Simmons v. Winn
Decision Date | 26 February 2019 |
Docket Number | Case No. 2:12-13848 |
Citation | 361 F.Supp.3d 719 |
Parties | Paul SIMMONS, Petitioner v. O'Bell WINN, Warden, Respondent |
Court | U.S. District Court — Eastern District of Michigan |
Martin J. Beres, Clinton Township, MI, for Petitioner.
Elizabeth M. Rivard, Laura Moody, Michigan Department of Attorney General, Lansing, MI, for Respondent.
This is a state prisoner's habeas case under 28 U.S.C. § 2254.
In 2010, a jury in the Circuit Court of Wayne County, Michigan, convicted the petitioner, Paul Simmons, of the second degree murder of Elmon Bostic and an attendant firearms offense. The trial court imposed a twenty-to-forty year sentence on the murder conviction and a consecutive two-year sentence on the firearms conviction.
The Michigan courts affirmed the convictions on direct appeal, People v. Simmons , 2011 WL 3118802 (Mich. App. 2011), and rejected a collateral attack.
Simmons now seeks a writ of habeas corpus on seven claims: 1) prosecutorial misconduct; 2) improper admission of evidence; 3) insufficient evidence to convict; 4) ineffective assistance of trial counsel; 5) ineffective assistance of appellate counsel; 6) an unreasonable delay in arrest and a speedy trial violation; and 7) improper admission of Simmons's out of court statements. (Doc. 13).
For the reasons that follow, I hold that Simmons's first, second, third, sixth, and seventh claims fail on the merits. I also hold that his ineffective assistance claims are untimely under 28 U.S.C. § 2244(d)(1)(A), but that further proceedings – in the form of a period of discovery and an evidentiary hearing – are warranted on Simmons's contention that I should excuse the time bar and reach the merits of those claims because he is actually innocent. See McQuiggin v. Perkins , 569 U.S. 383, 399, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013). Finally, I will hold a decision on the ineffective assistance claims in abeyance pending the outcome of the hearing.
The prosecution's case against Simmons permitted the jury to find that Simmons and Bostic had been together on the morning of the murder; that Simmons was angry at Bostic, who won money, a gun, and speakers from Simmons while gambling; and that Simmons was seen leaving the crime scene with a gun in his hand.
To counter this evidence, the defense intended to present an alibi defense that Simmons was working at Excell Personnel, in Detroit, on June 28, 2006. Ten days before trial, defense counsel Luther Glenn Jr. filed an alibi notice regarding this defense. He also produced a list of supporting witnesses and copies of what apparently were Simmons's pay stubs. (ECF No. 7–1, PageID 97; ECF No. 7–4, PageID 186–87).
On the morning of voir dire, however, defense counsel announced that he was withdrawing the alibi. (ECF No. 7–4, PageID 185 –86). Glenn informed the court that he had discussed this issue with Simmons, and, without objection, Simmons confirmed on the record that he understood "we won't be calling these witnesses to support an alibi[.]" (Id. , PageID 186).
Following this exchange, the prosecutor disclosed his belief that the pay stubs were forged and the alibi false. (Id. ).
According to the prosecutor, his investigation revealed that: 1) Social Security records established that Simmons did not start working at Excell until much later in 2006; 2) Simmons had previously told police that he was unemployed at the time of the murder; 3) Simmons also told his probation officer in an unrelated case that he started working at Excell in November, 2006; and 4) an Excell managerial employee had never seen paystubs like the ones tendered by the defense. (Id. , PageID 187–89).
"I think what it looks like to me," the prosecutor concluded, "is that maybe somebody in the Defendant's family – obviously it wasn't the Defendant because he was incarcerated in jail, but you can do a lot things with the computers these days and I think it's possible maybe somebody in his family" created the paystubs. (Id. , PageID at 189). The prosecutor emphasized that defense counsel "was as surprised at this as I was." (Id. ).
This apparent fraud on the court notwithstanding, the trial judge did not make any factual findings as to the source of the false paystubs. During collateral review in state court, however, Simmons would file an affidavit stating that it was defense counsel himself who created this alibi and the supporting documentation. (ECF No. 17–2, PageID 1803, 1808).
On June 27, 2006 – the night before the murder – Bostic visited his mother's home with Simmons. The men left together, with Simmons driving a blue Crown Victoria. Simmons,supra , 2011 WL 3118802 at *1.
The next morning, June 28, Simmons and Bostic went to the home of Bostic's good friend Pasua Keith, arriving in either a blue Crown Victoria or blue Grand Marquise. Id. According to Keith, Bostic and Simmons gambled on her front porch for two or three hours. Id. Simmons lost several hundred dollars to Bostic, as well as a .38 caliber handgun and a set of car stereo speakers. Id. Simmons was angry and accused Bostic of cheating, but Keith heard him say that "it was okay because he would get everything back." Id. Bostic and Simmons left Keith's house together "shortly after noon." Id.
Bostic's body was found later that day in an alley behind "the St. Julian Church Elementary School located at the southwest corner of the intersection of Chalmers Street and Longview Street in Detroit." Id. A teacher at the school testified that she heard gunshots between 1:00 and 2:00 p.m. on June 28. She looked out a window a few minutes later and saw "a blue Crown Victoria, driven by an African-American male, heading west on Longview Street." Id.
Horace Smith lived on Longview Street. Id. He was working on his roof when he heard gunshots coming from behind the school. Id. Looking toward the school, Smith saw a young African-American man holding a gun at his side get into a blue Crown Victoria and drive the car west. Id. Smith got down off the roof and went out to the street, where he had a clear view of the driver as the car went past him. Id. At a line-up in 2009, about three years after the killing, Smith identified Simmons, whom Smith did not know and had not seen before, as the driver of the blue car.2 Id.
Finally, Andre Lewis testified that he had spoken to Bostic on the day of the murder. Later that day, Lewis and a friend, Desmond McCoy, saw Simmons getting out of a dark truck on Nottingham Street. Id. ; (ECF No. 7–6, PageID 597–98). When they asked Simmons about losing money to Bostic while gambling, Simmons denied that he had lost any money and told the men that he was no dummy. Simmons, supra , 2011 WL 3118802 at *1.
After hearing this evidence, the jury convicted Simmons of second degree murder and possession of a firearm during the commission of a felony.
Represented by new counsel, Simmons filed a direct appeal in the Michigan Court of Appeals. He argued that the prosecutor committed misconduct by: 1) referring to statistics about crime in Detroit and urging the jury to convict Simmons to help stem the tide of violence in the city; 2) vouching for Horace Smith's credibility; and 3) denigrating defense counsel's reputation during rebuttal argument. Simmons also claimed that the trial court erred by admitting testimony that he did not express condolences for Bostic's death or attend his funeral. Finally, Simmons argued that the evidence was insufficient to convict.
The state appellate court rejected these claims, vacated a duplicative conviction for second degree murder, and otherwise affirmed the convictions and sentence. Simmons, supra , 2011 WL 3118802 at *1–5. Simmons then sought discretionary review of those same claims in the Michigan Supreme Court, but the court declined to hear the case. People v. Simmons , 490 Mich. 972, 806 N.W.2d 522 (2011).
Simmons did not seek certiorari review in the United States Supreme Court.
On July 31, 2012, Simmons filed a § 2254 petition in this court. (ECF No. 1, PageID 6–7). The petition raised the same three claims that Simmons had raised on direct appeal. (Id. , PageID 3–4).
After the Warden answered the petition and filed the state court record (ECF Nos. 6, 7), Simmons moved on April 9, 2013 for a stay of proceedings while he returned to the Michigan courts to exhaust four additional claims for relief. In support of the motion, Simmons explained that he had recently filed a motion under Michigan Criminal Rule 6.500 for relief from judgment in the state trial court. Judge David Lawson granted the motion to stay and ordered Simmons to file an amended petition within twenty-eight days after the conclusion of the state court proceedings. (ECF No. 10).
Simmons filed his motion for relief from judgment on April 9, 2013.3 The motion raised four claims:
(ECF No. 17–2).
In support of his trial counsel claim, Simmons submitted affidavits from his mother, three sisters, brother, and girlfriend, all of whom averred that Simmons was with them at an all-day family party on June 28, 2006. (Id. , PageID 1812–22). The witnesses added that this day was particularly memorable to them, as it was the day of the Detroit-Windsor International Fireworks Show. Simmons also submitted his...
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