Petition for Writ of Certiorari — Willie Speed, Petitioner v. Douglas Fender, Warden

Supreme Court briefNov 7, 2022

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6181

CASE NO.

filed

NOV 0 7 2022

IN THE UNITED STATES SUPREME COURT|

WILLIE SPEED

Petitioner-Appellant,

vs.

DOUGLAS FENDER, WARDEN

Respondent-Appellee.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CASE NO. 21-3931

WILLIE SPEED #A453-732

Lake Erie Correctional Institution

501 Thompson Road

P.O. Box 8000

Conneaut, OH 44030

PETITIONER-APPELLANT, PRO SE

QUESTIONS PRESENTED FOR REVIEW

1. WHETHER AN ATTORNEY’S CONFLICT OF INTEREST DEPRIVED

PETITIONER OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH

AMENDMENTS TO EFFECTIVE ASSISTANCE AND DUE PROCESS

2. WHETHER PETITIONER’S RIGHT AGAINST EX POST FACTO WAS

VIOLATED WHERE SUBSEQUENT ENACTMENT OF LAW

INCREASED HIS TERM OF IMPRISONMENT.

- >

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

STATEMENT OF THE BASIS FOR JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

A. Trial and Direct Appeal..........................................

B. Resentencing on Remand........................................

C. Petitions for Post-Conviction Relief........................

1. Hearings on Petitions for Post-Conviction Relief.

2. Appeal of Post-Conviction Relief........................

D. Motion for Relief from Judgment...........................

E. Federal Habeas Corpus..........................................

1. Petition for Writ of Habeas Corpus......................

2. Respondent’s Answer/Retum of Writ..................

3. Petitioner’s Traverse............................................

4. Magistrate Judge’s Report and Recommendation.

5. Petitioner’s Objections.........................................

6. Memorandum Opinion and Order........................

7. Application for Certificate of Appealability.........

a. Order denying Certificate of Appealability...........

b. Petition for Rehearing En Banc............................

c. Orders denying En Banc Review..........................

ARGUMENT IN SUPPORT OF REASONS FOR GRANTING THE WRIT

REASONS FOR GRANTING THE WRIT

QUESTION NO. I:......................................................................................................

WHETHER AN ATTORNEY’S CONFLICT OF INTEREST DEPRIVED

PETITIONER OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH

AMENDMENTS TO EFFECTIVE ASSISTANCE AND DUE PROCESS.

A. Merits Review

QUESTION NO. II:...................................................................................................

WHETHER PETITIONER’S RIGHT AGAINST EX POST FACTO WAS

VIOLATED WHERE SUBSEQUENT ENACTMENT OF LAW INCREASED

HIS TERM OF IMPRISONMENT.

A. Merits Review

CONCLUSION

DECLARATION UNDER 28 U.S.C. § 1746

INDEX OF APPENDIX

Exhibit A:

Order, denying application for Certificate of Appealability and Motion to

Proceed In Forma Pauperis (April 27, 2022)

Exhibit B:

Order, denying request for en banc review (July 27, 2022)

Exhibit C:

Order, denying request for rehearing en banc (August 11, 2022)

Exhibit D:

Memorandum and Order,

(September 28, 2021)

Exhibit E:

Judgment Entry, dismissing petition for writ of habeas

(September 28, 2021)

Exhibit F:

Report and Recommendation, recommending dismissal of habeas corpus

(July 20, 2021)

Exhibit G:

Findings of Fact and Conclusions of Law denying Petitions for PostConviction Relief (December 7, 2015)

Exhibit H:

Opinion of Ohio Court of Appeals, Eighth Appellate District, affirming

conviction, vacating sentence, remanding sentence for resentencing

(September 30, 2004)

adopting Report and Recommendation

corpus

TABLE OF AUTHORITIES

PAGE

Cases

Burgess v. Salmon, 97U.S. 381,24L.Ed. 1104, 1878 U.S. LEXIS 1464(1878)......

Carmell v. Texas, 529 U.S.513, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000).................

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)................

Hamilton v. Brunsman, No. l:09-cv-295, 2010 U.S. Dist. LEXIS 142947

2010 WL 6618545 (S.D. Ohio June 10, 2010)..........................................................

Hamilton v. Warden, No. l:09-cv-00295, 2011 U.S. Dist. LEXIS 50236

2011 WL 1791683 (S.D. Ohio May 11,2011)...........................................................

McRae v. Jackson-Mitchell, No. 3:20-cv-168, 2020 U.S. Dist. LEXIS 181318

2020 WL 5815893 .....................................................................................................

Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987)..................

Nix v. Whiteside, 475 U.S. 157, 106 S. Ct. 988, 89 L.Ed.2d 123 (1986)....................

Peugh v. United States, 569 U.S. 530, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013)........

Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)...........................

Speed v. Fender, 2021 U.S. Dist. LEXIS 184999, 2021 WL 4437056

(N.D. Ohio September 28, 2021)...............................................................................

Speed v. Fender, 2022 U.S. App. LEXIS 11450 (6th Cir. April 27, 2022)................

Speed v. Fender, 2021 U.S. Dist. LEXIS 187345 (N.D. Ohio July 20, 2021)...........

State v. Eley, 77 Ohio St.3d 174, 1996-Ohio-323, 672 N.E.2d 640............................

State v. Haven, 9th Dist. Wayne No. 02CA0069, 2004 Ohio 2512

2004 WL 1103957.....................................................................................................

State v. McDonald, 5th Dist. Stark No. 1999CA00019, 2000 Ohio App. LEXIS 530

2000 WL 222132.......................................................................................................

State v. Oldham, 8th Dist. Cuyahoga No. 73644, 1999 Ohio App. LEXIS 2152

1999 WL 304314.......................................................................................................

State v. Reigle, 3rd Dist. Hancock No. 5-2000-14, 2000 Ohio 1786

2000 WL 1682520.....................................................................................................

State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d283 .....................

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).....

United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)........

Weaver v, Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)....................

15, 19

Passim

23,25

OPINIONS BELOW

A. Certificate of Appealability

1. United States Court of Appeals for the Sixth Circuit

Willie Speed v. Douglas Fender, Warden, 6th Cir. No. 2021-3931

a. Order, denying application for Certificate of Appealability and Motion to Proceed In Forma

Pauperis (Date of Entry: April 27, 2022)

b. Order, denying request for en banc review (Date of Entry: July 27, 2022)

c. Order, denying request for rehearing en banc (Date of Entry: August 11, 2022)

B. Petition for Writ of Habeas Corpus

2. United States District Court for the Northern District of Ohio, Eastern Division

Willie Speed v. Douglas Fender, Warden, N.D.Ohio No. 1:18-CV-1296

a. Report and Recommendation, recommending dismissal of habeas corpus (ECF #: 16)

Date of Entry: July 20, 2021

b. Memorandum and Order, adopting Report and Recommendation (ECF #: 19)

Date of Entry: September 28, 2021

c. Judgment Entry, dismissing petition for writ of habeas corpus (ECF #: 20)

Date of Entry: September 28, 2021

C. Petitions for Post-Conviction Relief.

Cuyahoga County Court of Common Pleas

State of Ohio v. Willie Speed, Cuyahoga County No. CR-03-436669

Findings of Fact and Conclusions of Law denying Petitions for Post-Conviction Relief

Date of Entry of Judgment: December 7, 2015

D. Direct Appeal.

Ohio Court of Appeals for the Eighth Appellate District

State of Ohio v. Willie Speed, 8th Dist. Cuyahoga No. 83746

Convictions affirmed; sentence vacated; remanded for resentencing

Date of Entry of Judgment: September 30, 2004

STATEMENT OF THE BASIS FOR JURISDICTION

On April 27, 2022, the Sixth Circuit issued an Order denying Petitioner’s Application for

Certificate of Appealability (“COA”), and denied as moot Petitioner’s Motion to Proceed In Forma

Pauperis. (See Exhibit A). Pursuant to Rule 13 of the Rules of the Supreme Court of the United

States the Court has jurisdiction to consider whether to grant certiorari to review the April 27,2022

judgment of the Sixth Circuit.

In addition, the Court has jurisdiction to consider whether to grant certiorari to review the

judgment of the Sixth Circuit denying Petitioner’s Petition for En Banc Review of the Court's

Order entered on July 27, 2022. (See Exhibit B).

Further, the Court has jurisdiction to consider whether to grant certiorari to review the

judgment of the Sixth Circuit denying Petitioner’s Petition for Rehearing En Banc entered on

August 11, 2022. (See Exhibit C).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

A. Constitutional Provisions

Art. I, § 10, U.S. Const...........

6th Amend., U.S. Const.........

14th Amend., U.S. Const.......

B. Statutory Provisions

Ohio Revised Code § 2971.01(H)

STATEMENT OF THE CASE

A. Trial and Direct Appeal.

On April 22,2003, the Cuyahoga County, Ohio Grand Jury indicted Petitioner in Cuyahoga

Common Pleas No. CR-03-436669, on three counts of Rape, felonies of the first degree, in

violation of Ohio Revised Code § 2907.02(A)(2) (hereinafter “R.C. § 2907.02(A)(2)”), each with

specifications for Notice of Prior Conviction (R.C. § 2929.13(F)(6)) (“NPC”), Repeat Violent

Offender (R.C. § 2941.149) (“RVO”), and Sexually Violent Predator (R.C. 2941.148) (“SVP”)

(Counts One, Two, Three); three counts of Kidnapping, felonies of the first degree, in violation of

R.C. 2905.01(A)(1), each with specifications for NPC, RVO, and Sexual Motivation (R.C. §

2941.147) (“SMS”) (Counts Four, Five, Six); one count of Aggravated Robbery, a felony of the

first degree, in violation of R.C. 2911.01(A)(3), with specifications for NPC and RVO (Count

Seven); four counts of Impersonating a Peace Officer, in violation of R.C. 2921.51(B) (fourth

degree misdemeanor), (C) (first degree misdemeanor), (D) (fourth degree felony) and (E) (third

degree felony) (Counts Eight, Nine, Ten, Eleven); one count of Intimidation, a felony of the fifth

degree, in violation of R.C. § 2923.24(A) (Count Twelve); and one count of Possession of Criminal

Tools, a felony of the fifth degree, in violation of R.C. 2923.24(A) (Count Thirteen).

Petitioner executed a Waiver of Jury Trial and elected to have his case tried to the bench.

Prior to trial, the State disclosed the exculpatory evidence that the Ohio Bureau of Criminal

Investigation (“BCI”) lab results concluded that Petitioner did not match the semen sample

collected from the rape kit.

On August 26, 2003, a bench trial commenced. After the prosecution rested its case, the

trial court granted Petitioner’s Ohio Criminal Rule 29 motion for judgment of acquittal on the

charge of aggravated robbery. The prosecution then amended the indictment and reduced the rape

o <

charge under Count Three to Attempted Rape, a 'felony of the second degree, in violation of R.C.

§2923.02/R.C. §2907.02.

The trial court found Petitioner guilty on August 28, 2003, of two counts of rape, one count

of attempted rape, three counts of kidnapping, four counts of impersonating a police officer, and

one count of possession of criminal tools. The trial court found Petitioner not guilty on the

intimidation charge.

On October 2, 2003, a hearing on the sexually violent predator was had, and the trial court

found Petitioner. Following the hearing, a sentencing hearing was held and the court sentenced

Petitioner to 9 years for kidnapping, 9 years to life for rape, 7 years for attempted rape, 17 months

for impersonating a police officer, and 11 months for possession of criminal tools. All sentences

were ordered to run concurrently for a total prison term of 9 years to life. The court further ordered

that Petitioner would be subject to the maximum amount of post-release control allowed by law.

Petitioner, through counsel, filed an appeal in the Ohio Court of Appeals for the Eighth

Appellate District on November 6, 2003, and presented the following assignments of error:

Assignment of Error I:

The trial court incorrectly premised its verdicts upon information not in evidence,

in violation of Mr. Speed's Fifth, Sixth, and Fourteenth Amendment rights to trial,

confrontation and due process of law.

Assignment of Error II:

The verdicts were against the manifest weight of the evidence.

Assignment of Error III:

The state improperly admitted evidence of Mr. Speed's refusal to speak with police.

Assignment of Error IV:

The trial court erred when it entered convictions for the kidnapping charges in

counts four through six after finding they were allied with the offenses alleged in

counts one through three.

Assignment of Error V:

Mr. Speed received the ineffective assistance of counsel with respect to the hearing

on whether there was evidence to sustain a finding that Mr. Speed is a sexually

violent predator under R.C. 2971.01.

Assignment of Error VI:

The trial court erred when it sentenced Mr. Speed to seventeen months

imprisonment for each of counts eight and nine.

Assignment of Error VII:

The trial court erred when it failed to advise Mr. Speed of the consequences

attendant to the imposition of a term of post-release control.

The State filed its brief in opposition.1

On September 30, 2004, the Eighth District affirmed the judgment of the trial court, but

found that the State conceded that the trial court did err on sentencing Petitioner to 17 months for

each Impersonating a Peace Officer conviction. The Eighth District vacated those sentences and

remanded the case to the trial court only for resentencing as to Counts Eight and Nine. See State

v. Speed, 8th Dist. Cuyahoga No. 83746 2004-Ohio-52311 (See Exhibit H).

Petitioner, through counsel, filed a Notice of Appeal with the Supreme Court of Ohio on

November 29 2004. In his Memorandum in Support of Jurisdiction, Petitioner presented the

following propositions of law:

Proposition of Law I:

A criminal defendant is denied his right to trial and to due process when, in a bench

trial, the trial court premises its verdict on its own beliefs about rape trauma in the

absence of any evidence in this regard.

Proposition of Law II:

When the record is hot clear as to whether the factfinders verdict was influenced by

the use of post-arrest silence, the defendant’s conviction violated the Fifth and

Fourteenth Amendments to the United States Constitution.

1 The Eighth District immediately remanded the case to the trial court because the repeat violent

offender specifications had not been disposed of. On November 15,2004, the trial court dismissed

the repeat violent offender specifications at the prosecutor’s request.

Proposition of Law III:

A trial court errs when it enters separate convictions for two offenses that the trial

court has found to be allied to one another.

Proposition of Law IV:

Counsel is ineffective when counsel stipulates to evidence that is otherwise

inadmissible.

Proposition of Law V:

Police incident reports are inadmissible at a hearing to determine whether a

defendant is a sexually violent predator under R.C. 2791.01.

The State responded to Petitioner’s memorandum in support of jurisdiction on December

16, 2004.

On March 2, 2005, the Supreme Court of Ohio denied Petitioner leave to appeal and

dismissed the case as not involving any substantial constitutional question. See State v. Speed, 105

Ohio St.3d 1452, 2005-Ohio-763, 823 N.E.2d 457.

B. Resentencing on Remand.

A resentencing hearing was held on November 15, 2019, the trial court resentenced

Petitioner to 9 years to life in prison for each rape conviction and to each kidnapping conviction,

which were found to be allied offenses of similar import; 7 years in prison for attempted rape; 6

months in prison for each impersonating a peace officer under Counts 8-9; 17 months in prison for

each impersonating a peace officer under Counts 10-11; and 11 months in prison for possessing

criminal tools. All sentences were to be served concurrently, for the same sentence of 9 years to

life in prison.

Petitioner did not seek an appeal of the resentencing.

C. Petitions for Post-Conviction Relief.

On June 14, 2004, Petitioner, through counsel, filed a Petition for Post-Conviction Relief

in the trial court pursuant to R.C. § 2953.21, claiming his trial counsel provided ineffective

assistance for failing to call known available witnesses. Petitioner’s affidavit was attached.

Petitioner, pro se, filed a Petition to Vacate or Set Aside Conviction or Sentence in the trial

court on June 15, 2004, claiming his trial counsel provided ineffective assistance for failing to call

known available witnesses to support Petitioner’s defense. Petitioner attached his Affidavit, a copy

of pertinent police reports, and a flier advertising Petitioner’s computer business.

The State filed a motion to dismiss the petitions on June 17, 2004 and June 21, 2004, on

grounds that the claims presented therein were barred by the doctrine of res judicata.

On July 8, 2004, the trial court granted the State’s motions by entry, and dismissed the

petitions without a hearing.2

After receiving the Findings of Fact and Conclusions of Law, Petitioner, through counsel,

filed an appeal in the Eighth District and presented the following assignments of error:

Assignment of Error No. I:

The trial court erred when it dismissed the petition for post-conviction relief on

grounds that the allegations contained therein were barred by the doctrine of res

judicata.

Assignment of Error No. II:

The trial court erred when it dismissed the petition as insufficient.

2 Because the trial court did not issue findings of facts and conclusions of law with respect to

denying Petitioner’s petitions, Petitioner, pro se, filed a Request for Findings of Fact and

Conclusions of Law in the trial court on July 28, 2004, which was denied by the court on August

31, 2004. Consequently, Petitioner, pro se, filed an original action in the Eighth District Court of

Appeals to compel the trial court judge to issue findings of fact and conclusions of law.

Subsequently, the trial court judge filed a motion for summary judgment, attaching its Findings of

Fact and Conclusions of Law.

V. /

On April 21, 2005, Petitioner, pro se, filed a Motion For Leave to File Additional Exhibits

to Support Assignments of Error, Instanter, to include the affidavit of Yolanda Humphrey-Monroe,

an alibi witness. The court of appeals granted Petitioner leave on May 4, 2005.

On August 25, 2005, the Eighth District held the issues presented in the petitions were not

barred by res judicata and that counsel provided ineffective assistance, and reversed the judgment

of the trial court and remanded the case for a hearing on Petitioner’s petitions. See State v. Speed,

8th Dist. Cuyahoga No. 85095, 2005-Ohio-4423 (Judge Corrigan dissent) (Speed II).

The State filed an appeal in the Supreme Court of Ohio on October 11,2005, and presented

the following propositions of law:

Proposition of Law No. I:

An appellate court it required to apply the abuse of discretion standard in reviewing

a trial court’s denial of a petition for post-conviction relief.

Proposition of Law No. II:

An appellate court, when reviewing a trial court’s dismissal of a petition for post

conviction relief, may not consider an affidavit that was not filed with the trial

court.

On January 25, 2006, the Supreme Court of Ohio denied the State’s appeal and dismissed

the same as not involving any substantial constitutional question. State v. Speed, 108 Ohio St.3d

1416, 2006-0hio-179, 841 N.E.2d 320 (Slip Opinion).

1. Hearings on Petitions for Post-Conviction Relief.

A hearing on Petitioner’s petitions for post-conviction relief was scheduled for May 1,

2006. However, the hearing was postponed until March 19, 2009. Just before the start of the

hearing, however, Petitioner’s counsel, John T. Martin, withdrew from the case after discovering

he represented a material witness for Petitioner’s defense. Instead, Attorney Patricia J. Smith was

appointed to represent Petitioner at the hearing and the case was postponed until June 29, 2009.

On June 18,2009, Ms. Smith requested the trial court to stay and hold the case in abeyance

until the completion of Mr. Monroe’s case, which was granted by the court on June 30, 2009.

The next hearing date was set for December 13, 2013.

On September 15, 2014, Petitioner, through counsel, filed an amended Petition for PostConviction Relief, presenting the following issues for review:

1. Mr. Speed was denied his rights to effective assistance of counsel guaranteed

by Article I, Section 10 of the Ohio Constitution and the Sixth and Fourteenth

Amendments to the United States Constitution.

2. Mr. Speed was denied due process of law because he is serving a sentence for

being a sexually violent predator when, as a matter of law, he cannot be a

sexually violent predator.

3. Mr. Speed was denied due process because he was not advised of his appellate

rights at the time of his 2004 resentencing.

The State filed an opposition on September 23,2014.

Nearly ten years after the Eight District’s August 25, 2005 remand in Speed II, the trial

court commenced the hearing on Petitioner’s petitions, where Petitioner, represented by Attorneys

Smith and Martin, presented two witnesses: Yolanda Humphrey-Monroe, and her husband, Darren

Monroe. The State presented one witness—Petitioner’s original trial counsel, Myron Watson.

After hearing testimony, the hearing was continued for closing arguments and to hear arguments

on the claims presented in Petitioner’s amended petition.

Meanwhile, the State filed a supplemental brief in opposition to Petitioner’s amended

petition, to which Petitioner responded.

On June 17,2015, the court heard closing arguments on the original petition, and arguments

on Petitioner’s amended petition.

The trial court issued Findings of Fact and Conclusions of Law on December 7, 2015,

denying Petitioner’s petitions for post-conviction relief and his amended post-conviction petition.

(See Exhibit G).

2. Appeal of Post-Conviction Relief.

On December 24, 2014, Petitioner, pro se, filed a Notice of Appeal in the Eighth District

Court of Appeals, and presented the following assignments of error in his appellate brief:

Appellant was deprived of his constitutional right to effective assistance of

counsel at trial under the Sixth and Fourteenth Amendments to the United

States Constitution and Article I, Section 10 of the Ohio Constitution

The trial court erred and abused its discretion by finding and concluding that

appellant failed to demonstrate that he was improperly convicted of the

sexually violent predator specification.

Appellant’s rights under the due process clause were violated when the trial

court failed to notify him after resentencing of his rights under Criminal Rule

32(B), and further abused its discretion by failing to reenter the judgment so

that a timely appeal can be taken.

Appellant’s right under the Sixth and Fourteenth Amendments were violated

by virtue of counsel’s failure to notify him of the right to appeal after the

resentencing, resulting in the denial of the opportunity to appeal an adverse

sentence.

The State filed a responsive brief on May 10,2016.

Petitioner filed a handwritten reply on June 20 2016.

Unknown to Petitioner, the Eighth District, on July 5, 2016, ordered Petitioner’s original

brief stricken as it failed to comply with Eighth District Court of Appeals Local Appellate Rule

13.2(B)(1)(d) (hereinafter, “Loc.App.R. 13.2(B)(1)(d)”) in that it identified the victim of a sexual

offense. The Eighth District granted Petitioner leave to file a complying brief on or before July 29,

2016, and warned Petitioner that his failure to do so may result in the dismissal of the appeal. See

State v. Speed, 8th Dist. Cuyahoga No. 103953, Motion No. 497902.

The State moved to dismiss the appeal on August 8, 2016, because the time had passed for

Petitioner to file a conforming brief. The Eighth District granted the State’s motion and dismissed

the appeal on August 11, 2016.

On August 19, 2016, Petitioner moved the court for leave to file the brief, instanter,

claiming he did not receive a copy of the Eighth District’s July 5, 2016 entry ordering him to file

a complying brief by July 29, 2016. Petitioner submitted a conforming brief with his motion. The

State opposed the motion.

On September 2,2016, Petitioner filed an Application for Reconsideration pursuant to Rule

26(A) of the Ohio Rules of Appellate Procedure (hereinafter, “App.R. 26(A)”), requesting the

court to reconsider its August 11,2016 dismissal of his appeal. The State opposed the motion, and

on September 19, 2016, the Eighth District denied Petitioner leave to file his brief, instanter, and

denied Petitioner’s motion to reconsider the dismissal of the appeal. See State v. Speed, 8th Dist.

Cuyahoga No. 103953, MotionNo. 499729 (Sep. 26, 2016).

Petitioner, pro se, filed a Notice of Appeal with the Supreme Court of Ohio on October 28,

2016, under Case No. 2016-1590. In his memorandum in support ofjurisdiction, Petitioner raised

the following propositions of law:

Proposition of Law I:

When a criminal defendant is incarcerated and proceeding on appeal without the

assistance of an attorney and has demonstrated the importance of the appeal by

timely filing all documents, does the Court of Appeals err by sua sponte dismissing

the appeal without taking into consideration the cause and prejudice for Appellant’s

failure to comply with the Court’s order?

Proposition of Law II:

Where the Appellant was not served with a copy of the Court of Appeals judgment

entry, Appellant’s right to due process of law was violated.

The State moved to dismiss and also opposed jurisdiction.

On May 31, 2017, the Supreme Court of Ohio declined to accept jurisdiction of the appeal.

State v. Speed, 147 Ohio St.3d 1481, 2017-0hio-10, 66 N.E.3d 767.

D. Motion for Relief from Judgment.

On December 7, 2016, Petitioner, through counsel, filed in the trial court, a Motion for

Relief from Judgment under Ohio Rules of Civil Procedure, Rule 60(B) (hereinafter, “Civ.R.

60(B)”), claiming Petitioner had been denied the right to appeal from his resentencing of

November 15,2004. The State opposed the motion, and on February 9, 2017, the trial court denied

Petitioner’s motion.

Through counsel, Petitioner filed an appeal in the Eighth District and presented the

following assignment of error:

Assignment of Error I:

The trial court erred when it denied the motion for relief from judgment.

The State filed a brief in opposition on August 7, 2017.

On January 25, 2018, the Eighth District held the issue presented by Petitioner was barred

by the doctrine of res judicata and affirmed the judgment of the trial court. See State v. Speed 8th

Dist. Cuyahoga No. 105543, 2018-Ohio-277.

Counsel filed an Application for Reconsideration on February 5, 2018, to which the State

filed an opposition on February 12, 2018.

On February 26, 2018, the Eighth District denied the application. State v. Speed, 8th Dist.

Cuyahoga No. 105543,""Motion No. 51488".

Petitioner, through counsel, filed a Notice of Appeal in the Supreme Court of Ohio on April

12, 2018, and presented the following propositions of law in his memorandum in support of

jurisdiction:

Proposition of Law I:

When it appears that a criminal defendant may be serving a sentence in excess of

the statutory maximum for that offense, and where that sentence has never been

reviewed on appeal, res judicata will not bar delayed consideration of the sentence

by an appellate court.

Proposition of Law II:

In an appeal from a resentencing where the original sentence was vacated and a

sentencing de novo has been conducted, issues relating to the second sentencing

may be raised even if similar issues arose and were not raised at the original hearing.

Proposition of Law III:

A trial court errs when it denies a motion for relief from judgment premised upon

an obvious error made by the trial court.

The State responded, and on July 5, 2018, the Supreme Court of Ohio declined to accept

jurisdiction of the appeal. State v. Speed, 153 Ohio St.3d 1432, 2018-Ohio-2639, 101 N.E.3d 464.

F. Federal Habeas Corpus.

1. Petition for Writ of Habeas Corpus.

On May 30, 2018, Petitioner, pro se, filed in the United States District Court for the

Northern District of Ohio, Eastern Division, a Petition Under 28 U.S.C. § 2254 for Writ of Habeas

Corpus by a Person in State Custody, and presented the following grounds for relief:

Ground For Relief No. I:

Petitioner was deprived of his constitutional right to effective assistance of counsel

at trial under the Sixth and Fourteenth Amendments.

1. Mr. Watson’s reason for not calling Ms. Humphrey-Monroe, based on the belief

that the alibi was mistaken or false, is contradicted by Mr. Watson’s own

conduct and the record.

2. Counsel’s reasons for not calling the witness, based on an alleged conversation

with the Petitioner, must be rejected as frivolous and false when compared to

the alleged circumstances and events surrounding the alleged incident.

3. Counsel’s reason for not calling the witness created a conflict of interest.

Prejudice is presumed.

a. Counsel actively represented conflicting interests.

b. An actual conflict of interest adversely affected counsel’s performance.

4. Counsel’s reason for not calling the witness, based on trial strategy, fell outside

the wide range of professionally competent assistance.

5. Counsel’s performance fell below an objective standard of reasonableness by

virtue of his failure to investigate other material witnesses.

Ground For Relief No. II:

Petitioner’s conviction of the sexually violent predator specification is not

supported by sufficient evidence, and, therefore, violates the Due Process Clause

of the Fourteenth Amendment.

Ground For Relief No. Ill:

Petitioner’s rights under the Sixth and Fourteenth Amendments were violated by

virtue of counsel’s failure to notify him of his right to appeal after resentencing,

resulting in the denial of the opportunity to appeal an adverse sentence.

(ECF

at PagelD #55-68).

2. Respondent’s Answer/Return of Writ.

The . Respondent filed its Answer/Retum of Writ on November 1, 2018, denying each of

the grounds for relief presented by Petitioner, and moved the Court to deny the petition without a

hearing (ECF #: 9).

3. Petitioner’s Traverse.

On January 29, 2019, Petitioner, pro se, filed a Traverse to Respondent’s Return of Writ

requesting the Court to reject Respondent’s arguments and grant habeas relief. (ECF #:13).

3. Magistrate Judge’s Report and Recommendation.

On July 20, 2021, Magistrate Judge William H. Baughman, Jr. issued a Report and

Recommendation ("R&R"), recommending dismissal of Petitioner’s petition in its entirety and his

case be dismissed. (ECF #: 16) (See Exhibit F).

4. Petitioner’s Objections.

On September 10, 2021, Petitioner filed an Objection to the Magistrate Judge’s

recommendation of the dismissal of his petition. (ECF #: 18).

5. Memorandum Opinion and Order.

On September 28, 2021, the Court issued a Memorandum Opinion and Order finding that

the state courts’ decision was neither contrary to nor involved an unreasonable application of

federal law, and that reasonable jurists would not debate that conclusion because counsel’s

decision not to call Petitioner’s alibi witness to testify or to interview other witnesses was a

reasonable strategic decision that merits deference. Moreover, the Court found Petitioner’s

challenge to his sexual violent predator specification conviction was procedurally defaulted and

that reasonable jurists would not debate that conclusion. Consequently, the Court overruled

Petitioner’s objections. It then accepted and adopted the portions of the Magistrate Judge’s R&R

to which Petitioner did not object to, and accepted and adopted the Magistrate Judge’s

recommendation that Petitioner’s petition be denied for the reasons stated in the report and

recommendation and for additional reasons stated in its Opinion. Accordingly, the Court denied

and dismissed Petitioner’s petition. Further, the Court certified that an appeal from its decision

could not be taken in good faith and that there is no basis upon which to issue a certificate of

appealability. (ECF #: 19) (See Exhibits D & E).

6. Application for Certificate of Appealability.

Contending the District Court erred by denying his petition for writ of habeas corpus and

further erred by finding there was no basis upon which to issue a certificate of appealability,

Petitioner, pro se, on October 12, 2021, filed a Notice of Appeal and Motion to Proceed In Forma

Pauperis in the United States Court of Appeals for the Sixth Circuit. The Court construed the notice

of appeal as Petitioner’s request for a certificate of appealability (“COA”).

a. Order denying Certificate of Appealability.

On April 27, 2022, the Sixth Circuit issued an Order essentially agreeing with the findings

of the District Court that reasonable jurists would not debate the grounds presented by Petitioner,

and denied Petitioner’s COA and his motion to proceed in forma pauperis as moot. Speed v.

Fender, 6th Cir. No. 21-3931, 2022 U.S. App. LEXIS 11450 (6th Cir.2022) (See Exhibit A).

b. Petition for Rehearing En Banc.

On June 1, 2022, Petitioner, pro se, filed a Petition for Rehearing En Banc of the Court's

Order entered on April 27, 2022, denying his application for a certificate of appealability.

c. Orders denying En Banc Review.

On July 27, 2022, a panel of the Sixth Circuit issued an Order denying Petitioner’s

application for COA, and subsequently referred the matter to all active members of the Court for

further proceedings on the suggestion for an en banc rehearing. Speed v. Fender, 6th Cir. No. 213931 (6th Cir. July 27, 2022). (See Exhibit B).

The petition was then circulated to all active members of the court,3 none of whom

requested a vote on the suggestion for an en banc rehearing. Consequently, the panel denied the

petition for rehearing en banc. Speed v. Fender, 6th Cir. No. 21-3931, 2022 U.S. App. LEXIS

22429 (6th Cir. August 11, 2022). (See Exhibit C).

After nearly twenty-years of litigating, Petitioner is now before the highest Court in the

land respectfully requesting the Court to grant certiorari on the Questions presented.

3 Judge Murphy recused himself from participation.

» i

ARGUMENT IN SUPPORT OF REASONS FOR GRANTING THE WRIT

It is indisputable that a criminal defendant has the right to effective assistance of counsel.

In early 20th-century jurisprudence, this Court addressed the importance of counsel in criminal

cases, holding, in part:

“The right to be heard would be, in many cases, of little avail if it did not

comprehend the right to be heard by counsel. Even the intelligent and educated

layman has small and sometimes no skill in the science of law. If charged with

crime, he is incapable, generally, of determining for himself whether the indictment

is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of

counsel he may be put on trial without a proper charge, and convicted upon

incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.

He lacks both the skill and knowledge adequately to prepare his defense, even

though he had a perfect one. He requires the guiding hand of counsel at every step

in the proceedings against him. Without it, though he be not guilty, he faces the

danger of conviction because he does not know how to establish his innocence. If

that be true of men of intelligence, how much more true is it of the ignorant and

illiterate, or those of feeble intellect.”

Powell v. Alabama., 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

In defining the Sixth Amendment intent for effective assistance, decades later the Court

announced a list of duties as a guide to determine whether counsel’s performance fell below an

objective standard of reasonableness under prevailing professional norms, stating:

“Representation of a criminal defendant entails certain basic duties. Counsel's

function is to assist the defendant, and hence counsel owes the client a duty of

loyalty, a duty to avoid conflicts of interest. See Cuyler v. Sullivan, [446 U.S. 335],

346[, 100 S.Ct 1708, 64 L.Ed.2d 333 (1980)]. From counsel's function as assistant

to the defendant derive the overarching duty to advocate the defendant's cause and

the more particular duties to consult with the defendant on important decisions and

to keep the defendant informed of important developments in the course of the

prosecution. Counsel also has a duty to bring to bear such skill and knowledge as

will render the trial a reliable adversarial testing process.”

Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), quoting

Powell v. Alabama, 287 U.S., at 68-69 (emphasis added).

Here, Petitioner contends that, because counsel omitted or ignored several of his basic

duties, counsel’s performance fell below an objective standard of reasonableness—prejudicing

Petitioner’s fundamental right to a fair trial under the Due Process Clause. It is for these reasons

Petitioner is now before the highest Court requesting it to grant certiorari.

REASONS FOR GRANTING THE WRIT

QUESTION NO. I

WHETHER AN ATTORNEY’S CONFLICT OF INTEREST DEPRIVED PETITIONER

OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO

EFFECTIVE ASSISTANCE AND DUE PROCESS.

A. Merits Review

Under the first ground for relief, Petitioner presented the District Court with the

following issue for review:

PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL UNDER THE SIXTH

AND FOURTEENTH AMENDMENTS.

In recommending denying this ground, the Magistrate Judge stated:

The more significant roadblock for Speed on Ground One is federal law and the

absence of any constitutional violation—in other words, the merits of his claim

under Ground One. His petition discusses how he disagreed with his lawyer, and

further describes the selection of witnesses, alibi defenses, and trial strategies his

lawyer did or did not implement. Beyond disagreements with his trial lawyer and

the fact that he lost his case, Speed never explains how he was deprived of his Sixth

Amendment or Fourteenth Amendment rights.

** *

It bears repeating: the petition's deficiency as to Ground One is that Speed has not

demonstrated that his trial attorney's performance was unconstitutionally deficient.

Nor has he ever demonstrated that there is a reasonable probability that the result

of his trial would have been different had he received what he believes to be proper

representation.

* **

After reviewing the record including the transcripts of the post-conviction hearing

that dealt with Ground One of Speed's petition, I find no basis for calling into

question, let alone reversing, the decision of the trial court judge on Ground One.

The trial judge's findings of fact and conclusions of law are lengthy and wellthought out, incorporate the facts as presented at the hearing, set forth the applicable

Supreme Court law governing ineffective assistance of counsel, and reasonably

apply the facts as presented to her to the law. For these reasons, I recommend that

Speed's petition for post-conviction relief based on Ground One be denied.

Speedv. Fender, 2021 U.S. Dist. LEXIS 187345 (N.D. Ohio July 20, 2021) (ECF #: 16, PagelD

##: 1443; 1447; 1448). (Exhibit D).

In adopting the Magistrate Judge’s recommendations, the Court concluded the following:

The Court agrees with the recommendation of the magistrate judge that in

adjudicating Speed's ineffective assistance of counsel claim, the trial court applied

the correct federal law and adduced facts at the hearing which supported her

decision that Speed was not deprived of his Sixth Amendment right to effective

assistance of counsel because trial counsel did not call an alibi witness. See McRae

v. Jackson-Mitchell, No. 3:20-cv-168, 2020 U.S. Dist. LEXIS 181318, 2020 WL

5815893, at *6 (S.D. Ohio Sept. 30, 2020) ("[T]he Third District [Court of Appeal]

quite reasonably decided that failure to call the alibi witnesses was within

reasonable performance parameters of defense counsel. Even if McRae had four

witnesses who were prepared to testify he was elsewhere when the victim was

murdered, defense counsel might well have believed, based on the evidence of

presence that the Third District cited, that the alibis would have been perjurious and

of course an attorney has an ethical obligation not to present such testimony. ");4

see also Hamilton v. Brunsman, No. l:09-cv-295, 2010 U.S. Dist. LEXIS 142947,

2010 WL 6618545, at *3 (S.D. Ohio June 10, 2010) ("An attorney's oath binds him

to be an officer of the court, not a 'mouthpiece' for whatever his client wants to

convey. A lawyer has an ethical/legal obligation not to present false testimony to a

court."), report and recommendation adopted sub nom. Hamilton v. Warden,

Lebanon Corr. Inst., No. l:09-cv-00295, 2011 U.S. Dist. LEXIS 50236, 2011 WL

1791683 (S.D. Ohio May 11, 2011).

Speed v. Fender, 2021 U.S. Dist. LEXIS 184999, 2021 WL 4437056 (N.D. Ohio September 28,

2021) (ECF #: 19, PagelD #: 1506). (Exhibit C).

In denying Petitioner’s request for a certificate of appealability, the Sixth Circuit held:

On post-conviction review, the state trial court concluded, after a hearing, that trial

counsel was not ineffective for failing to call Humphrey-Monroe to testify as an

alibi witness. The trial court found Humphrey-Monroe’s testimony that Speed was

at her home when the crimes occurred unreliable due to several inconsistencies

between her testimony and affidavit. The trial court also found HumphreyMonroe's and Monroe's testimony inconsistent with counsel's testimony that Speed

admitted that he had sex with the victim during the time when they stated that he

was at their home. The trial court credited counsel's testimony that he believed

Humphrey-Monroe's and Monroe's alibi information to be untruthful given Speed's

admission, and that he could not ethically present their testimony at trial. The trial

court also found that counsel's decision not to call Humphrey-Monroe or interview

Monroe in support of an alibi defense and to instead rely on certain weaknesses in

the State's case, was a reasonable strategy because the victim was reluctant to

testify, and the State lacked DNA evidence.

The district court concluded that the state trial court's decision was neither contrary

to nor an unreasonable application of federal law. See § 2254(d)(1). Reasonable

jurists would not debate that conclusion because counsel's decision not to call

Humphrey-Monroe to testify or to interview Monroe was a reasonable strategic

decision that merits deference. See Strickland, 466 U.S. at 690; Millender v. Adams,

376 F.3d 520, 527 (6th Cir. 2004). Moreover, counsel is not ineffective for failing

to assist a defendant in presenting perjured testimony. Nix v. Whiteside, 475 U.S.

157, 166-67, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986). The record reveals that

counsel reasonably believed that Humphrey-Monroe's alibi testimony was

unnecessary due to deficiencies in the State's case and that neither HumphreyMonroe's alibi testimony nor Monroe's potential alibi information was truthful

based on Speed's admission to counsel.

Speed v. Fender, 2022 U.S. App. LEXIS 11450, *4-6 (6th Cir. April 27, 2022). (Exhibit A).

Based on the foregoing, the Magistrate Judge, District Court, Sixth Circuit and State court

only adjudicated Petitioner ineffective assistance of counsel claim involving counsel’s failure to

call the alibi witness, or interview other witnesses. However, even though Petitioner’s submitted

other subclaims involving counsel’s ineffectiveness, no court, either State or Federal, has ever

addressed them.

In his Petition for Writ of Habeas Corpus Petitioner raised the following subclaims under

Ground One:

1. [Counsel]’s reason for not calling Ms. Humphrey-Monroe, based on the belief

that the alibi was mistaken or false, is contradicted by [counselj’s own conduct

and the record.

o i

2. Counsel’s reasons for not calling the witness, based on an alleged conversation

with the Petitioner, must be rejected as frivolous and false when compared to

the alleged circumstances and events surrounding the alleged incident.

3. Counsel’s reason for not calling the witness created a conflict of interest.

Prejudice is presumed.

a. Counsel actively represented conflicting interests.

b. An actual conflict of interest adversely affected counsel’s performance.

4. Counsel’s reason for not calling the witness, based on trial strategy, fell outside

the wide range of professionally competent assistance.

5. Counsel’s performance fell below an objective standard of reasonableness by

virtue of his failure to investigate other material witnesses.

ECF #: 1-1, PagelD#: 62-64.

Under subclaim 3, Petitioner contends that counsel’s reason for not calling Petitioner’s

witnesses created a conflict of interest. When an ineffective-assistance claim involves an alleged

conflict of interest, prejudice will be presumed if a defendant establishes an "actual conflict of

interest" provided that it "adversely affected his lawyer's performance." Cuyler v. Sullivan, 446

U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (footnote omitted). In essence, an actual

conflict of interest which causes deficient performance results in the prejudice prong of ineffective

assistance being satisfied.

In Strickland, this Court addressed this issue as follows:

In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive

denial of the assistance of counsel altogether is legally presumed to result in

prejudice. So are various kinds of state interference with counsel's assistance. See

United States v. Cronic, 466 U.S. [648], at 659, andn. 25, 104 S.Ct, at 2046-2047,

and n. 25. Prejudice in these circumstances is so likely that case-by-case inquiry

into prejudice is not worth the cost. 466 U.S., at 658, 104 S.Ct., at 2046. Moreover,

such circumstances involve impairments of the Sixth Amendment right that are

easy to identify and, for that reason and because the prosecution is directly

responsible, easy for the government to prevent.

r.-

One type of actual ineffectiveness claim warrants a similar, though more limited,

presumption of prejudice. In Cuyler v. Sullivan, 446 U.S., at 345-350, 100 S.Ct., at

1716-1719, the Court held that prejudice is presumed when counsel is burdened by

an actual conflict of interest. In those circumstances, counsel breaches the duty of

loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to

measure the precise effect on the defense of representation corrupted by conflicting

interests. Given the obligation of counsel to avoid conflicts of interest and the

ability of trial courts to make early inquiry in certain situations likely to give rise to

conflicts, see, e.g., Fed.Rule Crim.Proc. 44(c), it is reasonable for the criminal

justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of

interest. Even so, the rule is not quite the per se rule of prejudice that exists for the

Sixth Amendment claims mentioned above. Prejudice is presumed only if the

defendant demonstrates that counsel "actively represented conflicting interests" and

that "an actual conflict of interest adversely affected his lawyer's performance."

Cuyler v. Sullivan, supra, 446 U.S., at 350, 348, 100 S.Ct, at 1719, 1718 (footnote

omitted).

Id. at 691-92. (Emphasis added.)

1. Counsel actively represented conflicting interests.

To demonstrate an actual conflict of interest, Petitioner must be able to point to specific

instances in the record to suggest an actual conflict or impairment of his interests. Cuyler, supra.

It is indisputable that Petitioner’s interest was the alibi testimony of Mrs. HumphreyMonroe. When counsel discovered Petitioner was excluded as the source of the DNA recovered

from the victim during the hospital examination, counsel dismissed the alibi witness without

consulting with Petitioner on this important development.

At the hearing on Petitioner’s petitions for post-conviction relief, counsel testified, stating,

he believed the alibi to be mistaken or false, based on a conversation he had with Petitioner early

on in his representation and, therefore, calling the witness would have been against the canons of

ethics for attorneys. (See Doc. No. 9-5, PagelD #: 1347-1349). In fact, counsel stated that he never

intended on calling the witness from the beginning. (Id. at 1347).

It is worth noting that counsel subpoenaed and/or instructed Mrs. Humphrey-Monroe to

appear in court on four separate occasions. Further, he led the prosecuting attorney to believe, up

to the start of trial, literally, that he would be calling the witness. In other words, Petitioner and the

prosecuting attorney believed that counsel would be calling the witness.

Based on the foregoing, there can be no doubt that counsel actively represented conflicting

interests, i.e., his duties under the canons of ethics versus the interests of Petitioner.

a. An actual conflict of interest adversely affected counsel’s performance.

As a result of the apparent conflict in this case, counsel dismissed the only defense witness

without so much as even hinting to the Petitioner that a conflict existed. As counsel stated at the

hearing on Petitioner’s post-conviction relief:

“Particularly, I didn’t indicate to him that it would be an ethical violation. Maybe I

should have told him from the beginning, but I did not tell him.”

(Doc. No. 9-5, PagelD #: 1348).

Counsel’s failure to consult with Petitioner on this important development deprived

Petitioner from obtaining other legitimate alternative options that were available to him, such as:

1. Petitioner counsel brought the conflict to the attention of the court and requested

that other counsel be appointed, instead.

2. Petitioner could have accepted the State’s plea offer often (10) years (excluding

the sexually violent predator specification).

Petitioner could have opted to waive his constitutional right to counsel,

altogether, and represented himself and present the alibi witness himself.

4. Petitioner could have testified in his own defense and present the alleged

consensual sexual defense that counsel claimed Petitioner told him. After all,

counsel had prevailed upon the Petitioner to waive his right to a jury trial and

have the case tried to the bench, which would have been an ideal opportunity

since it is ordinarily presumed that in a bench trial in a criminal case the court

considers only the relevant, material, and competent evidence in arriving at its

judgment unless it affirmatively appears to the contrary. See, e.g., State v. Eley,

11 Ohio St.3d 174, 181, 1996-Ohio-323, 672 N.E.2d 640.

But to do nothing, as counsel in this case did, and given the severity of the potential

sentence, and the ultimate results of the trial, it cannot be argued that the conflict adversely affected

counsel’s performance. Here, counsel put on no defense whatsoever—none at all. See State v.

Speed, 8th Dist. Cuyahoga No. 85095,2005-Ohio-4423, 16. Under these circumstances prejudice

is presumed.

Petitioner respectfully requests the Court to grant certiorari on this question.

QUESTION NO. II

WHETHER PETITIONER’S RIGHT AGAINST EX POST FACTO WAS VIOLATED

WHERE SUBSEQUENT ENACTMENT OF LAW INCREASED HIS TERM OF

IMPRISONMENT.

A. Merits Review.

Petitioner was indicted in 2003, on three counts of rape each with a specification for

Sexually Violent Predator (R.C. 2941.148) (“SVP”). He was subsequently convicted, among other

things, of two counts of rape and attempted rape and the SVP. Petitioner was sentenced to a

concurrent 9 years for the underlying rape counts, and sentenced to a life prison term for the SVP;

for a total prison term of 9 years to life.

It is the Petitioner’s argument that his conviction and sentence for the SVP violates the Ex

Post Facto Clause under Article I, § 10, of the United States Constitution.

1. Sexually Violent Predator (R.C. 2971.01(H)(1)).

The version of R.C. 2971.01(H)(1) in effect when Petitioner was indicted defined "sexually

violent predator" as "a person who has been convicted of or pleaded guilty to committing, on or

after the effective date of this section, a sexually violent offense and is likely to engage in the

future in one or more sexually violent offenses." (Emphasis added.) Am.Sub.H.B. No. 180, 146

Ohio Laws, Part II, 2560, 2652. The effective date of that version was January 1,1997. Id. at 2560-

2561, 2668. la State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, at 118, the

Supreme Court of Ohio stated that the words of R.C. 2971.01(H)(1) "clearly indicate" that a

defendant cannot be charged as a sexually violent predator unless the defendant has "already been

convicted of a sexually violent offense." The Court therefore concluded, "Conviction of a sexually

violent offense cannot support the specification that the offender is a sexually violent predator as

defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction and the sexually violent

predator specification are charged in the same indictment." Smith at syllabus.

Shortly thereafter, the General Assembly amended R.C. 2971.01(H)(1), effective April 29,

2005. Am.Sub.H.B. No. 473, 150 Ohio Laws, Part IV, 5707, 5817, 5832. R.C. 2971.01(H)(1) now

defines "sexually violent predator" as "a person who, on or after January 1, 1997, commits a

sexually violent offense and is likely to engage in the future in one or more sexually violent

offenses." The state characterizes this amendment as a clarification and not a change in the law,

asserting that it represented what the General Assembly had always intended and in any event

created no new penalty.

a. Applying R.C. 2971.01 to Petitioner’s crimes.

The crimes Petitioner was charged with occurred before April 29, 2005. Accordingly, any

application of the amended statute to Petitioner is patently retroactive—because the statutory

change occurred after the offenses were committed. See Weaver v. Graham, 450 U.S. 24, 30,101

S.Ct. 960, 67 L.Ed.2d 17 (1981).

Of central concern in an Ex Post Facto Clause analysis is whether the defendant had "fair

warning" and therefore notice of the change in the law. Weaver at 28. The Ex Post Facto Clause

requires the government to "'abide by the rules of law it establishes to govern the circumstances

under which it can deprive a person of his or her liberty or life."' Peugh v. United States, 569 U.S.

■530, 544, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), quoting Carmell v. Texas, 529 U.S.513, 533,

120 S.Ct. 1620, 146 L.Ed.2d 577 (2000).

Changes in sentencing laws implicate the Ex Post Facto Clause. In analyzing a change in

federal sentencing guidelines, the Supreme Court of the United States concluded, "A retrospective

increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher

sentence to constitute an ex post facto violation." Id. This Court has invalidated on ex post facto

grounds a sentencing scheme that might have caused a defendant to receive a sentence greater than

the sentence he would have received under the sentencing scheme in place when he committed his

crimes. Miller v. Florida, 482 U.S. 423, 435-436, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).

In this case, the statutory change created more than "a sufficient risk of a higher sentence"

by actually imposing a sexually-violent-predator specification on Petitioner that had not applied

when he committed his crimes. Peugh at 544. The amendments to R.C. 2971.01(H)(1) resulted in

a new definition of "sexually violent predator" that allowed, for the first time, the underlying

conduct in an indictment to satisfy the specification without a prior conviction. Without the

sexually-violent-predator specification, Petitioner would have faced a definite term of three to 10

years for the first-degree felony offenses he was charged with and subsequently convicted of.

Based on the amendment to R.C. 2971.01(H)(1), which became effective on April 29,

2005, Petitioner was improperly indicted as a sexually violent predator. The portion of the

indictment alleging him to be a sexually violent predator for acts committed when the initial

version of R.C. 2971.01(H)(1) was effective is, therefore, unconstitutional. Weaver, 450 U.S. at

30, 101 S.Ct. 960, 67 L.Ed.2d 17; Miller at 435-436.

At the time of Petitioner’s conviction and sentencing, and prior to the Smith decision, Ohio

courts had not uniformly interpreted Ohio Rev. Code § 2971.01 (H)( 1) to require a prior conviction

in order to satisfy the specification. In fact, several Ohio courts of appeal had read the language of

the statute to permit the specification to be satisfied by a contemporaneous conviction. See, e.g.,

State v. Haven, 9th Dist. Wayne No. 02CA0069, 2004 Ohio 2512, 2004 WL 1103957; State v.

McDonald, 5th Dist. Stark No. 1999CA00019, 2000 Ohio App. LEXIS 530, 2000 WL 222132;

Statev. Oldham, 8th Dist. Cuyahoga No. 73644,1999 Ohio App. LEXIS2152,1999 WL 304314;

cf. State v. Reigle, 2000 Ohio 1786, 2000 WL 1682520, at *7 (interpreted Section 2971.01(H) to

mean that "the accused must have been convicted of a sexually violent offense prior to conviction

of the offense charged in the indictment. This is the interpretation adopted by the Supreme Court

of Ohio four years later in State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d283.).

Petitioner, however, contends that Ohio’s incorrect interpretation of R.C. § 2971.01(H)(1)

does not justify or excuse violation of ex post facto. The law is the law, and through Art. I, § 10,

of the Constitution of the United States, States must not enact laws which imposes punishment for

act which was not punishable at time it was committed, or punishment in addition to that then

prescribed. Burgess v. Salmon, 97 U.S. 381,24 L.Ed. 1104, 1878 U.S. LEXIS 1464(1878).

Petitioner respectfully requests the Court to grant certiorari on this question.

CONCLUSION

For the above-stated reasons, Petitioner respectfully requests the Court to grant certiorari

to review the judgment of the Sixth Circuit Court of Appeals, Northern District of Ohio, and Ohio

state courts.

Respectfully submitted,

Wilfk'Speed #^453-732

Lake Erie Correctional Institution

P.O. Box 8000

Conneaut, OH 44030

Petitioner-Appellant, pro se

DECLARATION UNDER 28 U.S.C. § 1746

I, Willie Speed, declare under penalty of perjury that the foregoing Petition for Writ of

Certiorari to the United States Court of Appeals for the Sixth Circuit and Motion to Proceed In

Forma Pauperis was delivered to prison officials on the-^yjhay of November, 2022. to be mailed

by U.S. Mail, first-class postage prepaid, to the Office of the Clerk of the United States Supreme

Court for filing.

Dated:

Millie Speed

Petitioner-Appellant, pro se

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.