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Simms v. Vannoy

United States District Court, E.D. Louisiana

December 3, 2019

SEDRICK SIMMS
v.
DARREL VANNOY, WARDEN

         SECTION B(2)

          ORDER AND REASONS

         On June 12, 2019 the Magistrate Judge issued a Report and Recommendation (“Report”) to deny and dismiss with prejudice the instant petition for § 2254 habeas relief. Rec. Doc. 16. Pro Se Petitioner Sedrick Simms timely filed objections to the Report. Rec. Doc. 17. For the reasons enumerated below, IT IS ORDERED that Simms' objections are OVERRULED; IT IS FURTHER ORDERED that the Magistrate Judge's Report and Recommendation are ADOPTED as the opinion of the court, dismissing the captioned action.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On February 28, 2012 Simms was charged with one count of armed robbery and one count of possession of a weapon by a convicted felon. St. Rec. Vol. 1 of 8, Bill of Information, 2/28/12. Following a two-day trial in August of 2012 in the Orleans Parish Criminal District Court, a jury found Simms guilty on both counts. Subsequently, the State filed a multiple bill charging Simms as a second offender. On December 12, 2012 the state trial court denied Simms' motions for a new trial and a post-verdict judgement of acquittal. Eventually, the state trial court sentenced Simms to thirty (30) years in prison for armed robbery and twenty (20) years in prison for possession of a firearm by a convicted felon, and ordered both sentences be served without benefit of parole, probation, or suspension of sentence. Following hearing in April 2013, the state trial court found Simms to be a second felony offender as to the armed robbery conviction. Consequently, the state trial court vacated the prior sentence and resentenced Simms to seventy (70) years in prison without benefit of parole, probation or suspension of sentence for armed robbery as a multiple offender. Further, the court denied Simms' motion to reconsider the sentence.

         On appeal, counsel for Simms argued that the trial court erred in denying their motion for mistrial alleging improper statements made during the State's rebuttal argument. On June 18, 2014, the Louisiana Fourth Circuit Court of Appeal affirmed Simms' conviction, finding counselor's argument meritless. However, that state appellate court did find two patent errors in the sentencing proceedings. First, the state trial court failed to impose the mandatory fine as part of the sentence for a felon in possession. Second, the state trial court erred in not indicating “whether the 70-year multiple offender sentence for armed robbery included the mandatory, consecutive five-year penalty for a crime committed with a firearm.” After reviewing pertinent facts and law, the state appellate court affirmed Simms' convictions and remanded the matter for resentencing to impose above-noted enhancements. State v. Simms, 143 So.3d 1258, 1261-68 (La.App. 4 Cir. 6/18/14). On December 15, 2014 the state trial court on remand resentenced petitioner as a second felony offender to serve sixty-five (65) years in prison in addition to a consecutive firearm penalty of five (5) years imprisonment. The state trial court ordered each sentence to run without the benefit of parole, probation, or suspension.

         On February 27, 2015, the Louisiana Supreme Court denied petitioner Simms' related writ application, without assigning reasons. State v. Simms, 160 So.3d 863 (La. 2015). Ninety (90) days later, petitioner's convictions and sentences became final on May 28, 2015 when he failed to file a writ of certiorari with the United States Supreme Court. 28 U.S.C. § 2254(d)(1)(A). In March of 2016, petitioner submitted an application for post-conviction relief to the state trial court, asserting four grounds for relief: (1) prosecutor's comments regarding petitioner's failure to testify amounted to prosecutorial misconduct; (2) the State violated petitioner's right to a fair trial by mentioning evidence of other crimes; (3) petitioner received ineffective trial counsel for the following reasons: (a) failure to call witnesses to testify; (b) failure to move for a mistrial due to prosecutor's reference to other crimes; (c) failure to object to the trial court's failure to rule on an outstanding motion for trial; and (d) failure to move for severance of charges; and (4) ineffective assistance of counsel on appeal for failure to “assert viable, meritorious claims.” On November 18, 2016, the state trial court denied relief on all claims and the Louisiana Fourth Circuit denied the related writ application. Approximately 7 months later, the Louisiana State Supreme Court denied petitioner's writ application due to petitioner's failure to show lack of assistance under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).

         On July 17, 2018, petitioner filed a federal habeas corpus petition based on the four previously enumerated reasons. In response, the State filed an opposition asserting petitioner failed to exhaust state court review of the second and third claims and, alternatively, that petitioner's claims lack merit.

         In February of 2019, petitioner was granted leave to amend his petition and remove the unexhausted claims. On June 12, 2019, petitioner's instant amended petition was filed.

         LAW AND FINDINGS

         A. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) controls this court's review of a 28 U.S.C. § 2254 habeas corpus petition. See Poree v. Collins, 866 F.3d 235, 245 (5th Cir. 2017) (“[f]ederal habeas proceedings are subject to the rules prescribed by the Antiterrorism and Effective Death Penalty Act. . . .”) Under § 2254, an application for a writ of habeas corpus may be denied on the merits, even if an applicant has failed to exhaust state court remedies. See 28 U.S.C. § 2254(b)(2); Jones v. Jones, 163 F.3d 285, 299 (5th Cir. 1998). Enacted as part of the AEDPA, the amended subsections 2254(d)(1) and (2) provide the standards of review for questions of fact, questions of law, and mixed questions of both.

         For pure questions of fact, factual findings are presumed to be correct. See 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus . . . a determination of a factual issue made by a State court shall be presumed to be correct.”) The applicant has the burden of rebutting the presumption by clear and convincing evidence. See id. However, a writ of habeas corpus may be granted if the adjudication of the claim on the merits “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2); Hankton v. Boutte, 2018 U.S. Dist. LEXIS 126899 *1, *10 (E.D. La June 29, 2018).

         For pure questions of law and mixed questions of law and fact, a state court's determination is reviewed under § 2254(d)(1). See Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Specifically, with mixed questions, a state court's determination receives deference unless the decision was either contrary to federal law or involved an unreasonable application of federal law. See 28 U.S.C. § 2254(d)(1); Hill, 210 F.3d at 485.

         A state court's decision is contrary to federal law if (1) the state court applies a rule different from the governing law set forth in the Supreme Court's cases or (2) the state court decides a case differently than the Supreme Court when there are “materially indistinguishable facts.” See Poree, 866 F.3d at 246; Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010). A state court's decision involves an unreasonable application of federal law when it applies a correct legal rule unreasonably to the facts of the case. See White v. Woodall, 134 S.Ct. 1697, 1706 (2014). An inquiry under the unreasonable context involves ...


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