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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

KERON D. SIMPSON,

Petitioner, : Case No. 3:17-cv-299

- vs - District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

WARDEN,

Lebanon Correctional Institution,

:

Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS 

This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 19) to 

the Magistrate Judge’s Report and Recommendations (ECF No. 18) recommending the Petition 

be dismissed with prejudice. Judge Rose has recommitted the case for reconsideration in light of 

the Objections (Recommittal Order, ECF No. 20).

Simpson pleads two grounds for relief:

Ground One: Petitioner’s right to counsel guaranteed by the 

Sixth Amendment was violated at trial.

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].
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(Corrected Petition, ECF No. 2, PageID 30-31.)

Procedural History

Simpson seeks relief from his April 2012 convictions in Case No. 2010 CR 4101 in the 

Montgomery County Common Pleas Court for the theft of two motor vehicles, felonious assault, 

aggravated robbery, and a firearm specification (State Court Record, ECF No. 12, Ex. 9). 

Simpson appealed to the Second District Court of Appeals which affirmed. State v. Simpson, 

2013-Ohio-1696, 2013 Ohio App. LEXIS 1585 (2nd Dist. Apr. 26, 2013)(“Simpson Direct”). 

Simpson did not appeal further to the Ohio Supreme Court.

However, he did file a petition for post-conviction relief under Ohio Revised Code § 

2953.21 which the trial court dismissed on the State’s motion for summary judgment. Simpson 

appealed to the Second District which affirmed. State v. Simpson, 2016-Ohio-1268, 61 N.E. 3d 

894, 2016 Ohio App. LEXIS 1338 (2nd Dist. Mar. 25, 2016), appellate review declined, 146 Ohio 

St. 3d 1490 (2016)(“Simpson PC”). 

Simpson, who is assisted by appointed counsel, raises five objections to the Report which 

will be discussed seriatim.

Objection One: Whether Simpson Raised His Claim of Incompetence to Stand Trial in the 

State Courts

The Report concluded Simpson had not raised in the state courts a claim that he was 

incompetent to stand trial (ECF No. 18, PageID 1989-901). Without offering a record citation, 

 1 The Objections cite these two pages of the Report as “pages 9 and 10.” (Objections, ECF No. 19, PageID 1994). 

The Order for Answer in this case requires that all filings make record references by citing the PageID number as 
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Simpson objects that “the Magistrate Judge ignores the fact that Simpson did in fact challenge 

the voluntariness of his plea in the Ohio courts during his post-conviction litigation.” (ECF No. 

19, PageID 1994). To prove that point, Simpson cites to his post-conviction claim that his 

counsel provided ineffective assistance of trial counsel by failing to investigate whether or not he 

was competent. But those are not the same claim. That is, claiming to be incompetent is not the 

same as claiming one’s attorney was ineffective for not investigating one’s incompetence. 

Simpson is correct in asserting that competence to stand trial encompasses competence to 

consult with counsel, since consulting with counsel is an important part of what a defendant must 

be able to do at trial. “[T]he standard for competence to stand trial is whether the defendant has 

‘sufficient present ability to consult with his lawyer with a reasonable degree of rational 

understanding’ and has ‘a rational as well as factual understanding of the proceedings against 

him.’" Dusky v. United States, 362 U.S. 402 (1960), accord, Drope v. Missouri, 420 U.S. 162, 

171 (1975). In Godinez v. Martin, 509 U.S. 389 (1993), the Supreme Court held that the same 

standard applied to determining competence to plead guilty. Simpson concludes from this that 

“[t]here is no way the state courts could have parsed out competency to assist counsel from 

competency to stand trial. Thus reliance [by the Magistrate Judge] on the state finding of waiver 

as to this issue is misplaced.” (Objections, ECF No. 19, PageID 1995.)

But this is not the distinction the state court made. Instead, the Second District 

distinguished, as the Report does, between a claim of ineffective assistance of trial counsel for 

failure to obtain a mental evaluation – a claim Simpson did make in post-conviction – from a 

claim of incompetence – a claim both the Common Pleas Court and the Second District found 

Simpson did not make. State v. Simpson, 2016-Ohio-1268, ¶ 8 (Ohio App. 2nd Dist. Mar. 25, 

2016). If the claim of incompetence to stand trial or to plead guilty was actually made in the 

 

provided by the Court’s electronic filing system (ECF No. 5, PageID 88). 
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state court, Simpson should be able to cite the place in the record where the claim was made, but 

he has not done so.

Objection Two: Asserted Application of Incorrect Statutory Standard

The Report concluded that the Second District Court of Appeals’ rejection of Simpson’s 

claim of ineffective assistance of trial counsel for failure to investigate his mental status was not 

an objectively unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984), “and 

thus is entitled to deference under 28 U.S.C. § 2254(d)(1).” (Report, ECF No. 18, PageID 1990.) 

Simpson objects that the correct standard of review is provided by 28 U.S.C. § 

2254(d)(2) as enunciated in Hill v. Anderson, 881 F.3d 483 (6th Cir. 2018). Although Simpson’s 

Reply cited Hill, it nowhere claimed the state courts’ decision violated § 2254(d)(2. Moreover, § 

2254(d)(2) applies only when the state court adjudication “resulted in a decision that was based 

on an unreasonable determination of the facts in light of the evidence presented.” Simpson’s 

argument in his Reply was that the Second District had made an “unreasonable application of 

[the correct legal standard] to the facts of his case.” That is an argument under § 2254(d)(1) 

which speaks to unreasonable application of clearly established Supreme Court precedent. 

Nowhere in the Reply does Simpson specify a factual finding that he contends is unreasonable in 

light of the evidence. 
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Objection Three: Inability to Show Prejudice Without State-Funded Experts

The state trial court and the Second District both found that Simpson had not shown 

prejudice from trial counsel’s failure to employ experts because he had not shown what the 

content of their testimony would have been and that it would have changed the result. Simpson 

objects that he asked the post-conviction court to give him funds to hire such experts and was 

denied those funds because there is no constitutional right to them. His apparent argument is 

that, because he had a right to appointed counsel at trial, he also has the derivative right to 

attempt to prove that counsel was ineffective, also at state expense. But that is simply not the 

law. There is not even a constitutional right to effective assistance of counsel in post-conviction. 

The Supreme Court was careful to maintain that point in Martinez v. Ryan, 566 U.S. 1 (2012),

where it found instead an equitable exception to procedural default doctrine when postconviction counsel failed to raise a substantial ineffective assistance of trial counsel claim. 

There is no doubt that the burden of proving the prejudice prong of an ineffective 

assistance of trial counsel claim is on the defendant and it is difficult to see how a failure to call 

an expert could be shown to be ineffective assistance without showing what the expert would 

have testified to.

Objection Four: Supposedly Waived Defense

In addition to the omitted mental health experts, Simpson accused trial counsel of 

ineffective assistance for failure to call an expert on the possible deficiencies in eyewitness 

identification testimony. The Second District rejected the claim because Simpson failed to show 
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what such an expert would have testified to and how it would have affected the outcome. 

Simpson PC, 2016-Ohio-1268 at ¶ 10. The Report concluded the Second District’s decision was 

entitled to deference even though Respondent had not argued the point in the Return of Writ 

(ECF No. 18, PageID 1991). 

Petitioner had cited Reeves v. Campbell, 708 Fed. Appx. 230 (6th Cir 2017), for the 

proposition that “[t]his Court may consider whether Respondent’s failure to substantively 

address the ineffective assistance of counsel claim itself constitutes a waiver.” (ECF No. 17, 

PageID 1979, emphasis supplied.) The Magistrate Judge chose not to treat Respondent’s failure 

as a waiver, but cited Reeves as having been raised by Petitioner (ECF No. 18, PageID 1991). 

Simpson objects and treats Reeves as a clear statement of the law (Objections, ECF No. 

19, PageID 1997). But Reeves, as an unpublished decision, is not the controlling law. In Day v. 

McDonough, 547 U.S. 198 (2006), the Supreme Court upheld sua sponte raising a statute of 

limitations defense even after filing of the answer which did not raise it. See also Scott v. 

Collins, 286 F.3d 923 (6th Cir. 2002). In Wood v. Milyard, 566 U.S. 463 (2012), the Court held 

even the courts of appeals have authority to consider a forfeited timeliness defense sua sponte. It 

is the state court decision that we are reviewing in habeas, not just the thoroughness of a federal 

pleading.

Objection Five: Procedural Default of Unreliable Witness Identification Claim

In his Second Ground for Relief, Simpson claims he was convicted on the basis of a 

constitutionally unreliable eyewitness identification. Simpson sought unsuccessfully to suppress 

that identification and raised denial of that motion on direct appeal, but never appealed further to 
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the Ohio Supreme Court. On that basis the Report concluded the claim was procedurally 

defaulted (ECF No. 18, PageID 1991-92). 

Simpson objects that “this claim rises and falls on ineffective assistance, which was not 

within the direct review record.” (Objections, ECF No. 19, PageID 1998.) Not so. A failure to 

appeal directly to the Ohio Supreme Court cannot be excused by ineffective assistance of counsel 

because there is no constitutional right to assistance of counsel on discretionary appeal. 

Ineffective assistance of counsel can excuse procedural default only when it occurs in a 

proceeding where a defendant is constitutionally entitled to counsel under the Sixth Amendment. 

Wainwright v. Torna, 455 U.S. 586 (1982)(where there is no constitutional right to counsel there 

can be no deprivation of effective counsel); Riggins v. Turner, 1997 U.S. App. LEXIS 6115, *5 

(6th Cir. 1997); Barkley v. Konteh, 240 F. Supp. 2d 708, 714 (N.D. Ohio 2002). 

Conclusion

Having reconsidered the case in light of the Objections, the Magistrate Judge again 

respectfully recommends the Petition be dismissed with prejudice. Because reasonable jurists 

would not disagree with this conclusion, Petitioner should be denied a certificate of appealability 

and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous 

and therefore should not be permitted to proceed in forma pauperis.

March 28, 2018.

 s/ Michael R. Merz

 United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Such objections shall specify the portions of the Report objected to and 

shall be accompanied by a memorandum of law in support of the objections. If the Report and 

Recommendations are based in whole or in part upon matters occurring of record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 

F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).