Sims v. McFadden

• Decision Date: 04 January 2016
• Docket Number: C/A No. 0:15-1510-BHH-PJG
• Court: U.S. District Court — District of South Carolina
• Parties: Russell Lee Sims, Petitioner, v. Warden McFadden, Respondent.

Russell Lee Sims, Petitioner, v. Warden McFadden, Respondent.

C/A No. 0:15-1510-BHH-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

January 4, 2016

REPORT AND RECOMMENDATION

Petitioner Russell Lee Sims, a self-represented state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 15.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Sims was advised of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 16.) Sims filed a response in opposition to the respondent's motion. (ECF No. 22.) In addition, Sims filed a motion requesting a psychiatric evaluation. (ECF No. 25.) Having carefully considered the parties' submissions and the record in this case, the court concludes that the respondent's motion for summary judgment should be granted and Sims's Petition denied.

BACKGROUND

Sims was indicted in August 2006 in Spartanburg County for four counts of pointing and presenting a firearm, murder, possession of a weapon during the commission of a violent crime, attempted armed robbery, and assault and battery with intent to kill. Sims was further indicted in January 2007 in Spartanburg County for assault and battery with intent to kill, burglary in the first degree, and armed robbery. (ECF No. 14-3 at 80 through ECF No. 14-4 at 30.) Sims was represented by William H. McPherson, Esquire, and Clay Allen, Esquire, and on January 22-24, 2007 was tried before a jury and found guilty of murder, possession of a firearm during the commission of a violent crime, first degree burglary, two counts of assault of a high and aggravated nature (as lesser included offenses of the assault and battery with intent to kill charges), armed robbery, attempted armed robbery, and four counts of pointing and presenting a firearm at a person. (App. at 420-21, ECF No. 14-2 at 176-77.) The circuit court sentenced Sims to life imprisonment for murder, five years' imprisonment for possession of a firearm during the commission of a violent crime, life imprisonment for burglary in the first degree, five years' imprisonment for each of the convictions of assault of a high and aggravated nature, thirty years' imprisonment for armed robbery, twenty years' imprisonment for attempted armed robbery, and five years' imprisonment for each conviction of pointing and presenting a firearm at a person. (App. at 426-28, ECF No. 14-2 at 182-84.)

Sims timely appealed and was represented by Joseph L. Savitz, III, Esquire, of the South Carolina Commission Office of Appellate Defense, who filed a brief on Sims's behalf that raised the following issue:

The trial judge committed reversible error by refusing to instruct the jury on the lesser-included offense of voluntary manslaughter, since Sims testified that he killed his girlfriend's father after he pointed a gun at him and they "tussled."

(App. at 430-37, ECF No. 14-2 at 186-93.) On February 2, 2010 the South Carolina Court of Appeals affirmed Sims's conviction and sentence. (State v. Sims, Op. No. 2010-UP-080 (S.C. Ct. App. Feb. 2, 2010), App at 465-66, ECF No. 14-2 at 221-22.) Sims filed a petition for rehearing. (App at 467-68, ECF No. 14-2 at 223-24.) The South Carolina Court of Appeals denied the petitionfor rehearing on March 18, 2010. (State v. Sims, Op. No. 2010-UP-080 (S.C. Ct. App. Mar. 18, 2010), ECF No. 14-6.)

Sims filed a petition for a writ of certiorari with the South Carolina Supreme Court on June 18, 2010 in which he raised the following issue:

The Court of Appeals committed reversible error of law by affirming the trial judge's refusal to instruct the jury on the less-included offense of voluntary manslaughter, where there was evidence Sims killed his girlfriend's father after he pointed a gun at him and they "tussled."

(App. at 472-78, ECF No. 14-2 at 228-34.) The State filed a return. (App. at 480-503, ECF No. 14-2 at 236 through ECF No. 14-3 at 5.) By letter order filed May 25, 2011, the South Carolina Supreme Court denied Sims's petition for a writ of certiorari. (App. at 505, ECF No. 14-3 at 7.) The remittitur was issued on May 27, 2011. (App. at 506, ECF No. 14-3 at 8.)

Sims filed a pro se application for post-conviction relief ("PCR") on August 15, 2011 in which he raised the following claims: (1) ineffective assistance of counsel in that counsel failed to investigate and prepare for trial, and (2) denial of his Sixth and Fourteenth Amendment rights. (See Sims v. State of South Carolina, 11-CP-42-3578; App. at 507-13, ECF No. 14-3 at 9-15.) The State filed a return. (App. at 514-18, ECF No. 14-3 at 16-20.) On November 15, 2013, the PCR court held an evidentiary hearing at which Sims appeared and testified and was represented by Christopher D. Brough, Esquire. By order filed March 6, 2014 the PCR court denied and dismissed with prejudice Sims's PCR application. (App. at 569-77, ECF No. 14-3 at 71-79.)

On appeal, Sims was represented by Susan B. Hackett, Esquire, Appellate Defender with the South Carolina Commission on Indigent Defense, who filed a Johnson¹ petition for a writ of certiorari that presented the following issue:

Did trial counsel's failure to obtain the medical records of the deceased and to use those medical records to cross-examine the deceased's treating physician to demonstrate the deceased's death was not the result of the gunshot wound, but was caused by the deceased's poor health violate Petitioner's constitutional right to the effective assistance of counsel?

(ECF No. 14-8.) Sims filed a pro se response to the Johnson petition in which he raised the following issues:

(1) Did the trial counsel's failure to subpeona missing witness violate petitioner's 6th Amendment Constitutional Right?

(2) Did trial counsel's failure to object to the reading of the indictment and entering of the indictment into evidence for the jury to view during deliberation violate petitioner's Constitutional Right?

(3) Did trial counsel's failure to request that jury be instructed that it could, but was not required to draw negative inference when party fails to preserve material evidence for trial where spoliation-of-evidence was warranted violate petitioner's Constitutional rights?

(ECF No. 14-10.) On March 4, 2015, the South Carolina Supreme Court issued an order denying Sims's petition for a writ of certiorari. (ECF No. 14-11.) The remittitur was issued on March 20, 2015. (ECF No. 14-12.) This action followed.

FEDERAL HABEAS ISSUES

Sims's federal Petition for a writ of habeas corpus raises the following issues:

Ground One: The trial court abused its[] discretion by allowing prosecutorial misconduct, where the solicitor commented on my not calling witnesses, shifting the burden of proof.

Supporting Facts: An accused is presumed innocent until proven guilty. The burden is upon the state to prove the accused committed the crime charged. An accused has the right to rely entirely upon this presumption of innocense, the weakness in the state's case against him + has no burden to produce witnesses. He would clearly be deprived of that right if an adverse inference is permitted to be indulged against him because he does not produce witnesses.

Ground Two: Trial counsel failed to investigate & obtain the medical records of the deceased & to use same to cross-examine the deceased's treating physician & subpoena Prince & Keller to demonstrate the deceased's death was not the result of the gunshot wound, but was caused by the hospital's medical malpractice.

Supporting Facts: Witnesses Suzzane Prince + Judy Keller has relevant information as to proximate cause of death. Prince and Keller gave a deposition to the police or signed a written statement reflecting their knowledge of the case. See attached EXHIBIT #1 - Coroner's investigation notes. At 9:20 am on July 8th 2006 Coroner [] Schuler spoke with Prince + Keller, who advised Schuler that the victim was transferred to restorative care on June 13, 2006 from Spartanburg Regional Medical Center with 3 gunshot wounds to the neck area. Pathologist Dr. David Wren did an autopsy and indicated that there was only one bullet wound. Raising the question of where the other holes come from.

(Pet., ECF No. 1) (errors in original; citations omitted).

DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissibleevidence to support the fact." Fed. R. Civ. P. 56(c)(1). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.

The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or...