Sims v. McCollum
| Decision Date | 12 May 2016 |
| Docket Number | Case No. CIV-13-368-F |
| Parties | JIMMY ELDON SIMS, Petitioner, v. TRACY MCCOLLUM, Warden, Respondent. |
| Court | U.S. District Court — Western District of Oklahoma |
Petitioner, Jimmy Eldon Sims, appearing pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 [Doc. No. 1] challenging the constitutionality of his state court conviction. Respondent has filed a Response [Doc. No. 13], and at the direction of the Court, a Supplemental Response. [Doc. No. 27]. Petitioner has filed a Reply [Doc. No. 18], and a Supplemental Reply. [Doc. No. 29]. The matter has been referred by United States District Judge Stephen P. Friot for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons set forth below, it is recommended that the Petition be denied.
On August 20, 2008, Felipe Garza (Garza) arrived at his home to find a PT Cruiser with two men inside pulling up near his residence. Garza saw the driver get out and urinate in front of the home across the street where Timothy Smith (Smith) lived. Garza went into his garage but soon re-emerged. When he came back out, he saw the driver hitting Smith with a vacuum cleaner while the passenger was sitting on Smith's chest also hitting Smith.
Smith testified he was vacuuming his house when he heard a knock on the door. Petitioner and his co-defendant, James Turley, (Turley) were at the door, and Smith let them in the house. He claimed that Petitioner then pushed him down on the couch, while Turley started carrying things out of the house. He claimed that Turley started hitting him, and that Petitioner hit him with the vacuum cleaner, perhaps a big screen television, an oscillating fan, and a wooden claw hammer.
Garza called 911, and Officer Venters (Venters) responded. He went across the street to Smith's house and found Smith with severe injuries. He learned from Smith that Petitioner and Turley were likely at a house located at 33rd and South Western in Oklahoma City. Following this lead, Venters drove to that location and found Petitioner in the front yard covered in blood. After verifying Petitioner's name was the same as the name the victim had given him, Officer Venters placed Petitioner in the back of his patrol car. Venters went inside the house where Petitioner had been found to talk to Detective Pena. When he returned to his patrol car, Petitioner was gone. The next day, police went to an address where Petitioner had stayed and found him hiding under a bed. He was arrested and later charged with two felonies in connection with the robbery of Smith.
In Case No. CF-2008-5008, District Court of Oklahoma County, State of Oklahoma, (trial court), Petitioner was convicted of First Degree Robbery After Former Conviction of a Felony and was sentenced to twenty years' imprisonment. Petitioner appealed his conviction to the Oklahoma Court of Criminal Appeals (OCCA), Case No. F-2009-347, raising the following five grounds for relief: (1) allowing the introduction of the recording of Garza's 911 call to the police violated Petitioner's right to be confronted by his accuser in open court, and trial counselwas ineffective in failing to object to the admission of the recording; (2) Petitioner's rights under the prophylactic rule set forth in Miranda v. Arizona were violated; (3) the evidence is insufficient to support the conviction on a charge of robbery; (4) the trial court erred in allowing the admission of hearsay evidence; and (5) the trial court erred in allowing the admission of gruesome photographs of the victim. [Doc. No. 13-1]. The OCCA affirmed Petitioner's conviction on April 13, 2011. [Doc. No. 13-3].
Petitioner filed his first application for post-conviction relief on March 29, 2012, but the trial court struck the pleading for failure to follow procedural rules. [Doc. No. 13-5] at 2. On April 5, 2012, Petitioner filed a second Application for Post-Conviction Relief raising eight claims not previously asserted on direct appeal, including an ineffective assistance of appellate counsel claim: (1) the trial court lacked jurisdiction to enhance Petitioner's sentence because no certified copies of the judgments and sentences relied on were presented at preliminary hearing or were included in the bind-over order; (2) the trial court failed to adequately inquire into jury bias, thereby violating Petitioner's Due Process Right to an impartial jury; (3) the trial court erred in failing to give jury instruction OUJI CR-9-20, instructing the jury on evidence of impeachment by prior inconsistent statement; (4) prosecutorial misconduct denied Petitioner Due Process and a fair trial; (5) the trial court erred in waiting to merge the two counts against him until after the jury reached a verdict; (6) cumulative error deprived Petitioner of a fair trial; (7) trial counsel was ineffective; and (8) appellate counsel was ineffective in failing to raise the previous seven claims on direct appeal. [Doc. No. 21-1].
The trial court denied the application for post-conviction relief on July 24, 2012, [Doc. No. 13-5], finding Petitioner had waived the first seven grounds for relief by failing to raise them on direct appeal. The trial court acknowledged the ineffective assistance of appellate counselclaim had not been waived because a post-conviction action is the first opportunity for a petitioner to assert such a claim. [Doc. No. 13-5]. The trial court identified the correct standard for reviewing claims of ineffective assistance of appellate counsel, [Doc. No. 13-5], and denied the claim on the merits without discussion of the underlying claims. Id. at 3.
On post-conviction appeal, the OCCA affirmed the district court's denial of Petitioner's first seven claims that Petitioner had waived. [Doc. No. 13-7]. As to Petitioner's claim of ineffective assistance of appellate counsel, the OCCA found Petitioner had forfeited that claim on post-conviction appeal by submitting a deficient brief: "Petitioner's post-conviction appeal brief herein is little more than a word-for-word recitation of those allegations and arguments contained in his Application for Post-Conviction relief." [Doc. No. 18-3] at 7-8. The OCCA held that Petitioner had failed to "rebut the presumption of correctness given to trial court proceedings" as well as having failed to "demonstrate on appeal how the [trial court's] resolution of his claims was erroneous" or "prejudicial[.]" [Doc. No. 18-3] at 8.
In this federal habeas petition, Petitioner raises thirteen grounds for relief—all grounds raised in his direct appeal to the OCCA, as well as all of the claims first raised in his application for post-conviction relief. [Doc. No. 1] at 5-24.
Petitioner's grounds for relief raised on direct appeal are subject to review under the standards set forth in the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, this Court may grant a Petitioner habeas relief only if the State court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or "resulted in adecision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). Under this standard, judicial review is directed to the result of the state appellate court's decision, not the reasoning. See Gipson v. Jordan, 376 F.3d 1193, 1197 (10th Cir. 2004) ().
Whether the law is clearly established is a threshold inquiry. See House v. Hatch, 527 F.3d 1010, 1017-1018 (10th Cir. 2008). The absence of clearly established federal law is dispositive of the § 2254(d)(1) analysis. Id. at 1017. Thus, only if the court determines that the law is clearly established does it proceed to determine whether the state court decision is either contrary to or an unreasonable application of that law. Id. at 1018.
A state court's determination is contrary to clearly established federal law if it applies a rule that contradicts the law set forth in Supreme Court cases or confronts a set of facts that are materially indistinguishable from a Supreme Court decision, but arrives at a different result. Williams v. Taylor, 529 U. S. 362, 405-406 (2000). "A legal principle is 'clearly established' within the meaning of this provision only when it is embodied in a holding of [the United States Supreme Court.]" Thaler v. Haynes, 531 U.S. 43, 47 (2010).
A state court's determination involves an unreasonable application of clearly established federal law if it identifies the correct governing legal principle from Supreme Court decisions, but unreasonably applies that principle to the facts in the Petitioner's case. Williams, 529 U.S. at 413. Williams, 529 U.S. at 411.
On direct appeal, Petitioner argued that introduction of the 911 recording of Garza's call for emergency assistance violated Petitioner's rights under the Confrontation Clause. Petitioner further argued that trial counsel rendered ineffective assistance of counsel by failing to object to the introduction of this evidence. [Doc. No. 13-1] at 18-21. Respondent argues that in its decision, the OCCA identified the correct legal standards governing these claims and reasonably applied these standards. [Doc. No. 13] at 7-8.
The OCCA...
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