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Sims v. Rivard

United States District Court, E.D. Michigan, Southern Division

July 30, 2018

DARIUS SIMS, Petitioner,
v.
STEVEN RIVARD, Respondent,

          CORRECTED OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          DAVID M. LAWSON UNITED STATES DISTRICT JUDGE

         Michigan 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 the petition.

         I.

         Sixteen-year-old 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 second-degree murder.

         The 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 and statements.

         Dykes 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.

         After 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.

         Dykes 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.

         Demarco 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.

         Jones 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.

         Jones 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.

         Jajuan 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.

         The 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.

         Joshua 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.

         As 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.

         The 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).

         The 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).

         The 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.

         The 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).

         On September 8, 2015, this Court reopened the case and permitted the petitioner to file an amended habeas petition.

         The 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 prosecutorial misconduct.
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 misconduct.
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 codefendant's trial.
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 to stand.
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.

         Amend. Pet. at 6-7. The state responded, alleging that the petitioner's claims are procedurally defaulted or lack merit.

         The “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, ...


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