Sims v. Houston

• Decision Date: 21 May 2008
• Docket Number: No. 4:07CV3088.,4:07CV3088.
• Citation: 562 F.Supp.2d 1066
• Parties: Michael Joseph SIMS, Petitioner, v. Robert HOUSTON, Respondent.
• Court: U.S. District Court — District of Nebraska

562 F.Supp.2d 1066

Michael Joseph SIMS, Petitioner, v. Robert HOUSTON, Respondent.

No. 4:07CV3088.

United States District Court, D. Nebraska.

May 21, 2008.

Order Denying Motion to Alter or Amend Judgment June 18, 2008.

Michael Joseph Sims, Pro Se.

George R. Love, Attorney General's Office, Lincoln, NE, for Respondent.

MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge.

Deciding that the petitioner's claims have been procedurally defaulted or, in one case, lack merit, I deny Michael Joseph Sims' petition for writ of habeas corpus. Sims will have to serve out his sentence for murder and other serious crimes. I next explain why that is so.

I. Background

Sims filed his petition for writ of habeas corpus on April 2, 2007, naming Robert Houston, Director, and Dennis Bakewell, Warden, as Respondents. From their briefs, it appears that the parties now agree that only Mr. Houston is the proper party. Accordingly, I will direct the Clerk to terminate Mr. Bakewell as a party.

Houston has filed a motion for summary judgment supported by the relevant state court records.¹ Sims has responded, and has submitted, among other things, an affidavit attempting to excuse his procedural defaults.² The parties have been given an opportunity to fully brief this matter and they have done so. (Filing Nos. 28, 32 and 33.)

I find that the material undisputed facts are these:

This Federal Case

1. This case was commenced on April 2, 2007. (Filing No. 1.) The parties agree that the petition was timely. (Filing No. 8.)

2. In his petition (filing no. 1 supplemented by filing no. 10) Sims asserts three claims of ineffective assistance of counsel which include numerous parts. Condensed, summarized and restated for clarity and to avoid redundancy, those claims are described below:

Claim One-Trial Counsel

A. The petitioner was denied effective assistance of trial counsel for the following 17 reasons: (1) failure to protect the petitioner's right to a trial within 6 months under Nebraska law; (2) failure to protect the petitioner's right to a speedy trial under the Sixth Amendment; (3) failure to seek a dismissal under Nebraska law due to the statutory speedy trial violation; (4) failure to seek a dismissal for violation of the petitioner's Sixth Amendment right to a speedy trial; (5) failure to object to prosecutor's statements; (6) failure to object to prosecutor's alternative theory that the petitioner assisted the perpetrator of the crime of murder; (7) failure to object to the failure of the prosecutor to give notice of the alternative theory that the petitioner assisted the perpetrator of the murder; (8) failure to object to jury instruction 5 regarding the aiding and abetting theory; (9) failure to object to jury instruction 5 regarding the definition of aiding and abetting; (10) failure to object jury instructions 5, 6, 7, and 8 regarding the material elements of aiding and abetting; (11) failure to object to jury instruction 14 because it did not require intent; (12) failure to object to jury instruction 14 regarding reasonable doubt and alternative theories; (13) failure to object to the failure to give a jury instruction on selfdefense; (14) failure to object to the failure to give a jury instruction on uncorroborated testimony of an accomplice; (15) failure to object to the verdict form regarding alternative theories; (16) failure to object to charging the jury prior to closing arguments; and (17) failure to object to the failure of the trial court to use the proper standard when ruling on motion for directed verdict. (Filing No. 1 at CM/ ECF pp. 8-10 (ground one, parts 1-15) and filing no. 10 at CM/ECF p. 1 (ground one, parts 16-17).)

Claims Two and Three-Appellate Counsel

B. The petitioner was denied effective assistance of appellate counsel (who was different than trial counsel) because counsel on appeal failed to assign as error the ineffective assistance of trial counsel detailed in claim one and because appellate counsel failed to challenge the standard of review used by the Nebraska Supreme Court to determine the sufficiency of evidence. (Filing No. 1 at CM/ECF pp. 30, 32 and filing no. 10 at CM/ECF pp. 1-2.)

3. For purposes of the motion for summary judgment only, I assume that the petitioner's affidavit is true when it states that he completed the ninth grade in school, that he subsequently obtained a "GED" degree, that his lowest grades were in reading, that the prison law library has numerous volumes of state and federal reporters and self-help manuals, that he was allowed no more than 1.5 hours a day in the law library, that he received the assistance of inmate legal aids, that the legal aids "were not taught or trained by a person who was trained in the law by an accredited learning institution[,]" and that the legal aids "were not supervised by a qualified professional^]" (Filing No. 32 at CM/ECF pp. 14-16.)

The Trial

4. A jury found Sims guilty of murder in the first degree (count 1), use of a firearm to commit a felony (count 2), attempted murder in the first degree (count 3), and use of a firearm to commit a felony (count 4). (Filing No. 29-6, Attach. 5, at CM/ECF pp. 22-23.) At the trial, the defendant was represented by Thomas McKenney. (Filing No. 29-5, Attach, 4, at CM/ECF p. 34.) Sims had gotten into a dispute with his first retained lawyer, James Martin Davis, because Davis, who is a very experienced criminal defense lawyer, suggested that Sims enter a guilty plea. (Filing No. 30, BOE VII at p. 54.) As a result, family and friends recommended that Sims hire McKenney, another highly experienced criminal defense lawyer, and Sims did as they suggested. (Id. at 55-58.)

5. The evidence against Sims was strong, although not ironclad. Taken from the opinion of the Nebraska Supreme Court on direct appeal, and viewed in the light most favorable to the jury verdict, that evidence can fairly be summarized as follows:

A. On March 24, 1997, Michael J. Sims, then a 20-year-old resident of Omaha, Nebraska, purchased a Maverick 12 gauge shotgun, a Norinco Model SKS 7.62-mm × .39-caliber semiautomatic assault rifle, and ammunition for each from Arms & Ammo Sporting Goods in Fremont, Nebraska. On the following day, two men drove into a residential neighborhood in Omaha and fired these weapons at Nathan Coleman and William Booth. Both victims were injured, Coleman fatally. An autopsy revealed that Coleman sustained large wounds to his head and right leg caused by high-velocity rifle bullets. Additionally, he sustained nonfatal shotgun wounds to both legs. The cause of Coleman's death was determined with reasonable medical certainty to be "a perforating gunshot wound of the head, with massive comminuted fractures of the skull and marked lacerations and disruption of the brain." The shotgun and assault rifle were never recovered. At trial, Sims acknowledged that the spent cartridges found at the scene of the shooting were from shells that he loaded into the clip of the SKS assault rifle. The gunshop employee who sold the assault rifle to Sims testified that the casings were from "full metal jacket" rounds not typically used for hunting purposes.

B. Christopher Cannon, who was 22 years old and a previously convicted felon at the time of trial, testified that on five' to eight occasions, he obtained marijuana from Sims, sold it to others, and then paid a portion of the proceeds to Sims and retained the remainder for himself. He characterized this transaction as "fronting," which a law enforcement witness confirmed to be a common means of marketing illicit drugs. Cannon testified that he obtained marijuana from Sims under a "fronting" arrangement a day or two before March 25, 1997. Cannon testified that on the afternoon of March 25, he had a telephone conversation with a fellow by the last name of Gatewood during which Gatewood expressed interest in purchasing one-half pound of marijuana from him. Cannon contacted his friend Harry Winefeldt and the two men went to meet Gatewood to do the drug deal. However, during the meeting, Gatewood snatched the marijuana and ran off without paying for it.

C. Cannon and Winefeldt then proceeded to the automotive garage where Sims worked. When they arrived there, Cannon went inside and found Sims. The two men went outside, and Cannon informed Sims of the theft of the marijuana by Gatewood. Cannon testified that Sims responded by stating, "Let's get 'em. Let's go." The three men—Cannon, Winefeldt and Sims—then left in a Blazer. Cannon testified that Sims briefly entered his home and returned to the vehicle carrying a box which contained a 12 gauge shotgun and an SKS assault rifle. Leaving Cannon behind because his wife had called and indicated that she might be going into labor, Sims announced, "I'll handle this." He and Winefeldt drove off in the Blazer. Sims was driving.

D. According to Winefeldt, after spotting Gatewood walking nearby, Sims drove to the middle of an intersection. Winefeldt testified that as two or three individuals approached the Blazer, Sims took the assault rifle from the floor of the Blazer and instructed Winefeldt to use the shotgun to shoot the approaching men before the men could shoot Winefeldt and Sims. Although he did not observe any weapons in the possession of the individuals who were approaching the vehicle, Winefeldt observed them raise their shirts and display gang signs. Winefeldt fired three or four shots from the shotgun, hitting both Booth and Coleman, and then opened the door of the Blazer. Winefeldt testified that he mistook Coleman for Gatewood because both were of similar build and complexion and wore their hair in a similar fashion. Winefeldt testified that after firing the shotgun, he heard shots from the assault rifle and observed Sims outside the vehicle firing at Coleman and Booth. Coleman, who was attempting to get away after being shot by Winefeldt, fell to the ground when Sims fired the assault rifle. Sims and Winefeldt then...