Sims v. Colson

Filing 80

ORDER GRANTING IN PART AND DENYING IN PART PETITIONERS MOTION 69 FOR LEAVE TO CONDUCT DISCOVERY. Signed by Judge S. Thomas Anderson on 5/6/2016. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
VINCENT SIMS,
Petitioner,
v.
BRUCE WESTBROOKS, Warden,
Respondent.

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No. 11-2946-STA-cgc

ORDER GRANTING IN PART AND DENYING IN PART
PETITIONER’S MOTION FOR LEAVE TO CONDUCT DISCOVERY

On January 4, 2016, Petitioner Vincent Sims, through counsel, filed a motion for leave to
conduct discovery and a supporting memorandum. (Electronic Case Filing (“ECF”) Nos. 69 &
70.) On February 18, 2016, Respondent Bruce Westbrooks filed a response. (ECF No. 75.) On
March 3, 2016, Sims filed a reply. (ECF No. 78.)
I.

BACKGROUND
In May 1998, Sims was convicted of especially aggravated burglary of Forrest Smith’s

home and first degree premeditated murder for Smith’s subsequent death. Sims v. State, No.
W2014-00166-CCA-R3-PD, 2014 WL 7334202, at *1 (Tenn. Crim. App. Dec. 23, 2014). Sims
received consecutive sentences of 25 years for especially aggravated burglary and death for first
degree premeditated murder. Id. The jury found four aggravating circumstances to support the
death sentence: (1) Sims had been convicted previously of one or more felonies with statutory
elements that involve the use of violence against the person; (2) the murder was especially
heinous, atrocious, or cruel; (3) the murder was committed for the purpose of avoiding,

interfering with, or preventing a lawful arrest or prosecution of Sims or another; and (4) the
murder was committed during the commission of a burglary or theft. See Tenn. Code Ann. § 39–
13–204(i)(2), (5), (6), (7) (1997). Id. (See ECF No. 46-16 at PageID 2262-2264.)1
The Tennessee Court of Criminal Appeals summarized the guilt phase evidence as
follows:
On April 5, 1996, Forrest Smith arrived home from work around 10:00 p.m. He
found the [Petitioner], Vincent Sims, and Sims’s [teenage] cousin, Brian Mitchell,
in the process of burglarizing his home. Mitchell testified that Sims had called
him earlier in the evening asking for help in moving a big screen television from a
house Sims had burglarized. Sims picked up Mitchell in a borrowed Toyota
Camry belonging to Sims’s girlfriend. They drove to Smith’s house, parked the
car under the carport, and loaded the big screen television in the trunk. Sims and
Mitchell were in the house disconnecting a computer when Smith arrived. Smith
parked his Jeep in the driveway to block the other vehicle’s exit. When Smith
entered the house, Sims and Mitchell ran outside but were unable to get the
Camry out of the driveway. Sims went back into the house while Mitchell
remained outside.
Mitchell testified that he heard Sims yelling at Smith to give Sims the keys to the
Jeep. Mitchell then heard eight or nine gunshots fired inside the house. Sims
returned carrying Smith’s .380 caliber chrome pistol and the keys to the Jeep.
Sims was holding his side and told Mitchell that he had been shot. Sims threw
Mitchell the keys to move the Jeep, and the two fled the scene in the Camry.
Mitchell testified that Sims told him that Sims and Smith had fought over the .380
caliber pistol and that Sims had shot Smith. Sims told Mitchell that Sims had to
kill Smith because Smith had seen Sims’s face. Sims instructed Mitchell not to
talk to anyone about what had happened and later threatened Mitchell’s life after
they were in custody.
Smith’s girlfriend, Patricia Henson, arrived at the home shortly after the shooting,
sometime between 10:00 and 10:30 p.m. Smith was lying on the kitchen floor in a
pool of blood, but he was conscious and asked Henson to call 911. When asked
what had happened, Smith was able to tell Henson and Officer Donald Crowe that
there had been a robbery and that Smith had been shot in the head. Officer Crowe
testified that Smith was bleeding from several parts of his body, appeared to have
been shot more than once, and was in severe pain. After receiving treatment by
paramedics on the scene, Smith was transported to the hospital. He died
approximately four and a half hours later.
1

“PageID” references are used to locate information in the state court record and exhibits
filed on CM-ECF.
2

In the meantime, Sims took Mitchell home and picked up Sims’s girlfriend,
Tiffany Maxwell, from work after she clocked out at 11:05 p.m. Maxwell testified
that Sims was visibly upset and had blood on his shirt. Upon inquiry, Sims told
her that someone had attempted to rob him. Maxwell also noticed that he had a
“deep scar” injury on his side, which she treated herself after Sims refused to go
to the hospital. The following morning, Sims and Maxwell took Maxwell’s car to
be washed and detailed. Maxwell then noticed that the license plate frame on her
car was broken. Sims and Maxwell attended an Easter Sunday church service the
next morning. According to Maxwell, Sims behaved normally with nothing
unusual occurring until the following Tuesday when Sims was arrested at
Maxwell’s place of employment.
After Sims and Mitchell were in custody, Sims gave Mitchell a letter to deliver to
Mitchell’s attorney. In that letter, Sims recalled the events surrounding the
burglary and murder. Sims alleged that Smith had fired at Sims and Mitchell as
they fled the house. Mitchell testified that this portion of the letter was untrue.
Mitchell maintained that no shots were fired until Sims went back inside the
house to get Smith’s keys to the Jeep. Sims also contended in the letter that Smith
was accidentally shot in the head while the two struggled over the .380 caliber
pistol.
Significantly, however, the bullet removed from Smith’s brain was a .22 caliber
bullet. The police also recovered fragments from three or four .22 caliber bullets
at the scene. Mitchell testified that he had seen Sims with a long barrel .22 caliber
revolver with a brown handle earlier in the evening. Although Mitchell did not see
Sims with the revolver during the burglary, he did see something protruding under
Sims’s shirt. In addition to the .22 caliber bullets, the police found a bullet
fragment from a probable .380 caliber bullet and five fired .380 caliber cartridge
cases at the scene. Officers also recovered from Smith’s carport a beeper that was
later identified as belonging to Sims and the broken license plate frame from
Maxwell’s car.
Forensic pathologist Wendy Gunther performed the autopsy on Smith. She
testified that Smith suffered a gunshot entry and exit wound to his head. Part of
the bullet entered Smith’s brain and lodged in his skull above his right eye, and
the other piece exited in front of his right ear. Smith also suffered multiple blows
to his head, neck, shoulders, arms, sides, back, and buttocks. The bruising
indicated that Smith had been struck with a long, narrow, rod-shaped object at
least a quarter inch wide. Dr. Gunther estimated that Smith had been struck at
least ten times but probably many more. She stated that the blows were very hard
as evidenced by the immediate bruising on Smith’s body. Smith suffered at least
six blows to his head, one of which fractured his skull at the back of his head. Dr.
Steven Symes, a forensic anthropologist, opined that this head injury was inflicted
after the gunshot wound to Smith’s head. Although the gunshot wound to the head
was the worst injury and would by itself have caused death, Dr. Gunther testified
3

that the cause of death was a combination of all of the injuries.
Based upon the above evidence, the jury convicted Sims of especially aggravated
burglary and first degree premeditated murder.
Sims, 2014 WL 7334202, at *1-3.
II.

DISCOVERY REQUESTS
Petitioner requests leave to serve the following subpoenas for:
1.
Documents in the possession, custody, or control of the District Attorney
General’s Office for Tennessee’s 30th Judicial District respecting the State’s
dealings with, and prosecution of, Brian Mitchell;
2.
The depositions of Assistant District Attorneys General James Lammey
and Lee Coffee;
3.
The depositions of Memphis Police Officers J. W. Bouchillon, E. E. Cash,
Donald Crowe, C. E. Logan, and James Nichols;
4.
Documents the Tennessee Bureau of Investigation (TBI) obtained,
reviewed, and/or created respecting tests the TBI performed on crime scene
evidence; and
5.
A Memphis Police Department crime scene file currently in the possession
of Karon Corbitt.

(ECF No. 69 at 1.)
III.

STANDARD
Habeas petitioners do not have an automatic right to discovery. See Johnson v. Mitchell,

585 F.3d 923, 934 (6th Cir. 2009) (quoting Stanford v. Parker, 266 F.3d 442, 460 (6th Cir.
2001)). Discovery in habeas cases is controlled by Rule 6(a) of the Rules Governing Section
2254 Cases in the United States District Courts (“Habeas Rules”), which states: “A judge may,
for good cause, authorize a party to conduct discovery under the Federal Rules of Civil
Procedure and may limit the extent of discovery.” See Cornwell v. Bradshaw, 559 F.3d 398, 410
(6th Cir. 2009) (“For good cause shown, the district court has the discretion to permit discovery

4

in a habeas proceeding . . . .”). Habeas Rule 6 is meant to be “consistent” with the Supreme
Court’s decision in Harris v. Nelson, 394 U.S. 286 (1969). Bracy v. Gramley, 520 U.S. 899, 909
(1997). In Harris, the Court stated:
[W]here specific allegations before the court show reason to believe that
the petitioner may, if the facts are fully developed, be able to demonstrate that he
is confined illegally and is therefore entitled to relief, it is the duty of the court to
provide the necessary facilities and procedures for an adequate inquiry.
Harris, 394 U.S. at 300.
“Good cause” is not demonstrated by “bald assertions” or “conclusory allegations.”
Stanford, 266 F.3d at 460; see Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004). Rather, the
requested discovery must be materially related to claims raised in the habeas petition and likely
to “resolve any factual disputes that could entitle [the petitioner] to relief.” Williams, 380 F.3d at
975 (quoting Stanford, 266 F.3d at 460) (internal quotation marks omitted); see Bracy, 520 U.S.
at 908-909 (allowing discovery relevant to “specific allegations” of fact in support of a claim of
constitutional error); Post v. Bradshaw, 621 F.3d 406, 425 (6th Cir. 2010) (stating that discovery
provides petitioner “that extra evidence he . . . needs to prove or strengthen his case”); Braden v.
Bagley, No. 2:04-CV-842, 2007 WL 1026454, at *2 (S.D. Ohio Mar. 30, 2007) (“Rule 6’s ‘good
cause’ standard requires petitioner to at least attempt to identify what he expects to uncover
through his discovery requests.”).2 Although “more liberal discovery is appropriate in capital
[habeas] cases,” Payne v. Bell, 89 F. Supp. 2d 967, 971 (W.D. Tenn. 2000) (citing Lockett v.
Ohio, 438 U.S. 586, 604 (1978)), Rule 6(a) does not permit a “fishing expedition masquerading
2

“The Sixth Circuit has not determined whether § 2254(e)(2) applies to motions for
discovery.” Hill v. Anderson, 4:96CV0795, 2010 WL 5178699, at *8 (N.D. Ohio Dec. 14,
2010). A petitioner may show good cause under Habeas Rule 6 without meeting the higher
standard for an evidentiary hearing in 28 U.S.C. § 2254(e)(2). Payne, 89 F. Supp. 2d at 970; see
Braden, 2007 WL 1026454, at *6 (distinguishing discovery from factual development under §
2254(e)(2)); see also Simmons v. Simpson, No. 3:07-CV-313-S, 2009 WL 4927679, at *5-6
(W.D. Ky. Feb. 12, 2009) (stating that this view is not unanimously held by federal courts).
5

as discovery.” Stanford, 266 F.3d at 460.
There is no clear entitlement to discovery in support of procedurally defaulted habeas
claims.

See Williams, 380 F.3d at 975-976 (finding no error in district court’s denial of

discovery on procedurally defaulted ineffective assistance of counsel claims); Royal v. Taylor,
188 F.3d 239, 249 (4th Cir. 1999) (finding no error in district court’s denial of discovery on
procedurally defaulted due process claims); Calderon v. U.S. Dist. Court for the N. Dist. of Ca.,
98 F.3d 1102, 1106 (9th Cir. 1996) (issuing mandamus to prevent discovery awarded by district
court because petitioner had not filed a habeas petition with exhausted claims or sought such
discovery in the state court); Sherman v. McDaniel, 333 F. Supp. 2d 960, 969-970 (D. Nev.
2004) (denying discovery on unexhausted claims because “[t]o do so would tend to undermine
the exhaustion requirement, and the doctrine of federal-state comity on which it rests”). But see
Conway v. Houk, No. 3:07-cv-345, 2009 WL 961199, at *3 (S.D. Ohio Apr. 8, 2009) (“So long
as the procedural default defense has not been adjudicated, its pleading does not provide a basis
to deny discovery.”); Hutton v. Mitchell, No. 1:05-CV-2391, 2008 WL 4283318, at *2 (N.D.
Ohio Sept. 16, 2008) (allegations of procedural default will not automatically bar discovery).
However, “a habeas petitioner may use a Habeas Rule 6 discovery motion to obtain evidence
relevant to excusing procedural default.” Payne, 89 F. Supp. 2d at 974 (granting discovery
motion in support of a presumptively defaulted claim because the motion sought to discover
evidence which would allow the petitioner to obtain a factual basis to excuse default, his “actual
innocence”); see Braden, 2007 WL 1026454, at *10 (granting the deposition of a mitigation
specialist where the request was reasonably calculated to lead to evidence that could demonstrate
a justification for excusing the apparent default of the petitioner’s claim). Since procedural
default may not automatically bar discovery in habeas cases, discovery may be allowed if it

6

would uncover proof that could justify the apparent procedural default of Sims’ claims.
IV.

RELEVANT CLAIMS
Sims seeks discovery related to his Brady, false testimony, and prosecutorial misconduct

claims (Claims 3-5.) (ECF No. 70 at 5.) Respondent argues that each of the claims for which
Sims seeks additional discovery is procedurally defaulted. (ECF No. 75 at 7, 12.)3
A.

Brady (Claim 3)

A Brady violation occurs if three conditions are met: “[t]he evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued.” Strickler v. Greene, 527 U.S. 263, 281–282 (1999). “The question is not
whether the defendant would more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995); see Kennedy v.
Mackie, No. 14-2342, 2016 WL 232133, at *3 (6th Cir. Jan. 19, 2016).
Sims seeks discovery related to his allegations that the prosecution withheld material,
exculpatory and impeaching evidence.

Claim 3 of the Second Amended Petition includes

allegations that the State withheld evidence including:
1. Mitchell’s juvenile records;
2. Mitchell’s psychological evaluations:
3. Evidence that the State indicated it might/would dismiss murder and/or automobile theft
charges if Mitchell testified against Sims;
3

In Respondent’s Answer to the Second Amended Petition, he asserts that Claims 3 and
4 are procedurally defaulted and that Sims is not entitled to habeas relief for Claim 5. (ECF No.
52 at 16-18.) For Claim 5, Respondent argues that, to the extent Sims’ allegations in paragraphs
216, 217, and 218 of the Second Amended Petition “differ in kind or otherwise exceed the
allegations of the state court’s filings”, the allegations are procedurally defaulted. (Id. at 18.)
7

4. Evidence that the State indicated it might/would consider limiting Mitchell’s exposure for
his participation in the incident and for other pending charges if he testified against Sims;
5. Evidence that the State indicated it might/would make sentencing recommendations upon
Mitchell’s subsequent guilty plea and/or not object to any attempts Mitchell might make
to secure favorable terms for his sentence if he testified against Sims;
6. Evidence that the State indicated that it might/would provide or consider providing
Mitchell some unspecified favorable consideration if he testified against Sims;
7. Evidence that prior to trial, prosecutor Lee Coffee told Mitchell that after he testified, if
the case came to a conclusion satisfactory to the prosecution, the State would review the
testimony with Smith’s family, allow their evaluation of the testimony, and make a
recommendation about disposition of the charges against Mitchell;
8. Evidence that Mitchell was lying, specifically that
 Mitchell was lying when he testified that, on the day of the incident, he saw
Sims with a long barreled .22 caliber pistol (¶ 208.8.1);
 Mitchell was lying when he testified that, on the car ride to Smith’s house and
during the burglary[,] he saw a bulge in Sims’ pants which could have been
created by a pistol (¶ 208.8.2); and
 Mitchell was lying when he testified that he did not see Smith with a weapon
(¶ 208.8.3);
9. Evidence of what happened in Smith’s home, specifically that
 Smith was shot during a struggle for a gun and not as a result of a cold
blooded act of premeditation (¶ 208.9.4);
 The evidence found at the crime scene did not support a finding that .22
caliber pistol was fired during the incident (¶ 208.9.5); and
 The procedures Memphis Police used to accumulate evidence that was
presented at Sims’ trial allowed authorities to manipulate evidence to support
a finding that a .22 caliber pistol was fired during the incident (¶ 208.9.6); and
10. Evidence indicating that the gunshot wound to Smith’s head was caused by a .380
pistol that Smith owned (¶ 208.10).
(See ECF No. 70 at 22 n.62, 24 n. 71 & 72; see also ECF No. 45 at 67-71.)
B.

False Testimony (Claim 4)

Sims seeks discovery to support his false testimony claim. To prove his false testimony
claim, Sims must show that: (1) the statement was actually false; (2) the statement was material;
and (3) the prosecution knew it was false. In Peoples v. Lafler, 734 F.3d 503, 516 (6th Cir.
8

2013). Testimony is material only if there is any reasonable likelihood that it affected the
judgment of the jury. Id. at 516.
Sims seeks discovery to support his allegations that the prosecution presented and/or
condoned Brian Mitchell’s false testimony. Claim 4 involves allegations that Mitchell testified
falsely that:
1. He saw Sims with a long barreled .22 caliber pistol on the day of the incident
(¶ 212.1);
2. On the car ride to Smith’s house and during the burglary, Mitchell saw a bulge
in Sims’ pants which could have been created by a pistol (¶ 212.2);
3. At no time during the incident did Mitchell see Smith with a weapon (¶
212.3);
4. Sims told Mitchell that Sims had to shoot Smith because Smith had seen his
face;
5. Sims told Mitchell that he shot Smith about two times;
6. Mitchell’s April 9, 1996, 8:07 p.m. statement was the first time he spoke to
authorities about the facts and circumstances of the crime;
7. Mitchell has never given a statement that conflicted in any way with the
testimony he gave at trial;
8. Nobody made Mitchell any deals or threatened him in order for him to testify;
9. He expected to face the full range of punishment at his subsequent trial;
10. He did not expect any bargain for his testimony;
11. No one advised him that in return for his testimony the first-degree murder
charge against him might be reduced; and
12. He did not know whether it was a possibility that in return for his testimony
the first-degree murder charge against him might be reduced.
(See ECF No. 45 at 72-73; see also ECF No. 70 at 22 n.63.)
C.

Prosecutorial Misconduct (Claim 5)

To prove prosecutorial misconduct, “it is not enough that the prosecutor’s [conduct was]
undesirable or even universally condemned[,]” the prosecution’s conduct must have “so infected
the trial with unfairness as to make the resulting conviction a denial of due process.” Gumm v.
Mitchell, 775 F.3d 345, 378 (6th Cir. 2014). In Boyle v. Million, 201 F.3d 711, 717 (6th Cir.
2000), the Sixth Circuit stated that the court must first determine whether the challenged
statements were indeed improper. Upon a finding of impropriety, the court must determine
9

whether the statement was so “flagrant” as to warrant reversal. Id. “Flagrancy is determined by
an examination of four factors: ‘1) whether the statements tended to mislead the jury or prejudice
the defendant; 2) whether the statements were isolated or among a series of improper statements;
3) whether the statements were deliberately or accidentally before the jury; and 4) the total
strength of the evidence against the accused.’” Id. (quoting United States v. Francis, 170 F.3d
546, 549-550 (6th Cir. 1999); see United States v. Lawrence, 735 F.3d 385, 431-432 (6th Cir.
2013) (same).
Sims seeks discovery to support the allegations that the prosecution engaged in
misconduct in its arguments, when:


In opening and closing statements, the prosecution asserted that Sims shot
Smith because Smith had seen his face even though the prosecution was aware
that was not the case (¶ 216);



In closing argument at the guilt stage, the prosecution asserted that Sims
carried a .22 pistol with him during the incident even though the prosecution
knew that there was no reliable evidence that Sims had a gun that night (¶
217);



In closing argument at the guilt stage, the prosecution asserted that Sims went
into Smith’s house to execute him even though the prosecution was aware that
this was not the case (¶ 218);



In closing argument at the guilt stage, the prosecution asserted Sims shot
Smith in the head when Smith was lying on the floor even though the
prosecution knew that:
1. The characteristics of the gunshot wound to Smith’s head were
inconsistent with speculation that he was lying on the floor when he was
shot; and
2. There was no reliable evidence that Smith was lying on the floor when he
was shot (¶ 219); and



In closing argument at the guilt stage, Assistant District Attorney Coffee
misinformed jurors when he told them:
1. “I don’t make deals with criminals;” and
2. Mitchell had no motivation to testify for the State (¶ 220).

(See ECF No. 70 at 5 n.1, 17, 18, 20, 22 n.64, 24 n.73; see also ECF No. 45 at 73-74.)
10

V.

ANALYSIS
Sims contends that the Memphis Police Homicide Bureau concluded that Forrest Smith

was shot during a struggle with Sims over a gun. (ECF No. 70 at 1; see ECF No. 70-1 at PageID
5985 (“a fight and scuffle ensued between the victim and the intruders”).)

At trial, the

prosecution presented the theory, supported by co-defendant Brian Mitchell’s testimony, that
Sims told Mitchell that Sims deliberately shot Smith because Smith “saw his face”. (ECF No. 70
at 1.) Mitchell’s initial police statement does not mention that Sims shot Smith because he saw
Sims’ face. (Id.)
Sims argues that Mitchell was subjected to hours of custodial interrogation and only then
did he say that Sims shot Smith in the face, head, and neck because Smith saw his face. (Id.)
Sims asserts that the forensic evidence contradicts Mitchell’s statement because Smith was shot
once. (Id.) However, at the time that the police were interrogating Mitchell, the police believed
that Sims had shot Smith multiple times. (Id.)
Mitchell assured the jury that the prosecution gave him no incentive to testify. (Id. at 1.)
In closing argument, the prosecution asserted that Mitchell had no reason to lie. (Id. at 2.)
However, at the post-conviction evidentiary hearing, Coffee acknowledged that he told Mitchell
the prosecution would make a favorable recommendation on the charges pending against him if
Smith’s family was satisfied with Mitchell’s testimony. (Id.; ECF No. 47-11 at PageID 37613762.)
Sims argues that he is entitled to discovery to prove his withheld evidence, false
testimony, and prosecutorial misconduct claims. (ECF No. 70 at 2.) He contends that the
presently available evidence supports his claims and contradicts Mitchell’s testimony. (Id. at 3.)
Sims argues that discovery will allow him to overcome procedural default. (Id. at 3-4.)
11

Sims asserts that the Homicide Bureau Report was written after a three-month long
investigation, summarizes the investigation, and presents conclusions about the facts and
circumstances of the crime. (Id. at 5-6.) He refers to it as the “final Homicide Bureau Report”
He contends that the report supports his claims. (Id. at 2.) He cites the report for the proposition
that a fight and scuffle occurred between Sims and Smith:
The victim ... entered his residence went to a rear bedroom without being noticed
by the intruders, retrieved a .380 pistol from a dresser draw[er] and then
confronted the intruders. A fight and scuffle ensued between the victim and the
intruders, resulting in the death of the victim. The victim was beaten, stomped,
kicked and shot once in the head, with what investigators believe to be his .380
pistol that was taken from him by the intruders.
(Id. at 6; see ECF No. 70-1 at PageID 5985.) Sims asserts that the Homicide Bureau Report was
partially based on information provided by Officers Crowe and Bouchillon, who were the first
officers on the scene. (ECF No. 70 at 6.)4 He contends that these officers spoke with Smith
before he was transported for medical treatment. (Id.)
On April 9, 1996, the police arrested Mitchell, and Officers E.E. Cash and James Nichols
questioned him. (Id. at 6.) Mitchell stated:
[H]e and Vincent ran outside and noted that they were blocked in by another
vehicle. Brian stated that Vincent went back inside to get the key from the white
man to move the vehicle so they could leave and that is how the white man got
shot and killed.
(Id.; see ECF No. 70-2 at PageID 5989.) Sims contends that Mitchell’s account of the events
turned more sinister after hours of custodial interrogation. (ECF No. 70 at 6-7.)
In a written statement taken the night of Mitchell’s arrest, Mitchell, for the first time,
claimed that Sims shot Smith because Smith saw his face:
(Sims) told me he had shot the white man in his head, and in the face, and the
neck. And then I had asked him why did he have to shoot the guy. Then he said
4

Bouchillon is not mentioned in the report. (See ECF No. 70-1 at PageID 5985.)
12

that he had saw our face and he had to kill him. That’s it.
(Id. at 7; see ECF No. 70-4 at PageID 5995.) Sims argues that Mitchell’s “‘new and improved’
story” reflects the police’s misperceptions about Smith’s wounds at the time they questioned
him”. (ECF No. 70 at 7.) The autopsy revealed that what police perceived as multiple gunshot
wounds were actually wounds caused by impacts from a rod-shaped object. (Id.)
Sims asserts that Mitchell had borderline intelligence, was naïve, and lacked maturity.
(Id. at 7-8.) Sims argues that the inconsistency in facts suggests that the police fed Mitchell false
information to obtain this “new and improved” statement. (Id. at 7.)
Sims argues that the prosecution stated in opening argument that Sims killed Smith “for
one reason and one reason only: Smith saw his face.” (Id. at 8; see ECF No. 46-12 at PageID
1650-1652.)5 Mitchell provided the only testimony that supported this theory. (ECF No. 70 at
8.) During Mitchell’s testimony, the prosecution went into a colloquy with Mitchell to eliminate
any jury concern that he was lying and to pin blame on Sims. (Id. at 8-9; see ECF No. 46-14 at
PageID 1885.) Mitchell continued to support his story on cross-examination. (ECF No. 70 at 910; see ECF No. 46-14 at PageID 1886-1888.)
Just over two weeks after the trial court denied Sims’ motion for a new trial, Mitchell
entered a guilty plea. (ECF No. 70 at 11.) At the plea hearing, Coffee informed the court that
the prosecution had reviewed Mitchell’s testimony with Smith’s family and discussed an
appropriate recommendation for the disposition of Mitchell’s charges. (Id.) With Smith’s
family’s consent, Coffee recommended that the court accept Mitchell’s plea to especially
aggravated burglary, and the murder charges were dropped. (Id. at 11-12; see ECF No. 70-10 at
PageID 6029-6030.)
5

The prosecution sought the death penalty based on four aggravating circumstances, see
supra pp. 1-2, not just the avoiding arrest aggravating circumstance.
13

Sims argues discovery will allow him to establish cause and prejudice for a default of the
Brady and false testimony claims. (ECF No. 70 at 13-14.) He asserts that, to the extent he
proves these due process claims, he, by definition, overcomes any alleged procedural default.
(Id. at 14.)
Respondent argues that each of Sims’ claims is procedurally defaulted. (ECF No. 75 at
7.) Respondent asserts that Sims must establish: (1) cause and prejudice to excuse the procedural
default; (2) a specific basis to affirm that the requested materials would yield the asserted
information; and (3) that the information, if obtained, would support the elements of Sims’
Brady, Giglio, and prosecutorial misconduct claims. (Id. at 8.) Respondent contends that Sims
fails to state sufficient facts to make a showing of good cause and to demonstrate that the
requested materials would provide beneficial information. (Id.) Respondent argues that the
requests are overbroad and not duly specific. (Id.)
A.

District Attorney’s File for Brian Mitchell (Request 1)

Sims requests discovery of “[d]ocuments in the possession, custody, or control of the
District Attorney General’s Office for Tennessee’s 30th Judicial District respecting the State’s
dealings with, and prosecution of, Brian Mitchell.” (ECF No. 69 at 1.) Sims argues that, without
Mitchell’s testimony, the prosecution could not have secured the premeditated murder
conviction. (ECF No. 70 at 15.) Sims contends that the currently available evidence establishes
that the prosecution withheld evidence showing Mitchell had an incentive to testify. (Id. at 1516.) Sims argues that discovery is “particularly appropriate” for Sims’ allegations of out-ofcourt prosecutorial misconduct. (Id. at 16.)6 He asserts that this Court has granted discovery of

6

Claim 5 relates to prosecutorial misconduct in opening and closing arguments, not outof-court conduct. (See ECF No. 45 at 73-75.) The Court presumes that Sims is referring to his
Brady allegations. Sims’ suggestion that the police convinced Mitchell to testify based on
14

relevant district attorney’s files to investigate and present such claims. (Id.) Sims argues that the
Court recognized that he has established good cause to conduct discovery on his due process
claims, and has “in effect, already determined that Mr. Sims has shown good cause to discover
District Attorney General documents respecting Mitchell.” (Id. at 17.)
Respondent argues that the agreement for Sims’ prosecution file does not demonstrate
that Sims is entitled to copy and review Mitchell’s file. (ECF No. 75 at 8.) Respondent contends
that Sims has failed to show how the information requested would establish: (1) cause and
prejudice to excuse the procedural default; (2) a specific basis to affirm that the requested
materials would yield the asserted information; and (3) that the information, if obtained, would
support the elements of Sims’ Brady, Giglio, and prosecutorial misconduct claims.

(Id.)

Respondent argues that the purported nexus between Mitchell’s testimony and Sims’ claim of
prosecutorial misconduct is wholly speculative and not supported by the record. (Id. at 8-9.)
Sims asserts that he has made a preliminary showing that the prosecution violated due
process when it withheld exculpatory evidence, presented false testimony, and misled the jury.
(ECF No. 78 at 1.) He asserts that this preliminary showing establishes good cause for the
requested discovery. (Id.) Sims disputes Respondent’s assertion that his request is “wholly
speculative and unsupported by the record.” (Id. at 3.) Sims argues that he relies on the specific
record citations about Mitchell’s incentive to testify, his false testimony, and the Court’s
determination that Sims has shown good cause for Sims’ prosecution file to support this
discovery request. (Id. at 2-3.) Sims contends that he cannot provide an exhaustive list of what
evidence he expects to find because the State has withheld evidence. (Id. at 2.)

information the officers gave him about Smith’s wounds was not alleged in Claims 3 through 5
of the Second Amended Petition.
15

In the post-conviction proceedings, Mitchell testified about his agreement with the
prosecution:
Mitchell admitted that he lied in his statement and when he testified at trial
that the petitioner told him that he had to kill the victim because the victim saw
his face. When asked why he lied, Mitchell responded that he was “scared, mad,
[and] frustrated.” Mitchell made his statement while the police were interrogating
him, and he testified that the police told him that the petitioner “was downstairs ...
putting [the crime] on [him],” which made him feel “[b]ad.”
Mitchell’s court-appointed attorney spoke with the prosecutors in the
petitioner’s case twice. During a conversation with a prosecutor, Mitchell’s
attorney left the room after advising Mitchell to keep whatever he and the
prosecutor discussed between them. Mitchell stated that the prosecutor offered
him dismissal of the murder charge and less jail time if he would testify against
the petitioner. Mitchell further stated that the prosecutors advised him that they
were “going to try and get [the petitioner fifteen] years and give [Mitchell] four
years.” Mitchell again spoke with a prosecutor who offered him thirty years for
the burglary charge and dismissal of the murder charge. Mitchell pleaded guilty to
burglary, and the court sentenced him to thirty years. Mitchell stated that at the
petitioner’s trial he testified that the prosecution did not offer him any deals
because he was “trying to protect” himself.
...
Mitchell stated that he did not kill the victim. He said that the petitioner
was his cousin, and he felt bad about what happened and the petitioner getting the
death penalty. He agreed that he lied about receiving a deal during the trial. When
asked why he lied so much, Mitchell responded that he “was just trying to protect,
save himself.” Mitchell admitted that he was still trying to protect and save
himself. According to Mitchell, the prosecutor with whom he made his deal “told
[him] what to say,” and Mitchell agreed that he went in front of the jury and “lied
[his] little head off.” He did not tell his attorney that the prosecutor told him how
to testify and said that his attorney thought he was being truthful when he
testified.
Sims v. State, No. W2008-02823-CCA-R3-PD, 2011 WL 334285, at *20, 22 (Tenn. Crim. App.
Jan. 28, 2011).7

7

Sims did not assert a Brady, false testimony, or prosecutorial misconduct claim related
to Mitchell’s testimony on appeal of the denial of post-conviction relief. The claims presented
were ineffective assistance of counsel claims and general challenges to the constitutionality of
the death penalty. Sims, 2011 WL 334285, at *52-71.
16

Sims has evidence from the post-conviction proceedings to support his allegations that
the State withheld evidence that Mitchell had an incentive to testify against Sims, that Mitchell
testified falsely, and that promises were made in exchange for his testimony. “Brady requires the
State to turn over all material exculpatory and impeachment evidence to the defense.” Barton v.
Warden, South. Ohio Corr. Fac., 786 F.3d 450, 468 (6th Cir. 2015). To the extent that the
prosecution withheld material exculpatory or impeaching evidence, Sims could use that
additional evidence to establish his Brady and false testimony claims and to excuse the
procedural default of these claims. See Jones v. Bagley, 696 F.3d 475, 486-487 (6th Cir. 2012)
(“[S]howing an actual Brady violation is itself sufficient to show cause and prejudice.”). The
District Attorney’s file on Mitchell may provide evidence of a promise to Mitchell or an
agreement the prosecution made with Mitchell, the offer of proof8, and evidence about whether
Mitchell was directed to testify in a certain manner. Sims has demonstrated good cause for
discovery of the prosecution file on Brian Mitchell for the burglary and Smith’s home and
Smith’s murder. Request 1 is GRANTED as limited.
B.

Assistant District Attorneys’ Depositions (Request 2)

Sims requests the deposition of Lee Coffee and James Lammey, the prosecutors on Sims’
case. (ECF No. 69 at 1.) Coffee presented Mitchell’s direct testimony and represented the State
at Mitchell’s plea proceeding.

(ECF No. 70 at 17.)

Sims asserts that, despite Coffee’s

acknowledgment in the post-conviction proceedings that Mitchell was given an incentive to
testify, Coffee asserted at closing argument that Mitchell had no motivation to testify as a state
witness. (Id.; see ECF No. 47-11 at PageID 3761-3762; see also ECF No. 46-15 at PageID
2109-2111.) Sims asserts that this irrefutable evidence establishes that the prosecution withheld

8

See infra p.18.
17

exculpatory evidence, presented false testimony, and capitalized on that false testimony in its
closing argument. (ECF No. 70 at 17.)
Respondent argues that Sims’ request fails to establish good cause under Habeas Rule 6.
(ECF No. 75 at 9.) Respondent asserts that conclusory allegations and speculative evidence is
insufficient to warrant discovery in federal habeas proceedings. (Id. at 9.) He asserts that Sims’
primary contention is that, since Mitchell was informed of the victim’s family’s expected
presence at the trial, Mitchell was “‘irrefutably’ incentivized to testify falsely.” (Id. at 10.)
Respondent states that Mitchell had provided a written statement to police before testifying and
before any alleged incentive was offered.

(Id.)

Respondent contends that Mitchell was

extensively questioned about plea offers and agreements, and Mitchell denied that any offers or
agreements were made. (Id.) Respondent notes that Mitchell denied that the State threatened
him in relation to his testimony. (Id.) Respondent also states that Mitchell testified that Sims
threatened to kill him in jail if he testified truthfully. (Id.)
Coffee testified in the post-conviction evidentiary hearing that Mitchell’s counsel told
him that Mitchell wanted to testify as a witness for the State and did not want to go to trial. (Id.;
see ECF No. 47-11 at PageID 3760.) The expected offer of proof was discussed, and it was
made “abundantly clear” to Mitchell that there would be no plea agreement or offer in exchange
for his testimony. (ECF No. 75 at 11; see ECF No. 47-11 at PageID 3761.) Coffee was getting
ready to set Mitchell’s case for trial when he pled guilty.

(Id. at PageID 3762-3763.)

Respondent argues that Sims does no more than speculate about the existence of a nexus
between the statement that the victim’s family would be present at trial and an alleged plea
agreement in exchange for false testimony. (ECF No. 75 at 11.)
Respondent contends that the request for the prosecutors’ depositions is “a prohibited

18

‘fishing expedition masked as discovery’” and that nothing Sims seeks in his request would
develop or change the evidence presented. (Id.) Respondent argues that Sims fails to show the
information he expects the prosecutors’ depositions to uncover or what inquiries he intends to
make. (Id.) Respondent asserts that Sims fails to state what elements of his Brady, Giglio, and
prosecutorial claims would be supported by the depositions. (Id. at 11-12.) Respondent argues
that Coffee has demonstrated he never told Mitchell to lie, that Coffee specifically instructed
Mitchell that he would be indicted for perjury if he testified falsely, and that nothing suggests the
requested depositions would demonstrate suppression of material evidence. (Id. at 12.)
Respondent argues that these claims are procedurally defaulted. (Id. at 12.) He asserts
that Sims fails to establish how the depositions would demonstrate cause when the factual
predicate of these claims were known and discoverable to defense counsel at the time of trial
through due diligence. (Id.) Respondent contends that Sims cannot demonstrate prejudice
where: (1) defense counsel substantially questioned Mitchell about inconsistencies between his
testimony and his prior statement to police; and (2) defense counsel thoroughly questioned
Mitchell about whether a plea agreement existed between him and the State in exchange for his
testimony against Sims. (Id.)
Respondent asserts that, in the guilt stage closing argument, Coffee did not argue that
Mitchell had no motivation to testify for the State, but that “Brian Mitchell doesn’t have a deal
with the State of Tennessee.”

(Id. at 12-13; see ECF No. 46-15 at PageID 2109-2110.)

Respondent argues that the jury still would have convicted Sims given the evidence that: (1) his
girlfriend saw the deep scar on his side and blood on his shirt when she treated the wound on his
side because Sims refused to go to the hospital; (2) his beeper was found on the scene; (3) Smith
was beaten severely with a rod-shaped object; and (4) Sims wrote a letter to Mitchell, after Sims’

19

arrest, admitting to the murder. (ECF No. 75 at 13.) Respondent argues that Sims cannot show
prejudice from the prosecution’s statement about a plea agreement with Mitchell given the
evidence presented at trial. (Id.)
Sims contends that Respondent attempts to downplay the significance of the irrefutable
evidence that the State told Mitchell that Smith’s family would watch his trial testimony, and, if
they were satisfied, the prosecution would recommend a disposition of the charges pending
against Mitchell. (ECF No. 78 at 3.) Sims asserts that, while his trial counsel attempted to get
Mitchell to admit that the prosecution gave him an incentive to testify, Sims’ counsel had no
extrinsic evidence to conduct the cross-examination. (Id. at 4.)
Sims argues that Respondent fails to mention that the prosecution also told Mitchell it
would recommend disposition of his charges. (Id.) Sims contends that Coffee was preparing for
Mitchell’s trial because Mitchell believed the State failed to keep its side of the bargain by
offering him a thirty-year sentence in plea negotiations, not because the State never offered
Mitchell an incentive to testify. (Id.)
Sims further asserts that Coffee said more to the jury than Mitchell does not have a deal
with the State. (Id. at 4.) Coffee said,
the only deal he has is that he’s going to go to the penitentiary for his participation
in this crime. That’s the only deal that Brian Keith Mitchell has .… He has no
motivation to come to court and lie to you. . . .
(Id.)
Sims argues that, while Respondent believes that other evidence renders the prosecution’s
“deceptive dealings with Mitchell inconsequential, the other evidence [Respondent] inventories
supports only a finding that the victim died when he and Mr. Sims struggled over a gun.” (Id. at
4-5.) Sims challenges the basis on which the prosecution persuaded the jury to find him guilty of

20

premeditated murder and sentenced to death. (Id. at 5.) He contends that the “saw his face”
testimony was the “sole support” for a determination that Sims was guilty of premeditated
murder. (Id.) Sims argues,
Given the singular importance of Mitchell’s testimony, Mr. Sims presents viable
claims that the State violated due process when it withheld evidence about the
incentive it gave Mitchell for his trial testimony, presented Mitchell’s false
testimony that no such incentive existed, and capitalized on that false testimony
during closing argument.
(Id. at 5.) Sims asserts that he cannot provide an exhaustive description of the testimony he
expects to obtain at the prosecutors’ depositions because the State has withheld evidence on the
topics that testimony will cover. (Id.)
The state court record contains evidence about the promises or consideration given to
Mitchell in exchange for his testimony. Coffee is African-American, and Lammey is Caucasian.
(ECF No. 47-1 at PageID 2934.) Mitchell testified that one of the prosecutors was white and one
was black, and they told him they would give him less time and drop the murder charges for
testifying against Sims. (ECF No. 47-8 at PageID 3375-3376.) The second time Mitchell met
with only one prosecutor, the black prosecutor. (Id. at PageID 3377.) Mitchell said the black
prosecutor said he was giving Mitchell 30 years for the burglary charge and dropping the murder
charge. (Id.)
Coffee testified in the post-conviction proceedings about Mitchell’s testimony, plea, and
sentence. (ECF No. 47-11 at PageID 3760-3769.) Sims’ counsel’s prior opportunity to crossexamine a witness generally mitigates the need for a discovery deposition. See Payne, 89 F.
Supp. 2d at 974. Sims has not demonstrated why Coffee’s deposition is now needed, especially
given Coffee’s post-conviction testimony.

Sims makes no specific assertions about why

Lammey’s testimony is needed to support his claims.

21

Sims has not outlined the evidence that he seeks from the prosecutors. Although Sims
may not be able to provide an exhaustive description of the information he seeks, he could
provide the Court with categories of information he seeks to cover in the depositions. An
unlimited deposition of the prosecution would amount to a fishing expedition.

Sims has not

demonstrated good cause for the depositions of Assistant District Attorneys Coffee and Lammey.
Request 2 is DENIED.
C.

Memphis Police Officers’ Depositions (Request 3)

Sims requests the depositions of Memphis Police Officers J. W. Bouchillon, E. E. Cash,
Donald Crowe, C. E. Logan, and James Nichols. (ECF No. 69 at 1.)
1.

Cash and Nichols

Memphis Police Officers E.E. Cash and James Nichols interrogated Brian Mitchell upon
his arrest. (ECF No. 70 at 18-19.) Mitchell initially told police that Sims “went back inside to
get the key from the white man to move the vehicle so that they could leave and that is how the
white man got shot and killed.” (Id. at 19; see ECF No. 70-3 at PageID 5989.) However, Sims
contends that, after hours of interrogation, the officers took Mitchell’s statement that Sims shot
Smith because he “saw our face and he had to kill him.” (ECF No. 70 at 1; see ECF No. 70-4 at
PageID 5995.) Sims asserts that the police believed that Smith was shot in the head, face and
neck, and that Mitchell’s statement reflects that belief, when actually Smith was shot once with
“a tangential wound” to the side of his head and beaten with a rod-shaped object. (ECF No. 70
at 19-20.)9 Sims asserts that these discrepancies provide reason to believe that police induced
Mitchell to repeat the story that Smith was shot repeatedly because he saw Sims’ face. (Id. at
9

Steven Symes, a forensic anthropologist, described Smith’s wound as “a tangential gun
shot wound.” (ECF No. 70-12 at PageID 6038.) He does not use the term “tangential” in his
testimony. He describes a wound having an entrance projectile that impacts the bone at an angle.
(See ECF No. 46-15 at PageID 2029-2030.)
22

20.)
Respondent argues that Sims does not establish good cause for deposing these officers.
(ECF No. 75 at 14, 16.) Respondent asserts that there is no credible evidence to suggest that
Mitchell fabricated his story or that the prosecutors or law enforcement acted improperly. (Id. at
15.) Respondent asserts that Mitchell testified to hearing eight or nine gunshots fired, and at
least five fired .380 cartridges were recovered. State v. Sims, No. W1998-00634-CCA-R3-DD,
2000 WL 298901, at *3 (Tenn. Crim. App. Mar. 14, 2000). (Id.) Respondent argues that Sims
failed to mention that the forensic pathologist initially thought some of Smith’s wounds were
gunshot wounds because of the severity and placement of these wounds and only later
determined that just two of the wounds were the result of the bullet entering and fragments of the
bullet exiting the skull. (Id.; see ECF No. 46-14 at PageID 1981-1984.) Respondent asserts that
the combination of the severe beating and the gunshot wound killed Smith. (ECF No. 75 at 1516.) He argues that this combination of beating and shooting demonstrates a clear intent to kill
Smith. (Id. at 16.) Respondent asserts that the request to depose Cash and Nichols on the basis
that they induced Mitchell to fabricate a story is wholly speculative. (Id.)
Sims argues that Respondent fails to grasp the significance of Mitchell’s second
statement to law enforcement that Sims said he shot the victim in his head, face, and neck. (ECF
No. 78 at 6.) Sims contends that the autopsy established that Mitchell’s police statement is false
and calls into question how Mitchell came to endorse a false version of the facts. (Id.) Sims
argues that the pathologist’s misperception of the wounds underscores how similar the wounds
are to gunshot wounds. (Id. at 6 n.1.)
Mitchell’s testimony is at issue. Mitchell testified that Sims told him how Smith was
shot:

23

He had told me him and the man had [struggled] . . . they was [struggling]
over the gun and he got shot – he had -- the man shot him in the side and he was
[struggling] over the gun. And the man had got shot in the head and neck.
...
He had told me he shot him about two times.
...
Yeah, he told – he had told me they – they was – when they [struggling] –
[struggling] over the gun, he had – he had hit the – he had hit the man – hit the –
they were they was [struggling] to get the key. I guess they was fighting . . . I
guess when he had shot Vince Sims, they struggled, they was fighting, I guess.
...
He had told me they was [struggling] over the gun, and he just got shot in
the head and the neck.
(ECF No. 46-14 at PageID 1868-1869.)
At trial, Mitchell was questioned about the statement he gave to Cash and Nichols. (Id. at
PageID 1870.) He was also questioned about a letter he received from Sims. (Id. at PageID
1877-1880.) Mitchell testified he was not in the house when the alleged wrestling and scuffling
over the gun occurred and that he did not know exactly how Smith was shot. (Id. at PageID
1880-1881.)
Mitchell testified on cross-examination that he had been in jail for a full day before he
gave his statement. (Id. at PageID 1889-1890; see id. at PageID 1913-1915.)10 He stated that
there were inaccuracies in the police statement and that he could not read well. (Id. at PageID
1907-1909.) On re-direct, Mitchell testified that Sims said “he shot the man in the head and the
neck . . . he had shot the man because he saw his face . . . .” (Id. at PageID 1921.)
10

Mitchell was arrested at 3:30 p.m. on April 9, 1996, and his statement was taken at
8:07 p.m. on the same day. (ECF No. 70-1 at PageID 5984-5985; see ECF No. 70-4 at PageID
5991.)
24

Mitchell testified at the post-conviction evidentiary hearing. (See ECF No. 47-8 at
PageID 3355.) He said that Sims never told him he had to kill Smith because he saw his face.
(Id. at PageID 3372-3373.) Mitchell said he lied because he “was scared, mad, frustrated”
because the police told him that Sims was downstairs “putting it on me . . . trying to make me
look like what he did I did.” (Id. at PageID 3373.)11
Sims argues that his request for discovery will provide evidentiary support for the
following issues: (1) that Smith was shot only once versus multiple times; and (2) that Sims told
Mitchell he shot Smith because he saw Sims’ face. Mitchell has admitted that:


he lied when he claimed that Sims told him he killed Smith because Smith saw his
face;



Mitchell was not in the house when Smith was shot; and



Mitchell did not know how the shooting occurred.

Mitchell did not say that he lied at trial about other aspects of the crime.
Mitchell and Sims are the only people who know what happened.

Mitchell has a

credibility issue because he recanted some of his testimony. Sims has a credibility issue because
of his interest in the outcome and because he has not been honest about his involvement in this
crime, first blaming Mitchell for shooting Smith.
Cash and Nichols do not know what happened. They can only provide information about
the investigation and interrogation.

Sims did not allege police misconduct related to the

interrogation in the Second Amended Petition. Mitchell’s post-conviction testimony does not
indicate that the police encouraged or induced him to make any specific statement about the

11

The report from Cash and Nichols from Sims’ interview indicates that Sims told
officers that Mitchell stated “let’s pull a caper,” that he forced the front door of Smith’s house
open, and that Mitchell shot Smith while Sims crawled to the car. (ECF No. 70-3 at PageID
5988-5989.)
25

crime.
Cash and Nichols’ testimony will not resolve the issue of the falsity of Mitchell’s
testimony. Mitchell attributes his lying at trial and during the statement to being scared, mad,
and frustrated.
Sims does not outline the information he seeks from Cash and Nichols or how that
information will support his claims. Sims has not demonstrated good cause for the depositions
of Cash and Nichols.
2.

Crowe and Bouchillon

Sims contends that a central issue in this case is whether Smith died over a struggle for a
gun or whether Sims executed Smith because Smith “saw his face.” (ECF No. 70 at 20.) Sims
contends that the Homicide Bureau Report supports the version of the events where Smith went
into the house, retrieved a .380 pistol from a dresser, and died after being shot with that pistol
during a struggle with Sims. (Id. at 20-21; see ECF No. 70-1 at PageID 5985.) Sims contends
that the only possible source of this information was Smith, who was alive when his girlfriend
Patricia Henson and the initial police officers arrived at the scene. (ECF No. 70 at 21.) Sims
seeks the deposition of Officers Donald Crowe and J.W. Bouchillon because they were the initial
responding officers on the scene. (Id.) He contends that their depositions will assist with
developing potential evidence that Smith or Henson told Crowe or Bouchillon that Smith was
shot during a struggle over his .380 pistol. (Id.)12
Respondent argues that Sims requests these depositions on the basis that Smith was shot

12

Henson testified that Smith kept saying “Call 911, help me, call 911” and that she
asked what happened “[a]nd one time he looked straight up into my face and said, “Robbery.”
That was the only thing he ever said except for, “Help me, call 911”. (ECF No. 46-12 at PageID
1668; see also Officers Field Notes, ECF No. 70-6 at PageID 6002 (“Ms. Henson stated she did
not know what happened.”)
26

with his own .380 pistol. (ECF No. 75 at 16). Respondent asserts that the requests ignore the
evidence that clearly shows that the bullet removed from Smith’s brain was a .22 caliber bullet
and that the police recovered fragments from three or four .22 caliber bullets at the crime scene.
(Id.) Respondent notes Mitchell’s testimony that Sims returned to the car with a chrome pistol,
presumably the .380 that was never recovered. (Id.)13 Respondent argues that Sims fails to
make any connection between these facts and the request for the depositions of Crowe and
Bouchillon or explain how the depositions would support his claims. (Id.)
Sims asserts that Respondent fails to grasp the significance of Mitchell’s second
statement to law enforcement in which he claimed that Sims said he shot the victim “in his head,
and in the face, and the neck.” (ECF No. 78 at 6.) Sims asserts that a single “tangential”
gunshot wound is not consistent with the mistaken belief that Sims repeatedly shot Smith or that
Sims shot Smith because Smith saw his face. (Id.) Sims contends that the wound is consistent
with the assertion that Smith was shot during a struggle over a gun. (Id. at 6-7.)
Sims asserts that Respondent fails to recognize that police created the arrest report at the
conclusion of the investigation, after all of the evidence including the autopsy had been collected
and analyzed. (Id. at 7.) Sims asserts that, after the autopsy, police believed that Smith was shot
with his own gun. (Id.) Sims argues that this belief is inconsistent with trial testimony and
highlights why he is entitled to discovery. (Id.) He contends that Crowe and Bouchillon may
possess information shedding light on how the police concluded that Smith was shot with his

13

Smith’s .380 pistol was supposedly not recovered, and it was reported that Sims took
the gun from the house. Henson testified that one of Smith’s guns was missing, the one from the
dresser drawer in the bedroom. (ECF No. 46-12 at PageID 1671-1672.) There is a second
reference to a .380 pistol in the police narrative that “A Raven .380 caliber semi-automatic
chrome with a magazine of five live rounds, serial number 1167363, was recovered out of a desk
drawer, located in the first bedroom on the west side of the hall.” (See ECF No. 70-5 at PageID
5999; see also ECF No. 46-13 at PageID 1769.)
27

own gun, a conclusion that was abandoned at trial. (Id.)
The two-page Homicide Bureau Report is not the comprehensive, conclusive
investigative report that Sims portrays it to be. Officer Charles (“C E”) Logan submitted the
report which is based, in part, on information provided by MPD Officers Donald Crowe and
Jerry McCullough. (See ECF No. 70-1 at PageID 5985.) The report includes the arrest report
and information supporting a finding of probable cause, and it refers to supplements and
statement for details of the investigation. (See ECF No. 70-1 at PageID 5984-5985.) There is no
reference to the evidence taken from the crime scene or to the autopsy report.
The Homicide Bureau Report states that Smith entered the house, went to a rear bedroom
without being noticed by the intruders, and retrieved a .380 pistol from a dresser. (See ECF No.
70-1 at PageID 5985.) Sims contends that Smith is the only possible source of this information.
However, Sims told police that Mitchell got into a scuffle with Smith in his statement on April 9,
1996. (ECF No. 46-3 at PageID 710.) Sims also described a scuffle in the letter he gave to
Mitchell
The homeowner returned home and observed an unknown vehicle parked in his
drive 1994 Maroon Toyota Camry 4-dr TN 241-FW2. The homeowner pulled his
vehicle in behind suspects[’] vehicle blocking them in[.] Homeowner then entered
his residence[,] went to a rear bedroom without being noticed by the two
burglars[,] and retrieved a 380 pistol from a dresser draw[er] and then confronted
intruders with the 380 pistol[. B]rian ran out of residence and I out of the
residence[. T]hat’s when home owner began shooting several shots at Vincent
Sims grazing him in the right side and [l]eft hip. That’s when Vincent tried to
stop the homeowner from killing him and a scuffle and struggle ensued between
Vincent Sims and homeowner[. T]he end results were that the home owner Mr.
Forrest Smith was shot once in the head with his .380 pistol. Vincent Sims then
picked up the homeowner 380 pistol and keys and fled the scene with Brian K.
Mitchell in a maroon Toyota Camry. No property was taken from the scene.
(ECF No. 46-4 at PageID 744-745.)
Crowe testified at trial. (ECF No. 46-12 at PageID 1676-1689.) He thought Smith had

28

been shot, but he could not tell how many times. (Id. at PageID 1679-1680.) Crowe believed
that Smith was shot more than once “because there w[ere] little puddles of blood forming at
different spots.” (Id. at PageID 1680.) Smith responded to Crowe’s questions stating twice,
“They shot me in the head.” (Id. at PageID 1680, 1685.) Smith, before he lost consciousness,
stated that he did not know who shot him. (Id. at PageID 1680.) There was no mention of the
.380 pistol or a struggle with the robbers.
Bouchillon did not testify at trial. His report describes the location of .380 casings in the
house. (See ECF No. 70-2 at PageID 5986.) There is no information about Smith or a struggle
with Sims over the .380 pistol in this report.
The State presented the jury with evidence about a struggle through Mitchell’s testimony.
(ECF No. 46-14 at PageID 1868-1869, 1880.) Sims cannot contend that evidence of a struggle
was withheld because he knew of and presented the theory that Smith was shot during a struggle
in his statement to police and the letter he gave to Mitchell. (See ECF No. 46-3 at PageID 710;
744-75.). Even if Crowe and Bouchillon’s testimony could shed light on whether Smith was in a
struggle with Sims, that information is not likely to demonstrate a due process violation based on
withheld evidence, false testimony, or prosecutorial misconduct. Additionally, the argument that
Smith was shot with his own gun is disputed by the forensic evidence that he was shot with a .22
caliber pistol.
Sims has not indicated how Crowe or Bouchillon’s testimony will develop his claims.
Sims has not demonstrated good cause for the depositions of Crowe and Bouchillon.
3.

Logan

Sims asserts that he presents claims that the prosecution withheld evidence supporting the
finding that Smith was shot with his own gun, presented false testimony precluding this finding,

29

and misinformed the jury that Sims carried a .22 caliber pistol into Smith’s house and killed
Smith. (ECF No. 70 at 22.) Sims contends that the Homicide Bureau Report filed by Officer
C.E. Logan supports Sims’ assertion that “[t]he weapon used in this homicide, a .380 automatic
pistol, wasn’t recovered.” (Id.; see ECF No. 70-1 at PageID 5984.) Logan wrote that: (1) Smith
came home while Mitchell and Sims were burglarizing the house; (2) Smith went inside the
house and got his pistol; (3) a scuffle ensued; and (4) investigators believe that Smith was shot
once in the head with his .380 pistol. (ECF No. 70 at 22-23; see ECF No. 78 at 7.) Sims argues
that the report conflicts with TBI Agent Don Carmen’s trial testimony, presumably about the .22
caliber bullet fragment that he received from the hospital after Smith’s death. (ECF No. 70 at
23; see ECF No. 46-14 at PageID 1943.)14 Sims seeks to depose Logan because he authored the
Homicide Bureau Report. (ECF No. 70 at 23.)
Respondent argues that Sims’ request for Logan’s deposition fails to establish good cause
because Sims does not identify the allegedly contradictory false testimony at issue and fails to
present a sufficient factual basis for the deposition. (ECF No. 75 at 19.) Respondent asserts that
Logan’s report does not mention the autopsy or the bullet fragments taken from Smith’s body.
(Id. at 19-20.) Respondent argues that the report clearly states that the findings are the result of:
(1) Mitchell’s statement; (2) Sims’ statement; (3) Dr. Gunther’s April 6, 1996 statement; and (4)
Patricia Henson’s written statement. (Id. at 19-20.) Respondent contends that each essential fact
in the report was supported by evidence at Sims’ trial. (Id.)
Respondent argues that Sims’ factual basis for the request is that the investigators
initially believed Smith was shot and killed with a .380 caliber bullet because the report states

14

TBI Agent Carmen specializes in forensic firearm identification. (ECF No. 46-14 at
PageID 1936.)
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that Smith “was beaten, stomped, kicked, and shot once in the head, with what investigators
believe to be his .380 pistol that was taken from him by the intruders.” (Id. at 20.) Respondent
asserts that the proof at trial indisputably shows that Smith was shot with a .22 caliber bullet.
(Id.) Therefore, Sims’ request constitutes a prohibited fishing expedition. (Id.) Respondent
further argues that Sims makes no effort to establish how the requested discovery proves his
claims or establishes cause and prejudice to overcome procedural default. (Id.)
Sims argues that Respondent’s invocation of procedural default supports his entitlement
to discovery. (ECF No. 78 at 7.) Sims contends that the Court should allow him an opportunity
to conduct discovery before making a final default determination. (Id.)
Although record evidence clearly indicates that a .380 caliber weapon was fired on the
scene, no evidence was presented at trial or has otherwise surfaced that indicates Smith was shot
with a .380 caliber weapon. Logan’s report was based on information from other sources
including Mitchell’s and Sims’ statements which address the theory that Smith was shot during a
struggle. Logan would not have first-hand knowledge of what happened. His report is not
evidence.
Sims has not stated specifically what information he seeks to obtain from Logan in a
deposition. The request is overbroad and not tailored to obtain relevant information to support
the claims at issue. Sims has not demonstrated good cause for Logan’s deposition.
Request 3 for the deposition of police officers Cash, Nichols, Crowe, Bouchillon, and
Logan is DENIED.
D.

TBI Documents (Request 4)

Sims requests discovery of documents the TBI obtained, reviewed, and/or created
respecting tests the TBI performed on crime scene evidence. (ECF No. 70 at 23.) He combines

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this request with the request for Logan’s deposition. (Id. at 21.) Sims asserts that the conflicts
between the Homicide Bureau Report and Carmen’s trial testimony create a reason to believe
that the TBI has exculpatory evidence about the bullet fragment taken from the victim’s head.
(Id. at 23.) Sims contends that the TBI may have evidence to support his false testimony claim
about Sims carrying a .22 caliber pistol in the house. (Id.) Sims therefore seeks the TBI
documents respecting forensic tests. (Id.)
Respondent makes the same argument in opposition to the request for TBI files as he did
in opposition to Logan’s deposition. (See ECF No. 75 at 19-21.)
TBI Agent Carmen has testified about the .22 caliber bullets that he received. The TBI
would have no knowledge about whether Sims was carrying a .22 caliber pistol that night. To
the extent Sims contends that evidence about a .22 caliber bullet fragments was planted, the TBI
would have no knowledge of what evidence was collected or planted at the crime scene only
about the testing of evidence that they received. Even the absence of evidence about a .22
caliber pistol does not resolve the issue of Mitchell’s false testimony. Sims has not demonstrated
how documents related to the TBI’s testing of the crime scene evidence would support his
claims. Sims has not demonstrated good cause for TBI documents. Request 4 is DENIED.
E.

Memphis Police Department Crime Scene File (Request 5)

Sims seeks discovery of a Memphis Police Department crime scene file currently in the
possession of Karon Corbitt. (ECF No. 70 at 23-24.)15 Sims asserts that the .22 caliber bullet
fragments taken from the crime scene do not appear on the crime scene diagram. (Id. at 23.) He
contends that Officers George Coleman and Amos Corbitt claimed they collected the fragments

15

Sims asserts that Memphis Police Crime Scene Officer Amos Corbitt is deceased, but
Karon Corbitt maintains his MPD crime scene files. (ECF No. 70 at 24 n.74.)
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after Officer R.W. Weedle, who created the crime scene diagram, completed his work. (Id. at
23-24.) Sims contends that the materialization of evidence that was not included in the crime
scene diagram supports his assertions of withheld evidence and prosecutorial misconduct about
the .22 caliber pistol. (Id. at 24.)
Respondent argues that Sims’ assertion that Weedle’s initial crime scene sketch
establishes a sufficient factual basis to assert that the prosecution planted false evidence in the
form of .22 bullet fragments the night of the murder is not supported in the record. (ECF No. 75
at 21.)

Respondent points out that Officer Coleman was Weedle’s partner, and Coleman

remained on the scene after Weedle was called away. (Id. at 21-22.) Coleman found the
fragments and tagged them as evidence. (Id. at 22.) Respondent notes that the state court has
made a factual finding that the bullet removed from Smith was a .22 caliber bullet. (Id.)
Respondent argues that this request is “plainly a fishing expedition” and that Sims does not
connect this request to the elements of his claims. (Id.)
Agent Carmen identified the items in Exhibit 17 as three .22 caliber bullet fragments.
(ECF No. 46-14 at PageID 1942.) Coleman testified at trial that he was a crime scene officer
that worked with Officer Weddle16 that night. (ECF No. 46-13 at PageID 1764.) Coleman
assisted Weddle with a sketch of the inside of the house. (Id. at PageID 1764-1765.) Coleman
testified that Weddle left the scene to go on another call because they were “short of officers that
night”, but Coleman remained. (Id. at PageID 1765, 1770.) Coleman testified that he found the
bullet fragments and made a notation for his report. (Id. at PageID 1770, 1776-1777.) Coleman
did not have any one to help him measure the location of these fragments, so they were not put
on the sketch. (Id. at PageID 1770.)
16

The officer’s name is spelled “Weedle” in Sims’ memorandum and “Weddle in the

transcript.
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Corbitt testified at trial that he arrived on the scene with Officer Sides. (ECF No. 46-14
at PageID 1929-1930.) He testified that he located the bullet fragment at Exhibit 19 and tagged
it into evidence. (Id. at PageID 1930-1931.) Carmen identified Exhibit 19 as a .22 caliber lead
bullet. (See ECF No. 46-14 at PageID 1945.)
The testimony at trial indicates that there were .22 caliber bullets and fragments on the
crime scene and that the bullet removed from Smith was a .22 caliber bullet. (See id. at PageID
1942-1946.) Crime scene officers testified about who was on the scene, the reason for Officer
Weddle leaving, and the nature of the crime scene investigation. Although Sims asserts that the
.22 caliber bullets were planted, he has not explained the .22 caliber bullet retrieved from
Smith’s body. Sims has not demonstrated how the information in Corbitt’s file would support
his claim when Sims has admitted to shooting Smith during the burglary, and the only bullet
recovered from Smith’s body was a .22 caliber bullet. Sims has not demonstrated good cause for
Corbitt’s crime scene file.
Request 5 is DENIED.
VI.

CONCLUSION
Request 1 is GRANTED, as limited supra. Requests 2, 3, 4, and 5 are DENIED.

Petitioner shall have 90 days from the entry of this order to complete discovery.
IT IS SO ORDERED, this 6th day of May 2016.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

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