Elroy Sims v. Lou v. Brewer, Warden , 567 F.2d 752 ( 1977 )

567 F.2d 752

Elroy SIMS, Appellant,
v.
Lou V. BREWER, Warden, Appellee.

No. 77-1415.

United States Court of Appeals,
Eighth Circuit.

Submitted Nov. 14, 1977.
Decided Nov. 29, 1977.

Robert H. Laden and Tim Pearson of Hyland & Laden, Des Moines, Iowa, on brief for appellant.

Richard C. Turner, Atty. Gen., and Thomas D. McGrane, Asst. Atty. Gen., Des Moines, Iowa, on brief, for appellee.

Before BRIGHT and ROSS, Circuit Judges, and HARPER, Senior District Judge.*

PER CURIAM.

1

In 1970 the petitioner, Elroy Sims, was convicted of first degree murder in Black Hawk County, Iowa district court. The trial court overruled his motion for new trial and sentenced him to life imprisonment. Sims did not appeal.

2

In December of 1972 petitioner began his quest for post trial relief, pro se, in state court. He was provided court appointed counsel who redrew his petition to allege that there existed material facts, not presented at the trial, which required vacation of petitioner's conviction. This "new" evidence was first, an affidavit which stated that the state's principal witness had made statements to the affiant prior to trial which were inconsistent with the witness' testimony at trial; and second, the investigative report of a Waterloo police officer, Jerry Johnson, which contained evidence favorable to Sims and which was withheld and not made available to Sims or his counsel prior to, or at the time of, the original trial.

3

The affidavit indicated that the state's principal witness had told the affiant that Sims had "accidentally" killed his victim and that Sims was very drunk at the time. The police account indicated that Officer Johnson had reported that "Elroy did appear at this time to be quite intoxicated." Sims claimed this exculpatory information, which was withheld from him and the court, would have aided in his defense of accidental shooting and in proving that he was highly intoxicated at the time of the incident.

4

The state district court denied post conviction relief and, in a delayed appeal, the Iowa Supreme Court affirmed. State v. Sims, 239 N.W.2d 550 (Iowa 1976). Subsequently Sims filed this action claiming ineffective assistance of counsel and repeating the above two claims.

5

United States District Judge William C. Hanson held that petitioner had not exhausted his state remedies as to his claim of ineffective assistance of counsel; that the newly discovered evidence was merely cumulative or impeaching and was too weak and suspect to produce an acquittal; that the police report was not requested by the defense, and was not deliberately withheld by the prosecution; and that therefore this action did not result in a denial of due process.

6

Judge Hanson has set forth the facts, his conclusions, and his legal reasoning in a memorandum opinion filed April 6, 1977. Sims v. Brewer, 439 F. Supp. 891 (S.D.Ia., filed Apr. 6, 1977). We affirm the judgment denying petitioner's application for habeas corpus relief on the basis of that well-reasoned opinion.

*

The Honorable Roy L. Harper, Senior United States District Judge for the District of Missouri, sitting by designation