United States District Court, E.D. Michigan, Southern Division
CORRECTED OPINION AND ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS
M. LAWSON UNITED STATES DISTRICT JUDGE
prisoner Darius Sims has filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254 challenging his
conviction for murder and firearms offenses. He contends that
he was denied the effective assistance of trial counsel, he
was denied a fair trial because of prosecutorial misconduct,
two witnesses committed perjury, there was insufficient
evidence to convict, and he was denied his right to a public
trial when the judge closed the courtroom for jury selection.
Because none of these claims has merit, the Court will deny
Jajuan Gardner was shot and killed as he stood outside the
apartment of Joshua Dykes in Detroit, Michigan. The State
alleged that petitioner Sims aided shooter Dejuan Kelly in
the killing by handing Kelly the handgun used in the
shooting. Kelly was charged with first-degree murder but
acquitted at a trial in November 2006. The petitioner was
charged with first-degree murder in June 2007; the
petitioner's jury convicted him of the lesser crime of
State was not favored with cooperative witnesses, and many of
them had given conflicting accounts of the shooting. Joshua
Dykes, a friend of Jajuan Gardner, Kelly, and the petitioner,
testified that on March 18, 2006, Gardner was at Dykes'
apartment playing dice with several young men. Both Kelly and
the petitioner were there. When the dice game ended, Dykes
left and went to another apartment. He testified that he did
not observe any arguments, but he admitted that he had
difficulty remembering the details of the day and the
shooting, as well as the details of his previous statements
and testimony. The prosecutor repeatedly attempted to refresh
his recollection or impeach him with his previous testimony
admitted that he made a prior statement that the petitioner
handed a gun to Kelly and that Kelly shot Gardner. And Dykes
acknowledged that this earlier statement was true. However,
Dykes at times indicated that he did not see an argument or
the shooting. But he did testify that as he was walking
towards his apartment, he heard Kelly and Gardner arguing
about a gun, before observing the petitioner take a gun out
of his right hoodie pocket and hand it to Kelly. After Dykes
went into his apartment, he heard shots fired. Dykes said
that although he made multiple prior statements where he said
he saw Kelly shoot Gardner, he testified at trial that he did
not see the actual shooting. On redirect examination, Dykes
confirmed that he told two police officers that the
petitioner gave Kelly the gun, and that he testified to this
at the investigative subpoena hearing.
Gardner was shot, Dykes and Jones went over to help him.
Before the police arrived, Gardner called his father on the
phone. Dykes' mother was dating Gardner's father.
admitted that he was confined in the Wayne County Youth Home
with Kelly and the petitioner, but he said they did not talk
about the case.
Jones, who was seventeen years old at the trial, testified
that Gardner was his best friend. At the trial, Jones said
that he was standing in the doorway of his apartment during
the early evening hours of March 18, 2006, when he looked
across the courtyard and saw a group of young men arguing
outside of Joshua Dykes' apartment. Dejuan Kelly and
Jajuan Gardner were part of the argument. Jones saw Kelly ask
the petitioner for his gun. The petitioner handed a gun to
Kelly, who then fired shots at Gardner. After the first two
shots, Jones went inside his apartment and closed the door.
Jones heard three more shots and then saw someone run past
his window. Jones then went over to assist Gardner, who was
laying on the ground.
had made multiple statements, and not all of them matched. He
testified that the statement he made to the police on the day
of the shooting was true, but said that he lied when he
testified earlier at Kelly's trial. Jones testified that
he lied about Kelly being the shooter in retaliation for an
earlier disagreement. At the petitioner's preliminary
examination, Jones testified that he lied at Kelly's
trial because he had been threatened. Jones later apologized
to Gardner's grandmother for testifying falsely at
Kelly's trial. Jones, however, confirmed that his
testimony at an investigative subpoena hearing that the
petitioner handed a gun to Kelly, who then shot Gardner, was
the truth. Jones also acknowledged that his prior testimony
at Kelly's 2006 preliminary examination was truthful,
except for his testimony that he did not see how Kelly
obtained the gun.
admitted that he failed to appear in court several times. He
did not come to court the first time because he felt
threatened by “two guys” near his house. Jones
was confined in the Juvenile Detention Facility because he
did not appear for court. Joshua Dykes and Dejuan Kelly were
also incarcerated at the facility, although Jones and Kelly
were kept separated. After his release from the facility,
Jones was approached by some men who asked him why he was
going to court, informed him they had guns, and that they
could have “got” him. Jones went to Florida and
the petitioner's trial date was adjourned because Jones
did not appear.
Omar Gardner, the victim's father, testified that he was
driving home from Flint when he received a phone call from
Joshua Dykes, who informed him that his son had been shot.
Dykes then put the son on the phone. Mr. Gardner testified
that his son said, “He got me.” When the father
asked who, the son said it was Dejuan Kelly. The father
admitted he did not inform anyone of this alleged
conversation with his son until he testified at Kelly's
preliminary examination. He did not talk to the police
because he wanted to take care of the situation on his own.
victim's grandmother, Baby Gee Joshual, testified that
she attended the trial of Dejuan Kelly. After Kelly's
trial, Ms. Joshual testified that Demarco Jones contacted her
and apologized for testifying falsely at Kelly's trial.
Jones informed her he lied because he was afraid.
Johnson, a defense witness, testified that he knew Demarco
Jones from the Paul Robeson Projects and from the Mack Avenue
Production studio. While they were at the studio during the
summer, Jones told him “that [Gardner's] father
pa[id] him and Josh [Dykes] to come testify in court and that
he really didn't know what happened.” Jones also
told Mr. Johnson that he didn't see anything.
noted, the jury convicted the petitioner of the firearm
offense and the lesser murder charge. He was sentenced to a
prison term of 13 to 22 years for murder, to be followed by a
two-year term for the firearm offense.
petitioner filed a motion for a new trial, alleging, among
other things, that his attorney was ineffective. After
holding an evidentiary hearing on some of those claims, the
trial judge issued an order denying the petitioner's
motion for a new trial. People v. Sims, No.
07-010549-01-FC (Wayne Cty. Cir. Ct. July 15, 2009).
petitioner's conviction was affirmed on appeal.
People v. Sims, No. 284564, 2010 WL 4963560 (Mich.
Ct. App. Dec. 7, 2010); lv. den. 489 Mich. 972, 799
N.W.2d 8 (2011) (Table).
petitioner then filed a petition for writ of habeas corpus,
which was held in abeyance so that the petitioner could
return to the state courts to exhaust additional claims.
petitioner filed a post-conviction motion for relief from
judgment, which was denied. People v. Sims, No.
07-010549-01-FC (Wayne Cty. Cir. Ct. Apr. 16, 2014). The
Michigan appellate courts denied the petitioner leave to
appeal. People v. Sims, No. 323984 (Mich. Ct. App.
Dec. 4, 2014); lv. den. 498 Mich. 865, 866 N.W.2d
431 (2015) (Table).
September 8, 2015, this Court reopened the case and permitted
the petitioner to file an amended habeas petition.
petitioner seeks relief on the following grounds:
I. Petitioner was denied his Sixth Amendment right to the
effective assistance of counsel.
II. Petitioner Sims was denied a fair trial where the
prosecutor repeatedly referred to evidence contrary to the
record to bolster the witnesses credibility, continuously
made improper statements, and improperly appealed to the
sympathies of the jury-in violation of Petitioner's
constitutional right to a fair trial-constituting
III. Petitioner was denied his due process rights where his
convictions were obtained through the knowing use of false
and perjured testimony by witnesses at trial, and where the
prosecution failed to correct the false and perjured
testimony by witnesses at trial, and where the prosecution
failed to correct the false and perjured testimony. The
actions of the prosecutor constituted prosecutorial
IV. Petitioner was denied his constitutional right to
effective assistance of counsel and due process where trial
counsel had an actual conflict of interest due to counsel
blaming petitioner of committing the crime at
V. Petitioner was denied his constitutional right to the
effective assistance of counsel and due process where counsel
failed to present a strategic defense, failed to prepare, and
failed to investigate.
VI. The evidence is insufficient to sustain petitioner's
conviction of aiding and abetting to second-degree murder:
alternatively, it would be a denial of due process and a
miscarriage of justice to allow petitioner's conviction
VII. Petitioner is entitled to habeas relief where the public
was excluded from the courtroom and there was no
accommodation for public access to the proceedings during
jury selection and defense counsel was constitutionally
ineffective when he failed to object to the closure of the
courtroom to the public, which violated petitioner's
Sixth Amendment right to public trial.
Pet. at 6-7. The state responded, alleging that the
petitioner's claims are procedurally defaulted or lack
“procedural default” argument is a reference to
the rule that the petitioner did not preserve all his claims
in the trial court by timely objection, and the state
court's denial of those claims on that basis is an
adequate and independent ground for the denial of relief
under state law, which is not reviewable here. Coleman v.
Thompson, 501 U.S. 722, 750 (1991). The Court finds it
unnecessary to address this procedural question. It “is
not a jurisdictional bar to review of the merits, ”
Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir.
2005), and “federal courts are not required to address
a procedural-default issue before deciding against the
petitioner on the merits, ” Hudson v. Jones,
351 F.3d 212, ...