The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
PARIS O. SIMPSON,
Petitioner, : Case No. 3:21-cv-109
- vs - District Judge Michael J. Newman
Magistrate Judge Michael R. Merz
LYNEAL WAINWRIGHT, Warden,
Marion Correctional Institution,
:
Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 17) to the
Magistrate Judge’s Report and Recommendations (ECF No. 14) recommending the case be
dismissed. District Judge Newman has recommitted the case for reconsideration in light of the
Objections (ECF No. 18).
Simpson pleads one ground for relief:
Ground One: Petitioner was deprived [of] effective assistance of
appellant [sic] counsel on his first right of appeal 6th and 14th
Amendment violation U.S. Constitution.
Supporting Facts: Appellant counsel performance on petitioner
first right of appeal was deficient that prejudice the outcome of the
petitioner appeal. [sic]
(Petition, ECF No. 1). The Report found it was unclear whether Simpson was claiming ineffective
assistance of appellate counsel on his first or second appeal. The Objections make it clear he is
referring to the appeal from his resentencing.
As the Report recites,
On August 31, 2018, Simpson filed a Motion for Resentencing
related to imposition of a term of post-release control (State Court
Record, ECF No. 8, Ex. 10). The State agreed and Simpson was re-
sentenced September 4, 2019. Id. at Ex. 12. Simpson appealed and
his counsel filed a brief under Anders v. California, 386 U.S. 738
(1967). The Second District then allowed Simpson sixty days to file
a pro se brief which he did (State Court Record, ECF No. 8, Ex. 16).
Finding no error, the Second District again affirmed the conviction.
State v. Simpson, 2020-Ohio-2961 (Ohio App. 2nd Dist. May 15,
2020), appellate jurisdiction declined, 159 Ohio St. 3d 1478 (2020).
Simpson also moved to reopen the appeal (State Court Record, ECF
No. 8, Ex. 26) which the Second District denied. Id. at Ex. 29.
(Report, ECF No. 14, PageID 447). The Report referred to the appeal from resentencing as the
“Second” Appeal of Right. Id. at PageID 451 and the Objections confirm this is the appeal to which
the Petition refers. For clarity’s sake, this appeal will be referred to herein as the “Appeal from
Resentencing.” It is in this Appeal from Resentencing that Simpson claims he received ineffective
assistance of appellate counsel.
Does the Petition Meet the Pleading Requirements of Rule 2?
Simpson’s first objection is that he pleaded sufficient facts in the Petition to warrant an
Order for Answer under Rule 4, but that “[t]he magistrate disregarded the petitioner[‘s] argument
on this point raised in the petitioner[‘s] traverse. (Traverse p.6-8).” (Objections, ECF No. 17,
PageID 464). At those pages of his Traverse, Simpson responded to the Warden’s argument that
the Petition did not satisfy the pleading requirements of Habeas Rule 2 (ECF No. 13, PageID 431-
33).
The Warden raised an insufficient pleading defense under Habeas Rule 2 in the Return of
Writ and sought to have the Petition dismissed on that basis (ECF No. 9, PageID 414-17). As
noted above, Simpson responded by asserting that issuance of the Order for Answer had implicitly
found the petition satisfied Rule 2. He now objects that the Report disregarded that argument.
Simpson’s first objection is not well taken. In issuing the Order for Answer (ECF No. 5),
the undersigned did not purport to decide any question about whether the case had been properly
pleaded. Instead, employing the language of Rule 4, the Magistrate Judge determined merely that
“it does not plainly appear from the face of the Petition and any exhibits attached thereto that the
Petitioner is not entitled to relief in this Court.” Id. at PageID 3. Then in the Report, the
undersigned noted the principle that pro se pleadings are to be liberally construed (ECF No. 14,
PageID 448, citing Haines v. Kerner, 404 U.S. 519 (1972); Urbina v. Thoms, 270 F.3d 292, 295
(6th Cir. 2001)). The Report then proceeds to consider the Petition on its merits and never
recommends a decision on the Warden’s sufficiency-of-the pleading defense. If anything was
“disregarded,” it was this defense, not Simpson’s response. The Warden has not objected to the
Report and Simpson is not entitled to an explicit ruling on the Rule 2 defense.
Which Appeal is At Issue?
Simpson objects to the fact that the Report analyzed Simpson’s claims of ineffective
assistance of appellate counsel in both of his appeals (Objections, ECF No. 17, PageID 465). Now
that Simpson has made it clear that he is complaining of what occurred in the Appeal from Re-
Sentencing, the analysis directed to the first appeal is irrelevant and is hereby withdrawn.
Claims of Ineffective Assistance of Appellate Counsel
The State Court Record shows Simpson filed a Motion for Resentencing August 31, 20181,
claiming error in the imposition of post-release control (Motion, State Court Record, ECF No. 17,
Ex. 10). The State responded that it “agrees, in part, that Simpson is entitled to be re-sentenced
for the limited purpose of advising him of the correct term of post-release control.” Id., Ex. 11,
PageID 145. Its response concluded “Paris Simpson should be re-sentenced for the sole purpose
of advising him of the proper term of post-release control for the offense of aggravated robbery,
and his term of parole for his offense of murder.” Id. at PageID 147.
Common Pleas Judge Barbara Gorman on September 5, 2019, entered an amended
Judgment Entry correcting the post-release control portion of the prior judgment and otherwise
leaving the prior judgment intact. Id. at Ex. 12. Simpson then filed a pro se Notice of Appeal from
the Amended Judgment. Id. at Ex. 13. He was then appointed as appellate counsel Attorney
Johnna M. Shia who filed, on January 2, 2020, a brief under Anders v. California, 386 U.S. 738
(1967), combined with a motion to withdraw as appellate counsel. Id. at Ex. 14. The Second
District then provided Simpson with an opportunity to file a pro se brief which he did February
20, 2020. Id. at Ex. 16. The Second District decided the case May 15, 2020. Id. at Ex. 18. The
Supreme Court of Ohio declined to review that judgment. Id. at Ex. 22.
On August 14, 2020, Simpson filed an Application to Reopen the Appeal from
Resentencing, pleading the following omitted assignments of error as demonstrating ineffective
assistance of appellate counsel:
(a) conviction is supported by insufficient evidence beyond
1 The Objections claim this Motion was filed May 19, 2019 (ECF No. 17, PageID 466), but the file-stamp date from
the Montgomery County Clerk of Courts plainly shows it was filed August 31, 2018 (State Court Record, ECF No. 8,
PageID 126).
a reasonable doubt in violation of defendant[‘s] united states
constitutional right 14th amendment.
(b) criminal indictment is defective when the trial court fail[s] to
give the defendant fair notice of all the essential elements of the
charge or charges against him.
(c) trial counsel rendered ineffective assistance of counsel for
failure to object to improper jury instructions Crlm,R. 52(13)
violation of defendant[‘s] united states constitutional rights
6th and 14th amendments.
(Application, State Court Record, ECF No. 8, PageID 306).
In denying the Application, the Second District explicitly held that Strickland v.
Washington, 466 U.S. 668 (1984), provided the governing standard for ineffective assistance of
appellate counsel (Decision and Entry, State Court Record, ECF No. 8, Ex. 29, PageID 353-54).
It noted that Simpson had argued in his pro se brief “that State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 322, did not apply to his case, and that he could challenge his
convictions as a direct appeal.”
The Second District clearly held to the contrary:
Fischer held that when a judge fails to impose the required
postrelease control as part of a defendant's sentence, "that part of
the sentence is void and must be set aside." (Emphasis sic.) Id. at ¶
26. However, res judicata still applied to all other aspects of a
conviction, including the determination of guilt and the lawful
elements of the sentence. Id. at ¶ 40.
In conducting our Anders review, we rejected Simpson's claim that
Fischer did not apply. We stated that ''Fischer is the law in Ohio,
and we find no basis not to follow it. State v. Simpson, 2d Dist.
Montgomery No. 28558, 2020-Ohio-2961, ¶ 20. We thus concluded
that "[a]ny argument that the trial court should have conducted a
more extensive resentencing hearing and vacated his convictions for
aggravated robbery and murder would be frivolous." Id. at ¶ 21.
(Decision and Entry, State Court Record, ECF No. 8, Ex. 29, PageID 355).
The question before the Second District was whether Simpson received ineffective
assistance of appellate counsel when Attorney Shia did not raised the assignments of error he raised
in his pro se brief. Whether or not a defendant has received ineffective assistance of appellate
counsel on an appeal of right is a question of federal law under Strickland.
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, 131 S.
Ct. 770, 785 (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). To prevail in the current
proceeding, Simpson must show that the Second District’s decision on his 26(B) Application on
the Appeal of Resentencing is contrary to or an unreasonable application of Strickland.
Petitioner objects that the Second District was wrong because the new sentencing entry of
September 4, 2019, “change[d] the petitioner[‘s] sentence that would allow the petitioner to appeal
to appeal his sentence and conviction anew.” (Objections, ECF No.17, PageID 466, citing
Traverse pp.8-13 [PageID 433-38].)
The question of whether an Ohio resentencing to correct an error in post-release control
reopens issues that could have been presented on a first direct appeal is a question of Ohio law.
On questions of state law, a habeas corpus court is bound by the state courts’ interpretation of Ohio
law. Bradshaw v. Richey, 546 U.S. 74 (2005). In this case the Second District clearly held as a
matter of Ohio law that an error in imposing postrelease control renders only the postrelease
portion of the original sentence void; decisions on appeal from other portions remain res judicata.
Thus the Second District approved the advice Attorney Shia gave Simpson: although he
was entitled to a direct appeal from the resentencing entry, a final appealable order, she could not
raise the assignments of error Simpson wanted her to raise as to the original conviction. It simply
cannot be ineffective assistance of appellate counsel to fail to raise assignments of error which are
barred by res judicata. Since Attorney Shia’s advice was correct, it was not ineffective assistance
of appellate counsel for her to give it. That is, it was not deficient performance under the first
prong of Strickland.
Simpson objects that the Second District’s decision was on state law only (Objections, ECF
No. 17, PageID 467). That is not correct. The Second District decided Attorney Shia gave
Simpson correct advice on what the Ohio law is, to wit, that a resentencing on postreleease control
does not reopen matters that were or could have been raised on the original appeal.
Petitioner attempts to raise a new doble jeopardy claim for the first time in his Objections,
to wit that the trial court violated his Double Jeopardy rights by reimposing a sentence for felonious
assault which he had already served (Objections, ECF No. 17, PageID 471, et seq.). No such
double jeopardy claim is pleaded in the Petition, and claims cannot be added in Objections.
Moreover, the claim is without merit: the Second District expressly found that no new sentence
was imposed on the felonious assault conviction (Decision and Entry, State Court Record, ECF
No. 8, PageID 354).
Petitioner claims his three omitted assignments of error cannot be barred by res judicata
because they were not adjudicated in his October 4, 2019, appeal (Objections, ECF No. 17, PageID
473-74). Under the Ohio res judicata doctrine, claims which could have been raised on an original
direct appeal but are not raised there are barred by res judicata from ever being raised.
7. Constitutional issues cannot be considered in postconviction
proceedings under Section 2953.21 et seq., Revised Code, where
they have already been or could have been fully litigated by the
prisoner while represented by counsel, either before his judgment of
conviction or on direct appeal from that judgment, and thus have
been adjudicated against him. ...
9. Under the doctrine of res judicata, a final judgment of conviction
bars a convicted defendant who was represented by counsel from
raising and litigating in any proceeding except an appeal from that
judgment, any defense or any claimed lack of due process that was
raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction or on an appeal from that
judgment.
Syllabus in State v. Perry, 10 Ohio St. 2d 175 (1967)(emphasis sic.). See also State v. Cole, 2
Ohio St. 3d 112 (1982); State v. Duling, 21 Ohio St. 2d 13 (1970). Ohio’s doctrine of res judicata
in criminal cases, enunciated Perry, has repeatedly been held to be 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).
Simpson claims Fischer applies only when there is a remand for resentencing and here
resentencing was brought about by his motion (Objections, ECF No. 17, PageID 474). But as
noted above, the interpretation of Fischer is a question of Ohio law and the Second District found
it to be applicable here. That conclusion of state law is binding on this Court. Bradshaw, supra.
Conclusion
The Second District’s application of Strickland was completely reasonable: Attorney
Shia’s advice that only resentencing issues were appealable -- despite the existence of a new final
appealable order – was a correct statement of Ohio law under Fischer and therefore not ineffective
assistance of appellate counsel. Petitioner’s Objections should therefore be overruled and
judgment entered dismissing the Petition. 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.
November 5, 2021.
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, but service is complete when the document is mailed, not when it is recetved. 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. #