTH JUDICIAL DISTRICT

SUMMIT COUNTY, OHIO

PETITIONER 

C/O LORAIN CORRECTIONAL INSTITUTE

2075 S. AVON-BELDEN ROAD

GRAFTON, OHIO 44044

versus 

JENNIFER GILLECE BLACK, WARDEN

LORAIN CORRECTIONAL INSTITUTE

2075 S. AVON-BELDEN ROAD

GRAFTON, OHIO 44044

Respondent

“The great writ of habeas corpus has been for centuries esteemed the best and only sufficient defence of personal freedom.” Ex parte Yerger, 8 Wall. 85, 95, 75 U.S. 85, 95 (1868).

“[F]undamental fairness is the central concern of the writ of habeas corpus.” Strickland v. Washington, 466 U.S. 668, 697 (1984).

Petitioner is being unlawfully and unjustly restrained as a result of an Ohio Adult Parole Authority (“APA”) parole violation hearing. 

On June 23, 2021 the APA at Hearing (“Hearing”) found Petitioner guilty of (1) OVI, (2) attempt to cause physical harm to a police officer, and (3) knowingly causing a police officer to believe that Petitioner would cause physical harm to the police office. The normal APA revocation sentence for an OVI is 90 days (ODRC Sanctions for Violations of Conditions of Supervision, #100-APA-14, effective date February 21, 2021; Interstate Compact/OH/OH-Violation-Hearing-Grid). For counts 2 and 3 the APA added an additional 90 days. It is this additional 90-day sentence which Petitioner believes is in error and which warrants his immediate release from custody. (Petitioner’s 90-day release date is on or about July 20, 2021.) Attached and incorporated herein are: Exhibit A, Petitioner Affidavit of Verification; Exhibit B, ODRC Certificate of Incarceration; Exhibit C, APA PRC. (The PRC states “a prison term of 121 days” giving credit for the 59 days of jail time Petitioner incurred prior to the Hearing.)

Below are procedural, substantive, and Constitutional errors - all prejudicial and case dispositive - which occurred during the Hearing and warrant a Writ of Habeas Corpus to issue.

1. TIMELINESS. Petitioner’s Hearing was required to be held by June 1, 2021. According to the Hearing officer the original May 27, 2021 Hearing date was continued by the APA because “of its COVID policies.” The issue of timeliness was raised on the record at the beginning of the Hearing, with inquiry as to what those policies were specifically. The policies were not provided nor referenced by the Hearing officer. The Ohio Supreme Court Order dated March 27, 2020 (3/27/2020 Administrative Actions, 2020-Ohio-1166), which tolled time limitations for all ORC and OAC matters, expired on July 30, 2020, and was not renewed as to OAC matters. The Hearing officer requested the Supreme Court citation and said that she would investigate. 

However, the Hearing officer’s PRC “Notice of Findings” did not reference the time issue. Once the issue of time was raised, the Hearing officer had an affirmative duty to address the issue by providing the legal authorization for the APA’s position that the Hearing was not out of time. If the Hearing was out-of-time then the obvious result is that Petitioner should be released immediately with all relevant time issues in his sanction adjusted properly. 

2. STANDARD OF PROOF, GRAND JURY NO-BILL & PREJUDICIAL TESTIMONY.

The Hamilton County prosecutor presented one charge of felonious assault of a police officer against Petitioner to a Grand Jury, which refused to indict Petitioner. The standard of proof for a grand jury proceeding is probable cause, which is equivalent to an arresting officer’s standard of reasonable suspicion. Both of these standards are lower than the APA’s Hearing standard of preponderance of the evidence. Under this lower standard Petitioner was found by a jury of his peers to have not committed a crime.

The Grand Jury in this matter had all of the same evidence available to it as did the Hearing officer. In addition, the Grand Jury had the State of Ohio’s advocate as its guide, the Hamilton County Prosecutor’s Office. Officer Reed, in response to a Yes or No question “Did the Grand Jury indict” during the Hearing, blurted out that the reason the Grand Jury didn’t indict was because he didn’t receive notice of the proceeding from the Prosecutor and did not appear. The Hearing officer denied an objection and motion to have that answer stricken and disregarded. Reed proceeded to state that he intends to charge Petitioner with a menacing count “per the prosecutor’s advice.”

This testimony was highly prejudicial to Petitioner, who has no pending criminal charges against him. Reed’s inchoate and potential actions are not evidence by any standard, nor is his opinion as to why the Grand Jury chose not to indict. Further, for Reed to state that he would file charges because the prosecutor told him to file is beyond the pale. Setting aside the obvious issues of collusion and obstruction of justice that this testimony raises, the fact that the Hearing officer heard that Reed has the guidance and power of the prosecutor’s office behind him in his next attempt to implicate Petitioner gives credibility and credence to Reed’s claim that Petitioner committed an act of criminal menacing. If Petitioner did commit such a crime, why wasn’t he charged by Reed at the outset? A police officer’s duty is to reflect on the events of an incident and determine all possible crimes that were committed and then present his decision and evidence to the command for prosecution. A police officer is not supposed to get “multiple bites at the apple” by seeing which charges a Grand Jury will indict upon and then adjusting his professional judgment accordingly. 

Again, setting aside the issues of collusion, obstruction of justice, and the egregious abuse of power that occurs when prosecutors and cops use the Grand Jury as trial-and-error tactics, the fact that the Hearing officer heard the above testimony from Reed cannot be ignored. As further discussed below, the words used by Petitioner towards Reed were distinctly not of a threatening nature. Reed was not afraid for his safety at any time during the incident. Reed testified that after Petitioner said the worst of his comments that he, Reed, turned his back on Petitioner and proceeded to leave the immediate area of Petitioner and head out the door. Reed then testified that he turned back around because Petitioner told him to leave “loudly.” Reed did not testify that this comment by Petitioner made him fearful. Loud words do not amount to a crime.

For Reed to state now, two months after the incident and Grand Jury No-Bill, that the Hamilton County Prosecutor’s Office is instructing Reed to file an additional charge against Petitioner, and for the Hearing officer to permit such testimony, is simply intolerable. No trier of fact in the United States justice system is permitted to hear evidence of pending actions against an accused. Fiction is not fact, and until a charge is filed it is nothing but fiction in Reed’s mind. 

A finding of guilt by the APA under the higher standard of preponderance when a Grand Jury found no guilt under the lower standard of probable cause, along with the prejudicial nature of Reed’s testimony, is not warranted and requires that this decision be set aside as based upon insufficient, unsupported and unjust evidence.

3. WEIGHT OF THE EVIDENCE. In the Hearing the issue of Petitioner’s guilt as to whether or not he caused Police Officer Reed physical harm or threatened Reed with physical harm was the only contested issue. Including Petitioner and Reed, there were a total of seven witnesses to the incident that resulted in Reed filing one count of felonious assault of a police officer against Petitioner. Three of the APA witnesses – the three EMTs on the scene - did not appear at Hearing, although on the State’s witness list. However, the Hearing officer ruled that even though the EMTs were not present she considered their incident reports to be part of the police report, and thus were in evidence. The evidence at Hearing clearly and beyond a mere preponderance established that Petitioner did not cause physical harm to the officer or threaten to cause physical harm to the officer.

A. BIAS. Six of the seven witnesses failed to corroborate Reed’s allegation. None of the three EMT incident reports stated that they witnessed an assault of Reed by Petitioner, only abusive language and actions such as arm waiving and agitation. None of the EMTs were inside the residence when Reed alleges that Petitioner bull-rushed him with clenched fists and by “gravity” forced Reed through the closed front screen door and onto the porch. None of the EMT reports witnessed how Reed ended up on top of Petitioner, who Reed had face down on the cement porch. 

Most telling, Reed lied. Reed testified that when Petitioner rushed him he “defended himself with assistance.” None of the EMT reports state that they helped Reed defend against or subdue Petitioner. All of the EMT reports indicate that the EMTs were witnesses to the incident from the distance of at least the sidewalk, or the street, to the house. Reed lied when he said that the EMTs helped him defend and subdue Petitioner.

Two witnesses – Petitioner’s fiancé N., and her adult son J., both inside the home at the time of the incident – stated unequivocally that N. was standing between Reed and Petitioner at all relevant times. However, Reed stated that N. was standing “off to the side.” N. and J. testified that Reed initiated physical contact with Petitioner by reaching over N.’s shoulder and grabbing Petitioner’s arm, twisting it and pulling Petitioner through the screen door and slamming him onto the porch. N. was between Reed and Petitioner, and J. was sitting on the couch just a few feet away. That is a significant difference: Reed stating N. was off to the side and that Petitioner bull-rushed him and forced him out of the door by gravity; versus N. and J. testifying that N. was between Reed and Petitioner and that Reed initiated the contact by reaching over N. and grabbing and twisting Petitioner’ arm. 

Common sense says that Petitioner did not charge Reed. The screen would have broken, there would be damage to the door frame, Reed would have injuries on his back, Petitioner would have injuries consistent with flying through the air - a distance of over six feet - onto a cement porch. Together these two men of equal proportion weigh approximately 400 pounds. 400 pounds does not go via gravity as smoothly as Reed would have us believe. For the Hearing officer to believe that Petitioner rushed Reed and that Reed was able to move quickly enough and had sufficient room to maneuver both himself and Petitioner and carry them both through the screen door, and land on top of Petitioner with Petitioner face down, is simply fantastical. Per his testimony Officer Reed is a superhero.

The final witness, Petitioner himself, stated that he never made a physical move towards Reed and was behind N. the entire time. 

When Reed finished testifying the Hearing officer thanked him for his service. However, when N. finished testifying, although a XXXXXXXXX Public School Special Ed teacher for 12 years, the Hearing officer did not thank her for her service. 

Credibility of a witness is for the Hearing officer. Although Reed’s answers on cross were purposely evasive and nothing short of combative, the Hearing officer’s decision implies that she believed Reed over the other witnesses. The trier of fact deserves deference as to credibility but does not have carte blanche power to ignore the weight of the evidence. 

Further, when the evidence shows that Reed is lying as to a key fact - needing and receiving assistance to defend and subdue Petitioner - all of his other testimony is immediately cast into doubt. Under a preponderance of evidence standard there is simply no possible way that the Hearing officer could have found Reed’s version of events to be truthful. There were six other human beings at the incident and only Reed claims that he was assaulted; not simply, but feloniously. 

‘An officer’s word’ has been relied upon by triers of fact as the definitive word for too long and with innumerable horrific outcomes. It is now time that this sham ignorance and denigration of the presumption of innocence be systematically put to an end. Police officers need to be prevented from inventing facts to fit their job of finding guilt, and the APA needs to know that it must do its part in reversing the devastating rates of reincarceration that plague Ohio prisons, taxpayers, and black individuals and communities. 

An unbiased weighing of the evidence unequivocally shows that Petitioner did not assault Reed.

B. INJURIES. Reed testified that he suffered only scrapes on his elbows and knees from the fall. Those injuries need to have been caused by Petitioner’ alleged assault as an element of the charge, and there can be no finding of “did cause physical harm” if there is no harm. When asked repeatedly how Petitioner caused Reed’s injuries Reed would not provide any specifics other than he landed on top of Petitioner and incurred scrapes from the fall. 

The EMTs’ statements state only that Reed was observed on top of Petitioner. N., J. and Petitioner testified that Reed initiated the contact and landed on top of Petitioner. There was no independent corroborating evidence of Reed’s injuries – no hospital reports, no photos, no statements by the EMTs that they were told about injuries by Reed or treated Reed at the scene. 

Evidence of injuries could have easily been corroborated. Under any standard of proof, even in a civil trial, injury/damages must be proven by more than testimony. The fact that Reed failed to produce any evidence of injuries unequivocally fails to meet a preponderance burden that Reed suffered injuries. 

C. THREAT. All seven witnesses agree that Petitioner used the “N” word towards Reed and said that Petitioner would “dog-walk” Reed. Reed testified that Petitioner first used this language while Petitioner was in the kitchen and Reed was at the kitchen door, separated by several feet. N. testified that she was between Reed and Petitioner in the kitchen. N. also testified that Petitioner only made the “dog-walk” comment after Reed said that he “would take [Petitioner] down”, and further – falsely - ordered Petitioner to go with the EMTs - against his will - after the EMTs had left the house stating that they could not make Petitioner go against his will. 

N., J. and Reed himself agree that Reed entered the home uninvited. N. stated that she let the EMTs in and that Reed walked in behind them, and that she immediately told Reed to “hold up, that [she] didn’t call the police.” Reed and N. agree that N.’s 911 call did not mention any type of criminal activity in-progress or that N. was fearful of Petitioner’s actions, only that she was concerned for Petitioner’s health and well-being. Reed had absolutely no authority to be inside the home. 

Reed stated that he continued to make his way into the home and walked to the kitchen entrance after the EMTs had finished questioning Petitioner and were exiting the house. Reed stated that he stood at the kitchen entrance and Petitioner began to verbally berate him, telling him to get out of the house. Reed did not leave immediately but engaged with Petitioner for no applicable police reason. At this moment Reed was an uninvited and armed police officer inside a home where no criminal activity was going on and where medical personnel had already cleared the scene and left. The presumption of innocence standard was in effect – Reed had no reasonable suspicion that a crime was in progress and needed to leave Petitioner alone as an innocent person. 

In fact, Reed testified that he turned and walked back towards the front door. No police officer would ever turn their back on a person who they felt threatened by. There was no threat to Reed at that point because Petitioner was standing at a proper distance with N. in between. Petitioner had every right in the world to say anything he wanted to the police officer as long as his words did not place Reed in fear. Reed was not in fear; he turned his back on Petitioner and walked away.

Upon reaching the door Reed says he stopped and turned because Petitioner continued to yell at him. Why did Reed stop? When questioned as to why, Reed refused to answer what his motivations were, and the Hearing officer sustained an objection by APA that Reed’s motivations were not relevant. At this point everyone agreed that Petitioner said “you’re not leaving fast enough” and “get out of my house.” No threats, just an observation and a directive. Reed and N. agreed that Reed said “it’s not your house, it’s hers.” Why would Reed say that for any reason other than to engage Petitioner again? A professional police officer does not argue with innocent people as he is leaving the scene unless he is intent on finding criminality. 

The weight of the evidence does not establish with even an ounce of credibility that Reed was threatened by Petitioner’ actions or words. 

D. LEVEL OF IMPAIRMENT. Petitioner has a substance abuse disease. He has been in and out of the criminal system for a long time. Almost all, if not all, of his offenses have been either in furtherance of his addiction or a result of his addiction. 

Petitioner was impaired during this incident. Either Petitioner was determined to be so impaired by Officer Reed that Petitioner needed to go against his will with the EMTs for Petitioner’ own well-being, or Petitioner was not so impaired that Petitioner could form the requisite intent needed to commit assault. Reed wants it both ways. The fact that the Hearing officer completely overlooked the duplicitous logic inherent in Reed’s characterization of Petitioner’ behavior is fatal error and reveals the gross unfairness of the APA’s decision. 

4. 4TH AMENDMENT AND THE RIGHT TO BE FREE FROM SEIZURE

The 4th Amendment is legal protection for people to be free from warrantless entry into their homes. Unless operating under a Supreme Court exception, no police officer has the authority to enter a home uninvited without a warrant. 

Reed does not dispute that he entered the home uninvited, even though he knew from the 911 call that no crime was complained of against Petitioner on the 911 call. N. testified that she told Reed to “hold up” immediately upon his entry into her home, words which constitute a precise statement that Reed was not authorized by the homeowner to enter the residence. 

Reed testified that the “county-wide policy” that governs his village police department permitted him to ignore N. and enter her home to assess the situation. When pressed as to the policy, Reed gave vague testimony that the policy permits him to enter a home if a person is reported to be non-responsive or suffering a medical emergency. Reed became so combative during this line of questioning that until a transcript is available it is not clear if Reed ever answered that he was under the impression that there was an unresponsive person in the home. However, Reed did testify that the EMTs were in the home first and that he followed them in. When asked whose duty it was to assess the medical emergency level of the situation when both the police and EMTs were on the scene Reed replied “either of us.” 

All seven witnesses including Reed stated in their reports or testified that the EMTs said that there was nothing they could do to make Petitioner go with them against his will, and that all of the EMTs then left the house. Why Reed remained at that point, especially when being told to leave by Petitioner, is unknown. But the facts are that Reed entered the home against the homeowner’s wish and then did not leave once the EMTs left. Whatever duty Reed thinks he owed Petitioner to protect him, under what Reed described as his “caring and compassionate” standard of professionalism, does not justify Reed being in the home illegally. The facts do not show that Reed did anything to care for Petitioner, or to assist in making a medical evaluation of Petitioner’ condition. In fact, the facts show clearly that Reed escalated the situation by giving an illegal order to Petitioner that he had to go with the EMTs. 

At this point Reed is not a caring and compassionate professional, he is an armed and engaged belligerent. That Petitioner responded to Reed’s illegal activity with insults and orders to leave is not illegal or even unreasonable. The 4th Amendment is designed to prevent exactly the type of situation that Reed himself created. But for Reed’s illegal actions, Petitioner would have never said mean words to Reed. Reed cannot complain of Petitioner’ actions when Reed is the sole cause of those actions. Reed’s illegal police actions are the only causation that matters here. Reed’s actions were illegal with each and every step he took inside the home and for every order he gave. 

Reed’s arrest of Petitioner was nothing short of a kidnapping. 

CONCLUSION

The Ohio Supreme Court has held that parole may be revoked even though criminal charges based on the same facts are dismissed, the defendant is acquitted, or the conviction is overturned, unless all factual support for the revocation is removed[emphasis added]. Moore v. Leonard (1999), 85 Ohio St.3d 189, 190, 707 N.E.2d 867. The Supreme Court has also held that the “state's dismissal of the felonious assault and aggravated burglary charges against [defendant/petitioner] did not remove all factual support for the revocation. The attachments to [defendant’s] petition establish that the Parole Board had substantial evidence before it, including the testimony of police officers, to support its findings that [defendant] committed the charged parole violations, i.e., that he criminally damaged property, assaulted his ex-girlfriend's new boyfriend, and failed to obey an order of his parole officer.” Ridenour v. Randle, 96 Ohio St.3d 90, 771 N.E.2d 859, 2002 Ohio 3606 (Ohio 2002). See State ex rel. Parker v. Tate (1999), 86 Ohio St.3d 625, 626, 716 N.E.2d 210, 211. Reyes v. Tate, 742 N.E.2d 132, 91 Ohio St.3d 84 (Ohio 2001).

In this case the underlying charge of felonious assault was not simply dismissed by the State – the charge was presented to a Grand Jury under a probable cause standard of proof and returned as a No Bill, or a finding of no factual evidence of a crime. 

Further, as related above, the evidence at the APA Hearing itself removed all factual support for revocation of parole as to the second and third counts.

In 2021’s supposedly new environment of police justice the United States should be long past the point of tolerating police officer misconduct that results in fictitious charges. No adjudicatory body including the APA can ignore the illegality of Reed’s actions as causation, as the Hearing officer did. To find that Petitioner, yet another black male, should have his reincarceration time doubled for parole violations entirely premised upon and resulting from a police officer’s illegal activities and fabricated events makes this decision an extreme miscarriage of justice. As the Supreme Court stated over 50 years ago, “Justice must have the appearance of being just.” There is nothing about this decision that is just. The APA should not be a party to the condoning of illegal police activity, a lying police officer, and abuse and disregard of the Grand Jury process. This Court must stand as both watchtower and safeguard as to exactly the type of malfeasance on display in this case. 

For the foregoing reasons the Petitioner’s Writ should be granted. 

RESPECTFULLY SUBMITTED, 

s/JAMES SIDNEY JONES 

______________________________ 

JAMES SIDNEY JONES, LPA

5455 N. MARGINAL RD., SUITE 215

CLEVELAND, OHIO 44114 

216-797-9520

attorneyjamessidneyjones@gmail.com