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Simpson v. Warden, Lebanon Correctional Institution

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

March 28, 2018

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

          District Judge Thomas M. Rose

          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. 19) to the Magistrate Judge's Report and Recommendations (ECF No. 18) recommending the Petition be dismissed with prejudice. Judge Rose has recommitted the case for reconsideration in light of the Objections (Recommittal Order, ECF No. 20).

         Simpson pleads two grounds for relief:

Ground One: Petitioner's right to counsel guaranteed by the Sixth Amendment was violated at trial.
Sub-claim A: Trial Counsel failed to investigate and secure an expert evaluation of Petitioner's mental health status.
Sub-claim B: 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 eye witness identification [procedure was violated].

(Corrected Petition, ECF No. 2, PageID 30-31.)

         Procedural History

         Simpson seeks relief from his April 2012 convictions in No. 2010 CR 4101 in the Montgomery County Common Pleas Court for the theft of two motor vehicles, felonious assault, aggravated robbery, and a firearm specification (State Court Record, ECF No. 12, Ex. 9). Simpson appealed to the Second District Court of Appeals which affirmed. State v. Simpson, 2013-Ohio-1696, 2013 Ohio App. LEXIS 1585 (2nd Dist. Apr. 26, 2013)(“Simpson Direct”). Simpson did not appeal further to the Ohio Supreme Court.

         However, he did file a petition for post-conviction relief under Ohio Revised Code § 2953.21 which the trial court dismissed on the State's motion for summary judgment. Simpson appealed to the Second District which affirmed. State v. Simpson, 2016-Ohio-1268, 61 N.E. 3d 894, 2016 Ohio App. LEXIS 1338 (2nd Dist. Mar. 25, 2016), appellate review declined, 146 Ohio St.3d 1490 (2016)(“Simpson PC”).

         Simpson, who is assisted by appointed counsel, raises five objections to the Report which will be discussed seriatim.

         Objection One: Whether Simpson Raised His Claim of Incompetence to ...


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