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Simpson v. Warden, Lebanon Correctional Institution

United States District Court, S.D. Ohio, Western Division, Dayton

March 27, 2018

KERON D. SIMPSON, Petitioner,
v.
WARDEN, Lebanon Correctional Institution, Respondent.

          Thomas M. Rose District Judge.

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         This habeas corpus case is before the Court on Petitioner's Objections (ECF No. 17) to the Magistrate Judge's Report and Recommendations (ECF No. 16) recommending the Petition be dismissed with prejudice. Judge Rose has recommitted the case for reconsideration in light of the Objections (ECF No. 18).

         Simpson, who is assisted by appointed counsel, raises seven objections which will be dealt with seriatim.

         Objection One: Whether Simpson Raised His Claim of Incompetence to Stand Trial in the State Courts.

         Simpson first objects to the Magistrate Judge's conclusion that he never raised his incompetence to stand trial in the state courts (Objections, ECF No. 17, objecting to conclusion at Report, ECF No. 16, PageID 2204.) The objected-to passage reads:

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.

Id.

         Simpson objects “the Magistrate Judge ignores the fact that Simpson did in fact challenge the voluntariness of his plea in the Ohio courts during his post-conviction litigation.” (ECF No. 17, PageID 2217.) To prove this point, Simpson states, without citing the record, that he alleged ineffective representation of counsel in his petition for post-conviction relief under Ohio Revised Code § 2953.21. When that petition is examined, it plainly does not contain a claim that the plea was involuntary. Instead, it asserts ineffective assistance of trial counsel because, inter alia, “Petitioner's trial counsel did not have Petitioner's mental health status reviewed by a mental health professional.” (Post-Conviction Petition, State Court Record, ECF No. 7, Ex. 18, PageID 373.)

         Simpson argues that he could not have raised a direct incompetence to stand trial claim in post-conviction, but only an ineffective assistance of trial counsel for failure to investigate competence (Objections, ECF No. 17, PageID 2218). Not so. Ohio courts are authorized under Ohio Revised Code § 2953.21 to grant relief whenever a judgment is unconstitutional. Had the Common Pleas Court found, on evidence presented in post-conviction, that the guilty pleas were involuntary because Simpson was incompetent to enter it, they could have vacated the plea. But that is not the claim Simpson made. Instead he asserted his counsel was ineffective for not investigating his competence. Those are distinctly different claims.

         Simpson is correct in asserting that competence to stand trial encompasses competence to consult with counsel. “[T]he standard for competence to stand trial is whether the defendant has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and has ‘a rational as well as factual understanding of the proceedings against him.'" Dusky v. United States, 362 U.S. 402 (1960), accord, Drope v. Missouri, 420 U.S. 162, 171 (1975). In Godinez v. Martin, 509 U.S. 389 (1993), the Supreme Court held that the same standard applied to determining competence to plead guilty. Simpson concludes from this that “[t]here is no way the state courts could have parsed out competency to assist counsel from competency to stand trial. Thus reliance [by the Magistrate Judge] on the state finding of waiver as to this issue is misplaced.” (Objections, ECF No. 17, PageID 2218.)

         But this is not the distinction the state court made. Instead, the Second District distinguished between a claim of ineffective assistance of trial counsel for failure to obtain a mental evaluation - a claim Simpson did make in post-conviction - from a claim of incompetence - a claim both the Common Pleas Court and the Second District found Simpson did not make. State v. Simpson, 2016-Ohio-1266, 55 N.E. 3d 905, ¶ 11, 2016 Ohio App. LEXIS 1167 (2nd Dist. Mar. 25, 2016), quoted in Report, ECF No. 16, PageID 2200. If the claim of incompetence to stand trial or to plead guilty was actually made in the state court, Simpson should be able to cite the place in the record where the claim was made, but he has not done so.

         Objection Two: The Magistrate Judge Ignored Simpson's Immediately Apparent Head Trauma

         Simpson objects that he has “head trauma that is immediately apparent upon viewing” and “an IQ of 53.” (Objections, ECF No. 17, PageID 2219.) Where in the record is there any evidence of the head trauma or the IQ before the post-conviction Petition was filed? Simpson asserts his “inability to comprehend was and is immediately apparent” id., but it was not apparent to the trial court judge after seeing Simpson in person and reviewing the video records of his police questioning. On what evidentiary basis, then, can present counsel assert that his inability to understand “is immediately apparent”? A habeas corpus court can reverse a factual finding of the state ...


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