United States District Court, S.D. Ohio, Western Division, Dayton
KERON D. SIMPSON, Petitioner,
WARDEN, Lebanon Correctional Institution, Respondent.
District Judge Thomas M. Rose
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
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).
pleads two grounds for relief:
Ground One: Petitioner's right to
counsel guaranteed by the Sixth Amendment was violated at
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.)
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.
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
who is assisted by appointed counsel, raises five objections
to the Report which will be discussed seriatim.
One: Whether Simpson Raised His Claim of Incompetence to