Petition for Writ of Certiorari — Randy A. Thomas, Petitioner v. Ohio

No. 19IN THE SUPREME COURT OF THE UNITED STATES

RANDY A. THOMAS,

Petitioner,

v.

STATE OF OHIO,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF OHIO

PETITION FOR WRIT OF CERTIORARI

John P. Parker (0041243)*

Attorney at Law

988 E. 185th Street

Cleveland, Ohio 44119

216-881-0900

advocateparker@gmail.com

*Counsel of Record

Petitioner Randy A. Thomas

QUESTIONS PRESENTED

Ohio places the burden of proof and persuasion in a self defense case on the person

asserting self defense. A person’s state of mind is relevant in a self defense case. A life long

history of developmental delay issues, very low IQ scores and Social Security disability records

are relevant to the state of mind issue.

I.

Is counsel ineffective under the Sixth and Fourteenth Amendments of the federal

Constitution when no investigation is conducted pre-trial concerning the client’s

developmental delay issues, very low IQ scores and history of Social Security benefits

and post conviction investigation reveals such relevant information as to the client’s state

of mind in a self defense case?

II.

Is counsel ineffective under the Sixth and Fourteenth Amendments of the federal

Constitution when one counsel does not know what the average IQ score is and lead

counsel testifies it is between 70-80 and counsel does not consult a mental health expert

when the affirmative defense of self defense is presented and the client testifies with a

recent IQ score in the low 50's?

2

List of Related Cases

1.

State Post Conviction II

State v. Thomas, 2019 Ohio 4247, Ohio Court of Appeals, case number 29112, 10-16-19

State v. Thomas, Ohio Supreme Court case number 2019-1648, 2-26-20

2.

State Post Conviction I

State v. Thomas, 2016 Ohio 5507, Ohio Court of Appeals, case number 27698, 8-24-16

State v. Thomas, Ohio Supreme Court case number 2016-1480, 4-19-17

Thomas v. Ohio, U.S. Supreme Court case number 17-5117, cert denied 10-2-17

3.

Direct appeal

State v. Thomas, 2015 Ohio 2935, Ohio Court of Appeals, case number 27266, 7-22-15

State v. Thomas, Ohio Supreme Court case number 2015-1482, 12-30-15

Thomas v. Ohio, U.S. Supreme Court case number 15-1214, cert denied 5-16-16

3

TABLE OF CONTENTS

QUESTIONS PRESENTED............................................................................................................2

RELATED CASES..........................................................................................................................3

TABLE OF CONTENTS.................................................................................................................4

APPENDIX......................................................................................................................................5

TABLE OF AUTHORITIES...........................................................................................................5

PETITION FOR A WRIT OF CERTIORARI.................................................................................6

OPINION BELOW..........................................................................................................................6

JURISDICTIONAL STATEMENT.................................................................................................6

CONSTITUTIONAL AND STATUTORY PROVISIONS............................................................6

SUMMARY OF ARGUMENT.......................................................................................................8

STATEMENT OF THE CASE.......................................................................................................9

PROCEEDINGS BELOW.............................................................................................................11

REASONS FOR GRANTING THE WRIT...................................................................................11

I.

Is counsel ineffective under the Sixth and Fourteenth Amendments of the federal

Constitution when no investigation is conducted pre-trial concerning the client’s

developmental delay issues, very low IQ scores and history of Social Security benefits

and post conviction investigation reveals such relevant information as to the client’s state

of mind in a self defense case?..........................................................................................11

II.

Is counsel ineffective under the Sixth and Fourteenth Amendments of the federal

Constitution when one counsel does not know what the average IQ score is and lead

counsel testifies it is between 70-80 and counsel does not consult a mental health expert

when the affirmative defense of self defense is presented and the client testifies with a

recent IQ score in the low 50's?.........................................................................................20

CONCLUSION..............................................................................................................................21

PROOF OF SERVICE.................................................................................................................. 22

4

APPENDIX

APPENDIX A, Supreme Court of Ohio denial of jurisdiction, Case number 2019-1648, 2-26-20

APPENDIX B, Ninth District Ohio Court of Appeals Opinion, Case number 29112, 10-16-19

TABLE OF AUTHORITIES

Page

Ake v. Oklahoma, 470 U.S. 68 (1985)..........................................................................................20

Atkins v. Virginia, 536 U.S. 302 (2002)........................................................................................15

Clinkscale v. Carter, 375 F.3d 430 (6th Cir. 2004).........................................................................19

Commonwealth v. Williams, 61 A.3d 979 (Pa. 2013)...................................................................17

Crane v. Kentucky, 476 U.S. 683 (1986).......................................................................................16

Hall v. Florida, 134 S. Ct. 1986 (2014).........................................................................................17

Hughes v. Epps, 694 F. Supp. 2d 533 (N.D. Miss. 2010)..............................................................17

State v. Koss, 49 Ohio St.3d 213 (1990)........................................................................................14

State v. Mason, 82 Ohio St.3d 144, 1998 Ohio 370......................................................................20

State v. Thomas, 13 Ohio App.3d 211 (1983)...............................................................................12

Strickland v. Washington, 466 U.S. 668 (1984).....................................................................passim

Towns v. Smith, 395 F.3d 251 (6th Cir. 2005)...............................................................................19

United States v. Cronic, 466 U.S. 648 (1984)...............................................................................11

United States v. Smith, 790 F. Supp. 2d 482 (E.D. La. 2011).......................................................17

Weeden v. Johnson, 854 F.3d 1063 (9th Cir. 2017).......................................................................19

Williams v. Mitchell, 792 F.3d 606 (6th Cir. 2015).......................................................................16

5

PETITION FOR WRIT OF CERTIORARI

Petitioner Randy A. Thomas respectfully petitions this Court for a Writ of Certiorari to

review the judgment of the Supreme Court of Ohio.

OPINION BELOW

The order declining jurisdiction by the Supreme Court of Ohio is State v. Thomas, Case

No. 2019-1648 and is reproduced at Pet. App. A. The Ohio Ninth District Court of Appeals,

Summit County, opinion denying relief, CA 29112, 2019 Ohio 4247 is reproduced at Pet. App.

B.

JURISDICTIONAL STATEMENT

The judgment of the Supreme Court of Ohio was entered February 26, 2020 and this

Court’s jurisdiction is invoked pursuant to 28 U.S.C. 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the state and district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

6

Fourteenth Amendment: Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state wherein they reside. No state shall make or enforce

any law which shall abridge the privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws.

Ohio Revised Code 2901.05(A)

Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable

doubt, and the burden of proof for all elements of the offense is upon the prosecution. The

burden of going forward with the evidence of an affirmative defense, and the burden of proof, by

a preponderance of the evidence, for an affirmative defense, is upon the accused.

7

SUMMARY OF ARGUMENT

This Court should grant certiorari to address whether the effective assistance of counsel

requires defense counsel to investigate and present evidence of a very low IQ, developmental

disabilities since birth and Social Security disability in a case of self defense where the

defendant’s “state of mind” is critical and the burden of proof is placed by law on the person

asserting self defense.

Ohio Revised Code 2901.05(A) requires a defendant to bear the burden of proof when

raising a claim of self defense.

An evidentiary hearing was conducted in state post conviction where both trial defense

attorneys testified. One lawyer did not know the average IQ; the lead lawyer testified an average

IQ score was between 70-80. The average IQ score is 100.

No investigation into Thomas’ state of mind was conducted before trial. The undisputed

evidence in post conviction revealed Thomas had developmental disabilities since birth, had a

life long record of very low IQ scores including one two years before this case when he achieved

an IQ score in the low 50's and was receiving Social Security disability benefits due to his mental

health disability.

Thomas was the only eyewitness to the shooting. He testified he acted in self defense.

Thomas then fled the area. The jury had to determine his credibility. Moreover, under Ohio law,

the jury had to place themselves in his shoes with his strengths and weaknesses. But the jury did

not know about his low IQ and mental health issues because his lawyers did not investigate his

“state of mind” and did not consult a mental health expert.

8

STATEMENT OF THE CASE

Randy Thomas was 21 years old at the time of the trial where he testified that he shot a

man in self defense in Akron, Ohio. Mr. Thomas knew the man as a gang member or associate.

Thomas had seen the man in gang videos, wear gang colors and had heard him brag about his

exploits. One of the gang’s videos was filmed on Seventh Avenue near the where the shooting

took place. One video was called “Homicide.” The gang was known to rob and shoot people and

also kill for money. Thomas was in fear of the gang before and after seeing their videos where

they bragged about their criminal exploits. He had even seen two gang members rob a man near

the scene of the shooting a few months earlier. The man in this case was also a family member by

marriage and Thomas knew him to be violent.

On the day in question, a Saturday around noon in April 2013, Thomas stopped by his

grandparents home on Seventh Avenue. He regularly stopped to see his elderly grandparents who

had raised him in his early years; he saw a man selling drugs in front of his grandparents home

and did not like it. Thomas did not have a gun. The man challenged Thomas to a fist fight.

The two men drove around the corner to Eighth Avenue for the fist fight. As Thomas got

out of his van, the man ran towards him. Thomas threw a punch but missed. The man pulled out

a gun, unexpectedly, but Thomas was able to knock it out of his hand and pick it up off the

ground. Thomas had just picked up the gun when the man charged back at him and Thomas shot

him in self defense fearing for his life. No contrary evidence was presented. Thomas fled the

scene and was later arrested, tried by a jury and convicted of Murder. The direct appeal was

denied. A timely post conviction petition was filed in state court.

9

After a post conviction evidentiary hearing held pursuant to an order of the Ohio Ninth

District Court of Appeals, it is clear that the lawyers for Thomas failed to investigate Thomas’

personal background and failed to obtained records that he had a very low IQ, was

developmentally disabled and on Social Security disability.

The lead attorney testified at the post conviction hearing that he thought the average IQ

was 70-80; the other attorney testified he did not know the average IQ. No mental health experts

were consulted by counsel. The average IQ is 100.

The post conviction trial court denied a new trial. On appeal, Thomas was denied a new

trial in a 2-1 decision by the Ohio Court of Appeals. The Ohio Supreme Court declined

jurisdiction in a discretionary appeal.

The evidence presented at the post conviction hearing concerning Thomas’ state of mind

as reflected in the records of his developmental problems and low IQ is not “another and better

strategy” counsel could have pursued but an essential component of self defense. (See C.A.

Opinion at para. 12)

Low intelligence scores are not “bologna” as lead counsel testified at the post conviction

hearing and counsel has a duty to understand low intelligence, how it is measured and how it

could impact the affirmative defense of self defense when a component is one’s state of mind.

Trial counsel failed to investigate the state of mind of Mr. Thomas. In Ohio, a jury must

place itself in the shoes of the person asserting self defense and must understand the person’s

state of mind. The jury had none of the information presented in the post conviction hearing

about the state of mind of Mr. Thomas. The jury was deprived of information necessary to

evaluate Mr. Thomas’ testimony he provided in self defense and his actions afterwards.

10

PROCEEDINGS BELOW

Thomas had a jury trial on the single charge of Aggravated Murder with a firearm. He

testified that he agreed to a fist fight but acted in self defense once the other man produced a

firearm arm unexpectedly. The jury found Thomas not guilty of Aggravated Murder (prior

calculation and design) but guilty of Murder (purposeful killing) and rejected his defense of self

defense. The trial court imposed the only sentence available which was a life sentence with 18

years before parole eligibility.

A timely post conviction Petition was filed in state court. The Ohio Ninth District Court

of Appeals ordered an evidentiary hearing on the issues present here. The trial court conducted an

evidentiary hearing and denied relief. The Ohio Ninth District Court of Appeals affirmed in a 2-1

decision. The Supreme Court of Ohio declined jurisdiction as involving no substantial

constitutional question on February 26, 2020. This Petition follows:

REASONS FOR GRANTING THE WRIT

I.

Mr. Thomas received the ineffective assistance of trial counsel under the Sixth and

Fourteenth Amendments of the federal Constitution and Art. I, Section 10 of the Ohio

Constitution. Strickland v. Washington, 466 U.S. 668 (1984); United States v. Cronic, 466 U.S.

648 (1984).

Mr. Thomas presented the affirmative defense of self-defense and testified on his own

behalf. The trial court instructed the jury on self defense.

11

Ohio has adopted a subjective test in determining whether a particular defendant properly

acted in self-defense. The defendant’s state of mind is crucial to this defense. State v. Koss, 49

Ohio St.3d 213 (1990).

Defense counsel in this case failed to investigate and to present available evidence of the

defendant’s state of mind. Defense counsel’s testimony at the post conviction hearing concerning

a failure to investigate and present records stipulated to by the State is crystal clear on this point.

(PC TR 144-146, 154)

The determination of guilt is personal and must be measured by that individual’s

equipment mentally and physically. Evidence of defendant’s state of mind is relevant. State v.

Thomas, 13 Ohio App.3d 211 (1983)(Summit County). (See PC TR 121-124.)

Lead counsel’s testimony at the post conviction hearing that what was going on in

Thomas’ mind is not a concern reflects a misunderstanding of the law and is prejudicial and

deficient performance. (PC TR 204)

The evidence that was available and should have been presented included defendant’s

lifelong low IQ scores consistent with borderline mental retardation or intellectual disability.

Evidence in the school records and Social Security disability records also indicated treatment for

speech and language impairments. (PC Exhibit 1, Akron School Records. PC Stipulated Ex. A.)

The Social Security Records establish beyond question a lifelong struggle with low IQ,

seizures since the day of his birth and developmental delay issues.

Records and evidence from Dr. Webb, a psychologist at the Summit County Juvenile

Court, were available but not presented concerning Thomas’ mental health. (See SPPI Case

Report PC Exhibit 2.)

12

Thomas suffered from a depressive disorder, his mother used drugs and alcohol during

her pregnancy with him, and he suffered from speech and language development issues. (See PC

Exhibit 2.)

Many of his psychological problems may be linked to childhood trauma. (See PC Ex. 2)

Records from Greenleaf Family Center, Akron, Ohio were available but not presented which

would show a “decreased impulse control” but no evidence of “homicidality” (page 2 of 6) and

no other safety concerns. The records further show evidence of successful completion of an

Anger Management Program (6-29-09) and behavior within “normal limits.” The Greenleaf

records are also mentioned in the Dr. Webb’s report from Juvenile Court.

Thomas’ sense of self doubt was relevant to his perception of an honest belief that he was

in imminent danger from the victim who challenged him to a fight and unexpectedly produced a

firearm.

The jury had a duty to place itself in Thomas’ position with his characteristics, knowledge

or lack of knowledge, and under the same circumstances and conditions that surrounded him.

All of the records not presented at trial but presented at the post conviction hearing

support Thomas’ reasonable and honest belief that he was about to be killed or receive great

bodily harm.

Yet defense counsel never investigated or presented the evidence available in the

stipulated exhibits which included life long low IQ scores, developmental delay issues and the

need for further physical and psychological testing. Just two years before the shooting, Social

Security Records indicate Thomas had an IQ score in the low 50's.

13

Counsel could and should have called as a witness Dr. Webb from Juvenile Court to

testify consistent with his records as well as to explain the low IQ. A representative from Akron

Public schools could also have testified concerning the school records, the low IQ and language

and speech issues. The Social Security records indicate that Dr. Magleby could have testified

concerning his testing and finding of a 53 IQ just two years before this shooting.

Expert testimony is admissible in the search for the truth in a self-defense case. State v.

Koss, 49 Ohio St.3d 213 (1990).

The evidence submitted at the post conviction hearing concerning IQ scores indicate that

Thomas was in the very bottom of the population concerning intelligence. He was far below

average. Dr. Webb stated in his report and testimony that Thomas was a complex individual and

one could not detect his problems by simply talking to him. Thus, neither counsel nor the jury

could understand Thomas’ limitations by just listening or talking to him.

The jury was deprived of this information which is relevant to his conduct and state of

mind and how he perceived the threat from the victim.

Dr. Webb’s report and testimony is critical because he could explain to the jury the

significance of the information contained in juvenile records and the impact of low IQ on the

functioning of Thomas. Combined with the records from Greenleaf Family Center, which are

cross referenced in Dr. Webb’s report, the jury did not have a complete picture of Thomas’ state

of mind or his individual characteristics. On top of these records are the Social Security Records.

Lead counsel’s belief that none of these records were relevant or important in a self

defense case proves the deficient performance prong of Strickland.

14

Self defense in Ohio has a subjective aspect to it yet the jury was deprived of information

and evidence unique to Thomas.

The Greenleaf records are critical too in that they show “decreased impulse control” but

no evidence of “homicidality.” or other safety concerns. The self doubt discussed in the records is

relevant to Thomas’ perception of an honest belief that he was in imminent danger from the

victim and the jury had a duty to place itself in Thomas’ position with his characteristics,

knowledge or lack of knowledge and under the same circumstances and conditions that

surrounded him.

Unfortunately, counsel did not present available evidence concerning the unique personal

history of Thomas that would allow the jury to do its job. Dr. Webb from Juvenile Court,

representatives from the Akron Public Schools, Greenleaf Family Center and the Social Security

doctor should have been called to testify concerning records of Thomas, his low IQ, language and

speech issues and other relevant facts (i.e. decreased impulse control, no homicidality, behavior

within normal limits etc) contained in various records and their impact on Thomas’ ability to

function.

The U.S. Supreme Court has also held that those with low intelligence are “poor

witnesses” which was critical to the Court’s decision that those with intellectual disabilities

would be excluded from execution under the 8th Amendment. See Atkins v.Viginia, 536 U.S. 302

at 321 (2002).

While this is not a death penalty case, it is required under Ohio law for the jury to put

itself in the defendant’s place in a self defense case.

15

If the jury believed Thomas was not a credible or good witness, it had to take into account

his very low level of intellectual functioning; it further had to take into account this low level of

functioning in his decision making. The impairments involving low intelligence include the

areas of communication, the ability to learn from experience and to engage in logical reasoning.

See Atkins supra.

In the context of the subjective component of self defense in Ohio, the jury must know

whatever impairments a defendant possesses in regard to his state of mind. In this case, trial

counsel did not understand the law and did not investigate the facts of Thomas’ background in

order to assist him in his complete defense of self defense. See Crane v. Kentucky, 476 U.S. 683

(1986)(Sixth and Fourteenth Amendments).

If the Court decides Strickland applies rather than Cronic, then Randy Thomas has met

his burden of showing that there is a “reasonable probability” that counsel’s deficient

performance prejudiced him.

Without question, Randy Thomas has suffered, through no fault of his own, from low

intelligence, developmental delays and speech problems from his earliest days.

Courts have recognized that intellectual capabilities remain stable throughout life and that

early in life evidence of intellectual difficulties are directly relevant to present day intellectual

determinations. See Williams v. Mitchell, 792 F.3d 606 (6th Cir. 2015) at footnote 4 and

authorities cited therein. (See PC TR 239, Dr. Webb’s testimony that IQ deficits are chronic)

Randy Thomas was the only witness who testified as to what happened during the

incident in question; his credibility was obviously critical; as well as his state of mind. See Koss,

supra.

16

Yet the jury was deprived of an abundant amount of information concerning Randy’s

state of mind and very low level of intelligence. The State even attacked Randy’s manner of

speech and argued to the jury that there was no evidence he was slow such as school records or

anything like that. (Trial TR 1298)(PC Hearing TR 17-18)

There were an abundance of records but defense counsel never looked for them; during

testimony on May 9, 2018 at the post conviction hearing it was clear that neither counsel

obtained a signed release so that records could be gathered, never discussed such records with

Thomas’ guardians and family members (his grandmother Gloria and his sister Tamika) and even

during the hearing trial counsel did not understand the importance of the records available in the

context of a self defense case. (PC TR 37-38, 61-62; 189; 204) Prejudice here is overwhelming.

As discussed in Hall v. Florida, 134 S. Ct. 1986 (2014), IQ test scores can not be viewed

in isolation and interpreting numerous test scores is a complex task. However, we know Randy

had a lifetime of very low intelligence test scores. The IQ scores are not “bologna” as lead

counsel testified at the post conviction hearing. (PC TR 189)

The following cases illustrate that an individual test score should not be given artificial

weight especially by a non-mental health expert: State ex re Lyons v. Lombardi, 303 S.W. 3d 523

(Mo. 2010)(range of scores 61-84); Hughes v. Epps, 694 F. Supp 2d 533 (N.D. Miss.

2010)(scores from 62-81); United States v. Smith, 790 F. Supp 2d 482 (E.D. La. 2011)(scores of

67 and 93); Commonwealth v. Williams, 61 A. 3d 979 (Pa. 2013)(scores of 59-81).

It is not necessary to prove prejudice if Cronic is used instead of Strickland. Defense

counsel were so lacking in their investigation and knowledge of basic IQ scores and what is an

average score (and did not seek expert assistance) that counsel was essentially absent given the

17

subjective element of Ohio’s self defense and the need for the defense to prove it.

The low level of intelligence also goes to the jury instructions on flight. (Trial TR 124647) The jury received the customary instruction on flight being evidence of consciousness of

guilt unless otherwise explained. The other explanation that the jury never had concerned

Thomas’ low intelligence and poor decision making based on low intelligence rather than

consciousness of guilt.

With respect to the duty to retreat instructions (Trial TR 1240-1241), there is a subjective

element there too; in particular, the jury in this case had a jury question which asked what should

the jury do if they believed Thomas was 10% at fault. If the jury had known about his low level

of intelligence, then it is reasonably probable that they would have believed he was 0 % at fault.

Moreover, the subjective element goes to whether he had a reasonable and honest belief

that he had to use deadly force. Finally, Thomas was allowed to use deadly force and had no duty

to retreat even if he was mistaken to the danger. (Trial TR 1241, jury instructions) Thomas’ state

of mind, and low level of intelligence, is relevant to all of the above yet the jury was deprived of

the information because defense counsel did not investigate.

It is important to keep in mind that even those diagnosed with “Mild Intellectual

Disability” appear similar to unaffected individuals and often blend into the general population.

(Approximately 85% of those with I.D.) Many achieve academic skills at the sixth grade level or

higher and some graduate from high school. As adults, many individuals hold jobs, marry and

raise families yet at times may appear slow or need extra help negotiating life’s problems and

tasks. Comprehensive Textbook of Psychiatry, Kaplan & Sadock, Tenth Edition (2017), page

3496.

18

In this case, CPI Diagnostics recommended just two years before this incident that further

testing be done on Thomas to rule in or rule out intellectual disability. CPI noted that Thomas’

ability to manage money and benefits was “markedly impaired.” (Def. Ex. A, page 027) The trial

defense lawyers never sought these CPI records or any other background records on Randy

Thomas; and they did not consult a mental health expert.

Counsel can not justify a failure to investigate simply by invoking “strategy.” Under

Strickland, counsel’s investigation must determine strategy, not the other way around.

Counsel had a duty to investigate the evidence of the defendant’s state of mind in order

to form a reasonable trial strategy. See Koss, supra. Counsel here did have such a duty since self

defense is an affirmative defense, the defense had the burden of proof and the defendant’s state

of mind is critical. Koss. See also, Weeden v. Johnson, 854 F.3d 1063, 1070-71 (9th Cir.

2017)(Duty to investigate before forming trial strategy; authorities cited therein); see Towns v

Smith, 395 F.3d 251, 258 (6th Cir. 2005)(Counsel’s duty includes the obligation to investigate all

witnesses who may have information concerning his or her client’s guilt or innocence);

Clinkscale v. Carter, 375 F.3d 430, 443 (6th Cir. 2004)(Collecting cases where counsel was

ineffective for failing to investigate potential alibi witnesses).

19

II.

Counsel were ineffective under Strickland and Ohio Revised Code section 2929.024 in

failing to secure the services of a mental health expert to review and testify to the jury the

information contained in the stipulated post conviction exhibits and its impact on petitioner’s

state of mind and the subjective elements of self defense under Ohio law. See State v. Koss and

State v. Thomas, supra.

Due to Thomas’ indigent status (PC TR 68) and his indictment for Aggravated Murder,

he was entitled to experts who could assist his defense under O.R.C. 2929.024, Ake v.

Oklahoma, 470 U.S. 68 (1985) and State v. Mason, 82 Ohio St.3d 144, 1998 Ohio 370.

Thomas’ state of mind and the subjective component of self defense when combined with

evidence of Thomas’ low IQ and mental health history, as outlined by the stipulated post

conviction evidence, proves the prejudice suffered by Thomas. The Social Security records are a

treasure trove of critical information and documents; Dr. Magleby, who administered the testing

and wrote the report of CPI Diagnostics could and should have testified; Dr. Webb’s testimony is

critical as well.

Thomas was denied a complete defense under Crane v. Kentucky, supra, by counsel’s

failure to consult and present the testimony of a mental health expert and present the evidence

available concerning Thomas’ mental health history as it relates to self-defense.

Prejudice is evidenced by Thomas’ low IQ and developmental difficulties detailed in the

post conviction exhibits discussed above. There is a reasonable probability of a different outcome

if the jury had known the above information concerning Thomas’ state of mind presented through

a mental health expert in the context of self defense. Strickland.

20

Conclusion

For the foregoing reasons and pursuant to Sup Ct. R. 10(c), the petition for writ of

certiorai should be granted.

Respectfully submitted,

/s/John P. Parker *

Counsel of Record

988 E. 185th Street

Cleveland, OH 44119

216-881-0900

21

No. 19IN THE SUPREME COURT OF THE UNITED STATES

RANDY A. THOMAS,

Petitioner,

v.

STATE OF OHIO,

Respondent.

PROOF OF SERVICE

PETITION FOR WRIT OF CERTIORARI

I hereby certify that a copy of the foregoing Petition for Writ of Certiorari was served by

regular U.S. Mail postage prepaid to Jacquenette Corgan, Ass’t. Summit County Prosecutor,

Summit County Safety Bldg., 53 University Avenue, 6th Floor, Akron, Ohio 44308 this 20th

day of July 2020.

/s/John P. Parker

Counsel for Petitioner

22