Simmons v. Warden, London Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

LAMAR SIMMONS,

Petitioner, : Case No. 1:16-cv-414

- vs - District Judge Douglas R. Cole

Magistrate Judge Michael R. Merz

BRIAN COOK, Warden,

Southeastern Correctional Complex,

:

Respondent.

REPORT AND RECOMMENDATIONS

This 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)1 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).

Procedural History

Simmons was indicted in 2011 by a Hamilton County grand jury on one count of murder

1 After the original stay was dissolved, Petitioner sought an additional stay pending decision of the Supreme Court

of Ohio on his motion for delayed appeal of denial of his petition for post-conviction relief (Motion, ECF No. 35).

The Magistrate Judge denied an additional stay based on his understanding that the Ohio Supreme Court will not

entertain a delayed appeal in a civil matter (Decision and Order, ECF No. 36).

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 43.

On 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)..

On 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 PageID 1943.

Simmons 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.

Petitioner 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 argument.

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.)

Analysis

Ground One: Ineffective Assistance of Trial Counsel

In his 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).

The 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, 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. d 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 (1991).

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).

Under 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).

The 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 constitutional error.

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 (6th Cir. 2002).

As noted above, Ohio has a relevant procedural rule: constitutional claims that cannot be

litigated on the basis of the appellate record must be raised in a petition for post-conviction relief

under Ohio Revised Code § 2953.21. That method of proceeding is further limited by a statute

of limitations. In this case Simmons failed to file his petition for post-conviction relief within

the time allowed by the relevant statute of limitations and failed to bring his case within the

exceptions to that statute allowed by Ohio Revised Code § 2953.23. The First District Court of

Appeals enforced these procedural rules on Simmons and he has not met his burden of showing

cause and prejudice. The first of these two rules, Ohio’s criminal res judicata rule, has been

repeatedly upheld by the Sixth Circuit as 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) (Smith, J.). The second of these two rules,

the statute of limitations, obviously protects the State’s interest in finality of criminal litigation.

The Sixth Circuit has repeatedly upheld much shorter time limits for stages of criminal litigation.

For example, both the forty-five day limit on appeals to the Supreme Court of Ohio and the

ninety-day time limit on applications to reopen a direct appeal to raise claims of ineffective

assistance of appellate counsel. Hoffner v. Bradshaw, 622 F.3d 487, 504-505 (6th Cir. 2010);

Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004).

Simmons’ First Ground for Relief is procedurally defaulted and should be dismissed on

that basis.

Ground Two: Failure to Record Sidebar Conferences

In his Second Ground for Relief, Simmons claims trial court error in failing to record

sidebar conferences. Respondent asserts that this Ground for Relief is not cognizable in habeas

corpus.

Federal habeas corpus is available only to correct federal constitutional violations. 28

U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780

(1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). “[I]t is

not the province of a federal habeas court to reexamine state court determinations on state law

questions. In conducting habeas review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire,

502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)

(Marshall C.J.); Bickham v. Winn, 888 F.3d 248, 253 (6th Cir. 2018) (Thapar, J., concurring).

Because there is no precedent of the United States Supreme Court clearly establishing a

right to have all sidebar conferences recorded in felony cases, Respondent’s position is well

taken. Ground Two should be dismissed for failure to state a claim upon which habeas corpus

relief can be granted.

Ground Three: Prosecutorial Misconduct: Failure to Timely Disclose the

Misidentification by Casey Coffey

In his Third Ground for Relief, Simmons claims the prosecutor committed misconduct by

failing to timely disclose the misidentification by Casey Coffey. Respondent asserts this claim

arises only under the Ohio law governing the granting or denial of mistrials (Return, ECF No. 6,

PageID 273). Simmons disagrees and asserts he presented his claim to the trial court as a

“Constitutional Right to a Mistrial by failure to present proper evidence for a conviction . . .this

is a denial of equal protection of the law and violation of due process of the United States

Constitution . . . .” (Reply, ECF No. 8, PageID 326).

The First District Court of Appeals considered Simmons’ claim on direct appeal and

decided it as follows:

{ ¶ 28} Kasey "Michelle" Coffey. On Wednesday, January 25,

2013, after the conclusion of voir dire, the court learned that the

state had violated the discovery rules when it had failed to name

Kasey “Michelle” Coffey as a witness and to provide her statement

to Simmons prior to trial.

{ ¶ 29} The prosecutor explained to the court that the delayed

disclosure of the witness had resulted from Detective Wloszek’s

confusion of Coffey with another witness with the first name of

Michelle, Michelle Evans, who had been timely disclosed to the

defense and who had been interviewed as a witness. Detective

Wloszek claimed that he had taken an oral statement from Coffey,

who he had also known as the confidential informant “Sammy,”

several days after the murder, and that he had summarized that

statement in an investigative log. The prosecutor claimed that he

had just learned of the mistake.

{ ¶ 30} Simmons first moved to exclude Coffey, characterizing the

delayed disclosure as suspicious because he claimed it coincided

with the unavailability of another state's witness who the state had

believed could provide similar testimony, an allegation not

substantiated by the record. After defense counsel was provided

with Detective Wloszek's summary of Coffey’s statement and an

opportunity to meet with Coffey, the trial court held an evidentiary

hearing, at which both Detective Wloszek and Coffey testified.

Their testimony conflicted with respect to the details of Coffey’s

statement and how and when it was made, but Coffey's testimony

corroborated Detective Wloszek’s testimony with respect to his

confusion of her with another witness at court on the previous day.

Upon hearing this testimony, defense counsel moved for a mistrial

with prejudice.

{ ¶ 31} After concluding that the delayed disclosure was due to a

mistake, and not bad faith, the court overruled the motion to

exclude Coffey and the motion for a mistrial. The court offered

Simmons any continuance that defense counsel would need to

prepare for Coffey’s testimony.

{ ¶ 32} Defense counsel declined the court’s offer of a continuance

and stated that he would be ready to proceed the following

morning. Consistent with this statement, defense counsel appeared

the following morning and the case proceeded to opening

statement without any indication from defense counsel that he was

not prepared to go forward. The state called Coffey as its fourth

witness, and defense counsel thoroughly cross-examined her.

* * *

{ ¶ 36} Defense counsel suggested that the court order a two-

month continuance, but after reminding the court of the other

discovery issues in the case, including the late disclosure of

Coffey, he contended that the cumulative errors had affected

Simmons's right to a fair trial and mandated the granting of

Simmons's motion for a mistrial with prejudice. Defense counsel

argued the violation involved willful misconduct because the

prosecution had earlier notice of the violation from Detective

Wloszek’s knowledge and had failed to cure the violation at the

first opportunity. Defense counsel explained that several days

prior, when Papke was testifying for the state, defense counsel had

asked Papke if Cincinnati Bell had received an order compelling

the production of Simone's cell-phone records. Papke replied that

she was not personally aware of such an order filed with her office.

Detective Wloszek had remained in the courtroom during this

testimony, but he did not tell the prosecutor that he had actually

obtained Simone’s cell-phone records from Cincinnati Bell.

{ ¶ 37} The trial court considered defense counsel’s arguments,

and found that it would have been “helpful” for the defense to have

had the search warrant and the affidavit listing Simone Kelsey as a

suspect. Although the court did not find any willful violation of the

discovery rules or bad faith, the court did sharply criticize the state

for failing to characterize the warrant and affidavit as favorable

evidence.

{ ¶ 38} The court was aware that the final discovery violation had

come to light late in the state’s case, but the court declined to grant

a mistrial with prejudice at that time under the circumstances,

believing that the sanction of “last resort” was not appropriate.

Instead, the court continued the case until the following day to

allow defense counsel to review the records that had not been

provided in discovery and to have the opportunity to interview

Simone, who had been identified as a potential state’s witness in

earlier discovery.

{ ¶ 39} The trial court continued the case an additional day because

Simmons was not available. Before resuming the trial on

Thursday, January 31, the trial court inquired as to whether defense

counsel had received and reviewed all of the relevant documents.

Defense counsel indicated that he had reviewed the documents,

that the cell-phone reports did not contain anything of significance,

and that he had also been provided an opportunity to contact

Simone but he had chosen not to do so. Defense counsel indicated

that he was ready to proceed, and he resumed the cross-

examination of Detective Wloszek, armed with the missing

discovery to further inculpate Simone.

Claims based on Discovery Violations

{ ¶ 40} Simmons argues that the trial court should have granted his

motions for mistrial after learning of the discovery violations by

the state. We note that Simmons sought not just a mistrial, but a

"mistrial with prejudice" to the state, meaning that the state could

not retry him for the charged offenses. Simmons also argues that

the discovery violations denied him a fair trial and warrant the

granting of a new trial.

{ ¶ 41} The Discovery Rules. Generally, discovery violations in

criminal cases are governed by Crim.R. 16. The Supreme Court

has recently explained the trial court's duty with respect to

discovery violations by the state in State v. Darmond, 135 Ohio

St.3d 343, 2013-Ohio-966, 986 N.E.2d 971. When a discovery

violation occurs, the trial court has discretion to make any order

that the court “deems just under the circumstances.” Crim.R.

16(L)(1); Darmond at ¶ 33.

{ ¶ 42} The trial court’s discretion includes ordering the most

severe sanction, a mistrial with prejudice, Darmond at ¶ 41, but

only after inquiring into the circumstances surrounding the

violations and taking into consideration (1) whether the failure to

disclose was a willful violation of Crim.R. 16, (2) whether

foreknowledge of the undisclosed material would have benefited

the accused in the preparation of a defense, and (3) whether the

accused was prejudiced. Darmond at ¶ 35, citing State v. Parson, 6

Ohio St.3d 442, 6 Ohio B. 485, 453 N.E.2d 689 (1983), syllabus.

And, when determining the appropriate sanction, the court “‘must

impose the least severe sanction that is consistent with the purpose

of the discovery rules.’” Darmond at syllabus, quoting Lakewood

v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987).

{ ¶ 43} The Darmond court noted that the purpose of Crim.R.

16(A), as amended in 2010, is “‘to provide for a just determination

of criminal proceedings and to secure the fair, impartial, and

speedy administration of justice’” and that it does so by

“‘expand[ing] the reciprocal duties in the exchange of materials’

and [by] 'balanc[ing] a defendant’s constitutional rights with the

community's compelling interest in a thorough, effective and just

prosecution of criminal acts.’” Darmond at ¶ 29, quoting the Staff

Notes to the 2010 amendment to Division (A) of Crim.R. 16.

{ ¶ 44} Simmons sought the most severe sanction, a mistrial with

prejudice. But the trial court investigated the circumstances of the

discovery violations and found that the less restrictive sanction of a

continuance was appropriate because it would provide defense

counsel with the opportunity to review and use the undisclosed

evidence. We find no abuse of the trial court’s discretion.

{ ¶ 45} No willful violations. First, the trial court found no bad

faith or willful violations. While knowledge on the part of a law

enforcement officer must be imputed to the state in determining

whether there was a violation of Crim.R. 16, a determination of

willfulness focuses only the acts of the prosecution. State v. Wiles,

59 Ohio St.3d 71, 78-79, 571 N.E.2d 97 (1991).

{ ¶ 46} Notwithstanding the violation based on Detective

Wloszek's mistake with respect to Coffey, the prosecutor explained

that he was not aware Coffey was a witness until her existence was

brought to the attention of the court. With respect to the violation

related to the May 2011 cell-phone documents, the prosecutor

admitted that the former prosecutor had been aware of those items

but that the former prosecutor had believed, erroneously with

respect to the subpoena and affidavit naming Simone as a suspect,

that the state did not have to provide any of them to the defense.

The trial court was satisfied that the representations of the

prosecutor were credible, and we have no basis to question this

conclusion. Moreover, it is undisputed that the prosecutor provided

the information as soon it became available to him.

{ ¶ 47} Benefit of earlier disclosure. The trial court found that an

earlier disclosure of Coffey's identity and Detective Wloszek’s

summary of her statement could have benefitted the defense. The

trial court came to the same conclusion with respect to the warrant

and affidavit related to the May 2011 cell-phone records that

identified Simone as a suspect.

{ ¶ 48} No Prejudice from Delayed Disclosure. With respect to

the violation involving Coffey and her statement, the court ensured

that defense counsel had access to Coffey for an interview and that

defense counsel was provided Detective Wloszek’s summary of

her statement. This information was provided before opening

statement. The trial court offered the defense a continuance, an

offer that defense counsel declined after providing assurances that

he was ready to proceed.

{ ¶ 49} With respect to the violation involving the May 2011 cell-

phone records and related documents, the court made sure that

defense counsel was provided with the materials, and the court

granted a continuance so that defense counsel could evaluate those

documents and use them before the conclusion of the trial. Defense

counsel appeared two days later ready to proceed, and

acknowledged that the only helpful evidence from these documents

was Detective Wloszek’s characterization of Simone as a suspect

in the warrant and supporting affidavit.

{ ¶ 50} While the warrant and supporting affidavit were helpful to

the defense for that reason, the defense had received other

discovery casting Simone as a suspect and had used that other

information at trial before learning of the warrant and supporting

affidavit. For instance, the state had produced Kelsey’s cellular

phone records that included a text message dated March 5, 2011,

from Kelsey to Simmons stating that “[her] other sister and brother

wnt to bury [Thompson.]” And, in opening statement, defense

counsel told the jurors the theme of the defense: that Kelsey and

her two siblings Simone and Daniel “were livid and upset” at

Thompson and “were highly motivated to cause harm” to him, and

they were protecting “their blood” at Simmons’s expense. Further,

the state had identified Simone as a potential witness before trial in

early discovery, and therefore, Simmons had ample notice to

interview her.

{ ¶ 51} Under these circumstances, we find no abuse of the trial

court’s discretion in overruling the motions for mistrial related to

the discovery violations.

Simmons, 2014-Ohio-3695.

In presenting the mistrial claim to the First District, Simmons argued that the prosecutor’s

violations of Ohio R.Crim.P. 16 violated his right to due process and a fair trial under the United

States and Ohio Constitutions (Appellant’s Brief, State Court Record, ECF No. 5, PageID 48).

Although Simmons did not rely heavily on federal precedent in his Brief, the Magistrate Judge

finds the issues presented – denial of a fair trial – mean that the federal constitutional claim

Simmons makes here was fairly presented to the state courts. Although the First District did not

discuss the issue in terms of the United States Constitution, it decided the issue presented to it by

determining Simmons was not denied a fair trial.

As a matter of federal constitutional law, the decision whether to grant a mistrial is

reserved to the broad discretion of the trial judge. Renico v. Lett, 559 U.S. 766, 774-76 (2010),

citing Illinois v. Somerville, 410 U.S. 458, 462 (1973); Gori v. United States, 367 U.S. 364

(1961); Wade v. Hunter, 336 U.S. 684, 691 (1949). Without a defendant’s consent, a judge may

not order a mistrial and proceed to a re-trial without violating the Double Jeopardy Clause unless

there is a “manifest necessity” for a mistrial. United States v. Perez, 22 U.S. (9 Wheat.) 579

(1824) (Story, J.); accord, United States v. Dinitz, 424 U.S. 600, 606-07 (1976). Here the

defendant did not seek a mistrial with the possibility of retrial, but a “mistrial with prejudice,” a

final dismissal of the case. The First District determined that the trial judge had made

appropriate adjustments in list of the failure to disclose regarding Casey Coffey: a brief

continuance which allowed a complete cross-examination.

A state court decision can constitute an “adjudication on the merits” entitled to deference

under 28 U. S.C. § 2254(d)(1) even if the state court does not explicitly refer to the federal claim

or to relevant federal case law. In Harrington v. Richter, 562 U.S. 86 (2011), the Supreme Court

held:

By its terms § 2254(d) bars relitigation of any claim “adjudicated

on the merits” in state court, subject only to the exceptions in §§

2254(d)(1) and (d)(2). There is no text in the statute requiring a

statement of reasons. The statute refers only to a “decision,” which

resulted from an “adjudication.” As every Court of Appeals to

consider the issue has recognized, determining whether a state

court's decision resulted from an unreasonable legal or factual

conclusion does not require that there be an opinion from the state

court explaining the state court’s reasoning. See Chadwick v.

Janecka, 312 F.3d 597, 605-606 (CA3 2002); Wright v. Secretary

for Dept. of Corrections, 278 F.3d 1245, 1253-1254 (CA11 2002);

Sellan v. Kuhlman, 261 F.3d 303, 311-312 (CA2 2001); Bell v.

Jarvis, 236 F.3d 149, 158-162 (CA4 2000) (en banc); Harris v.

Stovall, 212 F.3d 940, 943, n. 1 (CA6 2000); Aycox v. Lytle, 196

F.3d 1174, 1177-1178 (CA10 1999); James v. Bowersox, 187 F.3d

866, 869 (CA8 1999). And as this Court has observed, a state court

need not cite or even be aware of our cases under § 2254(d). Early

v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002)

(per curiam). Where a state court’s decision is unaccompanied by

an explanation, the habeas petitioner’s burden still must be met by

showing there was no reasonable basis for the state court to deny

relief. This is so whether or not the state court reveals which of the

elements in a multipart claim it found insufficient, for § 2254(d)

applies when a “claim,” not a component of one, has been

adjudicated.

Id. at 98. “When a federal claim has been presented to a state court and the state court has

denied relief, it may be presumed that the state court adjudicated the claim on the merits in the

absence of any indication or state-law procedural principles to the contrary.” Brown v. Bobby,

656 F.3d 325, 329 (6th Cir. 2011), quoting Harrington,562 U.S. at 99.

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, 562 U.S. at 99 ; 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). Deference is also due under 28 U.S.C. § 2254(d)(2) unless

the state court decision was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceedings.

Simmons has not cited any United States Supreme Court precedent that clearly

establishes his constitutional rights were violated by refusal of the trial court to grant a “mistrial

with prejudice.” Defense counsel was given adequate time to prepare to cross-examine Coffey,

thus preventing a “surprise” witness. And in any event the rules of criminal discovery have not

been constitutionalized beyond the prohibition on nondisclosure of exculpatory evidence. Brady

v. Maryland, 373 U.S. 83 (1963).

Simmons’ Third Ground for Relief should be dismissed on the merits.

Ground Four: Insufficient Evidence

In his Fourth Ground for Relief, Simmons claims his conviction is supported by

insufficient evidence. This claim was raised as Simmons’ fourth assignment of error on direct

appeal and the First District decided it as follows:

Sufficiency and Manifest Weight of the Evidence

{¶ 105} In his sixth and seventh assignments of error, Simmons

argues that his convictions for murder and having weapons under a

disability were not supported by sufficient evidence and were

against the manifest weight of the evidence. We disagree.

{¶ 106} Sufficiency of the Evidence. In reviewing a record for

sufficiency, we must determine whether, after viewing the

evidence in the light most favorable to the state, any rational trier

of fact could have found the essential elements of the offense

proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991).

{¶ 107} Simmons argues that the state failed to prove that he was

Thompson's shooter because no fingerprints or DNA connected

him to the murder and no gun was recovered. He further contends

that Daniel’s testimony was unreliable and that evidence supported

his theory that Kelsey’s family had orchestrated Thompson’s

murder to avenge her. But the state charged Simmons as a

principal or as a complicitor with respect to Thompson’s murder

and, therefore, the state was not required to prove that Simmons

had actually pulled the trigger to convict him.

{¶ 108} Further, Simmons’s codefendant, Daniel, was at the scene

of the shooting and identified Simmons as the shooter. His

testimony indicated that he and Simmons had carried out a plan to

ambush Thompson, and that testimony was corroborated by the

cell-phone records, which contained the content of the text

messages and the timing of the text messages and cell-phone calls

between him, Kelsey and Simmons. Kelsey testified that Simmons

had implicitly admitted to her that he had shot Thompson when he

apologized for what happened in the stairwell. Further, Simmons

stipulated to the prior requisite conviction for the offense of having

weapons under a disability.

{¶ 109} After viewing this evidence in the light most favorable to

the state, we hold that the state provided sufficient evidence to

support the convictions for murder and having weapons under a

disability.

Simmons, 2014-Ohio-3695.

Respondent defends Ground Four on the merits, contending the First District’s decision is

neither contrary to nor an objectively unreasonable application of clearly established Supreme

Court precedent. (Return, ECF No. 6, PageID 302-04). Simmons argues there was insufficient

evidence because witness Kelsey “changed her testimony when defense counsel questioned her

on stand at trial, in all efforts to impeach her prior testimony.” (Reply ECF No. 8, PageID 333).

An allegation that a verdict was entered upon insufficient evidence states a claim under the Due

Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.

Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d

987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990) (en banc). In order

for a conviction to be constitutionally sound, every element of the crime must be proved beyond

a reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt . . . . This familiar standard gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence and to draw reasonable

inferences from basic facts to ultimate facts.

Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United

States v. Somerset, No. 3:03-po-2, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007) (Rice, J.).

This rule was recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991), superseded on

other grounds by constitutional amendment as discussed in State v. Smith, 80 Ohio St. 3d 89, 102

n.4 (1997).

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,

110 Stat. 1214) (the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner

challenges the constitutional sufficiency of the evidence used to

convict him, we are thus bound by two layers of deference to

groups who might view facts differently than we would. First, as in

all sufficiency-of-the-evidence challenges, we must determine

whether, viewing the trial testimony and exhibits in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the

evidence, re-evaluate the credibility of witnesses, or substitute our

judgment for that of the jury. See United States v. Hilliard, 11 F.3d

618, 620 (6th Cir. 1993). Thus, even though we might have not

voted to convict a defendant had we participated in jury

deliberations, we must uphold the jury verdict if any rational trier

of fact could have found the defendant guilty after resolving all

disputes in favor of the prosecution. Second, even were we to

conclude that a rational trier of fact could not have found a

petitioner guilty beyond a reasonable doubt, on habeas review, we

must still defer to the state appellate court's sufficiency

determination as long as it is not unreasonable. See 28 U.S.C. §

2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009). In a sufficiency of the evidence habeas

corpus case, deference should be given to the trier-of-fact’s verdict under Jackson and then to the

appellate court’s consideration of that verdict, as commanded by AEDPA. Parker v. Matthews,

567 U.S. 37, 43-44 (2012) (per curiam); accord, Davis v. Lafler, 658 F.3d 525, 531 (6th Cir.

2011) (en banc); Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008). Notably, “a court may sustain a

conviction based upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger,

595 F.3d 647, 656 (6th Cir. 2010).

We have made clear that Jackson claims face a high bar in federal

habeas proceedings because they are subject to two layers of

judicial deference. First, on direct appeal, "it is the responsibility of

the jury -- not the court -- to decide what conclusions should be

drawn from evidence admitted at trial. A reviewing court may set

aside the jury's verdict on the ground of insufficient evidence only

if no rational trier of fact could have agreed with the jury."

Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d

311, 313 (2011) (per curiam). And second, on habeas review, "a

federal court may not overturn a state court decision rejecting a

sufficiency of the evidence challenge simply because the federal

court disagrees with the state court. The federal court instead may

do so only if the state court decision was 'objectively

unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___,

130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012) (per curiam); accord, Parker v. Matthews, 567

U.S. at 43 (2012). The federal courts do not make credibility determinations in reviewing

sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).

The fact that Kelsey was impeached does not mean the jury was not entitled to believe

the impeached testimony. As the First District noted, there was eyewitness testimony from

Daniel that Thompson was the shooter, plus a great deal of corroborating evidence. The

Magistrate Judge concludes the First District’s decision was neither contrary to nor an

objectively unreasonable application of Jackson. Simmons’ Fourth Ground for Relief should

therefore be dismissed.

Ground Five: Prosecutorial Misconduct

In his Fifth Ground for Relief, Simmons asserts that misconduct by the prosecutor denied

him due process and a fair trial under both the Ohio and federal Constitutions. Because this

Court can consider only violations of the United States Constitution in a habeas corpus case, no

analysis is offered here under the Ohio Constitution.

In the Petition Simmons provides no detail for this ground for relief beyond claiming that

the misconduct took place “during trial and closing argument.” (Petition, ECF No. 1, PageID 4).

Respondent assumed that the claims of prosecutorial misconduct intended to be raised are those

Simmons pleaded on direct appeal (Return, ECF No. 6, PageID 304-14). In his Reply Simmons

does not dispute that analysis, focusing on the violations of discovery rules discussed above.

Prosecutorial misconduct justifies federal habeas relief only if it “so infected the trial

with unfairness as to make the resulting conviction a denial of due process” and resulted in

prejudice. Gillard v. Mitchell, 445 F.3d 883, 897 (6th Cir. 2006) (quoting Darden v.

Wainwright, 477 U.S. 168, 181 (1986)).

On habeas review, claims of prosecutorial misconduct are

reviewed deferentially. Darden v. Wainwright, 477 U.S. 168, 181

(1986). To be cognizable, the misconduct must have “‘so infected

the trial with unfairness as to make the resulting conviction a

denial of due process.’” Id. (citation omitted). Even if the

prosecutor’s conduct was improper or even “universally

condemned,” id., we can provide relief only if the statements were

so flagrant as to render the entire trial fundamentally unfair. Once

we find that a statement is improper, four factors are considered in

determining whether the impropriety is flagrant: (1) the likelihood

that the remarks would mislead the jury or prejudice the accused,

(2) whether the remarks were isolated or extensive, (3) whether the

remarks were deliberately or accidentally presented to the jury, and

(4) whether other evidence against the defendant was substantial.

See Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000). Under

[the] AEDPA, this bar is heightened by the deference we give to

the . . . [Ohio] Supreme Court’s determination of . . . [Petitioner’s]

prosecutorial-misconduct claims. See Macias v. Makowski, 291

F.3d 447, 453-54 (6th Cir. 2002) (“If this court were hearing the

case on direct appeal, we might have concluded that the

prosecutor’s comments violated Macias’s due process rights. But

this case is before us on a petition for a writ of habeas corpus. So

the relevant question is not whether the state court’s decision was

wrong, but whether it was an unreasonable application of clearly

established federal law.”).

Bowling v. Parker, 344 F.3d 487, 512-13 (6th Cir. 2003).

The relevant question in analyzing a claim for prosecutorial

misconduct on habeas review is “whether the prosecutors’

comments 'so infected the trial with unfairness as to make the

resulting conviction a denial of due process.’” Darden v.

Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144

(1986) (internal quotation marks omitted). To satisfy this standard,

the conduct must be both improper and flagrant. Broom v.

Mitchell, 441 F.3d 392, 412 (6th Cir. 2006); see also Pritchett v.

Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (noting that reversal is

required if the prosecutor's misconduct is “so pronounced and

persistent that it permeates the entire atmosphere of the trial or so

gross as probably to prejudice the defendant”) (internal citation

omitted). If conduct is found to be improper, four factors are then

considered to determine whether the conduct was flagrant and

therefore warrants reversal: “(1) the likelihood that the remarks of

the prosecutor tended to mislead the jury or prejudice the

defendant; (2) whether the remarks were isolated or extensive; (3)

whether the remarks were deliberately or accidentally made; and

(4) the total strength of the evidence against the defendant.” Bates

v. Bell, 402 F.3d 635, 641 (6th Cir. 2005).

Johnson v. Bell, 525 F.3d 466, 482 (6th Cir. 2008). The discovery violations have been dealt

with under Ground One above. Viewing the same violations as prosecutorial misconduct, they

are less compelling than under the mistrial lens. The trial judge allowed defense counsel ample

time to prepare for cross-examination of the relevant witnesses; their omission from discovery

did not render the trial unfair. The First District’s decision to that effect is not an objectively

unreasonable application of the relevant Supreme Court precedent, Darden. Therefore

Simmons’ Fifth Ground for Relief should be dismissed.

Ground Six: Consecutive Sentences

In his Sixth Ground for Relief, Simmons claims the trial judge abused his discretion in

imposing consecutive sentences in this case. Abuse of discretion does not constitute a federal

constitutional violation. Sinistaj v. Burt, 66 F.3d 804, 807-08 (6th Cir. 1995). Moreover, the

Supreme Court has held consecutive sentencing is not a matter for federal constitutional concern

so long as they are authorized by state law. Oregon v. Ice, 555 U.S. 160 (2009). The First

District upheld the imposition of consecutive sentences here once the trial judge had made the

required findings of fact. That decision presents no federal constitutional issue. Simmons’ Sixth

Ground for Relief should therefore be dismissed.

Ground Seven: Conviction Against the Manifest Weight of the Evidence

In his Seventh Ground for Relief, Simmons argues his conviction is against the manifest

weight of the evidence presented at trial. A weight of the evidence claim is not a federal

constitutional claim. Johnson v. Havener, 534 F.2d 1232, 1234 (6th Cir. 1986). Simmons’

Seventh Ground for Relief should therefore be dismissed for failure to state a claim upon which

habeas corpus relief can be granted.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the

Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this

conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that

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

not be permitted to proceed in forma pauperis.

December 31, 2019.

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. Because this document is being served by mail, three days are added

under Fed.R.Civ.P. 6. 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. 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.