Simmons v. Anderson

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________

No. 98-60648 Summary Calendar __________________

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

- 2 -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

- 6 -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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