The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
TIMOTHY SIMMS,
Petitioner, : Case No. 2:22-cv-474
- vs - District Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz
WARDEN, Grafton Correctional
Institution,
:
Respondent.
REPORT AND RECOMMENDATION
This habeas corpus case, brought pro se by Petitioner Timothy Simms pursuant to 28
U.S.C. § 2254, is before the Court for decision on the merits on the Petition (ECF No. 4), the State
Court Record (ECF No. 15), the Respondent’s Return of Writ (ECF No. 16), and Petitioner’s Reply
(ECF No. 17). The case has recently been transferred to the undersigned to help balance the
Magistrate Judge workload in the District.
Litigation History
On July 15, 2009, a Franklin County Grand Jury indicted Simms on six counts of rape (Counts
1-6), six counts of sexual battery (Counts 7-12), three counts of gross sexual imposition (Counts 13-
15), one count of tampering with evidence (Count 16), and one count of disseminating matter harmful
to juveniles (Count 17)(Indictment, State Court Record, ECF No. 15, Ex. 1). After a jury trial, Simms
was found guilty of all the counts of rape, sexual battery, and gross sexual imposition. (Exhibit 4,
Verdict Forms). He was sentenced to an aggregate sentence of life without parole.
On direct appeal Simms’ conviction was affirmed, but the case was remanded for re-
sentencing. State v. Simms, 2012-Ohio-2321 (Ohio App. 10th Dist. May 12, 2012). The Ohio
Supreme Court declined jurisdiction over a further appeal. State v. Simms, 132 Ohio St. 3d 1534
(2012).
On September 23, 2011, while the appeal was still pending, Simms filed a petition for post-
conviction relief under Ohio Revised Code § 2953.21. The trial court denied the Petition on
November 10, 2011 (Decision and Entry, State Court Record, ECF No. 15, Ex. 18).
After resentencing, Simms appealed to the Tenth District which again remanded for
resentencing. No further appeal resulted from this re-sentencing, but Simms filed a motion for
new trial on November 20, 2018, the gravamen of which was that the victim recanted her trial
testimony. Id. at Ex. 27. In a published decision, the Franklin County Common Pleas Court denied
the motion. State v. Simms, 2020 Ohio Misc. 4826 (Mar. 12, 2020). The Tenth District Court of
Appeals affirmed. State v. T.S., 2021-Ohio-2203 (Ohio App. 10th Dist. Jun. 29, 2021), and the
exercise of further appellate jurisdiction was declined. 164 Ohio St. 3d 1449 (2021).
Simms filed his Petition for habeas corpus on June 16, 2022, by depositing it in the prison
mailing system that date. He pleads the following grounds for relief:
Ground One: Custodial interrogation, Miranda rights violation
interrogation was coersive (sic) false confession given.
Supporting Facts: Sue Simms my wife was ordered out of the
house and told to stay there until the police was done talking to me.
The police ordered her out. My brother and sister were detained in
the middle of the street off the property. There were police cars at
either end of my street, and cars in my driveway blocking my vehicle
and my wife’s vehicle. Two officers in my house with guns, at the
end of the interrogation, one officer said to the other “check and
make sure that she is still in the back yard.” My miranda Rights were
never read to me.
While interrogating Simms, the officers did ask three times weather
[sic] or not Simms had rapped [sic] his daughter. I said no twice.
The third time that they asked me. I told them they had to be more
specific. The officers got angry and told me that they were not
going to tell me what Elizabeth had said, but they did anyway. They
used such terminology as, Just tell us the truth and we will know if
this is just a misunderstanding or not. Just tell us the truth and
we can help you. Just tell us the truth or you can call your daughter
a liar. Just tell us the truth and we will go easy on you. This
along with my mental state of mind at the time netted a false
confession.
During the trial Officer Mcguire was asked about his training as a
special victims unit officer. He was asked if he was a false
confession expert and he said that he was. He was then asked if he
could tell weather [sic] or not my confession was false. He stated at
that time he could not tell.
Tim Pearce appeallate [sic] attorney from Franklin County public
defenders wrote in a motion for a new trial that he found my
interrogation to be custodial and very persuasive.
Ground Two: Ineffective assistance of trial counsel
Supporting Facts: Did not motion to suppress interrogation tape,
Did not motion for alibi, did not place the defendant on the witness
stand, did not show any evidence during the trial to allow the
defendant to testify on his own behalf. Did not put any defense
witnesses on the stand, except for the defendants [sic] wife who only
testified for about fifteen minutes. She stated her name and relationship
to the defendant, were [sic] she was working, her hours, she was then
asked how often did we get to see Elizabeth, half way through her
statement prosecution objected and defense attorney rested his ca[se.]
Ground Three: Prosecutor misconduct
Supporting Facts: The victim in this case was 10 years old at the
time of the trial. Chris brown did take her into his office without an
attorney or a guardian with her and instructed her as to what to say
during the trial. Sheryl Prichard contacted Shelley John and
instructed her to withhold evidence from an investigator. (sic) She
also contacted McVay elementary where Elizabeth attended school
and instructed them to withhold Elizabeth’s attendance, school
records from an investigator. She did this twice to the school, the
second time she said that the school was to ignore the subpoena.
Ground Four: Judicial misconduct; prejudice and biases.
Supporting Facts: Judge threw a temper tantrum on a public
elevator at the start of the trial and also in the middle of the trial.
Telling people what he was going to do to me. inoppreate [sic] jury
instruction, can’t seem to pass sentence as it was written. Chastised
the defendants (sic) family not just once but several times, whe[n]
the victim chose to recant her story he threatened her with perjury
charges for what she said as a ten year old little girl, after prosecutor
told her what to say. Tampered with transcripts, Testimony has been
altered. Falsifyed [sic] legal documents, Falsely accused the
defendants mother and wife of wrong doing, Personal threats were
made to the defendant himself.
(Petition, ECF No. 4).
Analysis
Statute of Limitations
In the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the "AEDPA"), Congress enacted a one-year statute of limitations for habeas corpus
cases. That statute is codified at 28 U.S.C. § 2244(d) and 28 U.S.C. § 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of —
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for State post-
conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.
In the Return of Writ, Respondent argues that Petitioner’s Grounds One, Two, Three, and
any portion of Ground Four relating to events at trial are barred by this statute of limitations
(Return, ECF No. 16, PageID 1461). Respondent calculates that the conviction became final on
direct review on May 30, 2014, which was the last day on which Simms could have appealed from
the second re-sentencing. When he did not appeal by that date, the statute began to run and expired
one year later on May 30, 2015. Simms did not file his new trial motion until November 20, 2018,
more than three years after the statute had run.
In his Reply, Simms does not respond at all to the statute of limitations defense and it is
well taken. Any claims arising out of the trial must be dismissed with prejudice as barred by the
statute of limitations. That plainly bars Grounds One, Two, and Three, and those portions of
Ground Four which are clearly pleaded as having happened at the time of trial, to wit, (1) the
judge’s “tantrum” before and during trial; (2) inappropriate jury instructions.
Petitioner provides no time references for the other claims in Ground Four. Challenged by
the standard form of habeas petition to state why his Petition is timely, he writes:
I have filed a number of appeals, a motion for new trial, a recantment
[sic] from the witness, Tim Pierce's investigation and waiting time
for him to get done with what he had to do and court decisions all
took time.
(Petition, ECF No. 4, PageID 36). This also provides no timeline for occurrence of the remaining
Ground Four claims.
Federal courts have an obligation to construe pro se pleading liberally. Haines v. Kerner,
404 U.S. 519 (1972); Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). The Magistrate Judge
will therefore construe Petitioner’s remaining Ground Four claims as arising from the new trial
proceedings which concluded March 12, 2020. Any judicial misconduct rising to the level of a
constitutional violation would have occurred by that date. Therefore, as to the statute of
limitations, Simms is entitled to March 12, 2020, as the start date under 28 U.S.C. § 2444(d)(1)(4).
Under § 2244(d)(2) the time is tolled until appeals from denial of new trial were concluded. That
date is June 8, 2021, when the Supreme Court of Ohio declined to review the new trial decision.
The statute would thus have expired June 8, 2022. Because Simms did not file until June 16, 2022,
all of his remaining claims in Ground Four are also barred by the statute of limitations.
Conclusion
Based on the foregoing analysis, all claims made in the Petition are barred by the statute of
limitations and should be dismissed with prejudice. Because the limitations defense is dispositive
of all claims, it is unnecessary to provide analysis of Respondent’s other defenses, including
particularly procedural default based on res judicata, or of the merits of Simms’ claims. It is
therefore respectfully recommended 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.
June 20, 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. 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. #
s/ Michael R. Merz
United States Magistrate Judge