Sims v. Denmark

Filing 62

ORDER denying Plaintiff's 52 Motion to Alter or Amend Judgment Pursuant to Rules 52 and 59 of the Federal Rules of Civil Procedure. Signed by District Judge Keith Starrett on August 2, 2016 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JOHNNY RAY SIMS
v.

PETITIONER
CIVIL ACTION NO.: 1:13-CV-533-KS-MTP

JACQUELYN BANKS

RESPONDENT
ORDER

This cause is before the Court on petition of Johnny Ray Sims for Motion to Alter or
Amend Judgment [50] pursuant to Rules 52 and 59 of the Federal Rules of Civil Procedure, or in
the alternative for Relief from Judgment pursuant to Rule 60 of the Federal Rules of Civil
Procedure. Having considered the submissions of the parties, along with the documents made a
part of the

record and the applicable law, the undersigned orders that petitioner’s Motion to Alter or Amend
be denied.
Rule 52(b) of the Federal Rules of Civil Procedure provides that “On a party’s motion
filed not later than 28 days after the entry of judgment, the court may amend its findings, or make
additional findings, and may amend the judgment accordingly. The motion may accompany a
motion for a new trial under Rule 59.” Fed. R. Civ. P. 52(b). Rule 59(e) provides that “A motion
to alter or amend a judgment must be filed not later than 28 days after the entry of the judgment.”
Fed. R. Civ. P. 59(e)
Rule 60(b) of the Federal Rules of Civil Procedure provides grounds for relief from a
final judgment or other proceeding. The rule states that “On motion and just terms, the court may
relieve a party or its legal representative from a final judgment, order, or proceeding. . . .” Fed. R.
Civ. P. 60(b). Rule 60(b)(1) and (6), which were cited by the petitioner, includes mistake,

inadvertence, surprise, or excusable neglect; and any other reason that justifies relief. Fed. R. Civ.
P. 60(b)(1),(6).
Petitioner filed his motion within the time required by each rule that he listed. However,
Petitioner has failed to provide the Court with any argument that the judgment should be altered
or amended. Petitioner has also failed to provide the Court with anything showing that he is
entitled relief from the judgment. Petitioner continues to list the same arguments that were stated
in his original petition, his objection to the Magistrate Judge’s Report and Recommendation, and
now this motion.
As stated in the order adopting the Magistrate Judge’s recommendation [49], M.C.A. 9939-21 states that “Failure by a prisoner to raise objections, defenses, claims, questions, issues or
errors either in fact or law which were capable of determination at trial and/or on direct appeal
. . . shall constitute a waiver thereof and shall be procedurally barred . . .” Miss Code § 99-3921(1) (emphasis added). Because Petitioner failed to present Grounds One, Two, Three, and Five
on direct appeal, as clearly stated by the statute, this would constitute a waiver and therefore they
are procedurally barred.
Petitioner points out that his claims can be brought via direct appeal or state postconviction proceedings, however this is not the case for Petitioner’s claims. The Mississippi
Supreme Court has repeatedly and consistently held that “post-conviction relief in Mississippi
is not granted upon facts and issues which could or should have been litigated at trial and on
appeal. Smith v. State, 434 So. 2d 212, 215 (Miss. 1983). Post-conviction proceedings are for
the purpose of brining to the trial court’s attention facts not known at the time of judgment,
therefore questions not alleged and raised at trial and/or on direct appeal are procedurally barred
and may not be litigated collaterally in a post conviction environment. Gillard v. State, 446 So.2d
590 (Miss. 1984); Pruett v. Thigpen, 444 So.2d 819 (Miss. 1984); King v. Thigpen, 441 So.2d

1365 (Miss. 1983). Grounds One, Two, Three, and Five were facts that should have been known
at the time of judgment, and raised at trial and/or on direct appeal. Because they were not,
Petitioner has waived those claims and they are procedurally barred.
For Ground Four, Petitioner claims in his Motion that “The circumstantial evidence cited
by this Court could, arguendo, imply guilt of the elements of some crimes; but to say that it
proves the elements of kidnapping is simply NOT RATIONAL.” The facts of this case clearly
provide the court with a rational determination that the elements of kidnaping have been met.
Petitioner inveigled Jamaya to come to his home, her clothes had been removed, and there was
damage to her neck, face, and vaginal and rectal area. This circumstantial evidence would lead
any court to rationally concur that the elements of kidnaping were met.
As to Ground Six, Petitioner claims that the court over looked his detailed objections on
whether he received ineffective assistance of counsel, however this is not the case. Petitioner did
provide detailed arguments in his objection, however these arguments were not specific conduct
that his attorney did or did not do. Rather they were an attempt to retry the case through his
objection. Petitioner failed to show that his counsel’s performance was deficient and that the
deficient performance prejudiced the defense. These arguments clearly fell short of the standard
required by Strickland v. Washington.
IT IS, THEREFORE, ORDERED that the Motion to Alter or Amend Judgment should be
dismissed. Petitioner has failed to provide the Court with reasonable arguments showing that his
judgment should be altered or amended, or that he is entitled to any relief from the judgment.
SO ORDERED on this the 2nd day of August, 2016.

s/Keith Starrett
UNITED STATES DISTRICT JUDGE