United States District Court, S.D. Ohio, Western Division, Cincinnati
Douglas R. Cole, District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz, United States Magistrate Judge.
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) 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).
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
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).
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
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.
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
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.)
One: Ineffective Assistance of Trial Counsel
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).
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
Davila v. Davis, 137 S.Ct. 2058, 2064 (2017).
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).
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
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