USA v. Jones

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
UNITED STATES OF AMERICA,
Plaintiff, 	: 	Case No. 3:16-cr-00026
District Judge Thomas M. Rose
- 	vs 	- 	Magistrate Judge Michael R. Merz
ROBERT STEVEN JONES,
Defendant. 	:
TRANSFER ORDER
This federal criminal case is before the Court on Defendant’s recent Motion to Vacate
under 28 U.S.C. § 2255 (“Motion,” ECF No. 145). Because this is the second such motion filed
by Defendant and he has produced no proof of approval to proceed from the circuit court, this
Court proceeds first to determine whether the Motion is second or successive within the meaning
of 28 U.S.C. § 2255(h). If it is, Jones needs circuit court permission to proceed.
Litigation History
A criminal complaint charging Jones was filed in this Court November 2, 2015, resulting
in Jones’ arrest (ECF No. 4). A grand jury for this District returned an Indictment on February 25,
2016 (ECF No. 20) and a First Superseding Indictment on July 14, 2016 (ECF No. 43).
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Jones moved to suppress evidence obtained as a result of use of the network investigative
technique (“NIT”) authorized by Magistrate Judge Buchanan on May 23, 2016 (ECF No. 33) and
November 21, 2016 (ECF No. 53). 	Judge Rose overruled those motions on February 2, 2017
(Entry and Order, ECF No. 60). His decision includes extended discussion of the NIT and cites
numerous other courts which have considered this particular search. 	He outlined how the NIT
worked and why the results of a search using it were not unconstitutionally seized. In particular
he quoted United States v. Leon, 468 U.S. 897 (1984)(“To the extent that proponents of exclusion
rely on its behavioral effects on judges and magistrates...their reliance is misplaced...the
exclusionary rule is designed to deter police misconduct rather than punish the errors of judges
and magistrates.”) Id. at 916; and United States v. Master, 614 F.3d 236, 242 (6th Cir. 2010) (The
exclusionary rule is designed “to curb police rather than judicial misconduct.”)(quotation marks
and citation omitted).
On September 25, 2017, Jones entered into a Plea Agreement with the United States in
which he agreed to plead guilty to Counts 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, and 13 of the Superseding
Indictment, reserving the right to appeal denial of suppression and discovery (ECF No. 84, PageID
1021). 	Pursuant to the Plea Agreement, Judge Rose accepted Defendant’s guilty plea and
sentenced him to the sentence he is now serving (ECF Nos. 85, 101, 102). Jones appealed but the
Sixth Circuit affirmed (ECF No. 121).
Jones filed his first Motion to Vacate under 28 U.S.C. § 2255 on September 23, 2020 (ECF
No. 134). Judge Rose denied that motion on January 28, 2021 (ECF No. 140) and Jones did not
appeal. He filed the instant Motion on March 2, 2026 (ECF No. 145).
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Is the Motion Second or Successive?
When a person files a second or successive motion to vacate under 28 U.S.C. § 2255, they
require permission from the circuit court to proceed. 28 U.S.C. §§ 2244 2255(h). When a second-
in-time motion to vacate is filed without the required permission, the District Court must first
determine if it is second or successive.
Jones asserts the Motion is not second or successive because
The Supreme Court in Panetti v. Quarterman, 551 U.S. 930 (2007),
held that §2244's bar on second or successive petitions does not
apply where the claim was unripe at the time of the first habeas
petition. Petitioner's prior §2255 (2020) could not have raised this
claim because it was undiscoverable until February 26, 2025. Thus,
this Court retains jurisdiction.
(Motion, ECF No. 145, PageID 1643).
Petitioner’s new claim, as the undersigned understands it, is that the evidence upon which
he was convicted was unconstitutionally obtained as the result of the FBI’s obedience to an
unlawful search warrant issued by United States Magistrate Judge Theresa Carroll Buchanan in
the Eastern District of Virginia on February 20, 2015. In issuing that warrant, Defendant claims
Magistrate Judge Buchanan “wholly abandoned her judicial role” and commanded the FBI to
violate a criminal statute by operating a website that displayed and disseminated child
pornography.
In Panetti, the Supreme Court held that the habeas petitioner’s claim of incompetency to
be executed was not ripe at the time of his first petition under 28 U.S.C. § 2254 and therefore could
be heard in a second petition after it became ripe. 	Jones makes no argument for how this case
comes within the exception recognized in Panetti. Magistrate Judge Buchanan had already issued
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the search warrant in question, it had been executed, and the evidence obtained had been used in
this case.
“[A] numerically second petition is not properly termed ‘second or successive’ to the extent
it asserts claims whose predicates arose after the filing of the original petition.” In re Jones, 652
F.3d 603, 605 (6th Cir.2010). To determine whether a petition is second or successive, the abuse
of the writ standard is applied. In re Bowen, 436 F.3d 699, 704 (6th Cir.2006) (collecting cases).
“Under the abuse of the writ doctrine, a numerically second petition is ‘second’ when it raises a
claim that could have been raised in the first petition but was not so raised, either due to deliberate
abandonment or inexcusable neglect.” Id. (citing McCleskey v. Zant, 499 U.S. 467 (1991)).
The Magistrate Judge concludes the instant Motion is second or successive. 	Magistrate
Judge Buchanan had already performed the act (issuing the search warrant authorizing the NIT)
which Defendant claims placed her completely outside of the judicial role. That act had already
had its consequence of collecting evidence used against Defendant. In fact Defendant had already
challenged that act in his Motion to Suppress and Judge Rose had determined it properly came
within her role as authorized by the Magistrates’ Act, 28 U.S.C. §§ 636, et seq.
What Defendant learned on February 26, 2025, was a different way of characterizing that
act, to wit, as authorizing or commanding violation of a federal criminal statute. 	This way of
constructing the claim was provided to Defendant by his father from a question put to Chat GPT,
an artificial intelligence chatbot (See ECF No. 145-3). While the chatbot is not licensed to practice
law and it was careful to distinguish what it reported from legal advice, its output cannot be
properly classified as making Defendant’s claim newly ripe. 	Had he retained an attorney who
looked at what Chat GPT looked at and said “You need to shape what was done as the judge’s
having stepped outside her judicial role,” that would not have made that claim newly ripe. 	A
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second-in-time § 2255 motion does not become any less second or successive because a lawyer
discovers that it was there all along.
Jones does not cite any legal authority for the proposition that a judge’s acting outside her
judicial role is a violation of the Constitution, although the Magistrate Judge accepts that as a
general proposition. If, for example, Jones had newly discovered in 2025 that Magistrate Judge
Buchanan had assisted the FBI in executing the NIT, that could constitute a violation of separation
of powers. But that is not what happened. All the facts that give rise to Defendant’s new claim
had already happened and were known to before he pleaded guilty, much less before he filed his
first Motion to Vacate.
The district court must decide in the first instance whether a habeas petition or § 2255
motion is second or successive. Upon making that finding, it must transfer the case to the circuit
court for its determination in the first instance whether to allow the case to proceed. In re: Kenneth
Smith, 690 F.3d 809 (6 th Cir. 2012); In re Sheppard, 2012 U.S. App. LEXIS 13709 (6th Cir. May
25, 2012). When the District Court errs in that determination, the practice of the Sixth Circuit has
been to find that permission to proceed is unnecessary and to remand the case. Jackson v. Sloan,
800 F.3d 260, 261 (6th Cir. 2015), citing Howard v. United States, 533 F.3d 472 (6th Cir. 2008);
In re: Cedric E. Powell, Case No. 16-3356, 2017 U.S. App. LEXIS 1032 (6 th Cir. Jan. 6, 2017).
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Order to the Clerk:
Accordingly, the Clerk is ordered to transfer this case to the Sixth Circuit Court of Appeals
for its determination of whether Defendant may proceed in this Court.
March 5, 2026.
s/ Michael R. Merz
United States Magistrate Judge
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