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Simpson v. Warden, Lebanon Correctional Insititution

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

March 29, 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. 20) to the Magistrate Judge's Report and Recommendations (ECF No. 19), recommending dismissal of the Petition. The Warden has timely responded to the Objections (ECF No. 22) and Judge Rose has recommitted the case for reconsideration in light of the Objections (ECF No. 21).

         Simpson pleads three claims:

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. 3, PageID 40, 50-51.)

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

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

         The Report concluded that “Simpson did not claim in his post-conviction proceedings that he was incompetent to stand trial, but merely that his intellectual disability affected his ability to participate.” (Report, ECF No. 19, PageID 1028, citing State v. Simpson, 2016-Ohio-1267, ¶ 11, 61 N.E. 3d 899, 2016 Ohio App. LEXIS 1339 (2nd Dist. Mar. 25, 2016), further appellate jurisdiction was declined, 146 Ohio St.3d 1490 (2016)(“Simpson PC”).

         Simpson objects that this conclusion “ignores the fact that Simpson did in fact challenge the voluntariness of his plea in the Ohio courts during his post-conviction litigation.” (Objections, ECF No. 20, PageID 1035). However, Simpson cites no place in his post-conviction petition where that claim is made. Instead, he claimed in post-conviction that his trial attorney provided ineffective assistance when he failed to retain an expert to evaluate his mental capacity. In Godinez v. Martin, 509 U.S. 389 (1993), the Supreme Court held that the same standard for determining competence to stand trial applies to determining competence to plead guilty. The Second District recognized this point made in Godinez, but also found “Simpson does not contend he was legally incompetent to stand trial.” Simpson PC ¶ 11.

         Claims of incompetency to stand trial and incompetency to plead guilty are judged by the same standard, but Simpson ...


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