Sims v. Singletary

Decision Date22 September 1998
Docket NumberNo. 97-3355,97-3355
Citation155 F.3d 1297
Parties12 Fla. L. Weekly Fed. C 113 Terry Melvin SIMS, Petitioner-Appellee, Cross-Appellant, v. Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, Respondent-Appellant, Cross-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Kenneth S. Nunnelley, Asst. Atty. Gen., Daytona Beach, FL, for Respondent-Appellant, Cross-Appellee.

Steven H. Malone, Asst. Pub. Defender, West Palm Beach, FL, for Petitioner-Appellee, Cross-Appellant.

Appeals from the United States District Court for the Middle District of Florida.

Before DUBINA, CARNES and HULL, Circuit Judges.

DUBINA, Circuit Judge:

The State of Florida ("the State") appeals the district court's judgment granting in part Terry Melvin Sims's ("Sims") petition for federal habeas corpus relief as to his death sentence. Sims cross-appeals the district court's judgment denying his claims challenging the validity of his conviction. After reviewing the entire record in this case, and having the benefit of oral argument and the parties' briefs, we affirm the district court's judgment denying habeas relief as to Sims's guilt stage issues, but we reverse the district court's judgment granting habeas relief as to Sims's sentencing stage issues.

I. BACKGROUND
A. FACTS

The facts are recited verbatim from the Florida Supreme Court's opinion on direct review of Sims's conviction and sentence.

Terry Melvin Sims was convicted for the first-degree murder of George Pfeil, an off-duty deputy sheriff who entered a pharmacy while it was being robbed by Sims and three other men. Two of these other participants, Curtis Baldree and B.B. Halsell, were the state's chief witnesses. They testified that Sims and Baldree armed themselves with pistols and entered the pharmacy, while Halsell and the fourth participant, Gene Robinson, waited in a car a short distance away. Baldree said that he went to the back of the store to rob the pharmacist while Sims stayed at the front of the store watching the door. Sims ordered the customers and employees to the back of the store and into the bathroom. While Pfeil came into the store he and Sims exchanged gunfire. Pfeil was shot twice and Sims was wounded in the hip. Sims and Baldree escaped the scene and later joined their accomplices. The four men then departed the area.

This account of the robbery and the shooting was confirmed by pharmacist Robert Duncan, Duncan's wife and daughter both of whom worked at the store, and two customers who identified appellant. One of the customers, William Guggenheim, testified that he tried to leave the store when he saw a man pointing a gun at the pharmacist. He was stopped by Sims who took his wallet. Guggenheim said he then saw Sims shoot a man who was entering through the front door.

The main theory of defense was mistaken identity. The defense attempted to discredit Baldree and Halsell on the basis of their bad character, drug addiction, criminal records, and the plea arrangements between them and the state. The defense attacked the identification testimony of one of the customers as the product of a suggestive photographic line-up and questioned the testimony of Guggenheim on the basis of his earlier failure to choose appellant from a photographic line-up. The defense then presented evidence of appellant's resemblance to another individual said to be a frequent criminal associate of Baldree and Halsell.

The jury returned verdicts of guilty of first-degree murder and robbery. At the sentencing phase, the state presented a certified copy of a 1971 Orange County conviction for assault with intent to rob. The defense presented witnesses who testified to appellant's good character and difficult background circumstances. The jury recommended death. Finding several aggravating circumstances and no mitigating circumstances, the trial judge adopted this recommendation.

Sims v. State, 444 So.2d 922, 923-24 (Fla.1983).

B. PROCEDURAL HISTORY

Sims's conviction and sentence were affirmed on direct appeal. Sims v. State, 444 So.2d 922 (Fla.1983). Sims raised numerous issues on direct appeal: (1) whether he was denied his Sixth Amendment right to cross-examine a witness when the trial court curtailed defense counsel's cross-examination of Baldree; (2) whether the trial court erred in denying his motion for mistrial when a witness mentioned using Sims's "mug shot" in a photographic display; (3) whether the trial court erred in excluding from evidence documents corroborative of a defense witness's testimony; (4) whether the prosecutor made several improper comments during his closing argument; (5) whether the trial court erred by not granting his request for an evidentiary hearing on whether the exclusion of potential jurors unalterably opposed to the death penalty results in a jury predisposed toward conviction; (6) whether Sims was improperly prevented from further questioning a juror in a post-trial hearing about whether the jurors had considered Sims's failure to testify in reaching their verdict; (7) whether the trial court erred in allowing the jury to return verdicts on multiple and inconsistent counts; and (8) whether the trial court properly imposed a sentence of death. The Florida Supreme Court found no merit to issues one, two, three, five, six, and seven. 444 So.2d at 923-24. The court found issue four to be procedurally barred because counsel failed to object at trial to the prosecutor's alleged improper comments. Therefore, the issue was not preserved for appeal. See State v. Cumbie, 380 So.2d 1031, 1033 (Fla.1980).

With respect to the sentencing issues, the Florida Supreme Court determined that two aggravating circumstances were improperly "double-counted" and that the aggravating factor that the murder was heinous, atrocious, or cruel was improper, but harmless. 444 So.2d at 926. Despite these errors, and in light of no mitigating circumstances, the court found that the death sentence was nonetheless appropriate. The court found three aggravating circumstances valid: that the capital felony was committed in the course of a robbery, that it was committed for the purpose of avoiding arrest, and that Sims had previously been convicted of life-threatening crimes. Id. Thus, "[w]here there are some aggravating and no mitigating circumstances, death is presumed to be the appropriate punishment." Id.

Sims filed a petition for habeas relief in the state court and later voluntarily dismissed that petition. Sims then filed a motion to vacate the judgment and sentence and a motion for collateral relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court addressed both motions in its order. R.Vol. 12, Tab 7. Sims challenged his conviction and sentence raising numerous issues: (1) whether his attorneys provided ineffective counsel at the guilt stage proceedings because they failed (a) to explain why further cross-examination of witness Baldree was necessary, (b) to challenge the alleged misidentification of Sims by witness Sue Kovec due to her hypnosis, (c) to object to improper closing argument by the prosecutor, and (d) to object to and request a hearing on the necessity of numerous security measures employed at trial; (2) whether the prosecutor knowingly used perjured testimony regarding the full extent of the bargain Halsell received from the State for his testimony; (3) whether Sims's attorneys were ineffective at the penalty phase because their guilt stage errors affected their performance at sentencing and because they failed to object to the prosecutor's attempts to develop sympathy for the victim; (4) whether the death sentence is unconstitutional because no court found that Sims had the specific intent to cause the victim's death; (5) whether the death penalty is imposed in an arbitrary and discriminatory manner; (6) whether the death sentence is unreliable because the court told the jury that the sentencing decision was not their sole responsibility; (7) whether Sims's attorneys were ineffective for failing to attack the photo line-up the witnesses saw; (8) whether Sims's attorneys were ineffective for failing to adequately investigate and present additional evidence supporting the defense theory that Terry Wayne Gayle, not Sims, was the fourth participant in the robbery; (9) whether the State withheld exculpatory evidence (receipt of lock pullers bearing Gayle's signature); (10) whether there was Hitchcock 1 error (11) whether Sims was prevented from showing evidence of sentencing disparity between himself and his co-participants; (12) whether the prosecutor improperly used victim impact evidence; (13) whether counsel failed to investigate, develop, and present additional evidence of mitigation; (14) whether there was a failure to investigate the prior violent felonies and present available evidence to mitigate or exclude them; and (15) whether the trial court erred in failing to adequately inform the jury of the impact of its recommendation. After conducting an evidentiary hearing on Sims's motions for post-conviction relief, the trial court denied relief. The Florida Supreme Court affirmed the trial court's judgment. Sims v. State, 602 So.2d 1253 (Fla.1992).

Sims next filed a state petition for writ of habeas corpus in the Florida Supreme Court. 2 The Florida Supreme Court denied relief, finding all claims procedurally barred except for the ineffective assistance of appellate counsel claim, which the court denied on the merits. Sims v. Singletary, 622 So.2d 980, 981 (Fla.1993).

Sims then filed a petition for writ of habeas corpus relief under 28 U.S.C. § 2254 in the federal district court. The district court issued an order denying Sims's petition for habeas relief as to his conviction, but granting it as to his death sentence. For the reasons that follow, we affirm the district court's judgment denying habeas relief on Sims's guilt stage claims but reverse the judgment insofar as it grants habeas...

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