Simmons v. Gansheimer

Filing 25

Memorandum Opinion Adopting Report and Recommendation. For the reasons set forth within, having conducted the required de novo review, the Court rejects petitioner's objections to the R&R. The R&R is accepted and this case will be dismiss ed by separate judgment entry. The Court certifies that an appeal from this decision could not be taken in good faith and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 1915(a)(3), 2253(c); Fed.R.App.P. 22(b). Judge Sara Lioi on 6/16/2011. (B,IE)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DANIEL K. SIMMONS,
PETITIONER,
vs.
RICH GANSHEIMER, Warden,

RESPONDENT.

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CASE NO. 1:08CV1166
JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court is the Report and Recommendation (“R&R”) of Magistrate
Judge1 Benita Pearson recommending that the habeas petition be denied and the case dismissed.
(Doc. No. 21.) Petitioner has filed objections to the R&R. (Doc. No. 23.) Respondent filed no
response to the objections. The Court has conducted its de novo review of the matters raised in
the objections. Fed. R. Civ. P. 72(b)(3). For the reasons set forth below, the objections are
rejected, the R&R is accepted, and this matter is dismissed.
I. BACKGROUND
Petitioner was convicted in two separate criminal proceedings in State court. In
the first, Case No. 03-CR-523, he was found guilty of operating a vehicle while under the
influence of alcohol. He was sentenced to five years incarceration and ordered to pay an $800
fine. His driver’s license was suspended for life. (Return of Writ [“Return”], Ex. 3.) In the
second, Case No. 04-CR-149, although charged in a four-count indictment, he was found guilty

1

 After issuing this R&R, Magistrate Judge Pearson was elevated to the position of district judge.

1 

on only three counts: abduction, kidnapping, and driving without a valid license. He was
sentenced to four years incarceration for abduction, eight years for kidnapping, and six months
for driving without a license. All three sentences were to be served concurrent with each other,
but consecutive to the sentence imposed in the first case. (Return, Ex. 14.) In each of these two
cases, Simmons was represented by different trial counsel.
Simmons, with the assistance of counsel, appealed in both cases. In the first
appeal, brought by his trial counsel on August 5, 2004, he assigned the following errors.
1.

The trial court erred to the prejudice of Daniel Simmons by overruling the
motion to suppress evidence[.]

2.

Dan Simmons’ sentence of five (5) years in prison violates the jury trial
clause of the Sixth Amendment and the corresponding provision of the
Ohio Constitution.

3.

The maximum sentence for one conviction, irrespective of Blakely, is
contrary to law.

4.

The trial court abused its discretion in allowing a witness to testify about
Simmons’ prior felony conviction for DUI.

5.

The verdict is against the manifest weight of the evidence.

(Return, Ex. 5.)
In the second appeal, brought by new counsel on September 20, 2004, he also
assigned five errors.
1.

The trial court violated the defendant-appellant’s Constitutional right to
due process as guaranteed by the Sixth and Fourteenth Amendments to the
United States Constitution and Sections 5 and 10, Article I of the Ohio
Constitution when the trial judge demonstrated unreasonable judicial bias.

2.

The trial court violated the defendant-appellant’s Constitutional right of
self-representation as guaranteed by the Sixth and Fourteenth
Amendments to the United States constitution and Section 10, Article I of
the Ohio Constitution.
2 

3.

The trial court erred to the prejudice of the defendant-appellant in denying
his motion for acquittal made pursuant to Crim. R. 29(A).

4.

The trial court erred to the prejudice of the defendant-appellant when it
returned a verdict of guilty against the manifest weight of the evidence.

5.

The trial court erred when it sentenced the defendant-appellant to
consecutive sentences based upon a finding of factors not found by the
jury or admitted by the defendant-appellant in violation of the defendantappellant’s State and Federal Constitutional rights to trial by jury.

(Return, Ex.16.) The State court of appeals affirmed the trial court’s judgment in the first case on
December 19, 2005 (Return, Ex. 7)2 and in the second case on December 27, 2005 (Return, Ex.
18).
Through new counsel (but the same in both appeals), Simmons filed appeals to
the Ohio Supreme Court, the first on February 2, 2006 and the second on February 7, 2006.
(Return, Exs. 9, 19.) He raised an identical proposition of law in both: “A trial court that imposes
a sentence by using factors which are not found by a jury or admitted by the defendant violates
the defendant’s rights to due process and a jury trial under the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution.” (Return, Exs. 10, 20.) The Ohio Supreme Court
ruled on May 17, 2006, reversing the judgments in both cases and remanding for resentencing
consistent with State v. Foster, 109 Ohio St.3d 1 (2006). (Return, Exs. 12, 22.)
On June 6, 2006, the trial court resentenced Simmons in both cases to the very
same terms that were originally imposed. He appealed in two separate appeals, represented by
the same counsel. In a combined brief, he assigned the following errors:
1.

The trial court erred when it sentenced the defendant-appellant to morethan-the-minimum and consecutive prison terms in violation of the due
process and ex post facto clauses of the Ohio and United States
Constitutions.

2

 A motion to reconsider was overruled on February 10, 2006. (Return, Ex. 8.)

3 

2.

The trial court erred when it sentenced the defendant-appellant to morethan-the-minimum and consecutive prison terms in violation of defendantappellant’s right to due process.

3.

The trial court erred when it sentenced the defendant-appellant to morethan-the-minimum and consecutive prison terms based on the Ohio
Supreme Court’s severance of the offending provisions under Foster,
which was an act in violation of the principle of separation of powers.

4.

The trial court erred when it sentenced the defendant-appellant to morethan-the-minimum and consecutive prison terms contrary to the rule of
lenity.

5.

The trial court erred when it sentenced the defendant-appellant to morethan-the-minimum and consecutive prison terms contrary to the intent of
the Ohio legislatures.

(Return, Ex. 26.) On March 26, 2007, the State court of appeals affirmed both new sentences.
(Return, Ex. 28.)
Simmons, through the same counsel, filed an appeal to the Ohio Supreme Court
raising five propositions of law:
1.

A trial court violates an individual’s rights under Due Process and the Ex
Post Facto Clauses of the Ohio and United States Constitutions when it
sentences the individual to more-than-the-minimum, maximum and
consecutive prison terms that were not available to the court at the time
the individual committed the offense.

2.

A trial court violates and [sic] individual’s rights to Due Process when it
sentences the individual to more-then-the-minimum [sic], consecutive and
maximum prison terms with no additional findings made by a jury and
when the individual had no actual or constructive notice of possible
sentences.

3.

A trial court violates the principle of separation of powers provided in the
United States and Ohio Constitution by sentencing an individual to morethan-the-minimum, consecutive and maximum prison terms base on this
Court’s severance of the offending statute provisions under Foster.

4 

4.

A trial court violates the Rule of Lenity when it imposes more-than-theminimum, maximum and consecutive prison terms upon an individual
where the Rule of Lenity dictated a lesser penalty.

5.

A trial court’s decision to sentence an individual to more-than-theminimum, maximum and consecutive prison terms is contrary to the intent
of the Ohio legislature who drafted sentencing provisions with the clear
intent of limiting judicial discretion to impose such sentences.

(Return, Ex. 30.) On July 25, 2007, the Ohio Supreme Court denied leave to appeal for lack of a
substantial constitutional question. (Return, Ex. 32.) Simmons took no further appeal to the
United States Supreme Court.
On September 19, 2006, proceeding pro se, Simmons filed a petition for postconviction relief regarding his first trial. (Return, Ex. 33.) The petition was stricken because it
did not contain a certificate of service. (Return, Ex. 34.) Simmons refiled on November 1, 2006,
raising the following grounds for relief: conduct “raising [sic] to a level of a structural defect,”
including: “1) denial of fair and impartial trial judge, 2) denial of effective assistance of counel,
3) denial of substantial rights to self representation at the critical stage of the proceeding, and 4)
presentation of an admission of perjureous [sic] testimony by a Law Enforcement officer.”
(Return, Ex. 35.) This petition was rejected as untimely. (Return, Ex. 37.)
On December 8, 2006, he filed a pro se petition for post-conviction relief
regarding his second trial. He raised two grounds: “1) Fourteenth and Sixth Amendment
violation of jury misconduct and ineffective assistance of counsel and 2) Denial of impartial
judge and possible operative facts dehors the record.” (Return, Ex. 38.) That, too, was denied as
untimely. (Return, Ex. 39.)
Simmons filed notices of appeal on December 15 and December 29, 2006. In a
joint brief he asserted the following assignments of error:
5 

1.

The trial court erred in denying appellant an evidentiary hearing in
violation of his 14th Amendment due process right to [sic] the United
States Constitution and ORC Section 2953.21(c) and State v. Stevens, 48
Ohio App. 2d 6, 387 N.E.2d 654 and State ex rel. v. McMonangle, 67
Ohio St.3d [sic] 450 N.E.2d 1017.

2.

Defendant-petitioner’s constitutional rights under the Fifth, Sixth and
Fourteenth amendment and Ohio Constitution were violated where
petitioner was convicted on an indictment returned by an improperly
selected grand jury and trial counsel failed to challenge the equal
protection and due process violations.

3.

Petitioner was denied due process and equal protection of the law where
he was denied the right to an impartial judge in violation of the 14th
Amendment to the United States Constitution.

4.

The trial court erred to the prejudice of the petitioner in violation of his
due process when it failed to declare a mistrial or disqualification on the
grounds of jury misconduct and trial counsel was ineffective for failing to
requests [sic] a mistrial in violation of the 6th and 14th Amendment of the
United States Constitution.

5.

Petitioner was denied a fair trial by the presentation of perjured testimony
by the state and a denial of effective assistance of counsel for failing to
investigate through discovery this false evidence in violation of the 6th
and 14th Amendment of the United States Constitution.

6.

Petitioner was denied his constitutional right to self representation at the
critical stage of the proceeding in violation of the 6th and 14th
Amendment to the United States Constitution.

(Return, Ex. 45.) On September 26, 2007, the State court of appeals dismissed both appeals as
moot due to the untimely filing of his petitions. (Return, Ex. 51.) A motion for reconsideration
was also denied on November 8, 2007. (Return, Ex. 54.)
A joint notice of appeal to the Ohio Supreme Court, filed pro se on November 9,
2007. Ten propositions of law were raised:
1.

The Court of Appels [sic] erred in dismissing postconviction appeals
based on Procedural Default (untimeliness) without reviewing Substantial
Constitutional issues in violation of Article 1, Section 16 of Ohio and the
14th Amendment to the United States Constitution.
6 

2.

The trial court erred in denying appellant an Evidentiary Hearing in
violation of the 14th Amendment to the United States Constitution, O.R.C.
Section 2953.21(C) & State v. Stevens, 58 Ohio App. 2d 6, 387 N.E. 2d
1017, Right to Due Process.

3.

Defendant-Petitioner’s Constitutional rights under the Fifth, Sixth and
Fourteent [sic] Amendment’s and Ohio Constitution were violated where
petitioner was convicted on an indictment returned by an improperly
selected Grand Jury and trial counsel failed to challenge the Equal
Protection and Due Process violation.

4.

Petitioner was denied Due Process and Equal Protection of law where he
was denied right to an impartial judge in violation of the 6th and 14th
Amendment to the United States Constitution.

5.

The trial court erred to the prejudice of the petitioner in violation of his
due .process when it failed to declare a mistrial or disqualification on the
grand jury misconsuct [sic] and trial counsel was ineffective for failing to
request a mistrial in violation of petitioner’s sixth and fourteenth
amendment rights under the United States Constitution.

6.

Mr. Simmons was denied effective assistance of counsel when trial
counsel failes [sic] to move for mistrial on the grounds of jury misconduct
in violation of the sixth and fourteenth amendments to the U.S.
Constitution.

7.

Petitioner was denied a fair trial by the presentation of perjured testimony
by the state and denial of effective assistance for failing to investigate
through discovery these issues in violation of the 6th and 14th
Amendments to the United States Constitution.

8.

Petitioner was denied his Constitutional right to Self-Representation at the
critical stage of the proceeding in violation of the Sixth and Fourteenth
Amendments to the United States Constitution and article 1 section 10 of
the Ohio Constitution.

9.

Mr. Simmons was denied Due Process and Equal Protection Clause of the
United States Constitution where the trial court failed to preserve the
record for Appellate review in violation of the 14th Amendment.

10.

Mr. Simmons’ Constitutional Rights under the 14th Amendment to the
United States Constitution were violated where the trial court imposed a
prison sentence that is dispoportional [sic] to similar crimes commited by
similar offenders and R.C. 2929.11(B).
7 

(Return, Ex. 56.) That appeal was denied on February 6, 2008 for lack of a substantial
constitutional question. (Return, Ex. 58.)
On May 12, 2008, Simmons filed the instant pro se petition for writ of habeas
corpus. He asserted twelve grounds for relief:
1.

Denial of Self-Representation
[Supporting Facts: The trial court ordered appellant to sit down while
appellant was addressing the jury during closing arguments.]

2.

Jury Tampering - ex-parta [sic] communication and grand jury misconduct
- discrimination.
[Supporting Facts: The State key witness prior to jury deliberations had
ex-parta [sic] contact - conversation with one of the jurors about the
outcome of the case. Unlawful grand jury selection based on racial
discrimination.]

3.

Perjury
[Supporting Facts: The State witness willingly misrepresented facts to the
jury by testifying falsely about the scene or location of the proported [sic]
crime.]

4.

Ineffective assistance of counsel
[Supporting Facts: Trial counsel counsel [sic] constructively denied
assistance of counsel. Counsel failed to subject the State’s case into a
serious advisarial [sic] testing by failing to challenge the issues raised in
A-B-C, and others in the foregoing. (Additional issues are incorporated in
the Memorandum in Support.]

5.

Petitioner Simmons had a right to an evidentiary hearing in his petition for
post-conviction relief.

6.

Petitioner Simmons’ constitutional rights under the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution were violated
where petitioner was convicted on indictments returned by an improperly
selected grand jury on racial discrimination and ineffective assistance of
counsel.

7.

Petitioner Simmons was denied due process and equal protection of the
law where he was denied of [sic] his rights to an impartial tribunal in
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violation of the Sixth and Fourteenth Amendments of the United States
Constitution.
8.

The petitioner was denied of [sic] due process in violation of the Sixth and
Fourteenth Amendment’s [sic] to the United States Constitution where the
trial court’ failed to declare a mistrial or disqualification of petit juror on
misconduct and ineffective assistance of trial counsel for failing to request
a mistrial.3

9.

Petitioner was denied a fair trial by the presentation of perjured testimony
by the State and a denial of effective assistance of counsel for failing to
investigate through discovery these issues in violation of the 6th and 14th
Amendments to the United States Constitution.

10.

Petitioner was denied his constitutional right to self-representation at the
critical stage of the proceeding in violation of the Sixth and Fourteenth
Amendments to the United States Constitution and Article 1 Section 10 of
the Ohio Constitution.

11.

Mr. Simmons was denied due process and equal protection clause [sic] of
the United States Constitution where the trial court failed to preserve the
record for appellate review in violation of the 14th Amendment.

12.

Mr. Simmons’ constitutional rights under the 14th Amendment to the
United States Constitution were violated where the trial court imposed a
prison sentence that is disproportional to similar crimes committed by
similar offenders and R.C. 2929.11(B).

II. DISCUSSION
A.

Standard of Review
Under Fed. R. Civ. P. 72(b)(3), “[t]he district judge must determine de novo any

part of the magistrate judge’s disposition that has been properly objected to.” This de novo
review requires the Court to apply the provisions of 28 U.S.C. § 2254(d), as amended by the

3

  The petition appears to raise a duplicate claim as follows: “Mr. Simmons was denied effective assistance of
counsel when trial counsel failed to move for mistrial on the grounds of jury misconduct in violation of the Sixth
and Fourteenth Amendments of the U.S. Constitution.” (Doc. No. 1-1 at 28.)

9 

Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132, 110 Stat. 1214 (“AEDPA”) and
the cases construing the amendments.
Title 28, Section 2254(d) provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim -(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained these
provisions as follows:
Under the “contrary to” clause, a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case differently than this Court has
on a set of materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Id. at 412-13.
This Court may not, however, consider “contentions of federal law which are not
resolved on the merits in the state proceeding due to petitioner’s failure to raise them as required
by state procedure.” Wainright v. Sykes, 433 U.S. 72, 87 (1977). If a “state prisoner has defaulted
his federal claims in state court pursuant to an independent and adequate state procedural rule,
federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that
10 

failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991). “When a petitioner fails to establish cause to excuse a
procedural default, a court does not need to address the issue of prejudice.” Simpson v. Jones,
238 F.3d 399, 409 (6th Cir. 2000) (citations omitted).
If a petitioner asserts ineffective assistance of counsel as cause for a default, that
ineffective assistance claim must itself be presented to the state courts as an independent claim
before it may be used to establish cause. Murray v. Carrier, 477 U.S. 478, 488-489 (1986). If the
ineffective assistance claim is not presented to the state courts in the manner that state law
requires, that claim is itself procedurally defaulted and can only be used as cause for the
underlying defaulted claim if the petitioner demonstrates cause and prejudice with respect to the
ineffective assistance claim. Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000).
B.

The R&R
The R&R concludes that Grounds One through Four and Six through Twelve are

procedurally defaulted and Ground Five is not cognizable in a federal habeas proceeding. It
therefore recommends that the habeas petition be dismissed.4

4

  The R&R also addresses respondent’s assertion that this petition is time-barred by the one-year statute of
limitations contained in 28 U.S.C. § 2254(d)(1) with respect to any grounds relating to Simmons’s two convictions
but not with respect to his current sentence. It points out the divergence of opinion among federal courts as to when
a judgment becomes final for appellate purposes in cases of resentencing. It cites Bachman v. Bagley, 487 F.3d 979,
982 (6th Cir. 2007), which adopted a claim-by-claim approach under which the beginning of the one-year period is
based on the content of a petitioner’s claim. Under Bachman, in resentencing circumstances, the one-year period for
the underlying conviction starts to run earlier than the one-year period for the resentence. However, as pointed out
by the R&R, Bachman did not cite the earlier Supreme Court case of Burton v. Stewart, 549 U.S. 147 (2007), which
held that, since the sentence is the judgment, the one-year period for the underlying conviction does not begin to run
until the resentencing is also final. The R&R points out that several courts in the Sixth Circuit have questioned
Bachman’s precedential value in light of Burton.
Petitioner argues in his objections that the R&R incorrectly concluded that his grounds are time-barred. In
fact, the R&R determines that it need not resolve the tension between Bachman and Burton because eleven of the
grounds are procedurally defaulted and the remaining one is not cognizable in a habeas proceeding. However, the
R&R notes that, were the issue determinative, it would recommend overruling respondent’s statute of limitations
argument in light of Burton. (See Doc. No. 21 at 16, n.8.) This Court concludes that it need not make that
determination given other legitimate grounds for rejecting the habeas petition.

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C.

Analysis of Petitioner’s Objections to the R&R
Petitioner has filed objections5 wherein he asserts, inter alia, that he “respectfully

object[s] to [the] R&R in its entirety.” (Doc. No. 23 at 2.)6 He points to his Traverse (Doc. No.
15) and, in particular, to “a-4-paragraphs sworn affidavit of statutory tolling of the Statute of
Limitation” which purportedly accompanied the Traverse and served to address the respondent’s
argument in the Return of Writ that all of this claims were procedurally barred. Petitioner claims
that this affidavit attests to the fact that he is not a lawyer, that he was incarcerated at all material
times (which made it difficult to discover errors and consult with a lawyer), and that he would
have filed his post-conviction petition in State court earlier had he been aware of the
constitutional violations.
Petitioner is mistaken that this affidavit accompanied the Traverse. In fact, it was
filed on May 12, 2008 along with the Petition as support for why the one-year statute of
limitations in AEDPA should be tolled. It was not referring to the untimely filing of the State
post-conviction petition but, rather, the instant petition. The Court finds no merit in this objection
and overrules it.

5

 The objections are not enumerated in any clear fashion but are contained in narrative and argument. Despite the
lack of specificity, the Court has combed through the Objections to ascertain the exact nature of petitioner’s
arguments, notwithstanding the fact that it has no duty to do so. See, note 6, infra.
6

 This Court has an obligation to give de novo review only to matters “properly objected to.” Rule 72(b)(3); see, e.g.,
Thomas v. Arn, 474 U.S. 140, 147 (1985) (“The filing of objections to a magistrate’s report enables the district judge
to focus attention on those issues--factual and legal--that are at the heart of the parties’ dispute.”); United States v.
Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009) (“a party that wishes to preserve its objection must [...] pinpoint the
specific findings that the party disagrees with”); Renelique v. Doe, No. 99-10425, 2003 WL 23023771, at * 1
(S.D.N.Y. Dec. 29, 2003) (“when a party makes only conclusory or general objections, or simply reiterates his
original arguments, the Court reviews the Report and Recommendation only for clear error.”).

12 

Petitioner next objects as follows:
The R&R also adopted Respondent’s claims that Simmons['] failure to raise his
habeas claims in the State direct appeals rendered the claims procedurally
defaulted, where the R&R contain [n]o consideration on Simmons' “Fair
Presentation” analysis; [n]o consideration to Simmons['] “Cause and Prejudice”
argument; [n]o consideration to “Structural Error” standard of review; and
completely overlooked exception to procedural default application based upon
Simmons['] actual innocence claim asserted for relief.
(Doc. No. 23 at 2.)
The R&R does address the concepts of “fair presentation” and “cause and
prejudice” in its discussion of procedural default. The R&R concludes that, because Simmons
failed to timely present virtually all of his grounds in the same form to the State courts for
review, they are procedurally defaulted and he is unable to show cause for the default and
prejudice resulting from any error. (See, Doc. No. 21 at 16, et seq.) Simmons argues in his
objections that he has established cause and prejudice because “at all material times [he] was
incarcerated in the prison facility where access to legal material is very limited and [there is] no
person trained in the law to assist[.]” (Doc. No. 23 at 14.) However, this completely ignores the
fact that Simmons was represented by counsel during his direct appeals. He also argues that the
State courts were given an opportunity to consider his claims but they “preferr[ed] instead to rely
upon some procedural ground to deny relief[.].” (Id. at 15.) He relies on Smith v. Digmon, 434
U.S. 332 (1978), where the Supreme Court held that “whether the exhaustion requirement of 28
U.S.C. § 2254(b) has been satisfied cannot turn upon whether a state appellate court chooses to
ignore in its opinion a federal constitutional claim squarely raised[.]” 434 U.S. at 332. Clearly
Digmon does not apply. The State appellate court here did not ignore anything; it ruled on the
issues raised on direct appeal and it properly determined that the post-conviction matters were

13 

procedurally defaulted, eliminating any requirement to examine grounds raised in those
proceedings.7
As for “actual innocence,” that is addressed in the section on “Fundamental
Miscarriage of Justice” (id. at 25) where the R&R concludes that “[w]hile Simmons does assert
his innocence (ECF No. 15 at 5), this claim is insufficient because it lacks any new reliable
evidence to support his declaration.” (Doc. No. 21 at 25, citing Schlup v. Delo, 513 U.S. 298
(1995).) The R&R is correct on this issue.
Finally, although the R&R did not specifically address Simmons’ claim of
“structural error,” it did not need to because it found that the only ground where Simmons raised
that argument in his petition was procedurally defaulted. This is a correct conclusion. In Ground
Six, Simmons asserts that constitutional error was committed when he was convicted on
indictments returned by an improperly selected grand jury.8 However, this ground, which could
have been raised on direct appeal, was not raised either before the State court of appeals or the
Ohio Supreme Court. Nor was it raised in the post-conviction petitions, which were also
defaulted because they were untimely. It was raised for the first time on appeal from the denial of
his untimely post-conviction petitions. Both the court of appeals and the Ohio Supreme Court
rejected the appeals on the ground of untimeliness.
Simmons objects to the R&R’s conclusion that his grounds are procedurally
defaulted. He argues that the R&R reaches that conclusion “without considering on the merit[s].”

7

 Simmons also relies on Carter v. Bell, 218 F.3d 581 (6th Cir. 2000). However, he does not cite to any particular
page of the opinion and this Court can discern no reason why he cited it as authority.

8

 In his memorandum in support of his habeas petition, Simmons argues that blacks were deliberately excluded from
the grand jury pool and his counsel was ineffective for failing to investigate and object. Although his objections
suggest other “structural errors” (namely, perjury, an impartial tribunal, denial of self-representation, and unequal
treatment in sentencing) these matters are not argued as structural errors in his petition.

14 

(Doc. No. 23 at 11.) Of course, that is the whole point of procedural default--a petitioner forfeits
the right to federal habeas review on the merits of matters not properly presented to the State
courts.
Simmons also asserts that where a State court denies relief in a summary fashion,
the federal court must determine whether the decision rested on “adequate and independent”
state grounds. (Doc. No. 23 at 12.) The order dismissing Simmons’ post-conviction petition
clearly relies on O.R.C. §2953.21(A)(2) to determine that the petition was not timely filed. This
is an adequate and independent state ground and the order, although short, was not summary.
The court of appeals issued an 11-page opinion affirming the dismissal of the post-conviction
petition on the ground that it had not been timely filed. That, too, is not a summary opinion.
Although the Ohio Supreme Court dismissed the appeal as not involving a substantial
constitutional question, this ruling must be presumed to rest upon the same procedural default.
Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state
judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting
the same claim rest upon the same ground.”).
Petitioner has not challenged the R&R’s conclusion that Ground 5 is not
cognizable in a habeas proceeding.
The Court finds no merit in any of petitioner’s objections.

15 

III. CONCLUSION
For the reasons set forth above, having conducted the required de novo review,
the Court rejects petitioner’s objections to the R&R. The R&R is accepted and this case will be
dismissed by separate judgment entry.
The Court certifies that an appeal from this decision could not be taken in good
faith and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. §
1915(a)(3), 2253(c); Fed.R.App.P. 22(b).

IT IS SO ORDERED.

Dated: June 16, 2011
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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