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Simmonds v. Erdos

United States District Court, S.D. Ohio, Eastern Division, Columbus

December 2, 2019

DEVONERE SIMMONDS, Petitioner,
v.
RONALD ERDOS, Warden, Southern Ohio Correctional Facility, Respondent.

          Edmund A. Sargus, Jr. District Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         With the assistance of counsel from the Ohio Public Defender's Office, petitioner Devonere Simmonds brought this habeas corpus action under 28 U.S.C. § 2254 to challenge his convictions in the Franklin County Court of Common Pleas. The case is ripe for decision on the merits upon the Petition (ECF No. 2), the State Court Record (ECF No. 18), the Warden's Return of Writ (ECF No. 19), and Petitioner's Reply (ECF No. 26). The Magistrate Judge reference in the case has recently been transferred to the undersigned to help balance the Magistrate Judge workload in the District (ECF No. 27).

         Litigation History

         The criminal offenses underlying Simmonds' convictions are set forth succinctly in the decision of the Ohio Tenth District Court of Appeals as follows:

{¶2} On July 21, 2013, Simmonds shot both James Norvet and Quinten Prater in the head. Prater, who was shot with a shotgun, did not survive. Three days later, on July 24, Simmonds fatally shot a third person, Imran Ashgar, a convenience store clerk during a robbery. He shot him in the eye; departed briefly; then returned and shot him a second time in the head as he lay wounded on the floor. Three days after that, during Simmonds' attempt to flee Ohio, Simmonds approached William Rudd at a gas station, shot him in the face, and stole his truck. Rudd managed to survive. Simmonds was 17 years old when he committed these offenses.

State v. Simmonds, 2017-Ohio-2739 (10th Dist. May 9, 2017). Having been bound over for trial as an adult, Simmonds was indicted on January 16, 2014, for two counts each of aggravated murder and murder (Ashgar and Prater), five counts of aggravated robbery (Prater, Norvet, Ashgar, and Rudd), two counts each of attempted murder and felonious assault (Norvet and Rudd), and one count of having a weapon while under a disability. (Jan. 16, 2014 Indictment, ECF No. 18, PageID 1061-73.) Each offense (except the weapon offense) included a gun specification under Ohio Rev. Code § 2941.145. Simmonds, 2017-Ohio-2739 at ¶ 4. The charges relating to victims Ashgar and Rudd were tried first; the counts relating to victims Prater and Norvet were severed for later jury trial and the weapons under disability charge was tried to the bench. Id. at ¶ 5. After conviction and sentencing at the first trial Simmonds pleaded guilty as to the severed charges. Id. at ¶ 10.

         The procedure for sentencing was as follows:

[*P6] On Friday, December 5, 2014, after the jury delivered its verdicts, the trial court denied a request for a presentence investigation as to Simmonds and asked counsel if they would be amenable to convening for sentencing the following Monday, December 8, 2014. (Dec. 5, 2014 Tr. Vol. 5 at 788-89.) Counsel indicated that date would be agreeable. Id. Other than the request for a presentence investigation (which the trial court denied), the record contains no request for a continuance at that point. Id.
[*P7] When proceedings reconvened on December 8, the trial court found Simmonds guilty of the weapon under disability offense and immediately turned to the issue of sentencing. (Dec. 8, 2014 Hearing Tr. Vol. 6 at 797-98.) At sentencing, counsel for Simmonds offered two psychological evaluations of Simmonds. Id. at 819-21. One was by psychologist David Tennenbaum, Ph.D. that was prepared on November 4, 2013, for an unrelated juvenile burglary case (common pleas case No. 12JU-13008) and one by psychologist Jaime Adkins, Psy.D. that was prepared on November 18, 2013 for one of the cases for which Simmonds was bound-over (common pleas case No. 13JU-11966); it was attached to the State's May 16, 2014 response to a motion by Simmonds challenging his competence to stand trial. Id.; May 16, 2014 Memo Contra. Arguing from these reports (which covered Simmonds' background in considerable detail) Simmonds' counsel stated:
This case has been a recipe for disaster. We have a 17-year-old African-American male, fractured family, one out of seven children on his mother's side, one out of twelve on his father's. We have criminal activities on the part of a parent who acted as a role model. Drug use and abuse, alcohol, immaturity, vulnerability, weapons, older boys whom he looked up to. He has a ninth-grade education, an IQ range in the first percentile.
I guess if you put in a convenient store and you have a hot summer night, the result is unfortunately too often very predictable.
(Dec. 8, 2014 Hearing Tr. Vol. 6 at 826.)
[*P8] The trial court, after listening to the arguments of counsel attempted "to construct a compassionate yet a serious penalty," and reasoned as follows:
Certainly the Court, you know, has taken into consideration their youth, their emotional immaturity, the background, the fact they're a product of our system, our criminal system at a young age. Essentially they were left to fend for themselves at age, you know, tender young ages of, you know, 12, 13, 14, and so forth, left to be on the street.
And I ask myself, you know, what, you know, how would anyone cope and adapt to life on the streets at such a young age? I don't know. I don't know. I don't know what I would do or the next person would do.
But, I mean, I do realize that we all have a conscience, I mean, we all are born with an ability to determine and distinguish between right and wrong. And that's what it comes down to. The fundamental ability inside ourselves to be able to determine what's right and wrong.

Simmonds, 2017-Ohio-2739. Simmonds was sentenced to an aggregate term of life imprisonment without the possibility of parole plus forty-eight years. Id. at ¶ 9.

         Simmonds appealed raising claims of ineffective assistance of trial counsel and cruel and unusual punishment, but the Tenth District affirmed. State v. Simmonds, 2015-Ohio-4460 (10thDist. Oct. 27, 2015), appellate jurisdiction declined, 145 Ohio St.3d 1422 (2016). On September 8, 2015, Simmonds filed a petition for post-conviction relief under Ohio Revised Code § 2953.21 claiming ineffective assistance of trial counsel “in failing to appropriately prepare for and present evidence of mitigating circumstances during sentencing.” Simmonds, 2017-Ohio-2739, at ¶ 11. With the benefit of the Tenth District's decision on direct appeal, the trial court dismissed the post-conviction petition without a hearing. Id. at ¶ 12. The Tenth District affirmed. State v. Simmonds, 2017-Ohio-2739, appellate jurisdiction declined, 151 Ohio St.3d 1505 (2018), cert. denied, 138 S.Ct. 2634 (2018).

         Simmonds timely filed his habeas Petition in this Court January 30, 2019, pleading one ground for relief:

GROUND ONE: Counsel's failure to investigate and present mitigating evidence of youthful characteristics on the juvenile offender's behalf constitutes deficient performance and is prejudicial when the juvenile offender is eligible for a sentence of life without the possibility of parole. Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution; United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Strickland v. Washington, 466 U.S. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

(Petition, ECF No. 2, PageID 112.)

         Analysis

         Simmonds asserts in his First Ground for Relief that he received ineffective assistance of trial counsel when his trial attorney failed to present mitigating evidence at sentencing. His Petition focuses on the merits of this ineffective assistance claim.

         He begins by summarizing his trial attorney's lack of preparation:

At the close of evidence on the afternoon of Thursday, December 4, 2014, the trial court indicated its intention to proceed immediately to Devonere's sentencing in the event of guilty verdicts. (12/4/2014 T.p.669).
That afternoon, one of Devonere's attorneys called the Office of the Ohio Public Defender and requested assistance with her legal argument opposing a life sentence for Devonere. (Exhibit B, PC appendix B, p.1, ¶ 4).
Until Friday, December 5, 2014, Devonere's counsel was not aware of relevant U.S. and Ohio Supreme Court case law mandating individualized sentencing for children. (Exhibit B, PC appendix B, p.1, ¶ 5). The sentencing hearing was scheduled for Monday, December 8, 2014.
Counsel did not request an on-the-record continuance[1] to prepare for sentencing. (Exhibit B, PC appendix B, p.1, ΒΆ 2). Counsel did not hire a mitigation specialist, did not consult with any experts to prepare for sentencing, and did not retain a psychologist to conduct a ...

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