Simpson v. Warden Lebanon Correctional Institution

Filing 16

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealabi lity and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 3/23/2018. Signed by Magistrate Judge Michael R. Merz on 3/9/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KERON D. SIMPSON,
Petitioner,

:

- vs -

Case No. 3:17-cv-298
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

WARDEN,
Lebanon Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for decision on the merits. Counsel who had
represented Simpson in post-conviction filed the Petition on his behalf on August 29, 2017 (ECF
No. 1). On the Court’s Order to do so, Respondent has filed the State Court Record (ECF No. 7)
and a Return of Writ (ECF No. 8). The case became ripe on the filing of Petitioner’s Reply (ECF
No. 15), filed by replacement counsel.
Simpson seeks relief from his conviction in the Montgomery County Common Pleas Court
for murder with specifications, twelve counts of aggravated robbery with specifications, and
possession of a weapon while under a disability (Petition, ECF No. 1, PageID 4).

Procedural History

On April 29, 2011, the Montgomery County Grand Jury indicted Simpson on two counts
of murder with a firearm specification, twelve counts of aggravated robbery with a firearm
1

specification, and one count of having a weapon while under a disability (State Court Record, ECF
No. 7, Ex. 1). Simpson was convicted on all counts. Id. at Ex. 10. He was sentenced to fifteen
years to life imprisonment on the murder convictions, ten years on each of the aggravated robbery
convictions, and thirty-six months on the weapons charge, all to be served concurrently, with a
mandatory three-year consecutive sentence on the firearm specification. Id. , Ex. 11.
Simpson appealed to the Second District Court of Appeals which affirmed the convictions
and sentence. State v. Simpson, 2013-Ohio-1072, 2013 Ohio App. LEXIS 956 (2nd Dist. Mar. 22,
2013)(“Simpson Direct”). Simpson did not appeal further to the Ohio Supreme Court.
On October 30, 2012, Simpson, with the assistance of counsel who initially represented
him in this case, filed a petition for post-conviction relief under Ohio Revised Code § 2953.21.
(State Court Record, ECF No. 7, Ex. 18). The trial court denied the petition and Simpson again
appealed to the Second District which affirmed the denial. State v. Simpson, 2016-Ohio-1266, 61
N.E. 2d 905, 2016 Ohio App. LEXIS 1167 (2nd Dist. Mar. 25, 2016)(“Simpson PC”), appellate
jurisdiction declined, 146 Ohio St. 3d 1490 (2016). Simpson filed the instant Petition a year later,
pleading the following grounds for relief:
Ground One: Petitioner’s right to counsel guaranteed by the Sixth
Amendment was violated at trial.
Supporting Facts: Trial Counsel failed to investigate and secure an
expert evaluation of Petitioner’s mental health status. Petitioner’s Trial
Counsel failed to interview at least one potential witness. Petitioner’s
Trial Counsel failed to investigate and obtain expert assistance on the
DNA evidence. Petitioner’s trial counsel failed to investigate and
obtain expert assistance on eyewitness identification and witness
perception.
Ground Two: Petitioner’s right to a fair trial was violated by the
admission of an unfair eyewitness identification.
Ground Three:
violated.

Petitioner’s right against self-incrimination was

2

(Petition, ECF No. 1, PageID 18-34).

Analysis

Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief, Simpson raises four sub-claims of ineffective assistance of
trial counsel: (1) failure to investigate and secure an expert evaluation of Simpson’s mental health
status; (2) failure to interview at least one potential witness; (3) failure to investigate and obtain
expert assistance on the DNA evidence; and (4) failure to investigate and obtain expert assistance
on eyewitness identification and witness perception.
Respondent argues this First Ground for Relief is barred by Simpson’s procedural default
in not raising it on direct appeal to the Second District (Return, ECF No. 8, PageID 1956). Simpson
in his Reply insists that these four sub-claims could not have been supported by evidence in the
record on direct appeal and in any event the Second District did not rely on any procedural default
in deciding the post-conviction relief appeal.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.

3

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas
petitioner who fails to comply with a State’s rules of procedure waives his right to federal habeas
corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v.
Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott
v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner
4

can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
The Magistrate Judge agrees with Petitioner that the Second District’s decision on appeal
in post-conviction decided the merits of Simpson’s ineffective assistance of trial counsel claims
and did not find that he was barred by res judicata for not presenting them on direct appeal.
Respondent’s procedural default defense on the First Ground for Relief should therefore be
overruled and this claim decided on the merits.
In his Reply, Simpson argues his ineffective assistance of trial counsel sub-claims
separately and they will be addressed that way in this Report.

Sub-claim 1: Failure to Pursue a Competency Evaluation

In his first sub-claim of ineffective assistance of trial counsel, Simpson asserts that he was
incompetent to assist in his defense and his trial attorney’s failure to bring this to the attention of
the trial court was ineffective assistance. This claim was raised as the first assignment of error on
collateral appeal. The Second District considered this assignment together with the third, fourth,
and fifth assignments. Having overruled the third, fourth, and fifth assignments, the court wrote
of the first assignment as follows:
[*P10] We reach a similar conclusion with regard to Simpson's

argument about trial counsel's failure to retain an expert to evaluate
his mental status, which is the subject of his first assignment of error.
Simpson asserts that he suffers from an intellectual disability,
namely "mental retardation," that his trial counsel failed to
recognize this disability or to make any "adjustment" for it, and that
counsel should have retained a mental-health expert to evaluate him.
He argues that counsel's failure to do so constituted ineffective
assistance. In support of his post-conviction claim about the need
for an evaluation of his mental status, Simpson provided the trial
5

court with his Dayton Public School records and Social Security
Administration records. Those records show that he received low
grades in school, that he participated in a special-education program,
that he had a full-scale I.Q. of 53, and that he was classified as
"mildly mentally retarded." He also provided an affidavit stating that
his trial counsel, Bobby Joe Cox, knew he had a "learning
disability." (Doc. #8 at Simpson affidavit).
[*P11] The trial court rejected Simpson's claim for post-conviction
relief based on counsel's failure to have an expert review his mental
status. In support, the trial court noted that Simpson was not
claiming he was legally incompetent to stand trial. Instead, he was
claiming that, as a result of his deficient mental status, he could not
properly waive his Miranda rights or assist counsel in making
important trial decisions. The trial court found "significant
difficulty" with such a distinction. It noted that "[t]he issues of a
voluntary Miranda waiver, trial assistance, and trial decision
making relate to competence, yet Mr. Simpson does not suggest
such incompetence." (Doc. #60 at 8). The trial court then continued:

The indicated records, which the trial court has carefully
reviewed, do not, in any event, demonstrate that Mr.
Simpson's level of mental functioning affected his ability
to understand and knowingly and voluntarily waive his
Miranda rights, to provide assistance to Mr. Cox, or to be
involved in trial strategy decisions. Mr. Simpson, other
than filing the records, has presented no evidence that Mr.
Simpson's mental status affected him as suggested.
Mr. Simpson's contention is compromised, if not dispelled,
by Mr. Simpson's video captured demeanor and conduct
during video recorded interviews. Mr. Simpson, despite his
suggestion to the contrary, was engaged and alert during
the interviews. The interviews reveal no cause for concern
regarding Mr. Simpson's mental status. Mr. Cox, going
first to the issue of ineffective assistance, had no reason to
have Mr. Simpson's mental status evaluated based upon his
assumed knowledge that Mr. Simpson had a learning
disability. Further, Mr. Simpson's verbal competence and
demeanor, again as reflected by Mr. Simpson's video
recorded interviews, would not reasonably have alerted
Mr. Cox that a mental status evaluation was appropriate.
Further, Mr. Simpson, as noted, has not supplied the court
with information demonstrating that Mr. Simpson's mental
status compromised his ability to knowingly and
voluntarily waive his Miranda rights, to assist counsel, and
6

to be involved in trial decisions. There is, upon this record,
no basis upon which to conclude that Mr. Cox's
performance was ineffective based upon his failure to have
Mr. Simpson's mental status evaluated. It is also noted that
Mr. Simpson has not presented evidence or argument
demonstrating how a mental status evaluation would have
affected the trial's outcome. The trial, since Mr. Simpson
does not suggest he was not competent to stand trial, would
have occurred even if a mental status examination had been
conducted. Mr. Simpson does not suggest and the court
cannot fathom how the trial's outcome would have been
affected by the assumed mental status examination.
Mr. Simpson, in summary, has failed in his initial burden
to demonstrate a substantial basis upon which it could be
concluded that Mr. Cox was ineffective for not having Mr.
Simpson's mental status evaluated or that such an
examination would have affected the trial's outcome. As
such, this claim may be dismissed without an evidentiary
hearing through the grant of summary judgment.
(Doc. #60 at 8-9).
[*P12] On appeal, Simpson reiterates his claim that his mental

status affected his ability to waive his Miranda rights as well as
decisions such as whether to go to trial or whether to testify and his
ability to assist trial counsel in presenting a defense. Therefore, he
argues that his trial counsel should have investigated his mental
status and retained an expert to evaluate that status after being
informed that he had a "learning disability." In connection with his
argument, Simpson also asserts that developmental disability or
"mental retardation," which he purportedly suffers from, cannot be
detected though observation by a lay person.
[*P13] Having reviewed Simpson's argument and his evidentiary

materials, we see no error in the trial court's rejection of his claim
without a hearing. As a preliminary matter, Simpson does not
challenge the trial court's finding that his demeanor and conduct
during recorded interviews gave no outward indication that his
mental status was impaired. According to Simpson's affidavit
accompanying his petition, defense counsel had been told only that
he had a "learning disability," which Simpson acknowledges in his
appellate brief "is not as bad in society's eyes as suffering from
mental retardation, or as it is now defined, developmental
disability." (Appellant's brief at 17). We are unconvinced that being
told Simpson had a learning disability reasonably should have
alerted defense counsel of the need to have his "mental status"
7

evaluated, particularly in light of what the trial court found to be
Simpson's appropriate behavior on recorded videos. This is true
even if we accept that Simpson in fact does suffer from "mild mental
retardation." Simpson's own admission, that his degree of
developmental disability or "mental retardation" would not be
detected by a lay person, leads to the conclusion that his mental
status would not have been evident to his trial counsel either.
[*P14] We also agree with the trial court that evidence of Simpson's
low I.Q. and "mild mental retardation" fails to raise an issue as to
his ability to assist trial counsel in making strategic decisions. The
trial court found that Simpson was not claiming to be incompetent
to stand trial, and Simpson has not challenged that finding on appeal.
But if Simpson does not claim his mental status rendered him legally
incompetent, then we fail to see the significance of, or the need for,
trial counsel to have an expert evaluate his mental status. By
definition, if Simpson was legally competent to stand trial, then he
was sufficiently able to assist his attorney in making strategic
decisions. We are unaware of any authority that would have
imposed on Simpson's attorney an obligation to seek an expert
opinion on his "mental status" under the circumstances before us.
Moreover, we agree with the trial court that the evidentiary materials
accompanying Simpson's petition—Dayton Public School and
Social Security Administration records—did not provide a
substantial basis for concluding that Simpson's mental status
compromised his ability to knowingly and voluntarily waive his
Miranda rights, to assist defense counsel, or to be involved in trial
decisions. Finally, we have no way of knowing what result a mental
status evaluation would have produced in the trial court, what
conclusion a mental-health expert retained by defense counsel
would have reached, or whether such an evaluation would have
assisted Simpson. Therefore, Simpson also cannot establish that he
was prejudiced by his attorney's failure to obtain a mental-status
evaluation. The first assignment of error is overruled.

Simpson PC, supra.

The standard for evaluating a claim of ineffective assistance of trial counsel is well known
and was adopted by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel's
8

performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel=s challenged
conduct, and to evaluate the conduct from counsel=s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action "might be
considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d
313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally
Annotation, 26 ALR Fed 218. Without expressly citing Strickland or Ohio case law adopting the
same standard, the Second District applied the Strickland standard in concluding that Simpson did
9

not suffer ineffective assistance of trial counsel in the ways he claimed, because he had not
demonstrated deficient performance or resulting prejudice.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.
Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 69394 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Respondent relies on this
precedent to assert this Court should defer to the Second District’s decision in post-conviction
(Return, ECF No. 8, PageID 1957).
In his Reply, Simpson flatly asserts that he was incompetent to stand trial (ECF No. 15,
PageID 2185). This assertion contradicts the finding by the Common Pleas Court and the Second
District that Simpson did not claim in post-conviction that he was incompetent to stand trial.
Simpson nowhere asserts that this finding is an unreasonable determination of the facts in light of
the evidence presented nor does he anywhere cite to a place in the record where Simpson claimed
to be incompetent to stand trial. That is a key finding. It formed the basis of the Second District’s
conclusion that, absent an established claim of incompetence, the trial would have occurred in any
event. Of course Simpson had a right not to be tried at all so long as he was incompetent, but he
did not claim in the state courts that he was in fact incompetent.
Apparently the most Simpson claims he told trial attorney Bobby Joe Cox is that he had a
learning disability. This would have alerted Cox to be careful in communicating with him to be
sure he understood, but it is not a defense, unlike the situation in a capital case, where a finding of
intellectual disability (or mental retardation as it was formerly called) is a complete defense to

10

execution.
Simpson asserts in his Reply that a trial attorney performs deficiently when he does not
seek a mental evaluation if presented with sufficient indicia of incompetence (ECF No. 15, PageID
2185-86, citing United States v. Dubrule, 822 F.3d 866, 881 (6th Cir. 2016). While the Dubrule
court did adopt that proposition of law in the abstract, it found no ineffective assistance of trial
counsel from failure to move for a competency evaluation in that case and of course Dubrule was
decided on direct appeal where there is no question of deference to a state court determination.
In post-conviction Simpson relied on school and Social Security Administration records
which his present counsel claims would have been “immediately apparent to trial counsel.” But
there is no evidence, for example, that his mother, who provided an affidavit in post-conviction,
ever brought these materials to Cox’s attention. How would they have been “immediately
apparent”?
Petitioner cites recent Sixth Circuit and Supreme Court precedent on the determination of
intellectual disability (Reply, ECF No. 15, PageID 2187, citing Williams v. Mitchell, 792
F.3d 606, 621 (6th Cir. 2015), citing Hall v. Florida, 134 S. Ct. 1986, 188 L. Ed. 2d 1007 (2014)).
Critically, both Williams and Hall are capital cases where a finding of intellectual disability is
literally the difference between life and death under Atkins v. Virginia, 536 U.S. 304 (2002). But
a finding of intellectual disability, while it precludes a death sentence, does not equate to a finding
of incompetency to stand trial. Intellectual disability would not have been a defense here and, as
noted above, Simpson did not claim in the state courts to have been incompetent to stand trial.
Simpson also objects to the state courts’ reliance to show his competency on his conduct
in police interviews 1 (Reply, ECF No. 15, PageID 2187-88). But here Simpson again relies on

1

These were video recorded in accordance with best police practice so the trial court could see
Simpson’s conduct for itself, rather than depending on oral testimony.

11

Supreme Court precedent about determining intellectual disability (not competency to stand trial)
in a capital case, Brumfield v. Cain, 135 S. Ct. 2269 (2015).
Petitioner next objects that “the state court missed the mark in not evaluating the prejudice
prong of Strickland.” (Reply, ECF No. 15, PageID 2188). The Magistrate Judge finds that is a
misreading of Simpson PC. It quoted the trial court’s finding that Simpson had not shown that a
mental status evaluation would have affected the outcome of the trial. Id. at ¶ 11, quoting the trial
court decision. For its own part, it noted that it had no way of determining from the evidence
presented in post-conviction “whether such an evaluation would have assisted Simpson.” Id. at ¶
14. While the Second District did not label these conclusions as related to the prejudice prong of
Strickland, that is plainly what they were without labeling. Without showing that the omitted
actions of trial counsel would probably have affected the outcome, a defendant has not shown
prejudice from whatever trial counsel failed to do.
The Second District’s conclusion on this ineffective assistance of trial counsel sub-claim
is neither an objectively unreasonable application of Strickland nor based on an unreasonable
determination of the facts in light of the evidence presented. It is thus entitled to deference under
28 U.S.C. § 2254(d)(1) and (d)(2).

Sub-claim Two: Failure to Call Terrence Jones as a Witness

In his second sub-claim, Simpson asserts Bobby Joe Cox provided ineffective assistance
of trial counsel when he failed to call Terrence Jones as a witness. This was Simpson’s second
assignment of error on post-conviction appeal and the Second District decided it as follows:
[*P5] As a means of analysis, we begin with Simpson's second

assignment of error, which asserts that the trial court erred in
12

denying post-conviction relief predicated on his trial counsel's
ineffective assistance due to failure to "interview witnesses." In his
appellate brief, Simpson actually identifies only one witness,
Terrence Jones, whom his attorney failed to interview. According to
Simpson, Jones gave a statement to police and identified a codefendant other than Simpson as the person he saw fire a fatal shot
inside the unlicensed liquor establishment. Simpson asserts that this
statement "is consistent with [his] innocence of the murder because
Jones puts the guns in the hands of the other two defendants."
(Appellant's brief at 19). Simpson's trial counsel admits that he did
not interview Jones, although he did review Jones' statement to
police. (Affidavit, Doc. #36).
[*P6] The trial court rejected Simpson's argument, finding that it

did not warrant even an evidentiary hearing. The trial court reached
this conclusion for multiple reasons. It first concluded that Jones'
police statement was "ambiguous concerning whether Mr. Simpson
or one of his companions shot [victim Hank] Sanders," apparently
because the statement only provided a vague physical description of
the three co-defendants, including the shooter. (Doc. #60 at 10). The
trial court noted Simpson's failure to present an affidavit from Jones
clearly stating that Simpson did not shoot anyone. (Id.) The trial
court then continued:
It is also noted that Terrence Jones was shown
photospreads regarding Keron Simpson, Earl Moon, and
Daviontae Norvell. Mr. Jones was not able to identify Mr.
Norvell, but he did identify Mr. Simpson and Mr. Moon as
participants in the aggravated robberies and murders at
issue. This is consistent with the trial testimony of Shawn
Dentel, Erika Peck, and Annette Dillard with each witness
identifying Mr. Simpson as a participant in the aggravated
robberies and as the person who shot Hank Sanders.
The State's theory was that Mr. Simpson shot Mr. Sanders
and that Mr. Moon shot Michelle Carter. However, Mr.
Simpson was also convicted of Ms. Carter's murder, and
Mr. Moon was convicted of not only Ms. Carter's murder
but also Mr. Sanders' murder. Given this, and even
assuming that Mr. Jones would testify that either Mr. Moon
or the third participant shot Mr. Sanders, such testimony
would not change the trial's outcome because Mr. Simpson,
as a participant in the aggravated robberies, is guilty of
each murder even if he did not fire the weapon that fatally
wounded either Mr. Sanders or Ms. Carter. It is, thus,
concluded that [defense counsel Bobby Joe] Cox's failure
13

to interview Mr. Jones and pursue the suggested
contradiction concerning who shot Mr. Sanders would not
have changed the trial's outcome. It is, therefore, concluded
that Mr. Simpson has not met his initial burden to establish
a substantial basis that Mr. Cox's failure to interview
Terrence Jones would have changed the trial's outcome. As
such, this contention may be dismissed without a hearing
through summary judgment. This conclusion leads to the
further conclusion that Keron Simpson's motions relating
to Terrence Jones' statement are appropriately overruled.
(Id. at 11).
[*P7] On appeal, Simpson completely ignores the trial court's
observation that he was guilty of murder, as an aider and abettor,
even if we accept, arguendo, that he did not personally shoot
Sanders. (Appellant's brief at 19-20; Reply brief at 3). We believe
the trial court was correct. Simpson has not shown any possibility
that the outcome of his trial would have been different if defense
counsel had interviewed Jones. Even if Jones would have identified
someone else as the shooter, Simpson still would have remained
guilty of murder as an aider and abettor. Accordingly, the second
assignment of error is overruled.

Simpson PC.

Thus both the Common Pleas Court and the Second District focused their analyses on the
prejudice prong of Strickland, concluding that Simpson would have been convicted of murder as
an aider and abettor even if Jones had testified, assuming he would testify consistently with his
police interview 2. Simpson’s Reply does not address this aider and abettor conclusion of the Ohio
courts (ECF No. 15, PageID 2189-90). However, it is persuasive to the Magistrate Judge. If
Simpson would have been convicted of both murders even with Jones’ testimony, then there was
no prejudice in failing to call him. The Second District’s decision on this point is entitled to

2

Both courts noted that Jones failed to provide an affidavit in post-conviction as to what his testimony would have
been.

14

deference under 28 U.S.C. § 2254(d)(1).

Sub-claims Three and Four: Failure to Secure Expert Witnesses

Simpson argues his third and fourth subclaims of ineffective assistance of trial counsel
together and they were decided together by the Second District which wrote:
[*P9] With regard to trial counsel's failure to obtain experts on

DNA evidence, witness perception and memory, and eyewitness
identification, we do not know what such experts would have
concluded, or whether they would have aided Simpson's defense,
because his petition for post-conviction relief is devoid of evidence
outside the record from such experts. We recognize that Simpson's
request for appointment of experts who theoretically might have
supplied additional evidence was denied, but we deal with that issue
in our analysis of his sixth, seventh and eighth assignments of error.
Absent evidence outside the record to support his claim that failure
to retain experts was prejudicial to him, Simpson cannot succeed on
his post-conviction claim based on trial counsel's failure to secure
such experts. Accordingly, his third, fourth, and fifth assignments of
error are overruled.

Simpson PC.
Here again the state court emphasis is on lack of proof of prejudice. Simpson argues this
puts him in a Catch-22 3 situation because he has been indigent throughout the process and reliant
on appointed counsel from the beginning (Reply, ECF No. 15, PageID 2191). The Second District
addressed this argument as well:
[*P15] In his sixth, seventh, and eighth assignments of error,
Simpson asserts that the trial court erred in overruling his postconviction motions for the appointment of experts to evaluate his
mental
status,
DNA
evidence,
and
eyewitness
identification/perception. (Appellant's brief at 21). Specifically, the
sixth assignment of error concerns the trial court's rejection of his
post-conviction request for an order appointing Julie Gentile, M.D.,
3

The reference, perhaps well enough known not to need citation, is to Joseph Heller’s novel, Catch-22, published in
1961.

15

to provide a preliminary review of documents concerning his
"mental status." In particular, Simpson wanted Gentile to review the
Dayton Public School and Social Security Administration records
mentioned above to bolster his postconviction claim that he suffered
from a developmental disability. His seventh assignment of error
concerns the trial court's rejection of his post-conviction request for
an order appointing an expert to review the State's DNA evidence.
Finally, the eighth assignment of error concerns the trial court's
rejection of his post-conviction request for the appointment of an
eyewitness-identification/perception expert to support his postconviction claim about allegedly faulty eyewitness-identification
testimony at trial.
[*P16] We see no error in the trial court's denial of Simpson's
motions for appointment of the foregoing experts in connection with
his petition for post-conviction relief. The short answer to his
arguments is that he had no right, statutory or constitutional, to the
appointment of experts to assist in his post-conviction relief petition.
This court has held that "indigent prisoners are not entitled to
funding for experts when pursuing collateral attacks on their
convictions." State v. Hooks, 2d Dist. Montgomery Nos. 16978,
17007, 1998 Ohio App. LEXIS 5044, 1998 WL 754574, *3 (Oct.
30, 1998). This is so because "[p]ost-conviction relief is not a
constitutional right, and it affords a petitioner no rights beyond those
granted by the controlling statute, R.C. 2953.23." State v. Osie, 12th
Dist. Butler No. CA2014-10-222, 2015-Ohio-3406, P 31. "[I]t is not
error for a trial court to deny a request * * * for the appointment of
an expert in a post-conviction relief petition because Ohio's statute,
R.C. 2953.21, does not provide * * * a right * * * to expert
assistance." Id. at P 40; see also State v. Bennington, 4th Dist.
Adams No. 12CA956, 2013-Ohio-3772, P 25, fn. 4 (citing cases for
the proposition that "R.C. 2953.21 does not provide a right to
funding or appointment of expert witnesses or assistance in a postconviction petition").
[*P17] In opposition to the foregoing conclusion, Simpson cites
State v. Mason, 82 Ohio St.3d 144, 1998 Ohio 370, 694 N.E.2d 932
(1998), State v. Broom, 40 Ohio St.3d 277, 533 N.E.2d 682 (1988),
and Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53
(1985). None of these cases, however, involved a petition for postconviction relief. Mason, Broom, and Ake were capital cases that
involved the appointment of experts to assist at the trial level.
Therefore, they are inapposite. The sixth, seventh, and eighth
assignments of error are overruled.
Simpson PC. In sum, the Second District held that there was neither a statutory nor a constitutional
16

right to appointment of these requested experts. Simpson “submits that, at a minimum, the case
should be remanded to the state court with instructions to allow development of the record on these
points.” (Reply, ECF No. 15, PageID 2192.) However, he does not quarrel with the correctness
of the Second District statement of law on this point. The Supreme Court has yet to recognize a
constitutional right to the effective assistance of counsel in post-conviction, much less the right to
expert assistance in those proceedings 4. This Court can grant habeas corpus relief only for
constitutional violations. Where there was no constitutional violation in denying expert assistance
in post-conviction, this Court lacks the authority to “remand 5” the case to state court.
Because Simpson did not show that having a DNA expert or an eyewitness identification
expert would have made a difference in the outcome of his trial, the decision of the Second District
on these sub-claims is entitled to deference under 28 U.S.C. § 2254(d)(1).

Ground Two: Denial of Fair Trial by Admitting Unreliable Eyewitness Identification

In his Second Ground for Relief, Simpson claims he was denied a fair trial when the trial
court admitted a constitutionally unreliable eyewitness identification (ECF No. 1, PageID 34).
Respondent argues this claim is procedurally defaulted because Simpson never pursued his
direct appeal to the Ohio Supreme Court. Simpson replies that the state courts never enforced this
procedural default against him because they decided the claim on the merits in post conviction
(Reply, ECF No. 15, PageID 2193.

4
Compare Martinez v. Ryan, 566 U.S. 1 (2012), which recognized only an equitable exception to the procedural
default doctrine in habeas corpus where a petitioner had been deprived of a decision on the merits of a substantial
ineffective assistance of trial counsel claim by the ineffective assistance of post-conviction counsel.
5
Because habeas is an original as opposed to an appellate process, a habeas court cannot remand a case to state court.
However, the equivalent relief can be granted in the form of a conditional grant of the writ.

17

Simpson’s first assignment of error on direct appeal was that his motion to suppress should
have been granted “because the identification was unreliable.” Simpson Direct at ¶ 39. Police
failure to comply with the statute on the subject, Ohio Revised Code § 2933.83, as well as federal
constitutional authority, was relied on. Id., citing Neil v. Biggers, 409 U.S. 188 (1972). When
Simpson raised the unreliable identification claim in post-conviction, the Second District decided
it as follows:
[*P18] In his ninth assignment of error, Simpson argues that the
trial court erred in rejecting his post-conviction claim for relief
based on allegedly faulty eyewitness identification. Specifically, he
complains that his "right to a fair trial" was violated "by the
admission of an unfair eyewitness identification procedure."
(Appellant's brief at 29). This assignment of error lacks merit.
Because Simpson's post-conviction relief petition presented no
evidence outside the record to support his eyewitness-identification
challenge, res judicata applies. Moreover we specifically dealt with
asserted error in the eyewitness identification in his direct appeal.
Accordingly, the ninth assignment of error is overruled.

Simpson PC.
Contrary to Simpson’s assertion, the Second District did enforce Ohio’s criminal res
judicata rule against him. Ohio’s doctrine of res judicata in criminal cases, enunciated in State v.
Perry, 10 Ohio St. 2d 175 (1967), is an adequate and independent state ground. Durr v. Mitchell,
487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v.
Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust
v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp.
2d 899, 913 (S.D. Ohio 2001). The Ohio courts have consistently enforced the rule.

State v.

Cole, 2 Ohio St. 3d 112 (1982); State v. Ishmail, 67 Ohio St. 2d 16 (1981). Simpson has not
offered any excusing cause and prejudice for his failure to appeal to the Ohio Supreme Court or

18

his failure to take this claim outside the res judicata rule by presenting evidence dehors the record
in post-conviction.
Simpson’s Second Ground for Relief should be dismissed as procedurally defaulted.

Ground Three: Violation of the Right Against Self-Incrimination

In his Third Ground for Relief, Simpson asserts he was deprived of his right against selfincrimination.
Respondent asserts this claim is procedurally defaulted in the same way as the Second
Ground, to wit, it was raised on direct appeal to the Second District, but no further direct appeal to
the Ohio Supreme Court was taken (Return, ECF No. 8, PageID 1976).
Simpson replies that “[t]his issue hinges on Simpson’s arguments regarding his
incompetency . . . [which are incorporated] as if rewritten herein.” (Reply, ECF No. 15, PageID
2193.)
Simpson raised this claim as his tenth assignment of error on post-conviction appeal. The
Second District acknowledged that the claim had been raised on direct appeal, but did not invoke
res judicata to decline to address it on the merits. Instead, it held:
[*P19] In his tenth assignment of error, Simpson contends the trial
court erred in rejecting his post-conviction claim for relief based on
an alleged violation of his constitutional right against selfincrimination. In support of this claim, Simpson argued in his
petition that the admissibility of various custodial statements he
made had been litigated below "without considering his mental
status." (Doc. #8 at 9). The trial court rejected this argument,
reasoning: "The material[s] Mr. Simpson has presented in support
of this argument—school and social security records—fail to
demonstrate that Mr. Simpson's mental status was such that he could
not understand his Miranda rights and knowingly waive such
rights." (Doc. #60 at 12).

19

[*P20] On appeal, Simpson simply cites a law review article to
support the proposition that "mentally retarded" individuals do not
understand Miranda rights. (Appellant's brief at 29-30). He then
asserts that the admissibility of his statements "rested on a
foundation that did not have all of the facts." (Id. at 30).
[*P21] The record reflects that Simpson filed a suppression motion

that addressed, among other things, custodial statements he had
made to police. He sought suppression of the statements,
challenging the validity of his waiver of his Miranda rights prior to
making the statements. The trial court filed a decision, entry, and
order overruling Simpson's motion. In relevant part, the trial court
found that he had been advised of his Miranda rights prior to
custodial interrogations on December 27, 2010 and December 28,
2010 and that, on each occasion, he validly had waived those rights.
(Nov. 8, 2011 decision, entry, and order at 9-11). The trial court
specifically found "nothing to suggest" that a "cognitive defect" or
anything else prevented Simpson from making a valid waiver. (Id.).
On appeal, this court rejected Simpson's challenge to the
voluntariness of his statements and his Miranda waiver. State v.
Simpson, 2d Dist. Montgomery No. 25069, 2013-Ohio-1072, P 5158. As set forth above, the trial court subsequently found that
Simpson's post-conviction evidentiary materials failed to raise a
viable claim regarding the admissibility of his statements to police.
[*P22] We see no error in the trial court's rejection of Simpson's
post-conviction claim addressing whether his custodial statements
were admissible. We reach this conclusion for at least two
independent reasons. First, a review of the trial transcript reveals
that the State neither introduced any of Simpson's custodial
statements into evidence nor presented any testimony regarding
what those statements were. Because the State did not use the
challenged statements, we see no basis for post-conviction relief
premised on the statements being made in violation of Simpson's
constitutional rights. Second, in any event, the materials
accompanying Simpson's petition failed to support his claim that his
"mental status" resulted in him making involuntary or otherwise
inadmissible statements. Those materials included the Dayton
Public School and Social Security Administration records discussed
above as well as affidavits from Simpson and his mother. The
records show that Simpson received low grades in school, that he
participated in a special-education program, that he had a full-scale
I.Q. of 53, and that he was classified as "mildly mentally retarded."
The affidavits state that Simpson was in special-education classes,
that he had a learning disability, that he took Ritalin as a child, and

20

that he received Supplemental Security Income benefits. (See
affidavits accompanying Doc. #8).
[*P23] In our view, the foregoing evidence failed to support a
finding that Simpson's waiver of his Miranda rights was less than
knowing, intelligent, and voluntary or that his statements themselves
were involuntarily made. The mere fact that Simpson may have a
learning disability or suffer from "mild mental retardation" does not
necessarily negate his ability to make a knowing, intelligent, and
voluntary statement to police. In his reply brief, Simpson himself
admits that he needs testimony from a mental-health expert to
support the allegations in his tenth assignment of error. (Appellant's
reply brief at 5). He also acknowledges that his lack of such evidence
"would require the denial of this assignment," but claims that he
cannot afford to hire an expert. (Id.). As explained in our analysis of
Simpson's sixth, seventh, and eighth assignments of error, however,
he had no right to court-appointed experts in post-conviction-relief
proceedings. Accordingly, the tenth assignment of error is
overruled.

Simpson PC.
Simpson’s Reply focuses, as noted above, on his incompetency claim. For the reasons
given above as to the First Ground for Relief, that argument is not well taken.
Independently of the incompetency claim, the Second District found that Simpson’s
statements to the police, whether or not they were voluntary under Miranda v. Arizona, 384 U.S.
436 (1966), were not admitted in evidence against Simpson. Simpson PC at ¶ 22. That factual
finding of the Second District, based on its review of the trial transcript, is entitled to deference in
the absence of clear and compelling evidence to the contrary. Simpson offers no such evidence.
The Fifth Amendment forbids convicting persons on the basis of admissions that have been
coerced. But where no such admission, voluntary or involuntary, is admitted in evidence, the
person has not been convicted in violation of the Fifth Amendment. To put it another way, the
Fifth Amendment does not create a free-standing right against police coercion of admissions, but
rather a right to prevent those admissions to be used in convicting a person of a crime.

21

The Second District’s decision on the tenth assignment of error is therefore entitled to
deference under 28 U.S.C. § 2254(d)(1): it is not an unreasonable application of Miranda.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with
this conclusion, Petitioner should be denied a certificate of appealability and the Court should
certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not
be permitted to proceed in forma pauperis.

March 9, 2018.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral hearing,
the objecting party shall promptly arrange for the transcription of the record, or such portions of it
as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. A party may respond to another party=s objections within fourteen days
after being served with a copy thereof. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th
Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
22