Sims v. Denmark

Filing 18

ORDER granting 7 Motion to Dismiss; adopting Report and Recommendations re 15 Report and Recommendations. Johnny Ray Sims' claim is dismissed with prejudice. Signed by District Judge Keith Starrett on 2/6/2015 (scp)

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

CIVIL ACTION NO. 2:14cv49-KS-MTP

JOHNNIE DENMARK
ORDER ACCEPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION AND DISMISSING CASE WITH PREJUDICE, ETC.
This cause is before the Court on Motion to Dismiss Pursuant to § 2244(d) [7] filed by
Johnny Denmark, Respondent herein, Report and Recommendation [15] of Magistrate Judge
Michael T. Parker and Objection thereto [16] filed by Johnny Ray Sims. The Court has
considered the above documents, the record herein, applicable law and finds that the Motion to
Dismiss should be granted and that the Petition for Writ of Habeas Corpus should be denied.
I. PROCEDURAL HISTORY
Petitioner Johnny Ray Sims is currently serving a life sentence at the Mississippi
Correctional Institution ("SMCI")in Leakesville, Mississippi. Prior to a capital murder
conviction that resulted in his current sentence, Sims was convicted of one count of aggravated
assault on July 22, 2005, in the Circuit Court of Marion County, Mississippi, and sentenced to
twenty years and $10,000 restitution.1 The underlying facts of his aggravated assault conviction
are as follows. On September 13, 2000, a police officer spotted Sims and, believing Sims had
warrants out for his arrest, approached him. Sims was in his vehicle, along with Angelina
Robinson, who was in the passenger seat. When the police officer attempted to speak with Sims,

1

See Exhibit B [7-2] at 1. Specifically, the court sentenced Sims to serve a year and two
months with eighteen years and ten months suspended. When Sims was arrested for capital
murder, his suspended sentence was revoked and he was ordered to serve the remaining portion
of his sentence. Id.

he drove off at a high rate of speed. Sims then ran a red light and collided with a vehicle driven
by Mary Beth Broome. Sims continued to drive and collided with a second vehicle driven by
Virgie Stevens. Finally, Sims's vehicle struck a tree, injuring Robinson, while Sims continued to
flee on foot.2 Sims was initially charged with three counts of aggravated assault, but two counts
were dropped in exchange for a "best interests plea" to one of the counts.3 In exchange for
dismissing the two counts, the State requested that the trial court consider ordering restitution to
all three victims.4 On July 21, 2005, Sims was ordered to pay a total of $10,000 in restitution in
addition to his prison sentence - $6,000 to alleged victim Virgie Stevens and $4,000 to the victim
of the count for which he was convicted, Mary Beth Broome.5
On October 1, 2007, Sims filed a "Motion to Vacate Revocation Hearing" in Marion
County Circuit Court. This motion was treated as a post-conviction motion regarding Sims
revocation hearing and not a challenge of his original plea of guilty and resulting sentence, and
was denied on May 14, 2008.6 On December 5, 2008, Sims filed a Motion for Post-Conviction
Collateral Relief in Marion County Circuit Court,7 which was dismissed on April 20, 2009.8 The
Mississippi Court of Appeals affirmed on March 5, 2013. Sims v. State, 134 So. 3d 317 (Miss.
Ct. App. 2013), reh'g denied June 25, 2013. The Mississippi Supreme court granted certiorari

2

Sims v State, 134 So. 3d 317, 319-20 (Miss. 2013).

3

Id. At 302.

4

Id.

5

Exhibit B [7-2].

6

Exhibit E [7-5] at 2.

7

See Exhibit I ]7-9].

8

See Exhibit J [7-10].

review and affirmed the Appeals Court decision on March 20, 2014. Sims v. State, 134 So. 3d
300 (Miss. 2014).
Sims filed the present action pursuant to 28 U.S.C. § 2254 on April 7, 2014. In his
petition, Sims alleges that the order to pay restitution to Virgie Stevens was an illegal sentence
and in violation of Due Process.9 Specifically, Sims argues that restitution could only be imposed
on him as to a loss caused by the offense to which he pled guilty or for which he was tried and
convicted. Sims also alleges he had ineffective assistance of counsel during his plea hearing and
that he was subjected to vindictive and politically motivated prosecution.10 Respondent submits
in his Motion that Sims’s petition is time barred pursuant to 28 U.S.C. § 2244(d), and that no
exception to this statute of limitations applies.11
II. STANDARD OF REVIEW
When a party objects to a Report and Recommendation this Court is required to “make a
de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). See also Longmire v.
Gust, 921 F.2d 620, 623 (5th Cir. 1991) (Party is “entitled to a de novo review by an Article III
Judge as to those issues to which an objection is made.”) Such review means that this Court will
examine the entire record and will make an independent assessment of the law. The Court is not
required, however, to reiterate the findings and conclusions of the Magistrate Judge. Koetting v.
Thompson, 995 F.2d 37, 40 (5th Cir. 1993) nor need it consider objections that are frivolous,

9

Although petitioner Sims argues these grounds as separate claims in his Petition, the
undersigned will consider them together.
10

See Petition [1].

11

Motion [7]; Response in Opposition to Petitioner’s Traverse [10].

conclusive or general in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421
(5th Cir. 1997). No factual objection is raised when a petitioner merely reurges arguments
contained in the original petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).
III. PETITIONER’S OBJECTIONS AND ANALYSIS
In his Objection to the Report and Recommendation, Petitioner does not address the
reasoning of Judge Parker on the period of limitation established by 28 U.S.C. § 2244(d)(1).
This section provides for a one year statute of limitations, beginning to run from the date the
Judgment becomes final. The argument of the Petitioner is that there has never been a date that
the Judgment becomes final because the order to pay restitution to Virgie Stevens constitutes an
illegal sentence. Continuing in his Objection, the Petitioner argues that his conviction is an
illegal conviction. He also argues irrelevant matters such as failure to provide discovery and
actual innocence. The facts of the case belie Petitioner’s claim as to innocence, but irrespective
of that his Objections are misplaced. He has never challenged this conviction in Marion County.
He was convicted of aggravated assault of Mary Beth Broome and his conviction became final in
2005. The conviction is a final and valid conviction established by a valid and binding
judgment. The claim that Petitioner has is an invalid sentence. In the sentencing order he was
ordered to pay restitution for injuries sustained by Mrs. Broome, but also was ordered to pay
restitution for damages sustained by Mrs. Virgie Stevens. His argument is that he cannot be
ordered to pay restitution to someone that was not adjudged to be a victim of a crime. This issue
was litigated extensively in state court and the result was adverse to Petitioner.
There has been no challenge made to Judge Parker’s ruling that the one year statute of
limitations passed prior to Petitioner filing the petition. If the sentence was invalid and timely
challenged in this Court, that issue would have been addressed, but the bottom line is that it was

not. Ordering the restitution for Mrs. Stevens is part of the sentencing order and judgment that
Petitioner complains of. He waited too long to file the petition in this Court and, therefore, this
petition is barred by the applicable statute of limitations.
IV. CONCLUSION
As required by 28 U.S.C. § 636(b)(1) this Court has conducted an independent review of
the entire record and a de novo review of the matters raised by the objections. For the reasons
set forth above, this Court concludes that Sims’ objections lack merit and should be overruled.
The Court further concludes that the Report and Recommendation is an accurate statement of the
facts and the correct analysis of the law in all regards. Therefore, the Court accepts, approves
and adopts the Magistrate Judges’s factual findings and legal conclusions contained in the
Report and Recommendation. Accordingly, it is ordered that the United States Magistrate Judge
Michael T. Parker’s Report and Recommendation is accepted pursuant to 28 U.S.C. § 636(b)(1)
and that Johnny Ray Sims’ claim is dismissed with prejudice.
SO ORDERED this, the 6th day of January, 2015.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE