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Simmons v. Cook

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

December 31, 2019

LAMAR SIMMONS, Petitioner,
v.
BRIAN COOK, Warden, Southeastern Correctional Complex, Respondent.

          Douglas R. Cole, District Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge.

         This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the merits after dissolution of the stay entered to allow Simmons to exhaust available state court remedies (ECF No. 32)[1] on the Warden's Response to this Court's Order of June 5, 2007 (ECF No. 13). Relevant filings to be considered are the Petition (ECF No. 1), the State Court Record (ECF Nos. 5, 9, 12, and 33), the Warden's Return of Writ (ECF No. 6), and Petitioner's Traverse (ECF No. 8).

         Procedural History

         Simmons was indicted in 2011 by a Hamilton County grand jury on one count of murder with a firearm specification and one count of having weapons while under a disability (State Court Record, ECF No. 5, PageID 20-23). Simmons was convicted at trial of the murder and weapons counts, but not the firearm specification, and sentenced to life imprisonment without parole eligibility for eighteen years. Id. at PageID 43.

         On appeal, the First District Court of Appeals affirmed on all assignments of error except the third, on which it remanded for appropriate findings to support consecutive sentences. State v. Simmons, 1st Dist. No. C-130126, 2014-Ohio-3695, 19 N.E. 3d 517 (Aug 27, 2014), appellate jurisdiction declined, 142 Ohio St.3d 1410 (2015). After Supreme Court jurisdiction was declined, Simmons was resentenced to the same aggregate sentence he received before. He appealed and the First District affirmed in part and remanded in part (Judgment Entry, State Court Record, ECF No. 12, PageID 1812-14). Simmons appealed further to the Supreme Court of Ohio, which declined to accept jurisdiction. State v. Simmons, 151 Ohio St.3d 1474 (2017).

         On October 19, 2015, Simmons filed a petition for post-conviction relief under Ohio Revised Code § 2953.21 (Petition, State Court Record, ECF No. 5, PageID 231-42). The Common Pleas Court denied that Petition March 6, 2018, because it had been untimely filed (Entry, State Court Record, ECF No. 33, PageID 1944). On the same day the court denied Simmons' motion for a new trial. Id. at PageID 1943.

         Simmons appealed. In a Judgment Entry dealing with both matters, the First District Court of Appeals held on September 20, 2019, that the Court of Common Pleas had not abused its discretion in denying the motion for new trial because the motion was not supported by any new evidence when such evidence was needed to support the motion (Judgment Entry, State Court Record, ECF No. 33, PageID 1986-1988). It further held the Common Pleas Court did not have jurisdiction to consider Simmons' untimely post-conviction petition because he had not met the mandatory requirements of Ohio Revised Code § 2953.23. Id. at PageID 1987. Noting that an Ohio court always has jurisdiction to correct its own void judgments, id. at PageID 1988, citing State ex rel.Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, it held that the claims Simmons made “in his new-trial motion and postconviction petition, even if demonstrated, would not have rendered his convictions void.” Id. (citations omitted). Simmons did not timely appeal to the Supreme Court of Ohio; so far as this Court is advised, his motion for delayed appeal to that court remains pending.

         Petitioner Simmons pleads the following grounds for relief:

Ground One: Ineffective Assistance of counsel at trial. The First District court of Appeals decision to affirm the denial of ineffective assistance was in error based on counsel's choices at trial. Petitioner was denied the effective assistance of counsel when counsel had represented a witness that testified against Petitioner at the Grand Jury in the same case.
Ground Two: [The] trial court erred in failing to record sidebar conferences. All proceedings of record in serious cases must be recorded by the trial court. The trial court erred routinely filing [sic] to record sidebar conferences in this case.
Ground Three: The trial court abused its discretion in denying the motion for mistrial, as Petitioner was denied a fair trial because of prosecutorial misconduct. Failure to timely provide discovery. State delayed the disclosure of misidentification of Casey Coffey.
Ground Four: The Jury erred to the prejudiced [sic] of Petitioner by finding him guilty, as those findings we're [sic] not supported by sufficient evidence. The State failed to meet its burden of proving Petitioner was guilty.
Ground Five: Prosecutor committed error prejudiced [sic] to Petitioner's right to due process and a fair trial under the United States and Ohio Constitutions by engaging in improper conduct during trial and closing argument.
Ground Six: Trial court committed erred [sic] in sentencing Petitioner to consecutive sentences. Petitioner's sentences was [sic] clearly and convincingly contrary to law and the trial court abused its discretion.
Ground Seven: The jury erred to the prejudice of the Petitioner by finding him guilty, as those findings [were] contrary to law. When findings is [sic] against the manifest weight of the evidence Petitioner is entitled to a new trial.

(Petition, ECF No. 1, PageID 4.)

         Analysis

         Ground One: Ineffective Assistance of Trial Counsel

         In his First Ground for Relief, Simmons asserts his trial attorney provided ineffective assistance in that he represented a witness who testified against Simmons in the grand jury. At the time the Return was filed, this claim was unexhausted. However, it is now exhausted as a result of the First District Court of Appeals' September 2019 decision. That decision upheld denial of relief on the conflict of interest claim because it was not supported by any new evidence as required by Ohio R.Crim.P. 33 (Judgment Entry, State Court Record, ECF No. 33, PageID 1987-88).

         The procedural default doctrine in habeas corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722');">501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review.'” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); see also Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.

[A] federal court may not review federal claims that were procedurally defaulted in state court-that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is an important “corollary” to the exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed. 659 (2004). “Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address” the merits of “those claims in the first instance.” Coleman [v. Thompson], 501 U.S. [722, ] 731-732, 111 S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default doctrine thus advances the same comity, finality, and federalism interests advanced by the exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S.Ct. 2058, 2064 (2017).

         Under Ohio law, ineffective assistance of trial counsel claims or indeed any constitutional claims that depend on evidence outside the appellate record must be raised in a petition for post-conviction relief under Ohio Revised Code § 2953.21 because evidence cannot be added to the record on direct appeal. State v. Hartman, 93 Ohio St.3d 274, 299 (2001); State v. Hooks, 92 Ohio St.3d 83 (2001); State v. Keith, 79 Ohio St.3d 514, 536 (1997); State v. Smith, 17 Ohio St.3d 98, 101, n.1 (1985); State v. Scott, 63 Ohio App.3d 304, 308 (8th Dist. 1989).

         The United States Court of Appeals for the Sixth Circuit requires a four-part analysis when the State alleges a habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).

First the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule. . . . .
Second, the court must decide whether the state courts actually enforced the state procedural sanction, citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under Sykes that there was "cause" for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.

Maupin, 785 F.2d at 138; accord, Hartman v. Bagley,492 F.3d 347, 357 (6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 ...


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