Simmons v. Anderson ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 98-60648
Summary Calendar
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JEFF SIMMONS,
Petitioner-Appellant,
versus
JAMES V. ANDERSON, SUPERINTENDENT,
MISSISSIPPI STATE PENITENTIARY;
MIKE MOORE, Attorney General,
State of Mississippi,
Respondent-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(2:96-CV-161-D-B)
_________________________________________________________________
February 2, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Jeff Simmons, granted a certificate of appealability (COA) for
this state prisoner habeas application, contends, pro se, that the
trial court erred when it denied his request for in camera review,
for possible exculpatory material, of the personnel files of two
police officers who were to testify at his trial, thereby,
violating the Sixth and Fourteenth Amendments. We AFFIRM.
I.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
On 12 June 1991, Cullum, acting as an informant for the
Clarksdale Police Department, entered the Simmons’ store and sought
to purchase illegal drugs. Simmons arranged for Cullum to return
to the store to complete the sale. The conversation was recorded.
Cullum returned to the police station and removed the
recording device. Cullum, observed by Officers Gibson and Thomas,
left to purchase cigarettes and a soft drink. Prior to the
recording device being reattached, and while Cullum was driving
through town, Simmons flagged him down; still under police
observation, they went to the home of Simmons’ mother. Simmons
went in, obtained the drugs, and sold them to Cullum for $40 in
bills, whose serial numbers had been recorded. The Officers
observed the two individuals, but did not see the drugs trade
hands, and the $40 was not recovered. Cullum returned to the
police station and turned in the drugs.
Cullum was later hired by the Clarksdale Police Department.
Prior to trial, defense counsel moved for discovery disclosure,
including the employment files of Cullum and Officer Gibson (one of
the two surveillance officers).
The City moved for a protective order, based on Mississippi
law requiring that such employment matters be kept confidential.
Simmons claimed that there was information in the files that might
concern Cullum’s and Gibson’s veracity. Simmons’ attorney,
however, admitted that he did not know what was in the files. The
trial court granted the protective order, but left open the
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possibility of in camera inspection, if Simmons could demonstrate
an adequate basis for it.
At the time of trial, neither Cullum nor Gibson was employed
by the Clarksdale Police Department. Cullum had been terminated;
Gibson had resigned.
On 3 September 1992, Simmons was convicted of two counts of
sale of a controlled substance, and was sentenced, inter alia, to
20 years. His direct appeal was denied on 25 April 1995. After
denial of his state application for post-conviction relief, this
federal application was filed in October 1996; it was denied. His
COA-request was denied in October 1998.
In June 1999, our court granted a COA on the following two
issues: whether the trial court violated the Due Process Clause of
the Fourteenth Amendment and the Compulsory Process Clause of the
Sixth Amendment, as set forth in Pennsylvania v. Ritchie, 480 U.S.
39 (1987), when it refused to allow Simmons to subpoena the
personnel records of two state witnesses; and whether he was denied
effective assistance of counsel, because counsel did not raise that
constitutional issue on direct appeal.
II.
The Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-32, 110 Stat. 1214 (AEDPA), applies, because
Simmons filed his federal application subsequent to its enactment.
See Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997).
Under AEDPA, federal habeas is not available to a state prisoner
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with respect to any claim that was adjudicated
on the merits in the State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States; 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 proceeding.
28 U.S.C. § 2254(d) (emphasis added).
A.
Simmons claimed on direct appeal that the personnel records
should have been discoverable, or, at a minimum, subject to in
camera review. The Mississippi Court of Appeals found no error in
the trial court’s denying access, citing White v. State, 498 So. 2d
368 (Miss. 1986), which holds that police officers’ personnel files
should not be sifted through for impeachment purposes. See Simmons
v. State, No. 92-KA-01242-COA, slip op. at 4-5 (Miss. App. 25 Apr.
1995).
On direct appeal, however, Simmons did not posit the denial of
access as being violative of the federal constitution. His
appellate brief cited only state law; he did note, for the first
time in his reply brief, that the State had violated his federal
constitutional rights, but did not provide any argument. Moreover,
his application for state post-conviction relief did not raise
whether, under the United States Constitution, he had a right to
review the records.
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As noted, the State court opinion for the direct appeal cites
only state law to support its ruling that Simmons did not have a
right to review the files. Accordingly, Simmons’ present
constitutional claim was not adjudicated on the merits in the
state-court proceeding.
Normally, we could not review Simmons’ habeas application,
because he has not exhausted his state remedies. See Whitehead v.
Johnson, 157 F.3d 384, 387 (5th Cir. 1998); 28 U.S.C.
§2254(b)(1)(A). The State, however, has conceded that Simmons has
done so, thereby waiving exhaustion. McGee v. Estelle, 722 F.2d
1206, 1211-14 (5th Cir. 1984); 28 U.S.C. §. 2254(b)(1)-(3).
Accordingly, because Simmons’ claim was not adjudicated on the
merits, the above-quoted strict AEDPA standard for relief under 28
U.S.C. § 2254(d) is not applied; instead, this claim is reviewed de
novo. Miller v. Johnson, No. 98-10916, 2000 WL 4950, *1, *5 (5th
Cir. 5 Jan. 2000); Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir.
1997), cert. denied, 523 U.S. 1139 (1998).
Simmons relies on Ritchie as requiring these records be
provided for in camera review under both the Compulsory Process
Clause and the Due Process Clause. In Ritchie, however, the
Supreme Court stated it has
never squarely held that the Compulsory
Process Clause guarantees the right to
discover the identity of witnesses, or to
require the government to produce exculpatory
evidence. ... Instead, the Court traditionally
has evaluated claims such as those raised by
Ritchie under the broad protections of the Due
Process clause of the Fourteenth Amendment.
Ritchie, 480 U.S. at 56.
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To establish a due process violation under Brady v. Maryland,
373 U.S. 83, 87 (1963), Simmons must demonstrate that the evidence
was suppressed; the suppressed evidence was favorable to his
defense; and the suppressed evidence was material to guilt or
punishment. Evidence is material only if there is a reasonable
probability that, had the evidence been disclosed, the resulting
proceeding would have been different. E.g., United States v.
Lowder, 148 F.3d 548, 551 (5th Cir. 1998).
1.
At trial, Simmons’ counsel was able to quite effectively
cross-examine Cullum. Cullum admitted that he had used drugs with
Simmons; that, if he helped “bust” Simmons, he was to be hired by
the Clarksdale Police Department; that he continued to use drugs
while employed by that department; and that he was only employed
for a short period of time. Cullum’s testimony was characterized
by the trial judge, outside the presence of the jury, as the “worst
I have seen”.
Officer Gibson was also extensively cross-examined. Moreover,
defense counsel pointed out the inconsistencies in Gibson’s
reports; and that Gibson did not follow normal procedure —
specifically, that he did not search Cullum’s car prior to the
transaction. Therefore, Simmons’ counsel established that it was
possible that Cullum had the drugs prior to the charged transaction
with Simmons.
In Ritchie, the defendant was accused of a series of sexual
crimes against his child. Child and Youth Services (CYS), a state
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investigatory body, investigated the allegations and prepared a
report.
During pretrial discovery, Ritchie served
CYS with a subpoena, seeking access to the
records concerning his daughter. Ritchie
requested disclosure of the file related to
the immediate charges, as well as certain
records that he claimed were compiled in 1978,
when CYS investigated a separate report by an
unidentified source that the Ritchie’s
children were being abused.
Ritchie, 480 U.S. at 43. Here, however, Simmons sought the
personnel files of two officers only to search for potential
impeachment material. As noted, defense Counsel admitted that he
did not know what was in the files.
Simmons’ request to search for potential impeachment evidence
was vague, not specific like Ritchie’s. Accordingly, the posture
of Simmons’s claim is distinguishable from that in Ritchie. And,
the weight of the evidence against Simmons, including the tape and
the testimony of Officer Thomas (the other surveillance officer),
whose credibility was not called into question, is far greater than
in Ritchie. (Thomas was indicted, more than three years after
Simmons’ conviction, for conspiracy to possess a controlled
substance. He was found guilty in March 1996.)
The credibility of Cullum and Gibson was challenged
extensively on cross-examination. Simmons has not demonstrated
that the resulting proceeding would have been different had he
received the files. Accordingly, pursuant to our de novo review,
the Brady claim fails.
2.
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On the other hand, a defendant seeking only an in camera
inspection to determine whether certain files contain Brady
material need only make a plausible showing that the file will
produce material evidence. Lowder, 148 F.3d 548 at 551. Mere
speculation, however, is not sufficient to require a remand for
such review. United States v. Balliviero, 708 F.2d 934, 943 (5th
Cir. 1983).
At the evidentiary hearing, Simmons’ counsel stated:
True enough I don’t know what is in those
files. ... There may not be anything that’s in
there that would go to their truthfulness or
veracity or show bias on the part of these
officers. But there may be. And if there is,
I think I’m entitled to know about it.
Simmons was not searching for material evidence; instead, he was
seeking general impeachment evidence.
Simmons does not contend that the information in the files
concerned his guilt or innocence; he wants only to know why the
Officers were terminated. He is still seeking impeachment
evidence, contending that, because the Officers might have been
terminated for reasons affecting their truthfulness and veracity,
it is material.
Even assuming the files contain impeachment evidence, and as
discussed supra, there is not a reasonable probability that, had
the evidence been disclosed, the result of the trial would have
been different. Accordingly, Simmons has not demonstrated that it
is plausible that the officers’ files contain material information.
Therefore, remand for an in camera inspection is not required.
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B.
Simmons bases his ineffective assistance contention on his
attorney, on direct appeal, not raising Ritchie or otherwise
claiming violation of a constitutional right concerning the denial
of access. For such ineffective assistance, it must be established
that counsel’s performance was deficient in that it fell below an
objective standard of reasonable professional service, and that the
defendant was prejudiced by the deficient performance. See
Strickland v. Washington, 466 U.S. 668 (1984).
On appeal, counsel is not required, obviously, to present a
meritless point. As reflected in part II. A., Simmons has not
shown the requisite prejudice.
III.
For the foregoing reasons, the denial of habeas relief is
AFFIRMED.
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