Sims v. Rivard

Filing 13

OPINION and ORDER DENYING 1 Petition for Writ of Habeas Corpus and DENYING Certificate of Appealability Signed by District Judge Denise Page Hood. (KJac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN SIMS,
Case Number: 2:14-CV-12754

Petitioner,

HON. DENISE PAGE HOOD

v.
STEVEN RIVARD,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Michigan state prisoner John Sims has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner, who is presently incarcerated at the G.
Robert Cotton Correctional Facility, in Jackson, Michigan, challenges his convictions for
two counts of first-degree murder, assault with intent to murder, possession of a firearm
during the commission of a felony, and felon in possession of a firearm. He argues that
habeas relief should be granted because the prosecution did not exercise due diligence to
secure an eyewitness’s presence at trial, the trial court erred in instructing the jury on
aiding and abetting, and the trial court erred in re-opening the prosecution’s proofs before
Petitioner presented his case. Respondent argues that the claims should be denied
because they are without merit and/or not cognizable on federal habeas review. For the
reasons discussed, the Court denies the petition and denies a certificate of appealability.

I.

Facts
Petitioner’s convictions arise from a shooting that occurred on Parkgrove Street in

Detroit during the early morning hours of May 26, 2011. Marcell Riddle and James
Griggs were each struck by numerous bullets and killed, and Lendale Griggs sustained a
gunshot wound. The prosecution presented testimony that Petitioner, who was angry over
a relationship between Riddle and Davina Britton (Petitioner’s ex-girlfriend), fired an
assault rifle at Riddle.
Lendale Griggs testified that, on the night of the shooting, he drove to Glenwood
Street in Detroit and found his brother James, Marcell Riddle, and Petitioner standing
together. Landale testified that he sensed tension between Riddle and Petitioner, though
he did not hear any harsh words exchanged. Lendale, James, and Riddle then drove
around the corner to shoot dice on Parkgrove Street. Riddle was still sitting the car and
Lendale and James were standing beside the car when an individual he identified as
Petitioner began firing an assault rifle in their direction. He testified that there was also
another, unknown man at the scene with a handgun. When he heard the gunshots,
Lendale Griggs fled the scene. As he fled the scene, he was struck in the back of the leg
by a bullet.
Dominic Baldwin could not be located at the time of trial. The trial court,
therefore, allowed his preliminary examination testimony to be presented to the jury.
Baldwin testified that he was present during the shooting. Earlier that night, he heard
Petitioner and Riddle discuss a woman, but did not hear either man threaten the other. At
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the time of the shooting, Baldwin saw Riddle sitting in his vehicle, and James Griggs
standing beside the vehicle. Baldwin saw Petitioner standing across the street, firing an
AK-47 in the direction of Riddle’s car.
Davina Britton testified that she and Petitioner have a child, who was born in 2008.
Petitioner left the Detroit area in 2009 and was gone for approximately two years. In his
absence, Britton became involved with Marcel Riddle. When Petitioner returned to the
Detroit area in 2011, she resumed her relationship with him and was no longer involved
with Riddle. She testified that Petitioner was not happy that she had been in a
relationship with Riddle. A few days before the shooting, Britton was in the car when she
received a phone call from Riddle. While Britton was on the phone with Riddle,
Petitioner commented that he was “going to end up killing somebody.” Tr., 12/19 at 70.
Police arrested Petitioner several hours after the shooting. Petitioner was standing
in the driveway of a house located at 13930 Fordham in Detroit, when police arrested
him. Police later obtained a search warrant for the house and found an AK-47-type rifle
and a .380 caliber handgun in a piece of luggage lying under a fallen fence at the
property. Inside the house, police found a similar piece of luggage containing
ammunition clips for an AK-47-type rifle. An expert witness testified that the cartridges
found at the scene of the shooting were fired from the rifle found at the Fordham
residence. Police Sergeant William Hart testified that he had concluded that Petitioner
lived at the Fordham address. The prosecution then rested and the trial was adjourned for
the day. The next morning, before the defense began its case, the prosecution moved to
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reopen the proofs to present evidence of a Secretary of State document, which listed
Petitioner’s residence as 13930 Fordham.
The defense presented testimony from two police officers. The first testified that
as he was responding to reports of a shooting, he stopped Dominic Baldwin, who was
running from the scene. Baldwin initially denied witnessing the story, but later changed
his story. The second officer testified that his police report listed three suspects.
Petitioner did not testify in this own defense.
II.

Procedural History
Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of

two counts of first-degree murder, assault with intent to commit murder, possession of a
firearm during the commission of a felony, and felon in possession of a firearm. On
January 19, 2012, he was sentenced to life imprisonment for each of the two counts of
first-degree murder, 15 to 32 years’ imprisonment for assault with intent to murder, 2-1/2
to 5 years’ imprisonment for possession of a firearm, and 5 years’ imprisonment for
felony firearm.
Petitioner filed an appeal of right in the Michigan Court of Appeals. The
Michigan Court of Appeals affirmed Petitioner’s convictions. People v. Sims, No.
308711, 2013 WL 1629415 (Mich. Ct. App. Apr. 16, 2013). Petitioner sought and was
denied leave to appeal in the Michigan Supreme Court. People v. Sims, 495 Mich. 866
(Mich. Sept. 30, 2013).
Petitioner then filed the pending habeas petition. He raises these claims:
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I.

II.

Abuse of discretion in overruling defense objection to a jury instruction on
aiding and abetting – evidence was insufficient to support aiding and
abetting.

III.

III.

Due diligence, Mich. R. Evid. 804(a)(5) – the prosecution failed to show
due diligence in not producing eyewitness at trial where such witness was
linchpin to case.

Abuse of discretion in overruling the defense objection to the reopening of
the prosecution’s proofs and admission of document that was never in
discovery as evidence.

Standard
Petitioner’s claims are reviewed against the standards established by the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (AEDPA). The AEDPA provides:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim (1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceedings.
28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [United States Supreme Court cases]’
or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the

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Supreme] Court and nevertheless arrives at a result different from [Supreme Court]
precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application’
prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ if the state court
identifies the correct governing legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v. Smith,
539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413). However, “[i]n order for a
federal court find a state court’s application of [Supreme Court] precedent ‘unreasonable,’
the state court’s decision must have been more than incorrect or erroneous. … The state
court’s application must have been ‘objectively unreasonable.’” Id. at 520-21 (quoting
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)) (citing Williams, 529 U.S. at 409). “A state
court’s determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)).
Section 2254(d) reflects the view that habeas corpus is a guard against
extreme malfunctions in the state criminal justice systems, not a substitute
for ordinary error correction through appeal. . . . As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show
that the state court's ruling on the claim being presented in federal court was
so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.
Id. at 102-03 (internal quotation and citation omitted).

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Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision. See
Williams, 529 U.S. at 412. However, this “does not require citation of [Supreme Court]
cases - indeed, it does not even require awareness of [Supreme Court] cases, so long as
neither the reasoning nor the result of the state-court decision contradicts them.” Early v.
Packer, 537 U.S. 3, 8 (2002). Relatedly, “while the principles of ‘clearly established law’
are to be determined solely by resort to Supreme Court rulings, the decisions of lower
federal courts may be instructive in assessing the reasonableness of a state court's
resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing
Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp.
2d 354, 359 (E.D. Mich. 2002).
Finally, a federal habeas court must presume the correctness of state court factual
determinations, see 28 U.S.C. § 2254(e)(1), and a petitioner may rebut this presumption
only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th
Cir. 1998). Put differently, only factual determinations that are “objectively unreasonable
in light of the evidence presented in the state-court proceeding” will be overturned.
McKinney v. Ludwick, 649 F.3d 484, 488 (6th Cir. 2011) (quoting Miller-El v. Cockrell,
537 U.S. 322, 340 (2003)).
IV.

Analysis
A.

Admission of Missing Witness’s Preliminary Examination Testimony
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Petitioner’s first claim for habeas corpus relief concerns the admission of Dominic
Baldwin’s preliminary examination testimony. Baldwin could not be located at the time
of trial and there was evidence that he fled the state because he was fearful of testifying.
The trial court held that the prosecution made a good faith effort to secure Baldwin’s
presence at trial and admitted his preliminary examination testimony. Petitioner argues
that the trial court erred in admitting this testimony because the prosecution failed to
show due diligence under Michigan Rule of Evidence 804. On direct appeal in state
court, Petitioner also raised this claim as an allegation Confrontation Clause violation.
Petitioner does not specifically do so in his habeas petition, but, because the Court
construes pro se pleadings liberally, the Court will construe the petition as presenting a
claim that the admission of Baldwin’s preliminary examination testimony violated the
Confrontation Clause.
The argument that the prosecution violated Michigan Rule of Evidence 804 when
it failed to secure Baldwin’s presence does not allege a claim cognizable on federal
habeas review. The alleged failure to comply with state law does not amount to an
actionable claim on habeas review. See, e.g., Pulley v. Harris, 465 U.S. 37, 41(1984).
The Court may grant a writ of habeas corpus only on the ground that a petitioner “is in
custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a).
Petitioner’s argument that the admission of the preliminary examination testimony
violated his rights under the Confrontation Clause is meritless. The United States
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Constitution’s Sixth Amendment Confrontation Clause provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. “[T]he Sixth Amendment’s right of an accused to
confront the witnesses against him is . . . a fundamental right and is made obligatory on
the States by the Fourteenth Amendment.” Pointer v. Texas, 380 U.S. 400, 403 (1965).
The right to a trial by jury is based on the belief “‘that the ‘evidence developed’ against a
defendant shall come from the witness stand in a public courtroom where there is full
judicial protection of the defendant’s right of confrontation, of cross-examination, and of
counsel.’” Id. at 405 (quoting Turner v. State of Louisiana, 379 U.S. 466, 472-73
(1965)).
The Confrontation Clause bars out-of-court statements that are testimonial in
nature unless the witness is unavailable and the defendant had a prior opportunity to
cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 68 (2004). First,
Petitioner appears to challenge the trial court’s finding that Baldwin was unavailable
because, he argues, the prosecution did not make a good-faith effort to obtain his presence
at trial. Under federal law, “a witness is not ‘unavailable’ for purposes of the ... exception
to the confrontation requirement unless the prosecutorial authorities have made a
good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S. 719, 724-25
(1968). “The ultimate question is whether the witness is unavailable despite good-faith
efforts undertaken prior to trial to locate and present that witness”; “the prosecution bears
the burden of establishing this predicate.” Ohio v. Roberts, 448 U.S. 56, 74-75 (1980),
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abrogated on other grounds by Crawford, 541 U.S. 36.
Under Michigan law, the requirement is the same:
The declarant is unavailable when he is absent from the hearing and the
proponent of his statement has used due diligence to procure his attendance.
MRE 804(a)(5). The party wishing to have the declarant’s former
testimony admitted must demonstrate that it made a reasonable, good-faith
effort to secure the declarant’s presence at trial. The test does not require a
determination that more stringent efforts would not have procured the
testimony.
Sims, 2013 WL 1629415 at *1.
Applying this due diligence standard, the Michigan Court of Appeals held that the
prosecution exercised due diligence in attempting to locate Baldwin, relying on this
evidence: Sergeant Hart testified that his team attempted to secure Baldwin’s presence at
trial for months prior to the trial date; Baldwin was subpoenaed for the original trial date;
when the trial was rescheduled, police instructed Baldwin that he remained under
subpoena for the rescheduled date; once contact was lost with Baldwin shortly before trial
commenced, police made numerous attempts to reestablish contact; and, when contact
was reestablished a few days before trial, Baldwin assured police that he would appear for
trial; finally, when Baldwin did not appear on the first day of trial, police made significant
efforts to locate him. Id.
This Court cannot say that the Michigan Court of Appeals’ decision that the
prosecutorial team acted with due diligence to secure Baldwin’s presence at trial was
contrary to or an unreasonable application of clearly established federal law or an
unreasonable determination of the facts in light of the evidence presented. The Supreme
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Court has held that “[t]he lengths to which the prosecution must go to produce a witness
... is a question of reasonableness.” Roberts, 448 U.S. at 74. The record supports a
finding that the prosecution acted with reasonable diligence in this case.
Second, the Court considers whether the second prong of Crawford, a “prior
opportunity for cross-examination” was satisfied by Baldwin’s testimony at the
preliminary examination. The Michigan Court of Appeals held that it was. Sims, 2013
WL 1629415 at *2. The Sixth Circuit Court of Appeals has acknowledged “there is some
question whether a preliminary hearing necessarily offers an adequate prior opportunity
for cross-examination for Confrontation Clause purposes.” Al-Timimi v. Jackson, 379 F.
App’x. 435, 437 (6th Cir. 2010) (citing Vasquez v. Jones, 496 F.3d 564, 577 (6th Cir.
2007)) (doubting whether “the opportunity to question a witness at a preliminary
examination hearing satisfies the pre-Crawford understanding of the Confrontation
Clause’s guarantee of an opportunity for effective cross-examination”) (internal quotation
marks omitted). But, the Sixth Circuit Court of Appeals has further observed that
“because there is room for reasonable debate on the issue,” a state court’s decision that a
preliminary examination satisfies the “opportunity for cross-examination” requirement,
“is necessarily beyond [a federal court’s] power to remedy under § 2254, even if it turns
out to be wrong.” Williams v. Bauman, 759 F.3d 630, 636 (6th Cir. 2014) (citing White v.
Woodall, — U.S. —, 134 S. Ct. 1697, 1702 (2014)). Because there is no “clearly
established federal law” to which the state court’s decision could be “contrary” within the
meaning of section 2254(d)(1), the Court denies habeas relief on this claim.
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B.

Jury Instruction on Aiding and Abetting

Petitioner argues that the trial court erred in instructing the jury that Petitioner
could be convicted under an aiding and abetting theory when the prosecutor presented
insufficient evidence to support that theory.
An erroneous jury instruction warrants habeas corpus relief only where the
instruction “‘so infected the entire trial that the resulting conviction violates due
process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991), (quoting Cupp v. Naughten, 414
U.S. 141, 147 (1973)). “[I]t must be established not merely that the instruction is
undesirable, erroneous, or even ‘universally condemned,’ but that it violated some
[constitutional] right.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
Under Michigan law, “[in] order to convict a defendant of first-degree murder, the
prosecution must prove that the defendant intentionally killed the victim and that the
killing was premeditated and deliberate.” People v. Anderson, 531 N.W.2d 780, 786
(Mich. Ct. App. 1995). Premeditation may be inferred by the circumstances surrounding
the killing. People v. Marsack, 586 N.W.2d 234, 371 (Mich. Ct. App. 1998). “To
establish that a defendant aided and abetted a crime, a prosecutor must show that (1) the
crime charged was committed by the defendant or some other person, (2) the defendant
performed acts or gave encouragement that assisted the commission of the crime, and (3)
the defendant intended the commission of the crime or knew that the principal intended to
commit the crime at the time he gave aid and encouragement.” Riley v. Berghuis, 481
F.3d 315, 322 (6th Cir. 2007), citing People v. Carines, 597 N.W.2d 130, 135 (1999). An
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“aider and abettor’s state of mind may be inferred from all the facts and circumstances.
Factors that may be considered include a close association between the defendant and the
principal, the defendant’s participation in the planning or execution of the crime, and
evidence of flight after the crime.” People v. Carines, 460 Mich. 750, 758 (1999). “The
quantum of aid or advice is immaterial as long as it had the effect of inducing the crime.”
People v. Lawton, 196 Mich. App 341, 352 (1992). Further, “[t]he intent to kill may be
transferred to an unintended victim.” Sims, 2013 WL 1629415 at *2, citing Lawton, 196
Mich. App. at 350-51.
The Michigan Court of Appeals held that the evidence amply supported a firstdegree murder instruction under an aiding and abetting theory. The state court reasoned:
In this case, the prosecution’s theory was that there were two shooters
during the Parkgrove shooting. One shooter, Joe Joe, had a gambling
dispute with James Griggs and the other shooter, defendant, was upset with
Riddle over a relationship. There was evidence that multiple weapons were
discharged, a handgun and a rifle. There is also eyewitness testimony that
there were two shooters on scene. The testimony was that the two men
appeared at almost the same time each silently discharging weapons in the
same direction. Their coordinated efforts indicate conduct sufficient to
induce and aid the other person. ... A jury could infer shared intent to
murder from this evidence, which would support both of the homicide
charges and the assault charge. Accordingly, the evidence supported a
theory of aiding and abetting.
Id.
Federal courts are bound by the state courts’ interpretation of their own laws. See
Mullaney v. Wilbur, 421 U.S. 684, 690-91 (1975). Where a state appeals court finds that
the instruction given by the trial court accurately reflected state law, this Court must defer

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to that determination. See Seymour v. Walker, 224 F.3d 542, 558 (6th Cir. 2000).
Because the Michigan Court of Appeals determined that it was proper for the trial court to
give the jury an instruction on aiding and abetting, and Petitioner has not shown that
holding was unreasonable, he is not entitled to habeas relief on this claim.
C.

Reopening of Prosecution’s Proofs

Finally, Petitioner argues that the trial court erred in reopening the prosecution’s
proofs before commencement of the defense’s case to allow the prosecution to introduce a
document from the Secretary of State’s Office establishing Petitioner’s residence on
Fordham Street.
This claim raises question only of state law. “Trial court errors in state procedure
and/or evidentiary law do not rise to the level of federal constitutional claims warranting
relief in a habeas action unless the error renders the proceeding so fundamentally unfair
as to deprive the petitioner of due process under the Fourteenth Amendment.” McAdoo v.
Elo, 365 F.3d 487, 494 (6th Cir. 2004) (citing Estelle v. McGuire, 502 U.S. 62, 69-70
(1991)). The Michigan Court of Appeals held that the trial court did not abuse its
discretion in reopening the prosecution’s proofs to admit the proof-of-address document
from the Secretary of State. Sims, 2013 WL 1629415 at *3. The trial court held that the
delay in presenting this document was “mere oversight, not an attempt to blindside the
defense.” Id. The document simply confirmed a fact for which supporting evidence was
already in the record. Id. The state court held that Petitioner did not establish surprise or
prejudice from the introduction of this document. Id.
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Petitioner has failed to show that the state court’s conclusion was contrary to or an
unreasonable application of Supreme Court precedent. Nor has he shown that the trial
court’s decision implicated his fundamental right to a fair trial. Therefore, habeas relief is
denied on this claim.
V.

Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed

unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of
the Rules Governing Section 2254 Proceedings requires that the Court “must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.”
A COA may be issued “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The substantial showing
threshold is satisfied when a petitioner demonstrates “that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
In this case, the Court concludes that reasonable jurists would not debate the
Court’s conclusion that none of the claims in the habeas petition warrant relief.
Therefore, the Court denies a certificate of appealability.

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VI.

Conclusion
Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus and a

certificate of appealability are DENIED and the matter is DISMISSED WITH
PREJUDICE.

S/Denise P. Hood
DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE
DATE: December 31, 2015

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served
upon the parties and/or counsel of record on December 31, 2015, by
electronic means and/or ordinary mail.
s/K. Jackson
CASE MANAGER
[phone]

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