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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-300

- vs - District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

WARDEN,

Lebanon Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for decision on the merits. Counsel who had 

represented Simpson in post-conviction filed the Petition on his behalf on August 29, 2017 (ECF 

No. 1) and an Amended Petition on August 31, 2017 (ECF No. 3). The Court then appointed 

replacement counsel (ECF No. 5) and ordered the State to file the State Court Record (ECF No. 

13) and a Return of Writ (ECF No. 14). The case became ripe on the filing of Petitioner’s Reply 

(ECF No. 18).

Procedural History

On January 25, 2011, the Montgomery County Grand Jury indicted Keron Simpson on 

one count of aggravated robbery with a firearm specification (Indictment, State Court Record, 

ECF No. 13, PageID 128). With the assistance of counsel, Simpson waived trial and associated 

rights and pleaded guilty as charged. Id. at PageID 140. He was sentenced to three years’ 
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imprisonment for the robbery and three years consecutive for the firearm specification. Id. at 

PageID 142. Judge Tucker made the sentence consecutive to the sentence imposed in Case No. 

2011 CR 1356 and also consecutive to the sentence for Count 7 and the attached specification in 

Case No. 2010 CR 4101/01. Id. Simpson appealed to the Ohio Second District Court of Appeals 

which affirmed the conviction and sentence. State v. Simpson, 2013-Ohio-1695, 2013 Ohio App. 

LEXIS 1584 (2nd Dist. Apr. 26, 2013)(“Simpson Direct”). Simpson did not seek further direct 

appellate review from the Ohio Supreme Court.

In February 2013 Simpson filed a petition for post-conviction relief under Ohio Revised 

Code § 2953.21 (State Court Record, ECF No. 13, Ex. 14, PageID 218 et seq.). The State filed a 

motion for summary judgment which the Common Pleas Court granted. Simpson appealed again 

to the Second District which again affirmed. State v. Simpson, 2016-Ohio-1267, 61 N.E. 3d 899, 

2016 Ohio App. LEXIS 1339 (2nd Mar. 25, 2016), and further appellate jurisdiction was 

declined, 146 Ohio St. 3d 1490 (2016)(“Simpson PC”). 

Simpson next brought this action for habeas corpus relief, pleading three claims:

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].

(Corrected Petition, ECF No. 3, PageID 40, 50-51.)
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Analysis

Ground One: Ineffective Assistance of Trial Counsel

Sub-claim A. Petitioner’s Mental Health Status

In his first sub-claim of ineffective assistance of trial counsel, Petitioner asserts he 

received ineffective assistance when his trial attorney did not investigate his mental status and 

obtain an expert evaluation of that status before allowing him to plead guilty.

Simpson pleaded this claim as his first assignment of error on collateral appeal and the 

Second District decided it as follows:

[*P5] In his first assignment of error, Simpson contends the trial 

court erred in rejecting his post-conviction claim for relief based 

on trial counsel's failure to have an expert review his mental status. 

Simpson asserts that he has an intellectual disability, namely 

"mental retardation," that his trial counsel failed to recognize this 

disability or to make any "adjustment" for it, and that counsel 

should have retained a mental-health expert to evaluate him. He 

argues that counsel's failure to do so constituted ineffective 

assistance. In support of his post-conviction claim about the need 

for an evaluation of his mental status, Simpson provided the trial 

court with his Dayton Public School records and Social Security 

Administration records. Those records show that he received low 

grades in school, that he participated in a special-education 

program, that he had a full-scale I.Q. of 53, and that he was 

classified as "mildly mentally retarded."

[*P6] The trial court rejected Simpson's claim for post-conviction 

relief based on counsel's failure to have an expert review his 

mental status. In support of its decision, the trial court reasoned:

Keron Simpson, in support of his contention, has filed 

school records and medical records relating to Mr. 

Simpson's social security disability claim. Mr. Simpson, 

however, does not provide any evidence concerning what 

[defense counsel Jeffrey] Gramza may have known about 

Mr. Simpson's mental state.
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Mr. Simpson, it seems, is not contending he was not 

competent. Mr. Simpson, instead, asserts his low IQ 

affected his ability to assist counsel, and to make 

decisions regarding his case. The court, quite frankly, has 

difficulty with the suggested distinction. These issues 

relate to competence, yet Mr. Simpson does not suggest 

such incompetence.

The court, in any event, has carefully reviewed the 

submitted documents. The documents do not demonstrate 

that Mr. Simpson's level of mental functioning affected 

his ability to assist counsel, to intelligently enter a plea, or 

to make decision[s] concerning his case.

Mr. Simpson's contention is compromised, if not 

dispelled, by the Criminal Rule 11 plea procedure. 

Nothing occurred during the Rule 11 process that gave 

rise to the concerns Mr. Simpson is now asserting. The 

court, based upon the Rule 11 procedure, had no concerns 

regarding Mr. Simpson's ability to knowingly and 

intelligently enter a plea of guilty.

Mr. Simpson, going first to the issue of ineffective 

assistance, has produced no evidence that Mr. Gramza 

knew or should have known about Mr. Simpson's low IQ. 

Further, there is nothing in the record to suggest how Mr. 

Gramza would have been alerted to this issue. The court, 

based upon the presented record, cannot conclude that Mr. 

Gramza's failure to have Mr. Simpson's mental status 

evaluated constituted ineffective assistance. Further the 

record is silent concerning how a mental status evaluation 

would have affected the case's outcome.

Mr. Simpson, in short, has failed in his initial burden to 

demonstrate substantial grounds upon which it could be 

concluded that Mr. Gramza provided ineffective 

assistance by failing to have Mr. Simpson's mental status 

evaluated or that such an examination would have 

affected the course of events. It is, therefore, appropriate 

to dismiss this contention without a hearing through 

summary judgment.

(Doc. #39 at 5-6).

[*P7] We see no error in the trial court's ruling. We note a guilty 

plea generally "waives the right to allege ineffective assistance of 
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counsel, except to the extent that the errors caused the plea to be 

less than knowing and voluntary." State v. Storck, 2d Dist. Clark 

No. 2014-CA0130, 2015-Ohio-2880, P 9, citing State v. Spates, 64 

Ohio St.3d 269, 1992 Ohio 130, 595 N.E.2d 351 (1992). The 

question, then, is whether trial counsel's failure to obtain an expert 

to evaluate Simpson's mental status caused his guilty plea to be 

less than knowing or voluntary. Simpson's post-conviction

materials fail to make such a showing for several reasons.

[*P8] First, we agree with the trial court that the record below 

contains nothing that reasonably should have alerted defense 

counsel of a need to have Simpson's mental status evaluated by an 

expert. Simpson responded appropriately to all questions during 

the Crim.R. 11 plea colloquy. Among other things, he indicated 

that he had attended the tenth grade, that he could read and 

understand the plea form, and that he did not have any mental 

problem that would impact his ability to understand what was 

happening. (Plea Tr. at 5). Because nothing in the record 

reasonably should have caused defense counsel to question 

Simpson's mental status, the failure to have his mental status 

evaluated could not have constituted ineffective assistance.

[*P9] Second, Simpson's particular ineffective-assistance claim 

concerns trial counsel's failure to obtain an expert witness to 

evaluate his mental status. But we have no way of knowing what 

such an expert would have concluded, or whether such an expert 

would have aided his defense, because his petition for postconviction relief is devoid of an evaluation from such an expert.

[*P10] Third, the records accompanying Simpson's petition do not 

themselves establish that his guilty plea was less than knowing and 

voluntary. It does not follow from the fact that Simpson may have 

a low I.Q. and suffer from "mild mental retardation" that he 

necessarily was incapable of entering a valid plea.

[*P11] Fourth, Simpson does not contend he was legally 

incompetent to stand trial. Rather, he suggests that he had an 

intellectual disability that, while not rendering him incompetent, 

affected his ability to make various decisions, including the 

decision to plead guilty. We note, however, that the competency 

standard for standing trial is no different from the competency 

standard for pleading guilty or waiving other constitutional rights. 

Godinez v. Moran, 509 U.S. 389, 397-398, 113 S.Ct. 2680, 125 

L.Ed.2d 321 (1993); see also State v. Mink, 101 Ohio St.3d 350, 

2004-Ohio-1580, 805 N.E.2d 1064, P 57 ("The competency 

standard for standing trial is the same as the standard for pleading 
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guilty or waiving the right to counsel."). "[W]hile the decision to 

plead guilty is undeniably a profound one, it is no more 

complicated than the sum total of decisions that a defendant may 

be called upon to make during the course of a trial." Godinez at 

398. As a result, there is "no basis for demanding a higher level of 

competence for those defendants who choose to plead guilty." Id.

at 399. Of course, a competent defendant's decision to plead guilty 

still must be knowing and voluntary. Id. at 400-401. But the 

Crim.R. 11 hearing satisfied that requirement in Simpson's case. 

The fact that he may have a learning disability or suffer from "mild 

mental retardation" does not negate the potential for a knowing and 

voluntary plea. For the foregoing reasons, we overrule his first 

assignment of error.

Simpson PC, 2016-Ohio-1267 at ¶¶ 5-11.

The Magistrate Judge agrees with Petitioner that this sub-claim is not procedurally 

defaulted. Because it necessarily depended on evidence outside the appellate record, it could not 

have been presented on direct appeal. Moreover, the Second District decided the claim on the 

merits, without purporting to invoke a res judicata bar.

On the merits, Simpson argues he was incompetent to stand trial and therefore 

incompetent to plead guilty. Certainly a defendant who is not competent to stand trial is also not 

competent to plead guilty and his or her plea cannot be considered knowing, intelligent, and 

voluntary, characteristics needed to make the plea constitutionally valid. Brady v. United States,

397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); King v. Dutton, 17 

F.3d 151 (6th Cir. 1994); Riggins v. McMackin, 935 F.2d 790, 795 (6th Cir. 1991); Berry v. 

Mintzes, 726 F.2d 1142, 1146 (6th Cir. 1984).

However, as the Second District found (Simpson PC at ¶ 11), and as in Simpson’s other 

two habeas cases pending in this Court,

1 Simpson did not claim in his post-conviction 

proceedings that he was incompetent to stand trial, but merely that his intellectual disability 

affected his ability to participate. The Second District also found there was nothing in the record 

 1 3:17-cv-298, 3:17-cv-299.
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which would have called the need for a mental status evaluation to trial counsel’s attention. Id.

at ¶ 8. In his Reply, Simpson points to nothing in the record to contradict these two findings. 

Current counsel urges this Court to attribute the failure to directly raise the claim of 

involuntariness to the ineffective assistance of post-conviction counsel (Reply, ECF No. 16, 

PageID 1015). That would then, he says, excuse the failure to raise the claim under Martinez v. 

Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013). This argument fails for 

two reasons. First, the Sixth Circuit has not yet held that Martinez and Trevino apply in Ohio. 

See McGuire v. Warden, 738 F.3d 741, 751-52 (6th Cir. 2013); Henness v. Bagley, 766 F.3d 550

(6th Cir. 2014); Moore v. Mitchell, 848 F.3d 774 (6th Cir. 2017), cert den., 138 S.Ct. 650 (2018).

Second, Martinez and Trevino only operate to excuse procedural default in the 

presentation of substantial ineffective assistance of trial counsel claims. A claim that the guilty 

plea was involuntary is not such a claim. And the ineffective assistance of trial counsel claim for 

failing to seek a mental status evaluation is not substantial because, as noted above, the Second 

District found, and the Magistrate Judge agrees, there was nothing in the record to alert trial 

counsel to possible incompetence.

When a state court decides on the merits a federal constitutional claim later presented to a 

federal habeas court, the federal court must defer to the state court decision unless that decision 

is contrary to or an objectively unreasonable application of clearly established precedent of the 

United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 99

(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); 

Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Here both the trial court and the Second 

District applied the relevant standard for ineffective assistance of trial counsel. 

The governing standard for ineffective assistance of trial counsel was adopted by the 
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Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so 

defective as to require reversal of a conviction or death sentence 

has two components. First, the defendant must show that counsel's 

performance was deficient. This requires showing that counsel 

was not functioning as the "counsel" guaranteed the defendant by 

the Sixth Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. This requires 

showing that counsel's errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable. Unless a 

defendant makes both showings, it cannot be said that the 

conviction or death sentence resulted from a breakdown in the 

adversary process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both 

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing 

Knowles v. Mirzayance, 556 U.S.111 (2009).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly 

deferential. . . . A fair assessment of attorney performance requires 

that every effort be made to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel=s challenged 

conduct, and to evaluate the conduct from counsel=s perspective at 

the time. Because of the difficulties inherent in making the 

evaluation, a court must indulge a strong presumption that 

counsel's conduct falls within a wide range of reasonable 

professional assistance; that is, the defendant must overcome the 

presumption that, under the circumstances, the challenged action 

"might be considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held:

The defendant must show that there is a reasonable probability 

that, but for counsel's unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is 

a probability sufficient to overcome confidence in the outcome.

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 

F.3d 313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally
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Annotation, 26 ALR Fed 218. Both the Common Pleas Court and the Second District found that 

there was no deficient performance and, in addition, Simpson had not established prejudice – had 

not proved that with the mental status evaluation, the outcome of the proceeding would probably 

have been different.

In sum, the Second District’s decision on this sub-claim is entitled to deference under 28 

U.S.C. § 2254(d)(1) and the claim should therefore be dismissed with prejudice.

Sub-claim B. Failure to Obtain Expert on Witness Perception, Including Eyewitness 

Identification

In his second sub-claim, Simpson asserts he received ineffective assistance of trial 

counsel when his attorney did not obtain the services and present the testimony of an expert on 

eyewitness identification and other witness perception issues. This sub-claim is also not 

procedurally defaulted because it depends on evidence outside the record and, in any event, the 

Second District decided it on the merits.

Simpson presented this claim as his second assignment of error on direct appeal and the 

Second District decided the claim as follows:

[*P12] In his second assignment of error, Simpson claims the trial 

court erred in rejecting his post-conviction claim for relief based 

on his trial counsel's failure to retain an eyewitness-identification 

expert. This assignment of error appears to address trial counsel's 

failure to hire an expert in conjunction with Simpson's failed 

motion to suppress, which challenged the eyewitness-identification 

process.

[*P13] We reject this argument for at least two reasons. First, we 

do not know what such an expert would have concluded, or

whether the expert would have aided Simpson's motion, because 

his petition for post-conviction relief is devoid of any evidence 

outside the record from such an expert. Therefore, Simpson cannot 

establish ineffective assistance based on trial counsel's failure to 

secure an eyewitness-identification expert to support his 

suppression motion. Second, the record reflects that Simpson pled 
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guilty, thereby admitting his guilt and effectively negating any 

conceivable prejudice resulting from the eyewitness-identification 

issue. The second assignment of error is overruled.

Simpson PC, 2016-Ohio-1267 at ¶¶ 12-13. This decision is also not an objectively unreasonable 

application of Strickland in that it decides no prejudice was shown on post-conviction. Subclaim B should be dismissed on the same basis as sub-claim A.

Ground Two: Admission of Unconstitutional Eyewitness Identification

In his Second Ground for Relief, Simpson asserts he was convicted in part on the basis of 

an eyewitness identification that was unconstitutionally unreliable. Simpson presented this claim 

as his fourth assignment of error on collateral review and the Second District decided it as 

follows:

[*P17] In his fourth assignment of error, Simpson argues that the 

trial court erred in rejecting his post-conviction claim for relief 

based on allegedly faulty eyewitness identification. Specifically, he 

complains that his "right to a fair trial" was violated "by the 

admission of an unfair eyewitness identification procedure." 

(Appellant's brief at 18).

[*P18] This assignment of error lacks merit for multiple reasons. 

First, there was neither a trial in this case nor the "admission" of 

any eyewitness identification. As noted above, Simpson pled 

guilty, waiving an appeal to the motion to suppress ruling. Second, 

Simpson did challenge the reliability of eyewitness identification 

process in a suppression motion filed prior to his plea. The issue 

was resolved against him, however, and in his direct appeal he did 

not raise that the issue should have been preserved by a no contest 

plea, despite being represented by different counsel in the appellate 

proceeding. Because Simpson's post-conviction relief petition 

presented no evidence outside the record to support his eyewitnessidentification challenge, res judicata applies. Third, the record 

reflects that Simpson pled guilty, thereby admitting his guilt. The 

fourth assignment of error is overruled.
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Simpson PC, 2016-Ohio-1267 at ¶¶ 17-18.

Analyzing that decision, the Magistrate Judge finds first that the claim was procedurally 

defaulted when Simpson pled guilty and thereby waived direct appellate review of the claim 

which could have been maintained by a no contest plea. If it were to be contended that this was 

ineffective assistance of trial counsel, that claim has never been raised in the state courts. If it 

were further contended that it was ineffective assistance of appellate counsel not to raise this 

claim on direct appeal, as a method of excusing the default, then that claim is also procedurally 

defaulted because it would have to have been presented first to the state courts. Edwards v. 

Carpenter, 529 U.S. 446 (2000). 

Second, because the claim could have been raised on direct appeal and was not, the 

Second District enforced the Ohio criminal res judicata rule against Simpson. Ohio’s doctrine of 

res judicata in criminal cases, enunciated in State v. Perry, 10 Ohio St. 2d 175 (1967), is an 

adequate and independent state ground of decision. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 

2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th

Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-

61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 

2001).

Because Ground Two is procedurally defaulted, it should be dismissed with prejudice 

without reaching the merits.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the 
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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 14, 2018.

 s/ Michael R. Merz

 United States Magistrate Judge

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).