Simmons v. Sheldon

Filing 13

Order Adopting Report and Recommendation (re 12 ). The court dismisses Simmons's Petition. The court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis on which to issue a certificate of appealability. Signed by Judge Solomon Oliver, Jr on 8/28/2014. (D,M)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

RONALD SIMMONS,
Petitioner
v.
ED SHELDON, WARDEN
Respondent

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Case No.: 1:13 CV 1946

JUDGE SOLOMON OLIVER, JR.

ORDER

On September 4, 2013, Petitioner Ronald Simmons (“Simmons” or “Petitioner”) filed a
Petition for Writ of Habeas Corpus (“Petition,” ECF No. 1) pursuant to 28 U.S.C. § 2254,
challenging the constitutionality of his state court convictions and sentences for one count of
aggravated murder with firearm specifications. (See Petition at 1.) Simmons argues that his Petition
should be granted based on the following ground:
Ground One: He was denied his Sixth Amendment right to trial by jury because his jury
waiver was defective. [He] was not made aware of the need for a jury to be
unanimous in its verdict, nor was he aware of his right to participate in jury
selection and to challenge jurors for cause and peremptorily.

(See Petition at 4.) This court referred the case to Magistrate Judge Vernelis K. Armstrong for
preparation of a Report and Recommendation. Magistrate Judge Armstrong submitted a Report and
Recommendation (“R&R,” ECF No. 12) on August 1, 2014, recommending that Simmons’s Petition
be denied.
As of the date of this Order, Petitioner has not filed objections to the Report and
Recommendation. By failing to do so, he has waived the right to appeal the Magistrate Judge’s
recommendation. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S.

140 (1985). After careful de novo review of the Report and Recommendation and all other relevant
documents, the court dismisses Simmons’s Petition.
I. FACTS
During the May 2010 term, the Cuyahoga County Grand Jury indicted Petitioner on
aggravated murder charges in violation of Ohio Rev. Code § 2941.141(A) and with firearm
specifications under Ohio Rev. Code §2903.01(A). (R&R at 1.) Petitioner pleaded not guilty to the
Indictment. (See Petition at 1.) On April 11, 2011, Petitioner signed a waiver of jury trial. (See R&R
at 2.) The jury waiver contained language stating that: (1) Petitioner voluntarily waived and
relinquished any right to a trial by a jury and elected to be tried by a judge of the Court of Common
Pleas, (2) Petitioner understood that he had a constitutional right to a trial by a jury of twelve and
that a jury verdict must be unanimous, and (3) Petitioner had received no threats or promises to
induce him to waive his right to a jury trial. (See Respondent’s Return of Writ, 2-3, ECF. No. 8.)
Additionally, before trial, the judge asked Petitioner whether he was advised of all his rights in
signing the statement, and confirmed that he received no threats or promises to induce him to sign
the waiver. (See id.) Petitioner was tried in the Court of Common Pleas and was found guilty of
aggravated murder. (R&R at 2.)
II. PROCEDURAL HISTORY
A. State Court Proceedings
Petitioner timely filed a direct appeal on May 11, 2011. (See R&R at 2.) His appeal asserted
one allegation: “The defendant’s jury waiver was not knowingly, intelligently and voluntarily
entered.” (Id.) On January 26, 2012, the appellate court affirmed the trial court’s decision, finding
that Petitioner’s jury waiver was valid. (Id.) On March 12, 2012, Simmons petitioned for leave to
appeal in the Supreme Court of Ohio. (Id.) The court denied the leave to appeal and dismissed the
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appeal as not involving any substantial constitutional question. (Id.)
B. Federal Court Proceedings
Simmons filed a Petition for a Writ of Habeas Corpus on September 4, 2013. Respondent
Ed Sheldon (“Respondent”) filed Return of Writ (“Return of Writ,” ECF No. 8) on April 2, 2014.
In his Return of Writ, Respondent argued that there is no clearly established federal law requiring
that Petitioner be informed of the need for a unanimous jury verdict or his right to participate in jury
selection and voir dire. Petitioner filed a Traverse to Respondent’s Return of Writ (“Traverse,” ECF
No. 11) on May 28, 2014. In it, Petitioner argued that his waiver was not “knowingly or voluntarily”
made. (Traverse at 4.) Specifically, Petitioner argued that the court failed to ensure that he “actually
understood the rights he was surrendering” and that the written waiver did not contain information
regarding the Petitioner’s right to participate in jury selection and voir dire. Additionally, Petitioner
stated that he “wishe[d] to correct Ground One and withdraw from it the allegation that the written
waiver

did

not

mention

jury

unanimity–that

was

incorrect.”

(Id.

at

4.)

III. MAGISTRATE JUDGE’S R&R
Magistrate Judge Armstrong issued a Report and Recommendation (“R&R,” ECF No.
12.) on August 1, 2014, wherein she outlined the standard of review compelled by The AntiTerrorism and Effective Death Penalty Act (“AEDPA”). The Magistrate Judge set forth the
standard as follows:
“A federal court shall not grant a habeas petition with respect to any claim that was
adjudicated on the merits unless the adjudication resulted in a decision that (1) was
contrary to, or involved an unreasonable application of, clearly established Federal law;
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”.
(Id. at 5.) The Magistrate Judge correctly noted that “contrary to” refers to instances where a
state court “arrives at a conclusion opposite to that reached by the Supreme Court of the United
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States,” and that in order for a decision to be “unreasonable” it must be “objectively
unreasonable.” (Id.)
The Magistrate Judge addressed Simmons’s Petition based on the two issues raised in
Petitioner’s Traverse. (ECF No 11.) First, the Magistrate Judge considered whether the trial
court or Petitioner’s attorney was required to fully inform him of the nature of his jury waiver,
and second, the Magistrate Judge considered whether the written waiver Petitioner signed was
adequate. For the reasons summarized below, the Magistrate Judge concluded that the trial court
adequately informed Petitioner of the nature of the jury waiver, and that the written waiver
Petitioner signed was adequate.
A. Adequacy of Information Provided by Court and Counsel
The Magistrate Judge noted that federal law requires a jury waiver to be “knowingly,
intelligently and voluntarily made.” (R&R at 7.) In Simmons’s single ground for relief, he argues
that his waiver was not “knowingly” made because neither the court nor his attorney informed
him of his right to participate in jury selection and voir dire. (Id.) The Magistrate Judge rejected
this argument because, under § 28 U.S.C. 2254(d), a habeas petitioner is required to demonstrate
that a state court’s conclusion was “contrary to or an unreasonable application of clearly
established federal law,” and Petitioner failed to meet this burden. (Id. at 8.)
B. Adequacy of Written Waiver
Petitioner also argues that the written waiver he signed was inadequate as it did not
include statements regarding his ability to participate in jury selection and voir dire. The
Magistrate Judge correctly noted that Petitioner’s waiver satisfied state requirements as indicated
in Ohio Rev. Code § 2945.05. (Id.) The Magistrate Judge then concluded that failure to include a
statement indicating that Petitioner could participate in jury selection did not render the waiver
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invalid because there was “no clearly established Supreme Court precedent requiring that a valid
jury waiver recite that the defendant ‘may participate in the selection of jurors.’” (Id.) Thus, the
Magistrate Judge determined that Petitioner’s waiver satisfied constitutional requirements
notwithstanding the absence of language advising him that he may participate in the selection of
jurors. (Id. at 10.)
IV. FINDINGS
The court finds that the Magistrate Judge correctly concluded that Simmons’s Petition
should be dismissed because he failed to demonstrate that the state court’s conclusions were an
“unreasonable application” of or “contrary to” “clearly established” federal law. The Sixth
Circuit has stated the following regarding the adequacy of a defendant’s waiver of a right to jury
trial:
“A defendant is sufficiently informed to make an intelligent waiver if he was aware that a
jury is composed of 12 members of the community, he may participate in the selection of
the jurors, the verdict of the jury must be unanimous, and that a judge alone will decide
guilt or innocence should he waive his jury trial right . . . . Knowledge of these essential
attributes is generally sufficient to enable a defendant to make a knowing and intelligent
decision.”
See U.S. v. Martin, 704 F.2d 267, 272 (6th Cir. 1983). Despite the Circuit’s pronouncement, there
is no Supreme Court precedent that squarely addresses whether failure to include information
regarding a defendant’s right to participate in jury selection violates the Sixth Amendment. Thus,
Petitioner cannot show an “unreasonable application” of Supreme Court precedent. This court makes
no opinion on whether or not Petitioner’s waiver satisfied constitutional requirements in the Sixth
Circuit, and recognizes that it would be sound court practice to apprise defendants of their right to
participate in jury selection before waiver. The court only concludes that Petitioner has not shown
that the state court’s findings were contrary to clearly established Supreme Court precedent, making
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Petitioner ineligible for relief under 28 U.S.C. § 2254(d).
Consequently, upon careful de novo review of the Report and Recommendation and all other
relevant documents, the court finds that the Magistrate Judge’s conclusions are supported by the
record and controlling case law. Accordingly, the court adopts as its own the Magistrate Judge’s
Report and Recommendation.
V. CONCLUSION
The court hereby dismisses Simmons’s Petition. The court further certifies that, pursuant to
28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and that there
is no basis on which to issue a certificate of appealability. Fed.R.App.P. 22(b); 28 U.S.C. § 2253(c).
IT IS SO ORDERED.

/s/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT

August 28, 2014

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