Sims #520921 v. McQuiggin

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATION 27 : Petitioner's petition is DENIED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

WILLIE SIMS, JR.,
Petitioner,

Case No. 2:11-CV-211

v.

HON. GORDON J. QUIST

GREG MCQUIGGIN, Warden,
Respondent.
/

ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner, Willie Sims, Jr., filed a petition for habeas corpus asserting seven separate claims
for relief.

On May 29, 2014, Magistrate Judge Timothy Greeley issued a Report and

Recommendation (R & R) recommending that the Court deny the petition. Sims timely filed
objections to the R & R. Pursuant to 28 U.S.C. § 636(b)(1), upon receiving objections to an R &
R, the district judge “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” After conducting a de novo
review of the R & R, Sims’s objections, and the pertinent portions of the record, the Court concludes
that the R & R should be adopted as the Opinion of the Court.
Sims’s Objections
Sims’s first objection is that the R & R does not make clear whether the magistrate judge
found that Sims’s claims were procedurally defaulted. Although the magistrate judge determined
that Sims had procedurally defaulted the majority of his claims, he considered the claims on the
merits as well. He found that each of the claims failed on the merits, even if it was not procedurally
defaulted. Accordingly, this objection is without merit.

Sims argues that certain of his claims constitute jurisdictional defects, and that the state court
erred in refusing to consider those claims in his motion for relief from judgment. In essence, Sims
argues that the state court misapplied its own rule. See MCR 6.508(D). The Sixth Circuit has
explicitly rejected an identical argument, noting that “even if the Michigan courts erroneously
determined the meaning of jurisdictional defect, this would be an error of state law not cognizable
on habeas review.” Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000). Accordingly, this
objection is overruled.
Sims next objects to the R & R’s conclusion that he could not demonstrate ineffective
assistance of appellate counsel, arguing that his appellate counsel should have raised more than one
issue on appeal. Appellate counsel “has no obligation to raise every possible claim, and the decision
of which among the possible claims to pursue is ordinarily entrusted to counsel’s professional
judgment.” McFarland v. Yukins, 356 F.3d 688, 710 (6th Cir. 2004) (internal quotations omitted).
The “process of winnowing out weaker arguments on appeal and focusing on those more likely to
prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.”
Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661, 2667 (1986) (internal quotations omitted).
Appellate counsel testified that she considered several other issues, including those that Sims
brought to her attention, but that she ultimately rejected those issues because they were without
merit. (2/26/09 Hrg. Tr. at 28-29, 30, 33-34, 43, 53-55, 59.) She testified that she determined that
Sims had the most realistic chance of prevailing on a claim that would reduce his conviction to
second-degree murder, and that Sims agreed to pursue that theory on appeal. (Id. at 38-39.) Under
the circumstances, appellate counsel was not ineffective.
Sims next argues that certain evidentiary rulings deprived him of a fair trial. Errors with
regard to admissibility of evidence are generally not cognizable on habeas review. Bugh v. Mitchell,
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329 F.3d 496, 513 (2003). However, “[w]hen an evidentiary ruling is so egregious that it results in
a denial of fundamental fairness, it may violate due process and thus warrant habeas relief.” Id.
The Court agrees with the magistrate judge that the trial court correctly ruled on the prosecutor’s
objection to Aaron Lake’s testimony. However, even if the trial court erred, such error would not
amount to a denial of fundamental fairness. Furthermore, Sims has not demonstrated that the trial
court’s ruling refusing to admit his statement to police on hearsay grounds violated due process.
Although he asserts that the ruling deprived him of a fair trial, he never makes clear how it did so.
Accordingly, this objection is overruled.
Sims next argues that the prosecutor committed misconduct by presenting testimony from
a witness regarding an intimidating call that the witness received from an individual who claimed
that he was calling on behalf of Sims. For a prosecutorial misconduct argument to succeed on
habeas review, the conduct at issue must be “so egregious as to render the entire trial fundamentally
unfair.” Serra v. Mich. Dep’t of Corr., 3 F.3d 1348, 1356 (6th Cir. 1993) (internal quotations
omitted). Sims argues that the prosecutor knew that the call at issue was from an unknown source
and that there was no evidence that Sims was involved with witness tampering. However, he has
presented no evidence that the witness’s testimony was false, or that the prosecutor knew the
testimony was false. Accordingly, Sims has failed to demonstrate that the prosecutor engaged in
egregious conduct that rendered his trial unfair.
Sims next argues that the trial judge erred in allowing two witnesses to testify that someone
told them that a man in a car pointed at them in a threatening manner. Sims argues that, because the
witnesses did not see the finger pointing, their testimony violated Sims’s rights under the
Confrontation Clause. “To trigger a violation of the Confrontation Clause, an admitted statement
must be testimonial in nature and must be hearsay.” United States v. Warman, 578 F.3d 320, 346
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(6th Cir. 2009). In this case, the prosecutor raised the finger-pointing incident in the context of
questions about whether the witnesses were nervous to testify. As such, the statements were not
offered for the truth of the matter asserted, i.e., that the witnesses were threatened, but rather to
establish the state of mind of the witnesses. See United States v. Lacey, No. 94-1030, 1995 WL
258142, at *7 (6th Cir. May 2, 1995) (holding that testimony about threats was not hearsay because
it was not admitted to prove the truth of the matter asserted). Because the statements were offered
for non-hearsay purposes, they were not barred by the Confrontation Clause. See United States v.
Adams, 722 F.3d 788, 829 (6th Cir. 2013) (“The Confrontation Clause does not, however, bar the
admission of testimonial statements that are offered for non-hearsay purposes (i.e., not for the truth
of the matter asserted).”). Accordingly, this objection fails.
Sims next argues that his trial counsel was ineffective. Sims’s arguments that his counsel
should have objected to instances of prosecutorial misconduct and admission of testimony regarding
threats to witnesses are without merit for the reasons discussed previously. Furthermore, counsel’s
failure to lay a foundation to call Officer Terrill to impeach a witness is insufficient to demonstrate
ineffective assistance. The witness testified at trial that the shooter was about 5'7'' or 5'8'', and very,
very, small. Counsel attempted to impeach him with a statement that the witness had previously
provided to police that the shooter was 5'8'' or 5'9'' and 185 or 190 pounds. However, counsel failed
to lay a foundation to provide impeachment testimony.

Even if counsel’s performance in this

regard was deficient, there is not a reasonable probability that it affected the outcome of the trial.
See Howard v. United States, 743 F.3d 459, 464 (6th Cir. 2014). Accordingly, Sims has not
demonstrated that counsel was ineffective.
Finally, Sims argues that there was insufficient evidence to sustain his conviction.
Sufficiency of the evidence challenges raised on habeas are subject to “deference at two levels.”
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Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008). “First, deference should be given the to trierof-fact’s verdict.” Id. “[S]econd, deference should be given to the [state court’s] consideration of
the trier of fact’s verdict, as dictated by AEDPA.” Id. Sims’s claim cannot survive in light of that
stringent standard. In denying Sims’s motion under MCR 6.508(D)(3), the court listed many pieces
of evidence from which a rational trier of fact could have convicted Sims, including eyewitness
testimony and Sims’s videotaped confession. Sims has not demonstrated that the state court’s
decision was an unreasonable application of established law, or that it resulted in a decision based
upon an unreasonable determination of the facts.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must also determine whether a certificate of
appealability should be granted. A certificate should issue if a petitioner has demonstrated “a
substantial showing of a denial of a constitutional right.” Id. The Sixth Circuit has disapproved
issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th
Cir. 2001). Rather, the district court must “engage in a reasoned assessment of each claim” to
determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the
standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595
(2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined Sims’s claims under the
Slack standard.
Under Slack, 529 U.S. at 484, 120 S. Ct. at 1604, to warrant a grant of the certificate, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” For the reasons stated above, the Court finds that
reasonable jurists could not find that this Court’s dismissal of Sims’s claims was debatable or
wrong. Thus, the Court will deny Sims a certificate of appealability.
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Therefore,
IT IS HEREBY ORDERED that the Report and Recommendation (dkt. # 27) is
ADOPTED as the Opinion of the Court, and Petitioner’s Petition (dkt. # 1) is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Objection to the R & R (Dkt. # 28) is
OVERRULED.
This case is concluded.
A separate judgment will issue.

Dated: July 29, 2014

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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