Sims v. Brown, 092105 FED9, 03-99007oa

Docket Nº:03-99007oa
Party Name:Mitchell Carlton Sims, Petitioner-Appellant, v. Jill Brown, Warden,[*] Respondent-Appellee.
Case Date:September 21, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Mitchell Carlton Sims, Petitioner-Appellant,


Jill Brown, Warden, [*] Respondent-Appellee.

No. 03-99007oa

United States Court of Appeals, Ninth Circuit

September 21, 2005

Argued and Submitted June 9, 2005—Pasadena, California.

Amended December 8, 2005.

Appeal from the United States District Court for the Central District of California, D.C. No. CV-95-05267-GHK, George H. King, District Judge, Presiding.


Trevor W. Morrison and John H. Blume, Cornell Law School, Ithaca, New York, for the petitioner-appellant.

David F. Glassman, Deputy Attorney General, Los Angeles, California, for the respondent-appellee.

Before: Betty B. Fletcher, Pamela Ann Rymer, and Raymond C. Fisher, Circuit Judges.


The majority opinion filed September 21, 2005, is amended as follows:

Page 13519, line 6: delete sentence beginning with "Indeed, Sims submitted no evidence . . . ."

With this amendment, the majority of the panel votes to deny the petition for rehearing. Judges Rymer and Fisher vote to deny the petition for rehearing en banc. Judge B. Fletcher would grant the panel rehearing and recommends en banc rehearing.

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and petition for rehearing en banc are DENIED.


RYMER, Circuit Judge:

In 1987, Mitchell Carlton Sims was convicted of the first degree murder of John Harrigan, a Domino's Pizza employee who delivered a pizza to Sims and his girlfriend, Ruby Padgett, at their motel room in Glendale, and the attempted murders of two other Domino's employees, Kory Spiroff and Edward Sicam. He was sentenced to death. The California Supreme Court affirmed. People v. Sims, 5 Cal.4th 405 (1993), cert. denied, Sims v. California, 512 U.S. 1253 (1994). After the supreme court denied Sims's petition for a writ of habeas corpus, Sims filed a 28 U.S.C. § 2254 petition in the United States District Court for the Central District of California on April 22, 1996. Following an evidentiary hearing, the district court denied all of Sims's claims on May 2, 2003.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) does not apply to the merits of Sims's appeal because his federal petition was filed before AEDPA's effective date, Lindh v. Murphy, 521 U.S. 320, 327 (1997), but it does apply to the procedures for seeking review. Accordingly, Sims obtained a Certificate of Appealability (COA) on seven issues: (1) whether his rights under Miranda v. Arizona, 384 U.S. 436 (1966), were violated by the admission of confessions obtained in a custodial setting after he invoked his rights to counsel and silence; (2) whether the prosecutor's peremptory challenges to two Hispanic prospective jurors violated Batson v. Kentucky, 476 U.S. 79 (1986); (3) whether his right to an impartial jury was violated when a member of his jury met with a member of Padgett's jury and discussed writing a book about their experiences; (4) whether his Eighth and Fourteenth Amendment rights were violated by the prosecutor's closing argument in the penalty phase about factor (k), the last factor in mitigation under California law that covers "any other circumstance which extenuates the gravity of the crime"; (5) whether trial counsel rendered ineffective assistance during the penalty phase by failing to investigate, develop, and present mitigating evidence about Sims's mental condition; (6) whether counsel was ineffective in failing to object to comments that Sims argues violated Griffin v. California, 380 U.S. 609 (1965); and (7) whether reversal is required on account of cumulative error.

We affirm.



Sims had managed a Domino's Pizza parlor in West Columbia, South Carolina before resigning when he got angry at his boss for withholding part of a bonus.1 Sims sought revenge, and told his then-girlfriend that he wanted to use explosives to kill the boss. He bought a gun. On November 15, 1985, Sims was hired as a delivery driver by another Domino's, in Hanahan, South Carolina.

On December 8, 1985, Sims and Padgett ended up in Glen-dale, California. They went to a Domino's and asked Kory Spiroff, the assistant manager, for directions to a drugstore. On the afternoon of the next day, a man and woman went to a Sears store in Glendale and bought a package of socks, underwear, a clothesline, and a knife. The sales clerk overheard the woman tell the man to relax because they would be leaving the store shortly.

On the evening of December 9, Spiroff was on duty with delivery drivers Edward Sicam and John Harrigan. Each had on a Domino's uniform, consisting of short-sleeved shirts with a Domino's badge and name tag. At 11:03 p.m., Brian Scarlett, an off-duty Domino's employee who was visiting Spiroff, took a telephone order from a man with a southern accent. The caller asked for the pizza to be delivered to Room 205 of the Regalodge Motel. The motel was a three-minute drive from the parlor. Harrigan, who was twenty-one years old, left the parlor at 11:26 p.m. in his Toyota truck to make the delivery.

Around 11:45 p.m., Sims and Padgett went into the Domino's. Spiroff recognized the couple from the day before. This time, Sims pointed a gun at Sicam and ordered Spiroff and Sicam into a back office. When Spiroff warned Sims that a delivery driver was due back at any moment, Sims took off his sweater to reveal a Domino's shirt with Harrigan's name tag and chuckled, "No, I don't think so."

Sims found a bank deposit bag which he gave to Padgett, who then emptied the parlor's cash drawers. Sims told her to watch for fingerprints, and she began wiping the tables and cash drawers at his direction. Sims ordered Spiroff and Sicam to stand in the corner of the office and aimed his gun directly at them.

At this point, Richard Wagner, an off-duty Domino's employee, arrived at the parlor with his wife. Sims told Spiroff to go to the front counter, threatening to shoot Sicam unless Spiroff cooperated. Instead of acknowledging Wagner as a friend, Spiroff asked him for his order. Meanwhile, Sims took an order over the phone, identifying himself as "Mitch" to the customer. While Spiroff prepared the pizzas, Sims told the Wagners to wait in the car for their pizza to be brought to them. After Sims gave the Wagners their pizza, they drove off and, suspecting a burglary, called the police.

Sims decided to take Spiroff and Sicam, one at a time, into the walk-in cooler. The cooler was 8 feet by 12 feet, with a 3-tier rack against the left wall. The temperature was kept at 32 to 40 degrees. Sims tied Spiroff s hands tightly behind his back with one end of a rope, looped the other end over the rack, and lifted Spiroff s arms painfully high by pulling down on the rope. This forced Spiroff to stand on his tiptoes to ease the tension in the rope and alleviate the pain. When Spiroff complained, Sims replied, "Shut up. At least you live." Next, Sims wrapped the end of the rope around Spiroff s neck and tied it so tightly with a knot in back of the neck that Spiroff would strangle if he stopped standing on his tiptoes. Sims asked Spiroff when the cooler would be opened the following day. Spiroff said at 11 a.m. Sims replied that, by then, he and Padgett would be in San Francisco. When Spiroff asked Sims about Harrigan, Sims said that Harrigan had been tied up at the motel and would be found after Spiroff was found.

Sims then brought Sicam into the cooler and bound him in the same manner as Spiroff. When Sicam said he was choking, Sims responded, "You are alive." Sims closed the cooler and left at 12:15 a.m. with Padgett.

While standing on the toes of one foot, Spiroff tried to knock over cartons so they could stand on them and relieve some of the pressure around the neck, but the rope tightened as he moved. Eventually he succeeded in knocking a box over. Nevertheless, at some point Spiroff blacked out.

Responding to Wagner's call, Glendale police officers arrived at 12:30 a.m. They found Spiroff and Sicam in the cooler. One of them told the officers that their assailant was wearing Harrigan's shirt and that Harrigan had not returned from delivering a pizza to the Regalodge.

The officers went to the Regalodge, got the key and registration card to room 205, which was registered to Sims, and found Harrigan's dead body in the bathtub. The bathtub was full of water, and Harrigan's body was submerged under the water on his right side with his back parallel to the side of the tub. Cold water was running at full blast onto the back of Harrigan's neck. His head was immediately under the spout, about one inch below the water line. The drain plug was broken, but the tub was filled with water up to the overflow valve. Harrigan's wrists were bound behind his back; his ankles were bound; and his feet and hands were "hogtied" together behind his back. His head was covered with a pillow case, which was secured with a rope ligature around the neck. A washcloth had been placed inside his mouth, held in place by a sock tied around his head.

Dr. Joseph Cogan, the state's forensic pathologist, who performed the autopsy on Harrigan's body, determined that the cause of death was ligature strangulation based on the depth of the furrow around the decedent's neck, indicating the extreme pressure of the ligature around the neck, and hemorrhages on the inner eyelids, indicating that Harrigan was alive when the neck ligature was applied because it obstructed blood flow to the head and brain. Cogan opined that Harrigan lived for no more than ten minutes after the neck ligature was applied and that the ligature in itself was enough to kill Harrigan. However, Cogan...

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