Simpson v. Warden

Decision Date21 September 2000
Docket NumberNo. 99-1677,99-1677
Citation238 F.3d 399
Parties(6th Cir. 2000) Jimmie Lee Simpson, Petitioner-Appellant, v. Kurt Jones, Warden, Respondent-Appellee. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 97-71517, Arthur J. Tarnow, District Judge. [Copyrighted Material Omitted] James Sterling Lawrence, Detroit, Michigan, Jimmie Lee Simpson, Macomb Regional Facility, New Haven, MI, for Appellant.

Vincent J. Leone, ASSISTANT ATTORNEY GENERAL, Laura Graves Moody, Office of the Attorney General, HABEAS CORPUS DIVISION, Lansing, Michigan, for Appellee.

Before: BOGGS and SUHRHEINRICH, Circuit Judges; and ALDRICH, District Judge**.

OPINION

BOGGS, Circuit Judge.

Petitioner-appellant, Jimmie Lee Simpson, was convicted of first degree felony murder under Mich. Comp. Laws § 750.316, on April 15, 1986. On April 28, 1986, Simpson was sentenced to life in prison without parole. Simpson now appeals a district court decision denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm.

I

Simpson's arrest and conviction arise from a robbery that occurred on May 21, 1985, in a two-family flat in Detroit, Michigan. Barbara Barnhill and her husband lived in the upper flat. Barnhill's 76-year-old uncle, Milton Jones, and 79-year-old wheelchair-bound aunt, Maude Jones, lived in the lower flat. Barnhill was in the lower flat visiting her aunt and uncle when the doorbell rang. When Mr. Jones answered the door, three men forcibly entered the house, pushing Mr. Jones to the floor. Barnhill described the three men in the following way: one was tall and thin; one was muscular and had a dark complexion; and one was short, had a light complexion, and was wearing a yellow jacket. Simpson was identified as the muscular man with a dark complexion. The tall, thin man was identified as Joseph Simpson, Simpson's brother. The short man with the light complexion and wearing the yellow jacket was identified as David Kidd, a juvenile.

Barnhill testified that Joseph Simpson removed her jewelry and instructed her to lie on the couch and cover her face. Barnhill did as she was told, but looked through her fingers and observed Simpson demanding money from her aunt and uncle. Mr. Jones told Simpson that he and Mrs. Jones did not have any money. Mr. Jones attempted to get up from the floor, causing Simpson to hit Mr. Jones in the head several times, knock him down, and kick him. When Mrs. Jones attempted to help Mr. Jones, Simpson hit her, knocking her out of her wheelchair.

The three men eventually left the house and fled the scene in Barnhill's car. Barnhill and Mr. Jones were taken to the hospital where Mr. Jones died as a result of multiple blunt force injuries to the head and chest.

Barnhill testified at trial, as did Kidd, who testified pursuant to an agreement in which he pleaded guilty to second-degree murder in exchange for testifying against his accomplices. Kidd identified Simpson as one of the perpetrators of the robbery. In addition, Kidd corroborated much of Barnhill's testimony.

A jury found Simpson guilty of felony murder and unarmed robbery. Simpson was later sentenced by the trial court to life in prison without parole for the felony murder conviction and ten to fifteen years in prison for the unarmed robbery conviction.

II

The resolution of this case involves complex issues of procedural default. Therefore, it is necessary to provide a detailed procedural history.

After his conviction and sentence, Simpson appealed to the Michigan Court of Appeals, raising four issues. Simpson claimed that (1) his sentence of life in prison without parole violated his right to be free of cruel and unusual punishment, (2) the prosecutor's opening statement divulged the penalty for the offense charged and thus violated Simpson's right to a fair trial, (3) the prosecutor impermissibly vouched for the credibility of one of his witnesses, and (4) the prosecutor impermissibly appealed to the sympathies of the jurors. On October 27, 1988, the Michigan Court of Appeals affirmed Simpson's convictions. The Michigan Supreme Court reviewed the decision and denied relief on May 31, 1989.

Simpson filed a motion for relief from judgment with the trial court on May 8, 1990, raising four new issues. Simpson claimed that (1) he was denied effective assistance of appellate counsel when his counsel failed to raise a claim of error regarding admission of a prior offense as impeachment evidence, failed to raise a claim of error regarding the prosecutor's vouching for the credibility of a witness, and failed to argue attempts by the prosecutor to appeal to the sympathies of the jurors; (2) he was denied effective assistance of trial counsel since counsel did not impeach one of the prosecution's witnesses with the witness's prior juvenile adjudications; (3) he was denied effective assistance of trial counsel by the failure of trial counsel to argue properly issues related to Simpson's intention to testify were his prior conviction not admitted; and (4) his convictions for felony murder and unarmed robbery violated double jeopardy. On January 31, 1994, the trial court denied Simpson's motion with respect to every issue except the double jeopardy claim, for which it granted relief, setting aside Simpson's unarmed robbery conviction. Simpson did not appeal the trial court's decision.

In January 1995, Simpson filed a second motion for relief from judgment raising the following six claims: (1) the trial court applied the wrong test in deciding to allow Simpson to be impeached with a prior concealed weapons conviction; (2)Simpson was denied effective assistance of trial counsel when counsel failed to investigate Kidd's juvenile record and failed to object to prosecutorial misconduct and erroneous jury instructions; (3) Simpson was denied a fair trial by prosecutorial misconduct, including the prosecutor vouching for the credibility of two eyewitnesses, arguing facts outside the record related to a deal given to the accomplice to testify, appealing to jurors' racial stereotypes, and arguing that defense counsel used his forensic skills to fool the jury; (4)the trial court erred by not instructing the jury that an aider and abettor must share in the intent of the principal and by invading the province of the jury by deciding Kidd's credibility; (5) the trial court improperly admonished defense counsel and denigrated counsel's cross-examination of the accomplice before the jury; and (6) the trial court erred when it found due diligence with respect to the prosecution's failure to produce a particular witness. On May 1, 1995, the trial court denied Simpson's motion on procedural grounds, noting that Simpson raised no issues that had not been previously addressed by the trial court and the Michigan Court of Appeals. In addition, the court briefly addressed and rejected Simpson's arguments on the merits. Simpson filed an application for leave to appeal to the Michigan Court of Appeals. Simpson raised the same six claims he raised in the trial court. He also contested the trial court's determinations of procedural default. On October 24, 1995, the Court of Appeals denied the application on the basis of MCR 6.508(D). Simpson then filed an application for leave to appeal to the Michigan Supreme Court based on the same issues he had raised in the Court of Appeals. This application was denied on July 26, 1996 on the basis of MCR 6.508(D).

On April 11, 1997, Simpson filed a petition for a writ of habeas corpus in federal court. This petition was based on the same issues Simpson raised to the Michigan Court of Appeals and the Michigan Supreme Court in his applications for leave to appeal the trial court's denial of his second motion for relief from judgment. Specifically, Simpson raised the following grounds:

I. Was the lower court's decision on whether Mr. Simpson had overcome the procedural hurdles of MCR 6.508 or whether their application to the instant case would deny due process of law to the appellant under the state and federal constitutions clearly erroneous?

II.Was Mr. Simpson denied the right to testify at trial, the right to present a defense, and the right to due process of law when the court used the wrong test to decide whether to allow impeachment of the defendant by a weapons conviction?

III.Was Appellant denied the effective assistance of counsel in the following ways:

A.Counsel failed to investigate the juvenile record of David Kidd and use it to attack his credibility;

B.Counsel failed to object to prosecutorial misconduct; and

C.Counsel failed to object to the erroneous aiding and abetting instruction and felony-murder instruction?

IV.Was Mr. Simpson denied due process of law by the following actions of the prosecutor:

A.The prosecutor vouched for the truthfulness of his case and the credibility of his witnesses;

B.The prosecutor argued facts outside the record to dilute the effect of the deal given to the accomplice and he also testified to vouch for Mrs. Barnhill's credibility;

C.The prosecutor purposely misstated the law on the burden of proof;

D.The prosecutor used appeals for sympathy and used racial stereotypes and other fear tactics in order to obtain a conviction; and

E.The prosecutor diluted the presumption of innocence by arguing that defense counsel used his forensic skills to fool the jury?

V.Was Mr. Simpson denied his right to a fair trial and to trial by jury when the court did the following during jury instructions:

A.The trial court invaded the province of the jury when it declared that the accomplice was guilty of the crimes charged; and

B.The trial court erred when it instructed the jury that it could convict an aider and abettor on mere knowledge of the principal's intent?

VI.Did the trial court's comments concerning defense counsel deny petitioner a...

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