United States District Court, S.D. Ohio, Western Division
KERON D. SIMPSON, Petitioner,
WARDEN, Lebanon Correctional Institution, Respondent.
M. Rose District Judge.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
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.
pleads three claims:
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. 3, PageID 40, 50-51.)
who is represented by appointed counsel, raises six
objections which will be dealt with seriatim.
One: Whether Simpson Raised His Claim of Incompetence to
Stand Trial in the State Courts.
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
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.
of incompetency to stand trial and incompetency to plead
guilty are judged by the same standard, but Simpson ...