Simpson v. Warden, Warren Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

ROGER SIMPSON,

Petitioner, :

Case No. 1:21-cv-777

- vs - District Judge Timothy S. Black

Magistrate Judge Michael R. Merz

TIM SHOOP, WARDEN,

Chillicothe Correctional Institution

Respondent. :

SUBSTITUTED REPORT AND RCOMMENDATIONS

This habeas corpus case, brought by Petitioner Roger Simpson with the assistance of

counsel, is before the Court on Petitioner’s Objections (ECF No. 27) to the undersigned’s Report

and Recommendations (ECF No. 20). District Judge Black has recommitted the case for

reconsideration in light of the Objections (ECF No. 28). The time within which the Attorney

General could have responded to the Objections has expired and no response has been filed.

Initial review of the Objections persuades the undersigned that a substantially different

analysis of the issues in the case is required. Accordingly, the prior Report (ECF No. 20) is

WITHDRAWN and this Report substituted for it.

On June 14, 2017, a Butler County grand jury indicted Simpson on twenty-three counts of

sexual misconduct: ten counts of rape, five counts of sexual battery, two counts of kidnapping,

four counts of complicity to rape, and two counts of complicity to sexual battery. (ECF No. 4,

Exhibit 1; PageID 11-26). Simpson’s charges arose from his participation, along with two

codefendants, in a rape of a single victim, B.H., on February 11-12, 2017, at Miami University. A

jury convicted Simpson on all counts. After some mergers of allied offenses, he was sentenced to

a total of fifty-one years imprisonment on five counts of rape, one count of kidnapping, and two

counts of complicity to rape.

Simpson appealed to the Twelfth District Court of Appeals, raising two assignments of

error. That court affirmed the convictions. State v. Simpson, 2019-Ohio-1493 (Ohio App. 12th

Dist. Apr. 22, 2019). Simpson did not seek review in the Supreme Court of Ohio. The two

assignments of error raised on direct appeal are no longer at issue in the case.

On July 22, 2019, Simpson, represented by the same counsel who represents him here, filed

an Application to Reopen his direct appeal under Ohio R. App. P. 26(B). He claimed counsel on

direct appeal was ineffective for omitting the following assignments of error:

1. The trial court erred by admitting codefendant Gibson’s out-of-

court hearsay statements that inculpated Simpson over Simpson’s

objections.

2. The trial court erred by sentencing Simpson to an aggregate 51-

year prison term after a jury trial, where codefendant Mincy

received an 8-year term upon a plea and codefendant Gibson

received a 5-year term upon a plea.

3. The trial court erred by failing to record the rape-shield hearing,

failing to journalize its rape-shield holding, and failing to preserve

and file the proffered exhibit containing the rape-shield evidence.

(26(B) Application, State Court Record, ECF No. 4, Exhibit 9, PageID 96).

The Twelfth District denied the Application and Simpson appealed to the Supreme Court

of Ohio, raising the following two propositions of law:

1. Appellate ineffectiveness is measured in the application and

reopening by comparing the presented arguments on direct appeal

with omitted ones, by applying the Sixth Circuit’s Mapes factors to

weigh the strengths, weaknesses, and viability of those omitted

arguments, and by evaluating postconviction facts about appellate

counsel’s preparedness and tactics.

2. Rule 26(B) reopening is a postconviction procedure and omitted

arguments from direct appeal are defaulted until a merits

determination of appellate ineffectiveness is made, which triggers

the remedy of eliminating default and allowing review of the

omitted arguments on their merit.

(Memorandum in Support of Jurisdiction, State Court Record, ECF No. 4, Exhibit 13, PageID 125).

The Ohio Supreme Court accepted jurisdiction only over the first proposition and

ultimately rejected it. State v. Simpson, 164 Ohio St. 3d 102 (2020). On December 15, 2021,

Simpson filed the instant habeas corpus petition, pleading one ground for relief:

Ground One: Simpson was denied the effective assistance of

appellate counsel under the Sixth and Fourteenth Amendments. On

direct appeal, appellate counsel presented weak issues, omitted

stronger and obvious issues, and failed to meet with trial counsel,

obtain the file, or review the file to research issues for appeal. The

most important defaulted issue was that Simpson received a 51-year

term and his codefendants, with roughly equal culpability, received

8- and 5-year terms, respectively. Only Simpson went to jury trial;

the codefendants accepted plea deals.

(Petition, ECF No. 1, PageID 2). Although the Petition speaks generally about “omitted issues,”

Petitioner limited himself in his Reply to one such omitted issue: “Simpson contends that his

appellate counsel was ineffective for failing to raise an Ohio disproportionate-sentencing claim on

direct appeal. His habeas claim is confined to this point.” (Reply, ECF No. 17, PageID 403). As will

be seen below, Petitioner labels his claim as “disproportionate sentencing” when his real claim is that

the sentencing judge imposed a “trial tax”: extra punishment for not accepting a plea agreement.

PROCEDURAL DEFAULT

In the original Report, the undersigned concluded that, as argued by Respondent, Simpson had

procedurally defaulted his Ohio disproportionate sentencing ineffective assistance of appellate counsel

claim by failing to fairly present it to the Supreme Court of Ohio (Report, ECF No. 20, PageID 431).

Reaching that conclusion required parsing the fractured decision of the Ohio Supreme Court. Id. at

PageID 427-31.

Simpson objects that the fair presentment requirement in habeas turns on whether the petitioner

“actually afforded the state courts the opportunity to rule on the claim and not on whether the state

courts actually availed themselves of that opportunity.” (Objections, ECF No. 27, PageID 441,

quoting Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure (7th

Ed.) § 23.3(a)(emphasis added by Petitioner)). He claims that he presented his ineffective

assistance of appellate counsel disproportionate sentence and trial-tax claim to the court of appeals

and then again to the Supreme Court of Ohio (Objections, ECF No. 27, PageID 443, quoting

Memorandum in Support of Jurisdiction, State Court Record, ECF No. 4, PageID 137-38).

In seeking Supreme Court acceptance of the case, Simpson posited two Propositions of

Law:

PROPOSITION OF LAW I: Appellate ineffectiveness is

measured in the application and reopening by comparing the

presented arguments on direct appeal with omitted ones, by applying

the Sixth Circuit’s Mapes factors to weigh the strengths,

weaknesses, and viability of those omitted arguments, and by

evaluating postconviction facts about appellate counsel’s

preparedness and tactics.

PROPOSITION OF LAW II Rule 26(B) reopening is a

postconviction procedure and omitted arguments from direct appeal

are defaulted until a merits determination of appellate

ineffectiveness is made, which triggers the remedy of eliminating

default and allowing review of the omitted arguments on their merit.

(Memo. in Support of Jurisdiction, State Court Record, ECF No. 4, PageID 126). As can readily be

seen, neither Proposition of Law asserts squarely that the court of appeals erred in not finding

ineffective assistance of appellate counsel for omission of the discrepancy and trial tax assignment of

error. Instead, they speak in the abstract about how Ohio R. App. P. 26(B) works or should work.

Nevertheless, Simpson says his Memo in Support of Jurisdiction was enough to fairly present

the merits of his claim (Objections, ECF No. 27, PageID 443). That presentation seems opaque to the

undersigned. Why not just a proposition of law that says the court of appeals erred when it failed to

find ineffective assistance of appellate counsel in omitting this assignment of error? Certainly no less

an authority on Ohio law than Chief Justice O’Connor thought the ineffective assistance of appellate

counsel claim was not presented to her court on the merits, at least in Proposition of Law No. 1 over

which it asserted jurisdiction. State v. Simpson, 164 Ohio St. 3d at ¶ 23.

Ultimately the Supreme Court of Ohio did not decide the ineffective assistance of appellate

counsel claim on the merits. Certainly Simpson did not abandon the issue – the substance of the

claim was argued as at least a subordinate issue in the Supreme Court. Moreover, the Ohio

Supreme Court as a court did not decide to enforce a procedural bar against Simpson. Compare

Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986).

On reconsideration, the undersigned recommends Simpson should be given the benefit of

the doubt: Simpson’s argument on this issue in his Memorandum in Support of Jurisdiction should

be held to be sufficient presentation to avoid procedural default of that claim

MERITS OF THE INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CLAIM

Although the Ohio Supreme Court did not decide the ineffective assistance of appellate

counsel claim on the merits, the Twelfth District Court of Appeals did. It noted that Simpson

complained of the omission of three assignments of error on direct appeal including “(2) Simpson's

sentence of 51 years in prison compared to his codefendants who were sentenced to 5 and 8 years

in prison, respectively.” (Entry Denying Reopening, State Court Record, ECF No. 4, Ex. 11,

PageID 120). As to all three omitted assignments of error, the court, applying Strickland v.

Washington, 466 U.S. 668 (1984), concluded:

Counsel's failure to argue the issues appellant presents in his

application does not raise a genuine issue as to whether counsel was

ineffective and has not demonstrated that the results of his appeal

would have been different had his appellate counsel raised the three

suggested assignments of error he now asserts.

Id. at PageID 121.

As to the particular assignment of error at issue in this case, the court concluded:

Second, Simpson did not demonstrate that this court would have

reversed his sentence had appellate counsel challenged the trial

court's sentence on appeal. Instead, the trial court properly

considered the relevant sentencing guidelines and requirements and

there is no indication in the record that the sentence was a result of

vindictiveness by the trial court.

Id. at PageID 122.

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). 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.

Simpson contends the Twelfth District’s decision is not on the merits and therefore not

entitled to deference:

Simpson also contends that AEDPA does not bar relief. The Ohio

Supreme Court issued the last-reasoned decision, declined to

adjudicate the IAAC claim on the merits, and applied no procedural

bar. State v. Simpson, 164 Ohio St.3d 102, 2020-Ohio-6719. So de-

novo habeas review applies. Also, the Ohio Supreme Court clarified

that the application to reopen an appeal is a threshold inquiry—not

a merits adjudication. State v. Leyh, 166 Ohio St.3d 365, 2022-Ohio-

292. So if this court looked through the Ohio Supreme Court’s last-

reasoned decision, Ohio’s procedural rules, as interpreted by its

highest court, preclude a finding the Ohio Court of Appeals decided

the merits. Id. Finally, if this court rejects the Ohio Supreme Court’s

no-merits rule for denied applications and finds a merits

adjudication, the Ohio Court of Appeals’ decision was objectively

unreasonable. § 2254(d).

(Reply, ECF No. 17, PageID 403).

For the proposition that a federal habeas court must review “the last reasoned state court

decision,” Simpson relies on Barton v. Warden, SOCF, 786 F.3d 450 (6th Cir. 2015). The court in

Barton relied entirely on Ylst v. Nunemaker, 501 U.S. 797 (1991). In doing so, it made clear that

“last reasoned state court decision” refers to the last reasoned state court judgment on the issue

before the federal habeas court. For example, Barton refers the reader to Loza v. Mitchell, 766

F.3d 466, 473 (6th Cir.2014) (“We review the decision of the last state court to issue a reasoned

opinion on the issues raised in a habeas petition.”). 786 F.3d at 462-63.

In this case, while the Supreme Court’s decision is reasoned, that court did not decide the

merit of Simpson’s ineffective assistance of appellate counsel claim, so the fact that the several

opinions contain a good deal of “reasoning” but not on the merits does not mean there is no state

reasoned state court decision entitled to AEDPA deference. The Ohio Supreme Court did not

decide the merits of the ineffective assistance of appellate counsel claim no matter how much

reasoning it devoted to other questions.

The Twelfth District Court of Appeals did decide the ineffective assistance of appellate

counsel claim on the merits, giving two reasons for its decision: (1) The trial court properly

considered relevant sentencing guidelines and (2) the record does not show vindictiveness. (Entry

Denying Reopening, State Court Record, ECF No. 4, Ex. 11, PageID 122). This is sufficient

reasoning to merit AEDPA deference: the court of appeals decision is explained, even if the

reasoning is not extensive1.

Simpson objects that the Twelfth District decision is not on the merits of his ineffective

assistance of appellate counsel claim, but only on the threshold issue of whether his ineffective

assistance of appellate counsel claim is colorable (Reply, ECF No. 17, PageID 407-408). This

result is required, Simpson asserts, by State v. Leyh, 166 Ohio St. 3d 365 (2022). Id. In Leyh the

Ohio Supreme Court described the Appellate Rule 26(B) process as involving two steps: an initial

determination of whether an appellant had presented a colorable claim of ineffective assistance of

appellate counsel and then, once the appeal had been reopened, a determination of the merits of

that claim. The three-justice minority criticized the majority opinion for reading proof of prejudice

out of the first step. Neither opinion commented, at least directly, on Justice Fischer’s observation

1 The Judicial Conference of the United States has interpreted the requirement of the E-Government Act that all

reasoned decisions of federal judges are to be made available to the public on the internet for free to include any

decisions for which the judge gives a reason.

in Simpson that appellate courts had frequently and inappropriately conflated the two stages of

analysis. Nor do the opinions comment on the retroactive effect of Leyh.

Simpson argues that Leyh must be applied to this case because

It overrules the Sixth Circuit cases that hold that a denied application

to reopen is a merits adjudication under Ohio law for AEDPA

deference. Hudson, supra. Ohio courts, not the Sixth Circuit, are

definitive on Ohio law. This habeas court cannot overrule or ignore

Ohio’s interpretation of its own procedure.

(Reply, ECF No. 17, PageID 407-08). This overstates Leyh. Certainly the decisions of Ohio courts

are definitive on Ohio law. Railey v. Webb, 540 F.3d 393 (6th Cir. 2008), quoting Bradshaw v.

Richey, 546 U.S. 74, 76 (2005)(“We have repeatedly held that a state court’s interpretation of state

law, including one announced on direct appeal of the challenged conviction, binds a federal court

sitting in habeas corpus.”). But the majority opinion in Leyh did not purport to overrule even

Simpson. While Leyh is inconsistent with conflating the two stages of analysis under 26(B), is it

retroactive? While it may overturn “decades of well-reasoned precedent”2 for the future, it gives

no notice of possible impact on cases already decided, as was this one.

The Constitution does not require that state-court decisions be

applied retroactively, see Wainwright v. Stone, 414 U.S. 21, 23-24,

94 S. Ct. 190, 38 L. Ed. 2d 179 (1973); Bowen v. Foltz, 763 F.2d

191, 193-94 (6th Cir. 1985), and the retroactive application of new

state decisional law to a petitioner's conviction after she has

exhausted her appellate remedies is a state-law question, on which

the state courts have the last word. See Houston v. Dutton, 50 F.3d

381, 385 (6th Cir. 1995); see also Burleson v. Saffle, 278 F.3d 1136,

1140 (10th Cir. 2002); Martin v. Warden, Huntingdon State Corr.

Inst., 653 F.2d 799, 811 (3d Cir. 1981).

2 Justice Dewine’s description in dissent, 166 Ohio St. 3d at 381.

Volpe v. Trim, 708 F.3d 688, 700 (6th Cir. 2013). Because the Ohio courts have not spoken on this

issue, at least in any authority cited to this Court, we should follow our own precedent and treat

Ohio appellate decisions rejecting a 26(B) application at the first stage prior to Leyh as made on

the merits if that is consistent with their structure and language, as is the Twelfth District’s decision

here. Simpson’s burden, then, is to overcome AEDPA deference and show that Twelfth District’s

decision on the merits is contrary to or an objectively unreasonable application of U.S. Supreme

Court precedent.

In deciding a claim of ineffective assistance of appellate counsel, a habeas court is to apply

the same standard adopted in Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000); Burger v.

Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance of appellate counsel,

then, the court must assess the strength of the claim that counsel failed to raise. Henness v. Bagley,

644 F.3d 308 (6th Cir. 2011), citing Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008). Counsel's

failure to raise an issue on appeal amounts to ineffective assistance only if a reasonable probability

exists that inclusion of the issue would have changed the result of the appeal. Id., citing Wilson.

The attorney need not advance every argument, regardless of merit, urged by the appellant. Jones

v. Barnes, 463 U.S. 745, 751-752 (1983).

Simpson presented his ineffective assistance of appellate counsel claim to the Twelfth

District well within this framework. He showed how little his appellate attorney had done to

prosecute the appeal (26(B) Application, State Court Record, ECF No. 4, Ex. 9, PageID 100.). He

demonstrated the weakness of assignments of error actually raised by counsel. Id. at PageID 100-

01. He drew comparisons between the conduct of which he was convicted at trial and that to which

his co-defendants pleaded guilty and received sentences of five and eight years, compared with his

own of fifty-one years. Id. at PageID 101.3 He argued that his sentence violated both Ohio Revised

Code §§ 2929.11(B) and 2929.14(C)(4) because it was inconsistent with his co-defendants’

sentences for essentially the same conduct4 and the co-defendants’ sentences were proportionate

to their conduct (26(B) Application, State Court Record ECF No. 4, Ex. 9, PageID 104-05). The

Application offered no comparison of Simpson’s sentence with those imposed for similar conduct

in other cases.

As authority, Simpson relied on State v. Moore, 2014 Ohio 5135 (8th Dist. Nov. 120, 2014),

and State v. Rahab, 150 Ohio St. 3d 152 (2017). Neither decision shows that Simpson would

probably have prevailed if he had raised the omitted trial tax and disproportionate sentence

assignments.

In Moore the Eighth District held the trial court’s evidence was insufficient to support

consecutive sentences. The Moore court distinguished between consistency and proportionality

arguments:

¶ 1. Moore, Chaney, and two other codefendants (employees of the

restaurant who were said to have aided and abetted in the crime)

were charged with two counts of kidnapping with firearm

specifications and one count of aggravated robbery with firearm

specifications.

¶ 2 Chaney, who by all accounts, masterminded the robbery and

carried the gun, pleaded guilty and received concurrent nine-year

prison terms on each count, without any firearm specifications.

Moore, who was not armed and was described by one of the victim's

as having shown some compassion during the robbery, went to trial

and received a prison term of ten years on each count, to run

consecutively to each other and to a three-year firearm specification,

for a total of 33 years.

3 Co-defendant Mincy appealed his eight-year sentence but it was affirmed. Co-defendant Gibson did not appeal.

4 It is arguable whether the conduct of the co-defendants is comparable. Gibson began sexual conduct with the

victim but stopped when she demurred. Mincy and Simpson completed multiple acts of vaginal, anal, and oral

intercourse.

¶ 9 While Chaney could reasonably expect a reduced sentence for

the offenses because he pleaded guilty, the fact remains that his

actions in the commission of these offenses were more egregious

than Moore's actions, so the large disparity in the sentences raises

questions for appellate review.

Id. The court said this was a consistency argument and not a proportionality argument – an

argument that the punishment did not fit the crime. Simpson make no proportionality argument in

this sense, i.e., an argument that fifty-one years is disproportionate in a multiple gang rape

conviction. And by characterizing Chaney’s reduced sentence as a “reasonable expectation” for

pleading guilty, Moore undercuts Simpson’s argument that a heavier sentence on a defendant who

goes to trial is per se proof that a “trial tax” was imposed on him.

It is even more difficult to see how Rahab supports Simpson’s position. In that case the

defendant turned down a plea agreement which would have guaranteed him a three-year sentence.

After losing at trial, he was sentenced to six years imprisonment. As opposed to relying entirely

on an inference of a vindictive trial tax as Simpson does, Rahab pointed to extensive actual

comments by the sentencing judge that proved to the satisfaction of the undersigned that the

increased sentence was entirely because the defendant went to trial. Rahab v. Buchanan, 2018

WL 2764454 (S.D. Ohio June 8, 2018). However, the inference of vindictiveness was not

sufficient to persuade the Ohio Supreme Court per the cited decision or the District Court, which

rejected the recommendation to grant the writ. Rahab v. Warden, 2020 WL 532373 (S.D.Ohio,

Feb. 03, 2020).

Thus the authority cited by Simpson to the Twelfth District Court of Appeals does not

persuade the undersigned that Simpson received ineffective assistance of appellate counsel on his

trial tax claim. Although the Twelfth District’s opinion is summary, Simpson cited to that court

no authority which required a more fulsome discussion of the merits. When the state court is silent

as to its reasoning in denying a claim, “a habeas court must determine what arguments or theories

supported or ... could have supported the state court’s decision.” Walker v. McGuiggan, 656 F.3d

311, 318 (6th Cir. 2011), vacated on other grounds Howes v. Walker, 132 S. Ct. 2741, 183 L. Ed.

2d 32 (2012), quoting Harrington, 131 S. Ct. at 786. When the state court gives no explanation of

its decision, “a habeas petitioner may meet his or her burden ‘by showing there was no reasonable

basis for the state court to deny relief.’” Carter v. Mitchell, 693 F.3d 555, 562 (6th Cir. 2012),

quoting Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 784 (2011); Moore v. Mitchell, 708

F.3d 760, 776-77 (6th Cir. 2013). To establish a claim of ineffective assistance of appellate counsel,

a petitioner must show not only deficient performance, but also prejudice. While it may be true

that appellate counsel in this case prepared poorly and even true that the trial tax claim was stronger

than assignments of error actually made, the authority cited by Simpson does not show that raising

that assignment of error would probably have changed the result on appeal.

This Court must judge the ineffective assistance of appellate counsel claim in the context

in which it was made. The burden is on Simpson to show that it was ineffective assistance of

appellate counsel to fail to raise as issues of Ohio law5 that the 51-year sentence was

disproportionate to the harm caused the victim by multiple rapes in which Simpson was the

principal offender or complicit or that the much-longer sentence was imposed vindictively as a

trial tax.

5 Imposing additional punishment for exercising the right to trial also states a federal constitutional issue. See North

Carolina v. Pearce, 395 U.S. 711 (1969), and Alabama v. Smith, 490 U.S. 794 (1989). But Simpson did not assert

an omitted federal constitutional issue in his 26(B) Application.

Therefore this Court should defer to the decision of the Twelfth District and dismiss the

Petition.

January 12, 2023.

NOTICE REGARDING OBJECTIONS

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

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

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

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

s/ Michael R. Merz

United States Magistrate Judge