The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
DEVONERE SIMMONDS,
Petitioner, : Case No. 2:19-cv-296
- vs - District Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz
RONALD ERDOS, Warden,
Southern Ohio Correctional Facility,
:
Respondent.
REPORT AND RECOMMENDATIONS
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. The case is ripe for decision on the
merits upon the Petition (ECF No. 2), the State Court Record (ECF No. 18), the Warden’s Return
of Writ (ECF No. 19), and Petitioner’s Reply (ECF No. 26). The Magistrate Judge reference in
the case has recently been transferred to the undersigned to help balance the Magistrate Judge
workload in the District (ECF No. 27).
Litigation History
The criminal offenses underlying Simmonds’ convictions are set forth succinctly in the
decision of the Ohio Tenth District Court of Appeals as follows:
{¶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.
State v. Simmonds, 2017-Ohio-2739 (10th Dist. May 9, 2017). Having been bound over for trial as
an adult, Simmonds was indicted on January 16, 2014, for two counts each of aggravated murder
and murder (Ashgar and Prater), five counts of aggravated robbery (Prater, Norvet, Ashgar, and
Rudd), two counts each of attempted murder and felonious assault (Norvet and Rudd), and one
count of having a weapon while under a disability. (Jan. 16, 2014 Indictment, ECF No. 18, PageID
1061-73.) Each offense (except the weapon offense) included a gun specification under Ohio Rev.
Code § 2941.145. Simmonds, 2017-Ohio-2739 at ¶ 4. The charges relating to victims Ashgar and
Rudd were tried first; the counts relating to victims Prater and Norvet were severed for later jury
trial and the weapons under disability charge was tried to the bench. Id. at ¶ 5. After conviction
and sentencing at the first trial Simmonds pleaded guilty as to the severed charges. Id. at ¶ 10.
The procedure for sentencing was as follows:
[*P6] On Friday, December 5, 2014, after the jury delivered its
verdicts, the trial court denied a request for a presentence
investigation as to Simmonds and asked counsel if they would be
amenable to convening for sentencing the following Monday,
December 8, 2014. (Dec. 5, 2014 Tr. Vol. 5 at 788-89.) Counsel
indicated that date would be agreeable. Id. Other than the request for
a presentence investigation (which the trial court denied), the record
contains no request for a continuance at that point. Id.
[*P7] When proceedings reconvened on December 8, the trial court
found Simmonds guilty of the weapon under disability offense and
immediately turned to the issue of sentencing. (Dec. 8, 2014 Hearing
Tr. Vol. 6 at 797-98.) At sentencing, counsel for Simmonds offered
two psychological evaluations of Simmonds. Id. at 819-21. One was
by psychologist David Tennenbaum, Ph.D. that was prepared on
November 4, 2013, for an unrelated juvenile burglary case (common
pleas case No. 12JU-13008) and one by psychologist Jaime Adkins,
Psy.D. that was prepared on November 18, 2013 for one of the cases
for which Simmonds was bound-over (common pleas case No.
13JU-11966); it was attached to the State's May 16, 2014 response
to a motion by Simmonds challenging his competence to stand trial.
Id.; May 16, 2014 Memo Contra. Arguing from these reports (which
covered Simmonds' background in considerable detail) Simmonds'
counsel stated:
This case has been a recipe for disaster. We have a 17-year-
old African-American male, fractured family, one out of
seven children on his mother's side, one out of twelve on
his father's. We have criminal activities on the part of a
parent who acted as a role model. Drug use and abuse,
alcohol, immaturity, vulnerability, weapons, older boys
whom he looked up to. He has a ninth—grade education,
an IQ range in the first percentile.
I guess if you put in a convenient store and you have a hot
summer night, the result is unfortunately too often very
predictable.
(Dec. 8, 2014 Hearing Tr. Vol. 6 at 826.)
[*P8] The trial court, after listening to the arguments of counsel
attempted "to construct a compassionate yet a serious penalty," and
reasoned as follows:
Certainly the Court, you know, has taken into consideration
their youth, their emotional immaturity, the background,
the fact they're a product of our system, our criminal
system at a young age. Essentially they were left to fend
for themselves at age, you know, tender young ages of, you
know, 12, 13, 14, and so forth, left to be on the street.
And I ask myself, you know, what, you know, how would
anyone cope and adapt to life on the streets at such a young
age? I don't know. I don't know. I don't know what I would
do or the next person would do.
But, I mean, I do realize that we all have a conscience, I
mean, we all are born with an ability to determine and
distinguish between right and wrong. And that's what it
comes down to. The fundamental ability inside ourselves
to be able to determine what's right and wrong.
Simmonds, 2017-Ohio-2739. Simmonds was sentenced to an aggregate term of life imprisonment
without the possibility of parole plus forty-eight years. Id. at ¶ 9.
Simmonds appealed raising claims of ineffective assistance of trial counsel and cruel and
unusual punishment, but the Tenth District affirmed. State v. Simmonds, 2015-Ohio-4460 (10th
Dist. Oct. 27, 2015), appellate jurisdiction declined, 145 Ohio St. 3d 1422 (2016). On September
8, 2015, Simmonds filed a petition for post-conviction relief under Ohio Revised Code § 2953.21
claiming ineffective assistance of trial counsel “in failing to appropriately prepare for and present
evidence of mitigating circumstances during sentencing.” Simmonds, 2017-Ohio-2739, at ¶ 11.
With the benefit of the Tenth District’s decision on direct appeal, the trial court dismissed the post-
conviction petition without a hearing. Id. at ¶ 12. The Tenth District affirmed. State v. Simmonds,
2017-Ohio-2739, appellate jurisdiction declined, 151 Ohio St. 3d 1505 (2018), cert. denied, 138
S.Ct. 2634 (2018).
Simmonds timely filed his habeas Petition in this Court January 30, 2019, pleading one
ground for relief:
GROUND ONE: Counsel’s failure to investigate and present
mitigating evidence of youthful characteristics on the juvenile
offender’s behalf constitutes deficient performance and is
prejudicial when the juvenile offender is eligible for a sentence of
life without the possibility of parole. Sixth, Eighth, and Fourteenth
Amendments to the U.S. Constitution; United States v. Cronic, 466
U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Strickland v.
Washington, 466 U.S. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984).
(Petition, ECF No. 2, PageID 112.)
Analysis
Simmonds asserts in his First Ground for Relief that he received ineffective assistance of
trial counsel when his trial attorney failed to present mitigating evidence at sentencing. His
Petition focuses on the merits of this ineffective assistance claim.
He begins by summarizing his trial attorney’s lack of preparation:
At the close of evidence on the afternoon of Thursday, December 4,
2014, the trial court indicated its intention to proceed immediately
to Devonere's sentencing in the event of guilty verdicts. (12/4/2014
T.p.669).
That afternoon, one of Devonere' s attorneys called the Office of the
Ohio Public Defender and requested assistance with her legal
argument opposing a life sentence for Devonere. (Exhibit B, PC
appendix B, p.l, ¶ 4).
Until Friday, December 5, 2014, Devonere's counsel was not aware
of relevant U.S. and Ohio Supreme Court case law mandating
individualized sentencing for children. (Exhibit B, PC appendix B,
p.1, ¶ 5). The sentencing hearing was scheduled for Monday,
December 8, 2014.
Counsel did not request an on-the-record continuance1 to prepare for
sentencing. (Exhibit B, PC appendix B, p.1, ¶ 2). Counsel did not
hire a mitigation specialist, did not consult with any experts to
prepare for sentencing, and did not retain a psychologist to conduct
a mitigation-focused examination. (Exhibit B, PC appendix B, p.1,
¶ 6).
At the sentencing hearing, counsel did not present any records or
call any witnesses to testify in mitigation. Counsel addressed
adolescent development in general and submitted two older
competency evaluations that had been prepared for the juvenile
court. (12/8/2014 T.pp.794-857.) Counsel's argument included
some relevant facts, including Devonere's age, immaturity, low IQ,
substance abuse, and father's criminal activity. (12/8/2014 T.p.820-
822). But, counsel's failure to fully investigate mitigating
1 The Magistrate Judge reads this phrase to mean that trial counsel did not make a request for continuance on the
record. It is apparently not contested that an off-record request was made in chambers and denied.
information was apparent: the trial court inquired whether Devonere
used drugs or alcohol before the shooting of Mr. Rudd, and counsel
responded, "[w]e don't know." (12/8/2014 T.p.820).
(Petition, ECF No. 2, PageID 96-97.)
The Petition proceeds to discuss generally how all adolescents, including those as old as
Simmonds at seventeen, are “unfinished from a neurodevelopmental standpoint.” Id. at PageID
99, citing evidence presented with the post-conviction petition. They are “much less able to self-
regulate or conform [their] behavior than . . . adults and much less able to resist social and
emotional impulses.” Id., citing similarly filed evidence.
During post-conviction Simmonds also presented specific evidence about his own
developmental deficits. Id. at PageID 100-102. By the time he committed these crimes, Simmonds
had suffered several head injuries at various points in his life. Id. at PageID 103. Simmonds’
upbringing created what his counsel calls a “nearly inescapable developmental pathway to
criminality.” Id. at PageID 103-106. “Though he never lived with his father, Devonere idolized
him, . . .” and began to get into serious criminal trouble when his father was deported. Id. at
PageID 106-07. A psychologist reported in post-conviction that Simmonds had been taught a
“dyssocial model of morality.” (ECF No. 2-2, PageID 214.)
The Petition continues to recite how the educational system had failed Simmonds.
He was diagnosed with ADHD and was enrolled in weekly social
skills sessions with a behavior specialist beginning in the first grade.
(Exhibit B, PC appendix I, p.1, if 3; Exhibit B, PC appendix F, p.57).
He had an individualized education plan ("IEP") and attended
speech and language therapy in his young elementary years . . .
He briefly attended anger therapy during his elementary years.
(Petition, ECF No. 2, PageID 108.) The juvenile justice system also failed, in the opinion of an
expert, when it failed to place him “at a minimum in a long-term secure residential treatment
facility. Most likely, he would have been best placed in the Ohio Department of Youth Services
that does have specialized interventions specific to delinquent, especially gang-involved youth."
(Id. at PageID 109, quoting Exhibit B, PC appendix A, p.27, ¶ 86.)
This section of the Petition presents a well-argued claim of what could have been presented
in mitigation, but it presents the information as if this Court were charged with making a de novo
determination of the ineffective assistance of trial counsel claim. That, however, is not our task.
The Tenth District Court of Appeals decided that claim on the merits. Under the Antiterrorism
and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), we
are limited to deciding if that court’s decision is an objectively unreasonable application of clearly
established Supreme Court case law or an unreasonable determination of the facts based on the
evidence presented. 28 U.S.C. § 2254(d)(1) and (2).
The governing standard for ineffective assistance of counsel is found 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, 122 (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 undermine
confidence in the outcome. 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184
(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing
Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466
U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.” Storey
v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-
12 (2011).
In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009)
(per curiam); Strickland, 466 U.S., at 693, 104 S.Ct. 2052, 80
L.Ed.2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S.Ct.
2052, 80 L.Ed.2d 674. This does not require a showing that counsel's
actions “more likely than not altered the outcome,” but the
difference between Strickland's prejudice standard and a more-
probable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674. The
likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S.Ct. 2052, 80 L.Ed.2d 674.
Harrington v. Richter, 562 U.S. 86, 111-112 (2011)
Counsel’s performance is measured by “prevailing professional norms” at the time of the
alleged errors. Strickland, supra, at 690; Maryland v. Kulbicki, 577 U.S. ___, 136 S.Ct. 2; 193
L.Ed.2d 1 (2015); Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir. 1997). Kulbicki rejects
retrospective perfectionism regarding a defense lawyer’s conduct.
When as here a habeas court is not assessing ineffective assistance of trial counsel de novo
but with AEDPA deference, its task is to decide whether the state court’s decision is an objectively
unreasonable application of Strickland and its progeny.
“A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as “fair-minded jurists could disagree”
on the correctness of the state court decision,” Harrington v.
Richter, 562 U.S. 86, 101 (2011)(quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004). The state court decision must be “so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” White v. Woodall, 572 U.S. [415], ___ (2014), slip
op. at 4.
When the claim at issue is one for ineffective assistance of counsel,
moreover, AEDPA review is “doubly deferential,” Cullen v.
Pinholster, 563 U.S. 170, 190 (2011), because counsel is “strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment,” Burt v. Titlow, 571 U.S. [12], [17] (2013),(quoting
Strickland v, Washington, 466 U.S. 668, 690 (1984); internal
quotation marks omitted). In such circumstances, federal courts are
to afford “both the state court and the defense attorney the benefit of
the doubt.” Burt, supra, at [15].
Woods v. Etherton, 578 U.S. 1149, 1151 (2016)(per curiam, unanimous)(parallel citations
omitted), reversing Etherton v. Rivard, 800 F.3d 737 (6th Cir. 2015).
“Surmounting Strickland's high bar is never an easy task.” Padilla
v. Kentucky, 559 U.S. ___, ___, 559 U.S. 356, 130 S.Ct. 1473, 1485,
176 L.Ed.2d 284, 297(2010). An ineffective-assistance claim can
function as a way to escape rules of waiver and forfeiture and raise
issues not presented at trial, and so the Strickland standard must be
applied with scrupulous care, lest “intrusive post-trial inquiry”
threaten the integrity of the very adversary process the right to
counsel is meant to serve. Strickland, 466 U.S., at 689-690, 104
S.Ct. 2052, 80 L.Ed.2d 674. Even under de novo review, the
standard for judging counsel's representation is a most deferential
one. Unlike a later reviewing court, the attorney observed the
relevant proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the judge.
It is “all too tempting” to “second-guess counsel's assistance after
conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052, 80
L.Ed.2d 674; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct.
1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364,
372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is
whether an attorney's representation amounted to incompetence
under “prevailing professional norms,” not whether it deviated from
best practices or most common custom. Strickland, 466 U.S., at 690,
104 S.Ct. 2052, 80 L.Ed.2d 674.
Establishing that a state court's application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential,”
id., at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674; Lindh v. Murphy, 521
U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and
when the two apply in tandem, review is “doubly” so, Knowles, 556
U.S., at [1413], 129 S.Ct. 1411, 173 L.Ed.2d 251. The Strickland
standard is a general one, so the range of reasonable applications is
substantial. 556 U.S., at [1413], 129 S.Ct. 1411, 173 L.Ed.2d 251.
Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under §
2254(d). When § 2254(d) applies, the question is not whether
counsel's actions were reasonable. The question is whether there is
any reasonable argument that counsel satisfied Strickland's
deferential standard.
Harrington v. Richter, 562 U.S. 86, 105 (2011).
The Magistrate Judge concludes the Tenth District’s decision here was an objectively
reasonable application of Strickland and its progeny as to both the deficient performance prong
and the prejudice prong which will be discussed in turn.
Deficient Performance
Petitioner claims his counsel did not know until the case was submitted to the jury “of
relevant U.S. and Ohio Supreme Court case law mandating individualized sentencing for
children.” (Petition, ECF No. 2, PageID 96-97, citing Exhibit B, PC appendix B, p.1, ¶ 5.) The
assertedly relevant case law consists of State v. Long, 138 Ohio St.3d 478 (2014); Miller v.
Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); and Roper v. Simmons, 543
U.S. 551 (2005). Trial counsel Jo Ellen Kaiser avers she “was not familiar with State v. Long and I
had not read the other cases before speaking with [Ohio Assistant Public Defender Stephen] Hardwick
[on the afternoon of December 5, 2014].” (Affidavit of Jo Ellen Kaiser, ECF No. 2-2, PageID 226.)
These cases do not mandate “individualized sentencing for children.” In Roper v. Simmons,
543 U.S. 551 (2005), the Supreme Court held that the Eighth Amendment prohibits execution of
those who committed aggravated murder under the age of eighteen. Later the Court held the Cruel
and Unusual Punishment Clause also forbids a life without parole sentence for juvenile non-
homicide offenders, Graham v. Florida, 560 U.S. 48 (2010), and mandatory life without parole
sentences for juvenile murderers, Miller v. Alabama, 567 U.S. 460 (2012). In Miller the Court
reiterated the general Eighth Amendment proposition that punishment must be proportional to the
crime, but that proposition applies to both juvenile and adult offenders. While the Court has been
at some pains in its juvenile capital cases to emphasize the differences between juvenile and adult
offenders, differences spelled out in the neuropsychological materials presented in post-
conviction, it has never held that life without parole sentences can only be imposed in the manner
now common for the death penalty, to wit, after a separate mitigation trial and requiring a jury
determination.
In Long, the Supreme Court of Ohio mandated that, before sentencing a minor for
aggravated murder under Ohio Revised Code § 2929.03(A), a trial court must consider the age of
the defendant and the record must reflect that consideration. 138 Ohio St. 3d 478 (syllabus). The
defendant in Long, represented by the Ohio Public Defender as is Simmonds, requested the Ohio
Supreme Court to require the same process as the Wyoming Supreme Court required in Bear Cloud
v. State, 294 P.3d 36 (2013), to wit:
consideration of the following factors when sentencing a juvenile
offender to life without the possibility of parole: (1) the character
and record of the juvenile, (2) the background and mental and
emotional development of the juvenile, (3) the juvenile's
chronological age and the immaturity, impetuosity, and failure to
appreciate the risks and consequences associated with youth, (4) the
family and home environment that surrounds the juvenile, (5) the
circumstances of the offense, including the extent of the juvenile's
participation and the way familial and peer pressure may have
affected the juvenile, (6) whether the juvenile could have been
charged with and convicted of a lesser offense if not for
incompetencies associated with youth, such as the juvenile's relative
inability to deal with police and prosecutors or to assist his own
attorney, and (7) the juvenile's potential for rehabilitation.
138 Ohio St. 3d at 482-83, ¶ 15, citing Bear Cloud, 294 P.3d at 36, ¶ 42. The Ohio Supreme Court
expressly declined to do so, holding instead
Although the Wyoming factors may prove helpful to courts as they
select appropriate sentences for juveniles, we note that Ohio statutes
do not require such findings. In imposing a prison sentence, the
sentencing court has discretion to state its own reasons in choosing
a sentence within a statutory range unless a mandatory prison term
must be imposed.
Long, 138 Ohio St. 3d at 483, ¶ 16.
In sum, none of the cited case law requires individualized sentencing for juveniles except
to the limited extent of prohibiting mandatory life without parole. None of these cases speak at all
to what defense counsel must do when defending a juvenile murderer at sentencing.
In assessing the asserted deficient performance of trial counsel, it must be noted that
attorney Kaiser did seek a continuance for prepare for sentencing. Moreover, she presented two
psychologists’ reports which pointed out many of the mitigating factors on which Simmonds now
insists. The only factual omission on which Simmonds now comments is that counsel did not
know whether Simmonds was on alcohol or drugs before the last shooting. Quære whether the
fact that a person prepares himself for a gas station robbery by drinking or taking drugs is truly a
mitigating circumstance.
Lacking case law establishing what constitutes deficient performance in such cases,
Simmonds’ habeas counsel direct us to Trial Defense Guidelines: Representing a Child Facing a
Possible Life Sentence promulgated by The Campaign for the Fair Sentencing of Youth. On
visiting that organization’s website, the first thing one sees is their policy statement “NO CHILD
SHOULD SPEND LIFE IN PRISON.” https://fairsentendingofyouth.org (visited 12/02/2019).
The Campaign openly states the purpose of the Guidelines:
The objective of the Guidelines is to set forth a national standard of
practice to ensure zealous, constitutionally effective representation
consistent with the standards established by the Supreme Court in
Miller v. Alabama. The Guidelines draw from the ABA Guidelines
for the Appointment and Performance of Defense Counsel in Death
Penalty Cases in the capital context and the NJDC National Juvenile
Defense standards in the juvenile court context.
Id.
Without in any way denigrating the purposes of the Campaign and value of their
recommendations for a specialized practice of defending minors charged with aggravated murder,
the Guidelines cannot be read as establishing minimum constitutional standard for the effective
assistance of counsel in these cases. They are intentionally modeled on the ABA Guidelines for
capital defense. Id. Even those Guidelines are not “inexorable commands” in capital cases; 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). And much as habeas
counsel here propose that juvenile life defense should follow adult capital defense, “death is
different.” Woodson v. North Carolina, 428 U.S. 280, 305 (1976).
In his Petition here, Simmonds conflates the two ineffective assistance of trial counsel
claims he raised as assignments of error in the Tenth District which were:
[1.] The trial court erred when it failed to consider Devonere
Simmonds's claims of ineffective assistance of counsel utilizing a
per-se prejudice standard of review when counsel did not present
mitigation at a critical stage of the proceedings, in violation of the
Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution;
Article I, Sections 10 and 16, Ohio Constitution; R.C. 2953.21;
United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d
657 (1984); and, State v. Johnson, 24 Ohio St.3d 87, 24 Ohio B. 282,
494 N.E.2d 1061 (1986).
[2.] The trial court abused its discretion in making a merits
determination without holding a hearing because Devonere's post-
conviction petition provided sufficient operative facts to
demonstrate that trial counsel was ineffective for failing to
investigate and present mitigation evidence, in violation of the Sixth
and Fourteenth Amendments to the U.S. Constitution; Article I,
Sections 10 and 16, Ohio Constitution; R.C. 2953.21; Miller v.
Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407
(2012); and, State v. Long, 138 Ohio St. 3d 478, 2014-Ohio-849, 8
N.E.3d 890[.]
Simmonds, 2017-Ohio-2739 at ¶ 14. The Tenth District recognized Strickland as the controlling
precedent. It held that, while “in a death case a complete failure to investigate mitigation may give
rise to a presumption of prejudice” per Ohio Supreme Court case law, there was no parallel
requirement for potential life without parole proceedings. Id. at ¶ 22. The court rejected the first
assignment of error, thereby denying Simmonds’ premise that what happened here was a denial of
counsel at a critical stage of proceedings as precluded by Cronic.
In his Reply, Simmonds argues this decision was an unreasonable application of Strickland,
“given the changing landscape of juvenile sentencing . . .” (ECF No. 26, PageID 3437). He quotes
dicta from Miller v. Alabama, supra, that
"[T]he distinctive attributes of youth diminish the penological
justifications for imposing the harshest sentences on juvenile
offenders, even when they commit terrible crimes." Miller v.
Alabama, 567 U.S. 460, 472, 132 S.Ct. 2455, 183 L.Ed.2d 407
(2012). Even when a child commits a heinous offense, the notion
that they cannot be rehabilitated is "at odds with a child's capacity
for change" and is "inconsistent with youth." Id., quoting Graham v.
Florida, 560 U.S. 48, 72-74, 130 S.Ct. 2011, 176 L.Ed.2d 825
(2010). The Court held that juvenile-life-without-parole cases are"
analogous to capital punishment" cases. Miller at 475, quoting
Graham at 89 (Roberts, C.J., concurring), citing Woodson v. North
Carolina, 420 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).
(ECF No. 26, PageID 3437.)
“Identifying clearly established federal law is . . . the ‘threshold question under AEDPA.’”
Dewald v. Wrigglesworth, 748 F.3d 295, 299 (6th Cir. 2014)(quoting Williams v. Taylor, 529 U.S.
362, 390 (2000). In determining what constitutes clearly established federal law, “we must consult
‘the holdings, as opposed to the dicta, of [the Supreme] Courts’ decisions as of the time of the
relevant state-court decision.’” Id., quoting Carey v. Musladin, 549 U.S. 70, 74 (2006). Only
holdings of the Supreme Court, not dicta in its opinions, can warrant habeas corpus relief. Bryan
v. Bobby, 843 F.3d 1099 (6th Cir. 2016), citing White v. Woodall, 572 U.S. 415, 419 (2014).
Prejudice
As to the second assignment of error on post-conviction appeal, the Tenth District wrote:
[*P26] Even if we were to assume that counsel's mitigation
presentation was deficient to the constitutionally significant degree
required by Strickland, we are not convinced that the other element
of Strickland can be met in this case. Simmonds, even before these
events, had a startlingly voluminous criminal history for someone of
his age, including assault, carrying a concealed weapon, burglary,
and aggravated burglary. (Davis Aff. at ¶ 23, 35.) During the
pendency of the action, Simmonds was transferred to the Franklin
County Jail for acts that included physically attacking and spitting
on staff members of the youth detention facility, wiping feces on the
window of his cell to prevent observation, and making a weapon out
of a sock and piece of concrete. Id. at ¶ 24; Jan. 13, 2014 Order
Granting Transfer of Custody 13JU-10445 at 2.
[*P27] The crimes Simmonds committed are more than disturbing.
In the space of six days, he point blank shot four people in the head
for no reason other than they had something he wanted. When
Simmonds robbed Ashgar, he shot him in the eye. When Ashgar did
not die, Simmonds returned and without provocation delivered a
cold, fatal shot to Ashgar's head. When two victims survived
(because Simmonds thought they were dead), Simmonds was at
least relieved of an indictment for four aggravated murders; instead
it was two. Simmonds' behavior is so far down the scale of
acceptable social behavior that the prospect of improvement upon
maturity is exceedingly remote. It is not unreasonable to find that
Simmonds belongs to a class of offenders that the United States
Supreme Court has termed "the rarest of juvenile offenders, [] whose
crimes reflect permanent incorrigibility." Montgomery [v.
Louisiana, 136 S.Ct. 718,] 734 [2017]. We are not convinced that
any amount of mitigation of the sort proposed by the postconviction
petition and supporting materials would have stood a reasonable
probability of changing Simmonds' sentence. Having found that
Simmonds cannot prove he was prejudiced by his counsel's
performance, we need not reach the issue of determining whether
Simmonds' counsel "made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Strickland at 687. See also Bradley [42 Ohio St.3d
136,] 143 [1989], quoting Strickland at 697.
State v. Simmonds, 2017-Ohio-2739.
Simmonds argues this decision on prejudice is unreasonable because “[t]he exact
information that would be discovered through investigation and presented through experts,
testimony, and exhibits -- upbringing, and mental and emotional development -- is precisely what
the Court has held is necessary for a proper consideration.” (ECF No. 26, PageID 3440, citing
Miller at 476.) As noted above, this range of information, recognized by Miller as relevant, is not
held by Miller to be constitutionally required to avoid deficient performance. 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 such evidence has performed
deficiently.
More significantly, Miller does not speak to prejudice. The trial court was presented with
two recent2 psychological reports that provided much the same kind of information as habeas
counsel says should have been presented, albeit not in the detail that was presented in post-
conviction. Counsel mentioned the developmental difficulties, the drugs and alcohol, the gang
related behavior, the poor paternal role model and, of course, Simmonds’ age. Not enough, says
habeas counsel. It was counsel’s duty to “provide [the] sentencing court with the type of evidence
that would enable the court to reach such a definite conclusion about a juvenile’s capacity to be
rehabilitated before imposing the harshest penalty available on a juvenile offender.” (ECF No. 26,
PageID 3440.)
Assembling such information takes time. Daniel Davis, the psychologist who evaluated
Simmonds in post-conviction, met with him five times over the course of four months to obtain
information for his report. (Davis Affidavit, ECF No. 2-2, PageID 196, ¶ 8). Assuming this would
be the average amount of time a qualified professional would need for this task, adopting a general
rule requiring such information would add substantially to the time needed for felony sentencing.
Habeas counsel also assumes that with this additional information the trial judge would
have been able to predict that Simmonds would have the capacity to be rehabilitated, but the
Magistrate Judge is unaware of any process that would enable a judge to make such a prediction
confidently. Because the length of time from conviction to execution, a number of people have
been rehabilitated while on death row in Ohio. Most recently then-Governor Kasich recognized
this in the commutations of the death sentences of William Montgomery and Raymond Tibbetts
2 Counsel calls them “older,” but both resulted form examinations of Simmonds several months after he committed
these crimes.
in 2018. (In re Ohio Execution Protocol Litigation, Case No. 2:11-cv-1016, ECF No. 1458,
PageID 55438-39 (Montgomery); ECF No. 1885, PageID 74697-99 (Tibbetts).)
Under Ohio law,
[T]he overriding purposes of felony sentencing "are to protect the
public from future crime by the offender and others and to punish
the offender." To achieve these purposes, the trial court "shall
consider the need for incapacitating the offender, deterring the
offender and others from future crime, rehabilitating the offender,
and making restitution." Id. The sentence must be "commensurate
with and not demeaning to the seriousness of the offender's conduct
and its impact upon the victim, and consistent with sentences
imposed for similar crimes committed by similar offenders." R.C.
2929.11(B). Thus, both the nature of the offender and the possibility
of the offender's rehabilitation are already points for the court's
sentencing deliberation.
State v. Long, 138 Ohio St. 3d at 895-96, ¶ 17. Ohio law does not require trial judges to make
findings of fact in which they explain how these factors have been weighed, but there is no doubt
that Simmonds needed to be incapacitated, given three armed robberies and felonious assaults in
three separate instances in one week’s time and his obvious lack of remorse/rehabilitation from
prior criminal convictions and post-arrest in this case. If the educational and juvenile justice
systems failed Simmonds, they also failed his victims in more serious ways. The trial judge was
mandated to impose a life sentence on Simmonds for aggravated murder, but had the choice of life
without parole or with parole eligibility at twenty or thirty years. It is difficult to imagine a series
of crimes by a seventeen-year-old that would qualify for the most severe of these sentences if
Simmonds’ crimes did not. As long as life without parole was a possible sentence, it is unlikely
that more information of the sort habeas counsel says was missing would have convinced the judge
to sentence Simmonds less severely.
It may be as The Campaign argues that no minor should ever be sentenced to life
imprisonment. But that judgment is for the General Assembly or, if it decides to extend its Cruel
and Unusual Punishment jurisprudence, for the Supreme Court. But constitutional criminal justice
reform under AEDPA is reserved to that Court. In this very case it declined to grant certiorari to
consider a possible extension. Given the holdings the Court has actually made in the area of
homicides by juveniles, it cannot be said that it was an objectively unreasonable application of
Strickland to deny post-conviction relief on Simmond’s ineffective assistance of trial counsel
claim.
Conclusion
Based on the foregoing analysis, it is respectfully recommended that the Petition be
dismissed with prejudice.
The parties have not briefed the issue of appealability. Petitioner is ordered to file a motion
for a certificate of appealability not later than December 12, 2019.
December 2, 2019.
s/ Michael R. Merz
United States Magistrate Judge