United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS
H. DAVID YOUNG, Magistrate Judge.
The following recommended disposition has been sent to United States District Court Judge Brian S. Miller. 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 (14) 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 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 hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge 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 hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
Deondrae Sims, who is currently in the custody of the Arkansas Department of Correction (ADC), seeks a writ of habeas corpus pursuant to 28 U.S.C. §2254. In 2011, Mr. Sims was found guilty of first-degree murder and committing a terroristic act by a Jefferson County jury. He was sentenced to a total of thirty years' imprisonment. Mr. Sims also entered a guilty plea at that time to the charge of being a felon in possession of a firearm, and received a ten year sentence on that conviction, to run concurrent to the other sentences. His sole claim for relief on direct appeal was a challenge to the sufficiency of the evidence. The conviction was affirmed by the Arkansas Court of Appeals. Sims v. State, 2012 Ark.App. 472. In November of 2012, Mr. Sims filed a Rule 37 petition, advancing four claims for relief: (1) trial counsel did not allow him to raise his defense that the victim was shot inadvertently; (2) prosecutorial misconduct; (3) denial of a fair trial when his attorney failed to raise self-defense; and (4) actual and constructive denial of counsel. By Order dated January 17, 2013, the trial court denied Rule 37 relief. Although Mr. Sims filed various pleadings with the trial court and he contacted the Arkansas Supreme Court, he did not perfect an appeal of the trial court's ruling.
In August of 2013 Mr. Sims filed a federal habeas corpus petition with this Court. This petition was dismissed without prejudice on October 8, 2013, due to the petitioner's failure to comply with the Court's requirements and orders regarding payment of the filing fee. On the motion of the petitioner, the case was reopened in December of 2013. However, the case was once again dismissed without prejudice in April of 2014 for the petitioner's failure to comply with the Court's Orders. Mr. Sims later filed another petition, styled "Amended Petition", on June 17, 2014. This petition, now before the Court, advances the following claims:
1. Ineffective assistance of trial counsel for denying him the ability to raise a defense that the victim was inadvertently shot;
2. Prosecutorial misconduct for intentionally misconstruing the statement given by witness Hasani Scott;
3. Constructive denial of appellate court counsel; and
4. Ineffective assistance of counsel at the Rule 37 stage resulted in the denial of a full and fair trial.
The respondent contends the petition should be dismissed as untimely, and that the petition should be dismissed as procedurally barred. Alternatively, the respondent asserts there is no merit to the claims of Mr. Sims. By earlier Order of the Court, Mr. Sims was invited to address the respondent's assertions that the petition should be dismissed as ...