JOE J. VOLPE, Magistrate Judge.
The following recommended disposition has been sent to United States District Judge Billy Roy Wilson. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in a waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a new hearing for this purpose before either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the new hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the new hearing in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the new hearing.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and "Statement of Necessity" to:
Petitioner, Brian Sims, has filed a Petition for Writ of Habeas Corpus in this Court. He is serving a sentence of thirty-three years in the Arkansas Department of Correction after a Pulaski County Circuit Court jury convicted him of first-degree murder, aggravated assault, and second-degree battery. (Doc. No. 1 at 1.) The Arkansas Supreme Court recited the facts of the case as follows:
Sims v. State, 2015 Ark. 363, at 1-4, 472 S.W.3d 107, 111-12.
The court entered the order sentencing Mr. Sims on July 16, 2013. (Doc. No. 10-2 at 63-65.) He timely appealed his conviction to the Arkansas Court of Appeals, raising the sole ground that the trial court failed to properly apply the instruction on extreme emotional disturbance for manslaughter. (Doc. No. 10-2 at 69-70.) Sims v. State, 2014 Ark.App. 312, 2014 WL 2013413. The Court of Appeals determined Mr. Sims failed to preserve his argument for appeal and affirmed the circuit court. Id.
Petitioner then filed a timely Rule 37 petition in Pulaski County Circuit Court. (Doc. No. 1 at 6; Doc. No. 10 at 2; Doc. No. 10-8 at 14-23.) In his Rule 37 petition, Mr. Sims raised twelve separate points:
(Doc. No. 10-8 at 14-23.)
The trial court denied his Rule 37 petition without a hearing on November 24, 2014. (Doc. No. 10-8 at 33-43.) Mr. Sims appealed the circuit court's order to the Arkansas Supreme Court, but only raised his first seven issues. On October 8, 2015, the Arkansas Supreme Court — addressing all seven issues — affirmed. Sims v. State, 2015 Ark. 363. The Supreme Court further held that the remaining five issues were "abandoned" by the Petitioner. Id., at 6, n. 1.
On September 19, 2016, Mr. Sims filed the instant Petition for Writ of Habeas Corpus. (Doc. No. 1.) In his Petition, Mr. Sims makes the same arguments he made in his Rule 37 proceedings. (Id. at 14-16.) Respondent has answered and argues that Mr. Sims's arguments raised on appeal were properly addressed by the state appellate courts and those arguments not properly raised on appeal are procedurally defaulted. (Doc. No. 10.) After careful consideration of the Petition and Response, for the following reasons, I find Mr. Sims's Petition should be dismissed.
When examining a habeas claim in light of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254 (d)(4), federal courts take a deferential view of decisions reached on issues fully adjudicated in state courts. As the United States Court of Appeals for the Eighth Circuit recently explained:
Davis v. Grandlienard, 828 F.3d 658, 664 (8th Cir. 2016).
Mr. Sims asserts his trial counsel was constitutionally ineffective in the manner in which counsel handled jury instructions, for failing to introduce evidence of the deceased's violent tendencies, failing to ask for a mistrial or jury admonition on the testimony about the victim loving his son, and for failing to cross examine the medical examiner on inconsistencies in his testimony between the first and second trials. However, the Arkansas Supreme Court thoroughly reviewed all of these claims, using Strickland v. Washington, 466 U.S. 668, 104 (1984), as its framework, and concluded the claims lacked merit. 2015 Ark. 363, at 4-17. Upon review of the Arkansas Supreme Court's decision in Mr. Sims's case, I find it is not contrary to clearly established federal law.
For purposes of 28 U.S.C. § 2254(d)(1), "[a] state court decision is `contrary to' clearly established federal law if it either `arrives at a conclusion opposite that reached by [the Supreme] Court on a question of law' or `decides a case differently than th[e] [Supreme] Court has on a set of materially distinguishable facts.'" Worthington v. Roper, 631 F.3d 487, 495 (8th Cir.2011). Additionally, "[a] state court `unreasonably applies' Supreme Court precedent if it `identifies the correct governing legal principle from th[e] [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)).
In this case, the Arkansas Supreme Court correctly identified and articulated the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Sims v. State, 2015 Ark. 363, at 4-6. Under 28 U.S.C. § 2254(d)(1), then, the only remaining question is whether the Arkansas Supreme Court made a reasonable application of that standard to Mr. Sims's claims. Before answering that question, though, it is important to note that when the 28 U.S.C. § 2254(d)(1) reasonableness standard is applied to a state court's adjudication of ineffective assistance of counsel claims, federal habeas courts are only required to "determine what arguments or theories supported or . . . could have supported, the state court's decision; and then [determine] . . . whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the United States Supreme Court]." Harrington v. Richter, 562 U.S. 86, 102 (2011). In its review, the Arkansas Supreme Court found that Mr. Sims's ineffective-assistance-of-counsel claims were meritless. 2015 Ark. 363, at 4-17. I find no constitutional error in the Court's holding. And with regard to Mr. Sims's argument about the jury instruction, the Arkansas Supreme Court specifically ruled, "The instruction that was given at [Mr. Sims's] trial complied with this court's ruling in Fincham." Id. at 8.
With respect to the reckless manslaughter instruction, the Supreme Court held that assertion of ineffective assistance to be likewise without merit. The trial judge instructed Mr. Sims's jury on first-degree murder, second-degree murder and emotional-disturbance manslaughter. The jury returned a guilty verdict on first-degree manslaughter. The Arkansas Supreme Court held any lack of assistance by counsel to be cured by the "skip rule" — which provides that when an instruction on a lesser-included offense has been given, and the jury convicts of the greater offense, error resulting from the failure to give an instruction on another still lesser-included offense is cured. Id. at 9.
When addressing the defense of a third-person issue, the Arkansas Supreme Court noted that the jury rejected Mr. Sims's theory of self-defense in arriving at its guilty verdict for first-degree murder, concluding that it was highly unlikely that the jury would have accepted third-person defense either. This obviated the second prong of the Strickland test — that but for counsel's errors, there would have been a reasonable probability that the fact-finder's conclusions would have been different. Id.
Finally, Mr. Sims's arguments as to his trial counsel's purported evidentiary mistakes were each addressed and refuted with law and logic in the Supreme Court's opinion. The Arkansas Supreme Court's conclusions were reasonable, and fairminded jurists would not disagree as to the court's decision to affirm the circuit court's dismissal. "[C]onclusory allegations of ineffective assistance . . . are insufficient to state a constitutional claim." Wogenstahl v. Mitchell, 668 F.3d 307, 335 (6th Cir. 2012); see also Collier v. Cockrell, 300 F.3d 577, 587 (5th Cir. 2002).
Before filing a federal habeas petition, a state inmate must first "fairly present" the substance of his or her federal habeas claims to the appropriate state courts. Murphy v. King, 652 F.3d 845, 848-49 (8th Cir. 2011) (citing Baldwin v. Reese, 541 U.S. 27, 29 (2004)). The fair-presentment requirement exists so that the respective state has the "`opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Murphy, 652 F.3d at 849 (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)); see also Picard v. Connor, 404 U.S. 270, 275 (1971) ("We have consistently adhered to this federal policy, `for it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.'") (quoting Darr v. Burford, 339 U.S. 200, 204 (1950)); Lenza v. Wyrick, 665 F.2d 804, 807-08 (8th Cir. 1981). When an inmate fails to comply with the fair-presentment requirement, his or her claims will be procedurally defaulted. Murphy, 652 F.3d at 849.
If it would be futile for a petitioner to return to the state courts to present his or her claim, "the exhaustion requirement in § 2254(b) is satisfied, but th[is] failure to exhaust `provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default.'" Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir. 2005) (quoting Gray v. Netherland, 518 U.S. 152, 162 (1996)).
After carefully reviewing the record, I conclude Mr. Sims's claims eight through twelve are procedurally defaulted. He raised the issues of alleged ineffective or non-existent cross examination of witnesses and alleged internally contradictory closing argument in his Rule 37 petition with the trial court, but did not raise them with the Arkansas Supreme Court. As the Supreme Court pointed out, it considered those five issues abandoned. 2015 Ark. 363, at 6, n. 1. Mr. Sims offers no basis for excusing the procedural default for these claims, and there is no indication in the record that cause or prejudice exists. As a result, these claims should be dismissed.
Furthermore, I have considered whether Mr. Sims has cause for his procedural default pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). Although questions arise as to whether the United States Supreme Court's holding in Martinez could generally lead to a showing of "cause" for procedurally defaulted claims, I conclude it does not apply in this case. Assuming Martinez applies, this Court would perform a merits review of the defaulted claims if (1) the claim of ineffective assistance was substantial, (2) the "cause" was that Mr. Sims had no counsel in the post-conviction proceeding, (3) the Rule 37 proceeding was the initial review proceeding with respect to the ineffective assistance of counsel claim, and (4) it was highly unlikely that Mr. Sims had a "meaningful opportunity" to raise his ineffective assistance claims on direct appeal. Trevino v. Thaler, __ U.S. __, 133 S.Ct. 1911 (2013). Given the facts in this case and the claims raised, under Martinez and Trevino, I conclude that, under the first prong of this analysis, none of Mr. Sims's defaulted claims rises to the level of "substantial." Thus, claims eight through twelve are procedurally barred and should be dismissed.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, a district court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." In cases where the petitioner's claims are procedurally barred, a district court must consider the following factors when determining whether it should issue a certificate of appealability: "(1) if the claim is clearly procedurally defaulted, the certificate should not be issued; (2) even if the procedural default is not clear, if there is no merit to the substantive constitutional claims, the certificate should not be issued; but, (3) if the procedural default is not clear and the substantive constitutional claims are debatable among jurists of reason, the certificate should be granted." Khaimov v. Crist, 297 F.3d 783, 786 (8th Cir. 2002) (citing Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)); see also Langley v. Norris, 465 F.3d 861, 863 (8th Cir. 2006).
In this case, Mr. Sims has several claims that are clearly procedurally defaulted. The Arkansas Supreme Court's opinion denying Mr. Sims's ineffective assistance of counsel claims on the merits is neither contrary to, nor an unreasonable application of clearly established federal law. Further, the state Supreme Court's decision was not based on an unreasonable determination of facts in light of the evidence of record. In addition, jurists of reason would not debate that Mr. Sims's ineffective assistance of trial counsel claims are without merit. Therefore, no certificate of appealability should be issued.
IT IS, THEREFORE, RECOMMENDED that:
