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Simmonds v. Erdos

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

January 1, 2020

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

          Edmund A. Sargus, Jr. 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. 30) to the Magistrate Judge's Report and Recommendations recommending dismissal of the Petition (the Report, ECF No. 28). District Judge Sargus has recommitted the case for reconsideration in light of the Objections (ECF No. 31).

         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 and particularly his sentence to an aggregate term of life imprisonment without the possibility of parole plus forty-eight years. State v. Simmonds, 2017-Ohio-2739, ¶ 9 (10th Dist. May 9, 2017). In the same opinion, the Tenth District summarized the underlying offenses:

{¶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.

Id. at ¶ 2.

         The Report describes the procedure the Common Pleas Court followed for sentencing (ECF No. 28, PageID 3445-47.) After the Supreme Court of Ohio declined jurisdiction on direct appeal, Simmonds filed a post-conviction petition under Ohio Revised Code § 2953.21 with the assistance of the Ohio Public Defender who continues to represent him in this proceeding. The Petition pleads one ground for relief, ineffective assistance of trial counsel in presenting mitigating evidence at sentencing (ECF No. 2, PageID 112). Because the Tenth District Court of Appeals decided that issue on the merits, the question presented in habeas is whether that decision is entitled to deference under 28 U.S.C. § 2254(d)(1) and (2). The Report concluded that the state court decision was entitled to deference on both the deficient performance and the prejudice prongs of Strickland v. Washington, 466 U.S. 668 (1984), and recommended the Petition be dismissed (ECF No. 28, PageID 3462). The instant Objections followed.

         Analysis

         Simmonds correctly notes that he is entitled to de novo review on his Objections (ECF No. 30, PageID 3472). He raises five specific objections to the Report's conclusions which will be discussed here seriatim.

         Objection 1. Definition of Deficient Performance

         Simmonds objects that “[t]he Magistrate Judge erred in recommending that counsel's performance was not deficient because the Eighth Amendment cases do not define deficient performance.” (Objections, ECF No. 30, PageID 3473, citing Report, ECF No. 28, PageID 3462).

         No such specific recommendation occurs at PageID 3462. In the deficient performance part of the Report, the Magistrate Judge noted that the Tenth District Court of Appeals held Strickland was the controlling Supreme Court precedent, rather than United States v. Cronic, 466 U.S. 648 (1984), which speaks to complete denial of counsel at a critical stage of proceedings. In the Objections Simmonds asserts that Strickland, rather than Cronic, is the clearly established law that must be followed here (ECF No. 30, PageID 3473), but neither the Tenth District nor the Report quarrels with that. What the Report concluded is that neither the Supreme Court's line of ineffective assistance of trial counsel cases following Strickland nor its Eighth Amendment line of cases dealing with juveniles clearly establishes that what trial counsel omitted to do in mitigation in this case constitutes deficient performance. The Magistrate Judge agrees that the Supreme Court's juvenile justice precedents should influence and guide professional norms in the representation of juveniles. But that is far distant from applying Trial Defense Guidelines: Representing a Child Facing a Possible Life Sentence promulgated by The Campaign for the Fair Sentencing of Youth as the standard for deciding if a defense attorney's representation was deficient. Even the American Bar Association's Guidelines for capital defense have never achieved that status. The 1989 and 2003 ABA Guidelines are not “inexorable commands”; rather, they are “only guides for what reasonableness means, not its definition.” Post v. Bradshaw, 621 F.3d 406 (6th Cir. 2010), quoting Bobby v. Van Hook, 558 U.S. 4, 8 (2009).

         Objection 2. Failure to Appropriately Distinguish Holdings and Dicta

         Simmonds next objects “[t]he Magistrate Judge erred in recommending that portions of Miller [v. Alabama], are merely dicta, and not to be relied on in a Strickland analysis.” (Objections, ECF No. 30, PageID 3474, citing Report, ECF No. 28, PageID 3458-60.) What the Report says is that “The holding in Miller is that a mandatory life without parole sentence for a juvenile murderer violated the Eighth Amendment. Miller did not hold that a lawyer who fails to present ...


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