Opinion
No. 3:02-CV-337-P.
July 20, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner Billy Ross Sims is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Factual and Procedural History
Sims married Christen Sims in January 1985. (II Rep. R. at 22.) In March 1987, their daughter Jade was born. ( Id. at 22-23.) Soon after, Sims and Christen began having marital problems, and they divorced in September 1987. ( Id. at 33.) Christen eventually got full custody of Jade, and Sims received no visitation rights. ( Id. at 37; III Rep. R. at 41.) Christen began dating James Hughes, a sheriff's deputy. (II Rep. R. at 39-40.)
On the morning of December 1, 1988, Sims drove to Jade's day-care center and parked across the street to confront Christen about their custody disputes. (III Rep. R. at 49-50.) Sims had a gun with him. ( Id. at 58-59, 142.) After Christen arrived and dropped Jade off, Sims started across the street calling out for Christen to stop. ( Id. at 51.) Christen ran for her car and jumped into the passenger seat. ( Id. at 52-55.) Sims ran up to the driver's side of the car, pointed a gun at Christen, and demanded that she put her hands up. ( Id. at 55-57, 60-61.) Hughes, who was in the driver's seat, leaned forward to roll down the window. ( Id. at 61-62.) Sims claimed that he tried to pull his gun back once he realized Hughes was in the car, but it accidentally went off, shattering the driver's side window. ( Id. at 63-64.) Sims then ran to the passenger side of the car to check on Christen. ( Id. at 65.) Christen, who was kneeling beside the car, hit Sims in the chest and tried to get back into the car. ( Id.) When Sims reached in to pull her out, she kicked him in the groin. ( Id. at 66.) Sims shot Christen three times in the chest. ( Id.) Hughes then tried to get out of the car. ( Id.) Sims saw the silhouette of a gun in Hughes's pants and shot at Hughes, hitting Christen two more times. ( Id. at 66-68.) When Hughes ran from the car, Sims continued firing at him while walking to the driver's side of the car. ( Id. at 71-73; II Rep. R. at 80-81.) Hughes fell, and Sims shot Hughes two more times. (III Rep. R. at 73; II Rep. R. at 85-86, 229-30.) Christen and Hughes died from the gunshots. (II Rep. R. at 387, 389-90.) After the shooting, Sims ran from the scene and evaded the authorities for ten days. (II Rep. R. at 86; III Rep. R. at 227.) He finally surrendered to the Federal Bureau of Investigation on December 11, 1988. ( Id. at 227-28.)
A court hearing was scheduled for that day regarding Sims's visitation rights. (II Rep. R. at 37.)
Sims claimed that these shots were also accidental and caused when his arm hit the door post. (III Rep. R. at 67.)
Sims was charged by indictment with Christen's murder and by information for Hughes's murder. (1 State Habeas R. at 105, 112.) Sims pleaded guilty to both offenses, and the trial court sentenced Sims to life confinement for each offense, to be served consecutively. ( Id. at 107-08, 113-14.) The Dallas Court of Appeals affirmed Sims's convictions, and the Texas Court of Criminal Appeals refused Sims's petition for discretionary review. Sims v. State, 807 S.W.2d 618 (Tex.App.-Dallas 1991, pet. ref'd). Sims filed a state application for habeas corpus relief, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Sims, No. 23,100-01 (Tex.Crim.App. Jan. 15, 1992) (not designated for publication). Sims filed a second state habeas corpus application, arguing that the trial court improperly cumulated the sentences, which the Court of Criminal Appeals granted and set aside the judgments. Ex parte Sims, 868 S.W.2d 803, 805 (Tex.Crim.App. 1993).
When the case returned to the trial court, the State filed a new indictment against Sims for capital murder. Ex parte Sims, No. 5-94-1168-CR, 1994 WL 679332, at *1 (Tex.App.-Dallas Nov. 17, 1994) (not designated for publication). The Court of Criminal Appeals reversed and remanded to the trial court, holding that the State could not prosecute Sims for capital murder. Ex parte Sims, No. 022-95 (Tex.Crim.App. Nov. 15, 1995) (not designated for publication). On retrial, Sims was convicted in separate trials of the murders of Christen and Hughes. He received life confinement for the murder of Hughes and 99 years' confinement for the murder of Christen. (Clerk R. at 64.) The Dallas Court of Appeals affirmed both judgments, and the Court of Criminal Appeals refused Sims's petitions for discretionary review. Sims v. State, No. 5-96-1652-CR, 2000 WL 567069 (Tex.App.-Dallas May 9, 2000, pet. ref'd) (not designated for publication); Sims v. State, No. 5-96-1962-CR, 2000 WL 175107 (Tex.App.-Dallas Feb. 16, 2000, pet. ref'd) (not designated for publication). Sims filed a state application for habeas corpus relief, challenging his conviction for Hughes's murder, which the Court of Criminal Appeals denied without written order. Ex parte Sims, No. 23,100-03 (Tex.Crim.App. July 11, 2001) (not designated for publication). He also challenged his conviction for Christen's murder in a post-conviction writ application, which the Court of Criminal Appeals denied without written order. Ex parte Sims, No. 23,100-04 (Tex.Crim.App. Jan. 23, 2002) (not designated for publication). Sims filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on February 5, 2002, solely challenging his conviction for Christen's murder. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing). (Federal Pet. at 2.)
On October 30, 2001, Sims filed a federal habeas corpus petition in this Court challenging his conviction for Hughes's murder. Sims v. Dretke, No. 3:01-CV-2204-H (N.D. Tex. Oct. 30, 2001). This petition is pending.
Exhaustion of State Court Remedies
Dretke believes Sims has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
Issues
Sims raises seven issues:
1. The trial court had no jurisdiction because Sims filed a removal notice to federal court.
2. The State failed to disclose Brady evidence.
3. The State suborned perjury and failed to correct it at trial.
4. His conviction violated double jeopardy, collateral estoppel, res judicata, and claim preclusion.
5. The evidence was legally insufficient to support his conviction.
6. Trial counsel were constitutionally ineffective before and during his trial.
7. Appellate counsel was constitutionally ineffective.
Standard of Review
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc per curiam), cert. denied, 537 U.S. 1104 (2003).
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
Trial Court Jurisdiction
Sims argues that the trial court had no jurisdiction because he filed a notice of removal while he was waiting for his retrial. (Federal Pet. at 7A; Pet'r Sep. Mem. at 1-3.) Other than his conclusory, self-serving allegations, Sims provides no evidence showing that he actually filed a removal notice in the Court of Criminal Appeals or this Court. Sims asserts the Court of Criminal Appeals' "computer docket" lists the filing as a "Removal Letter"; however, none of that court's docket sheets shows such an entry. (Federal Pet. at 7A.) Further, there is no indication that Sims filed the notice in this Court as required by statute. 28 U.S.C. § 1446(a). This conclusory and unsupported allegation fails to raise a constitutional issue and cannot result in habeas corpus relief. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam).
Sims argues that his removal notice was filed under "Federal Revised Statute 1874 § 641." (Pet'r Reply at 4.) But this statute was a prior codification of the removal statutes that are now found in 28 U.S.C. §§ 1443, 1446, and 1447. E.g., Kentucky v. Powers, 201 U.S. 1 (1906).
Sims contends that the reason he cannot provide evidence that he filed a removal notice is because his appellate counsel took all of his court documents. (Pet'r Sep. Mem. at 3; Pet'r Reply at 4.) Any such filing would be shown in the state court papers that were filed in this court, but there is no indication that it was filed.
Further, it appears that Sims's removal notice was based on the fact that he is a citizen of Virginia. (Pet'r Sep. Mem. at 2.) In other words, he asserted that only a federal court had jurisdiction over him based on diversity jurisdiction. Sims's trial was a criminal proceeding, and diversity-jurisdiction removal is not applicable. See 18 U.S.C. § 3231; 28 U.S.C. § 1332(a); Exhumation of Lewis, 999 F.Supp. 1066, 1070-71 (M.D. Tenn. 1998). Thus, the state trial court was not divested of personal jurisdiction on this basis.
Brady Evidence
Sims asserts that the State failed to disclose favorable Brady evidence to the defense. He specifically points to the following evidence: (1) the State knew Jimmy Golson would lie and testify that Sims knew Hughes, (2) photo evidence of the location of empty shell casings at the scene of the crime, (3) the autopsy diagram of Hughes, (4) evidence showing Sims was on the driver's side of the car, and (5) impeachment evidence of the State's punishment witnesses, who worked with Sims in prison, showing that Sims had filed complaints against them. (Federal Pet. at 7B-7D; Pet'r Sep. Mem. at 5-11.)A petitioner's due-process rights are violated when the State suppresses impeachment or exculpatory evidence where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the State. Strickler v. Greene, 527 U.S. 263, 280 (1999); Brady v. Maryland, 373 U.S. 83, 87 (1963). To establish a Brady violation, Sims must prove that: (1) the State suppressed or withheld evidence (2) that was favorable and (3) material to guilt or punishment. Moore v. Illinois, 408 U.S. 786, 794-95 (1972); Vega v. Johnson, 149 F.3d 354, 363 (5th Cir. 1998), cert. denied, 525 U.S. 1119 (1999). Evidence is not considered material if similar evidence to the suppressed evidence is admitted before the jury. E.g., Jackson v. Johnson, 194 F.3d 641, 650 (5th Cir. 1999), cert. denied, 529 U.S. 1027 (2000); Westley v. Johnson, 83 F.3d 714, 725 (5th Cir. 1996), cert. denied, 519 U.S. 1094 (1997); Spence v. Johnson, 80 F.3d 989, 995 (5th Cir.), cert. denied, 519 U.S. 1012 (1996); Edmond v. Collins, 8 F.3d 290, 293-94 (5th Cir. 1993); Brogdon v. Blackburn, 790 F.2d 1164, 1168 (5th Cir. 1986) (per curiam), cert. denied, 481 U.S. 1012 (1987). Evidence showing that Sims did not know Hughes before the murder, the location of the empty shell casings, the details of Hughes's gunshot wounds, and that Sims was on the driver's side of the car when he first approached Christen and Hughes was presented at trial. (II Rep. R. at 78, 303-06, 379-87; III Rep. R. at 63, 55.) Further, evidence is not considered suppressed if the defendant knew or should have known of the facts of any exculpatory evidence. Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994); Blackmon v. Scott, 22 F.3d 560, 564-65 (5th Cir.), cert. denied, 513 U.S. 1060 (1994). Sims was certainly aware that he had filed complaints against the prison employees who testified at punishment; thus, he has failed to show a Brady violation.
Because Sims is solely challenging his conviction for Christen's murder in this petition, any evidence regarding Sims's intent to murder Hughes would not be material to his conviction for Christen's murder.
Perjury
Sims next argues that he was denied due process and a fair trial when the State suborned perjury and failed to correct the perjury at trial. He points to testimony that Sims knew Hughes before the date of the offense, Sims fired "methodically" at Hughes, Sims fired down into Hughes's back, and Sims was not on the driver's side of the car when the shooting started. (Federal Pet. at 7E; Pet'r Sep. Mem. at 14-16.) There is no evidence that this testimony was perjurious or that the State knew it was false, which defeats a due-process claim. May v. Collins, 955 F.2d 299, 315 (5th Cir.), cert. denied, 504 U.S. 901 (1992). Contradictory testimony from witnesses does not, standing alone, establish perjury. Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir. 2001); Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). The testimony Sims relies on to show perjury is merely evidence that contradicts his own testimony. (III Rep. R. at 63, 67-68, 70-74.)
Double Jeopardy
Sims contends that his prosecution for Hughes's and Christen's murder in two, separate trials violated the Double Jeopardy Clause and was barred by collateral estoppel, res judicata, and claim preclusion because both deaths occurred at the same time. (Federal Pet. at 7R; Pet'r Sep. Mem. at 39-41.) The Double Jeopardy Clause protects against multiple prosecutions and punishments for the same offense. Monge v. California, 524 U.S. 721, 727 (1998).First, because Sims was first tried for Christen's murder, any double-jeopardy violation would have occurred when he was subsequently tried for Hughes's murder. (Pet'r Reply at 12-13.) Because Sims solely challenges his conviction for Christen's murder, this claim is not properly raised in this proceeding.
Second, there is no double-jeopardy or collateral-estoppel violation. The difference between the two prosecutions is that there were two different victims, which does not bar two, separate prosecutions or punishments. Miller v. Turner, 658 F.2d 348, 350-51 (5th Cir. Unit B Oct. 1981); Spradling v. State, 773 S.W.2d 553, 556 (Tex.Crim.App. 1989). Sims asserts that the State is collaterally estopped from asserting that Hughes and Christen were not killed in one criminal episode; thus, the State is barred by double jeopardy from separately prosecuting Sims for the murders. (Pet'r Reply at 14.) As explained above, even though Christen and Hughes were killed in the same criminal episode, each murder was a separate offense, which could be tried separately. The State was not asserting that Hughes and Christen were killed in separate criminal episodes to justify the separate prosecutions; the State relied on the two victims to warrant the two prosecutions. Collateral estoppel is not implicated. See generally Neal v. Cain, 141 F.3d 207, 210-13 (5th Cir. 1998) (discussing collateral-estoppel elements in criminal prosecutions); De La Rosa v. Lynaugh, 817 F.2d 259, 263 (5th Cir. 1987) (holding collateral estoppel applies if the issue was decided in favor of the defendant in the first trial).
Insufficient Evidence
Sims argues that the evidence is legally insufficient to support his conviction because there was no evidence that Sims had the requisite intent to kill Christen. (Federal Pet. at 7AA; Petr' Sep. Mem. at 52.) Specifically, he asserts that the presentation of "material false evidence" constituted no evidence of intent.
To review the legal sufficiency of the evidence, a federal court must consider whether, viewing all the evidence "in the light most favorable to the prosecution, any rational trier of fact could have found the existence of facts necessary to establish the essential elements of the offense beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). All credibility choices and conflicting inferences are to be resolved in favor of the fact-finder. United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999), cert. denied, 531 U.S. 822 (2000). This court must determine if the evidence is constitutionally sufficient to support the conviction, i.e., whether the evidence satisfied the "substantive elements of the criminal offense as defined by state law." Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991) (quoting Jackson, 443 U.S. at 324 n. 16). Sims's own testimony showed that (1) he brought a loaded gun with him to confront Christen about the custody dispute, (2) became angry with Christen and shot her three times after she tried to defend herself, and (3) fled the scene without trying to help Christen or Hughes. (III Rep. R. at 66.) This is legally sufficient evidence to show that Sims intended to kill Christen. Westbrook v. State, 29 F.3d 103, 112 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001); Godsey v. State, 719 S.W.2d 578, 580-81 (Tex.Crim.App. 1986); Tezino v. State, 765 S.W.2d 482, 485 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd).
Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90. Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690-91.
Sims's complaints about counsel were reviewed and rejected during state collateral review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state court's rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d).
Trial Counsel
Sims asserts that trial counsel were constitutionally ineffective before and during trial when they:
1. did not have the trial court rule on the pretrial discovery motion;
2. did not meaningfully consult with Sims regarding the case;
3. failed to conduct a pretrial investigation or otherwise prepare for trial;
Specifically, Sims argues that counsel failed to interview the State's witnesses, conduct a pretrial investigation, reveal to Sims the identity of the State's witnesses, review the State's evidence, prepare for trial, have a good understanding of the facts and the law, and visit the crime scene.
4. called no witnesses and put on no defense;
5. conducted poor cross-examinations of the State's witnesses;
6. failed to impeach the State's witnesses' false testimony;
7. instructed the jury to disregard the physical evidence of the shell locations;
8. failed to aid Sims in raising his double-jeopardy claims; and
9. failed to marshal mitigating evidence for the punishment phase of the trial. (Federal Pet. at 71, 7M, 7R; Pet'r Sep. Mem. at 19-41.)
First, Sims cannot meet the prejudice requirement of the Strickland test. The evidence overwhelmingly establishes Sims's guilt in shooting and killing Christen; thus, Sims cannot show that the result of the trial would have been different had counsel acted differently. Johnson v. Cockrell, 301 F.3d 234, 239 (5th Cir. 2002), cert. denied, 538 U.S. 1001 (2003); Creel v. Johnson, 162 F.3d 385, 396 (5th Cir. 1998), cert. denied, 526 U.S. 1148 (1999).
Second, Sims has failed to show deficient performance. The record reflects that all but one of counsel's pretrial discovery requests were granted by the trial court. (Clerk R. at 40.) His claim of lack of meaningful consultation likewise fails: Length of time spent in consultation, without more, does not establish that counsel were ineffective. Easter v. Estelle, 609 F.2d 756, 759 (5th Cir. 1980); see Rosa v. United States, 170 F. Supp. 2d 388, 400 (S.D.N.Y. 2001).
In order to establish that counsel were ineffective due to a failure to investigate the case or to discover and present evidence, Sims must do more than merely allege a failure to investigate — he must state with specificity what the investigation would have revealed, what specific evidence would have been disclosed, and how the evidence would have altered the outcome of the trial. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994); Rose v. Johnson, 141 F. Supp. 2d 661, 691 (S.D. Tex. 2001). Sims's conclusory allegations that his counsel were ineffective for failing to investigate and prepare fails to meet his burden of specificity, which does not establish deficient performance or prejudice. Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001); Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
Ineffective-assistance-of-counsel complaints regarding uncalled witnesses are not favored on federal habeas corpus review because of their highly speculative nature. Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986), cert. denied, 479 U.S. 1030 (1987); see also Sayre, 238 F.3d at 635-36. For Sims to demonstrate Strickland prejudice, he must show not only that the testimony would have been favorable, but also that the witness would have testified. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Sims has failed to provide an affidavit or other evidence from the witnesses that Sims argues should have been called and only lists his bare assertions that they would have supported his version of events. The limited and conclusory information Sims provides fails to establish either deficient performance or prejudice. Sayre, 238 F.3d at 636; United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984); United States v. Lang, 159 F. Supp. 2d 398, 400 (N.D. Tex. 2001).
A review of the record reveals that counsels' cross-examinations of the State's witnesses were not objectively unreasonable. Counsel impeached the testimony of the State's witnesses that Sims argues was false by having Sims testify to his version of the facts. Further, Sims fails to assert what evidence could have impeached the witnesses that would have been more effective than his own testimony. Sims's argument regarding counsel's closing argument to the jury relates solely to his defense regarding Hughes's murder and, thus, is not properly raised in this action. (Pet'r Sep. Mem. at 27.) Because Sims's double-jeopardy arguments are meritless, as discussed above, counsel's failure to help Sims raise them cannot be deemed deficient performance. See, e.g., Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (per curiam) (holding counsel not deficient for failing to make meritless argument). Finally, Sims fails to provide evidentiary support regarding his allegation that counsel failed to present mitigating evidence at punishment; thus, it is conclusory and cannot support habeas corpus relief. Lincecum v. Collins, 958 F.2d 1271, 1279 (5th Cir), cert. denied, 506 U.S. 957 (1992).
Sims has failed to establish ineffective assistance as required by Strickland, and the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Appellate Counsel
Sims also argues that appellate counsel was constitutionally ineffective because:
1. Jeff Keck withdrew with no notice and took all of Sims's legal material and
2. Allan Fishburn did not consult with Sims or raise stronger issues. (Federal Pet. at 7V-7W; Pet'r Sep. Mem. at 43-46.)
Claims of ineffective assistance of appellate counsel must likewise meet the strict Strickland standard. Smith v. Robbins, 528 U.S. 259, 285 (2000). To establish deficient performance, Sims must show that counsel unreasonably failed to discover and raise nonfrivolous issues. Id. To establish prejudice, Sims must demonstrate that, but for counsel's error, he would have prevailed on appeal. Id.
After he moved to Washington, Keck was dismissed as Sims's appellate counsel, and Fishburn was substituted. (Court of Appeals Feb. 10, 1999 Order.) In the court of appeals, Sims argued that Keck absconded with his legal materials regarding issues he wanted raised in his appellate brief. The appellate court denied the motion. (Court of Appeals Apr. 7, 1999 Order.) After Fishburn filed an appellate brief, Keck argued that he wanted to dismiss Fishburn and proceed pro se because Fishburn had "raised unmeritorious issues in appellant's brief and has failed to raise other issues as instructed by appellant." (Court of Appeals May 5, 1999 Order.) After the trial court held a hearing, the appellate court denied Sims's motion because Sims stated that he did not want to represent himself in the appeal and did not want Fishburn dismissed. (Court of Appeals June 30, 1999 Order.)
There is nothing in the record to support Sims's allegation that Keck purloined his legal materials, foreclosing Sims from raising meritorious grounds on appeal. Ross, 694 F.2d at 1011-12. In fact, Sims's voluminous pleadings in this court belie his argument that he is without the adequate tools to prosecute his claims. Sims additionally has not shown how he was prejudiced by Keck's removal from the appeal. Further, the issues Sims claims appellate counsel should have raised are without merit; thus, appellate counsel was not ineffective for failing to raise them. Williams v. Collins, 16 F.3d 626, 635 (5th Cir.), cert. denied, 512 U.S. 1289 (1994); Cantu v. Collins, 967 F.2d 1006, 1017 (5th Cir. 1992), cert. denied, 509 U.S. 926 (1993). It would also be illogical to hold that appellate counsel was ineffective on this basis when Sims warranted in the state courts that he was not willing to proceed pro se after counsel filed the appellate brief that Sims argues was lacking. Finally, Sims has failed to establish actual prejudice, i.e., that the result of the appeal would have been different; thus, he is not entitled to habeas relief. Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir. 1992).
Summary
Sims is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Sims was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Recommendation
This Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be DENIED.