UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KEITH T. ROBINSON,

Petitioner, Civil No. 2:15-CV-11007

HONORABLE NANCY G. EDMUNDS

v. UNITED STATES DISTRICT JUDGE

PAUL KLEE, 

Respondent,

_________________________________/

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS

AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO

APPEAL IN FORMA PAUPERIS

Keith T. Robinson, (“Petitioner”), confined at the Gus Harrison Correctional Facility

in Adrian, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,

through his attorneys at the Michigan Innocence Clinic, in which he challenges his conviction

for first-degree premeditated murder, M.C.L.A. 750.316; two counts of assault with intent

to commit murder, M.C.L.A. 750.83; and possession of a firearm in the commission of a

felony, M.C.L.A. 750.227b. For the reasons that follow, the petition for writ of habeas corpus

is DENIED.

I. Background

Petitioner was convicted of the above offenses following a jury trial in the Wayne

County Circuit Court. This Court recites verbatim the relevant facts relied upon by the

Michigan Court of Appeals in denying petitioner’s post-conviction appeal, which are

presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v.

Smith, 581 F.3d 410, 413 (6th Cir. 2009):

1

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 1 of 19 Pg ID 2914
I. FACTS AND PROCEDURAL HISTORY

On July 1, 1995, Ajena Sims was shot to death while walking upstairs to her

apartment in a house at 13625 Trumbull in Highland Park. Durrell Sims, the

decedent’s husband, and a family friend, Collins Dingle, testified that they left

the apartment at approximately 11:00 a.m. to make a telephone call at a

nearby convenience store and Mrs. Sims was alive when they left. Mr. Sims

and Mr. Dingle testified that, as they were returning to the apartment,

defendant confronted them in an alley. They further testified that defendant

fired a shot into Mr. Sims’s chest and fired several shots in Mr. Dingle’s

direction as he fled the scene. Mr. Sims was able to get up to run and

defendant fired another shot in his direction, this time missing him. At trial,

evidence showed that the shots that killed Mrs. Sims and those that injured

Mr. Sims came from the same firearm. The police responded to the shooting

of Mr. Sims at approximately 11:30 a.m., and he was taken to a hospital for

immediate surgery. Trial evidence also showed that, a few days earlier, Mr.

Sims had a confrontation with defendant after Mrs. Sims complained that

defendant had been flirting with her and had grabbed her. During the physical

altercation between Mr. Sims and defendant, defendant reached for a gun, but

Mr. Sims took the gun away from him. The record does not reveal what

happened to that gun.

At trial, defendant presented an alibi defense, and witnesses testified that he

was at a baseball game in Detroit when the crimes occurred. Defendant’s

brother testified that, on July 1, 1995, he and defendant went to the baseball

field with their mother just before 10:00 a.m., and that defendant sat in the car

until the games ended at around noon. Ike Orton testified that he met

defendant for the first time at the ballpark on July 1, 1995, around 1:00 p.m.,

when he talked to defendant’s mother in the parking lot after the games.

Defendant’s mother, Marsha Ross, confirmed that defendant was with her at

the baseball games, that he stayed in the car the whole time, and that she

talked to Mr. Orton after the games until about 1:00 p.m. She also testified

that they then went to a grocery store, and arrived home around 2:00 p.m. 

The prosecution presented the ballistics evidence showing that the bullets that

injured Mr. Sims and killed Mrs. Sims came from the same weapon, though

the gun was never found. The prosecutor also presented other witness

testimony, including the identification of defendant by Mr. Sims, Mr. Dingle,

and Michael Ware, who was 14 years old and lived at 13708 Trumbull, three

houses from the Sims’s apartment house. Mr. Ware testified that he knew

who defendant was, that defendant lived three houses away from him, and

that, on two or three occasions, he had seen defendant argue with a woman

in front of another house on Trumbull. Mr. Ware further testified that, at

approximately 11:45 a.m. on the day of the murder, he saw defendant walking

quickly down Trumbull while looking over his shoulder. According to Mr.

2

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 2 of 19 Pg ID 2915
Ware, defendant walked to the same house on Trumbull where he had seen

defendant argue with the woman. Mr. Ware recalled that defendant had a

black gun in his right hand, defendant entered the house, Mr. Ware heard

three or four gunshots, and defendant ran out of the house and across a field.

Mr. Ware stated that the police arrived within four or five minutes, and he later

identified defendant from photographs at the police station. 

In 1996, a jury convicted defendant of first-degree murder, two counts of

assault with intent to murder, and felony-firearm. Defendant challenged his

convictions on appeal and argued that the prosecutor intentionally excluded

African Americans from serving on his jury, the court erroneously excluded

evidence of domestic violence between Mr. and Mrs. Sims, and that the trial

court improperly prohibited defense counsel from using a hat for

demonstrative purposes during closing arguments. In People v. Robinson,

unpublished amended opinion per curiam of the Court of Appeals, issued

August 26, 1997 (Docket No. 195877), this Court rejected all of defendant’s

claims of error and affirmed his convictions. On May 28, 1998, our Supreme

Court denied defendant’s application for leave to appeal. People v. Robinson,

457 Mich. 882; 586 NW2d 924 (1998). 

In 2009, through the Michigan Innocence Clinic, defendant filed a motion for

relief from judgment pursuant to MCR 6.508(D). Defendant claimed that he

was denied the effective assistance of counsel and that he obtained newly

discovered evidence concerning the time of Mrs. Sims’s death. The trial court

denied defendant’s motion, and defendant filed a delayed application for leave

to appeal in this Court. This Court denied defendant’s application, but our

Supreme Court remanded the case as on leave granted. People v. Robinson,

490 Mich. 988; 807 NW2d 165 (2012). In this Court, defendant filed a motion

to remand the case for an evidentiary hearing, which this Court initially denied.

People v. Robinson, unpublished order of the Court of Appeals, issued March

27, 2012 (Docket No. 298929). However, on reconsideration, this Court

granted defendant’s motion to remand, in part, in an unpublished order.

People v. Robinson, unpublished order of the Court of Appeals, issued April

23, 2012 (Docket No. 298929). This Court ordered the trial court to conduct

an evidentiary hearing, limited to the issues raised in the motion to remand,

and “to make findings of fact and a determination on the record.” Id.

On remand, the trial court took testimony from various witnesses, considered

the arguments of counsel, and again denied defendant’s motion for relief from

judgment in a ruling from the bench. Defendant challenges the trial court’s

ruling on appeal.

People v. Robinson, No. 298929, 2013 WL 5762991, at *1-2 (Mich. Ct. App. Oct. 24, 2013).

The Michigan Court of Appeals upheld the trial court’s denial of the motion for relief

3

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 3 of 19 Pg ID 2916
from judgment and the rejection of the ineffective assistance of counsel claims. Id., lv. den.

495 Mich. 989; 844 N.W. 2d 721 (2014); reconsideration den. 496 Mich. 869; 849 N.W. 2d

362 (2014); cert. den. Sub nom Robinson v. Michigan, 135 S. Ct. 965 (2015).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. Mr. Robinson’s trial counsel rendered ineffective assistance of counsel by

failing to interview Krystyan Anderson, a known scene witness, and by failing

to investigate/present the medical evidence pertaining to time of death.

II. Appellate counsel rendered ineffective assistance by failing to investigate

and litigate ineffective assistance of trial counsel on the issue of true time of

death, using both Anderson’s account and the medical evidence.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), imposes the following standard of review for habeas cases: 

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in 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.

A decision of a state court is “contrary to” clearly established federal law if the state

court arrives at a conclusion opposite to that reached by the Supreme Court on a question

of law or if the state court decides a case differently than the Supreme Court has on a set

of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An

“unreasonable application” occurs when “a state court decision unreasonably applies the

4

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 4 of 19 Pg ID 2917
law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas

court may not “issue the writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly.” Id. at 410-11.

The Supreme Court has explained that “[A] federal court’s collateral review of a

state-court decision must be consistent with the respect due state courts in our federal

system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a

‘highly deferential standard for evaluating state-court rulings,’and ‘demands that state-court

decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773

(2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537

U.S. 19, 24 (2002)(per curiam)). “[A] state court’s determination that a claim lacks merit

precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the

correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has

emphasized “that even a strong case for relief does not mean the state court’s contrary

conclusion was unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75

(2003)). Furthermore, pursuant to § 2254(d), “a habeas court must determine what

arguments or theories supported or...could have supported, the state court’s decision; and

then it must ask whether it is possible fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a prior decision” of the Supreme

Court. Id. In order to obtain habeas relief in federal court, a state prisoner is required to

show that the state court’s rejection of his claim “was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any possibility for

5

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 5 of 19 Pg ID 2918
fairminded disagreement.” Harrington, 562 U.S. at 103. 

III. Discussion

A. The statute of limitations issue.

Respondent contends that petitioner’s claims are barred by the one year statute of

limitations contained within 28 U.S.C. § 2244(d)(1). Petitioner replies that the claims are

not time barred because they are based on newly discovered evidence. In the alternative,

petitioner advances various reasons to equitably toll the limitations period.

Although the issue of whether a claim is procedurally barred should ordinarily be

resolved first, “judicial economy sometimes dictates reaching the merits [of a claim or

claims] if the merits are easily resolvable against a petitioner while the procedural bar

issues are complicated.” Barrett v. Acevedo, 169 F. 3d 1155, 1162 (8th Cir. 1999)(internal

citations omitted). Because the statute of limitations does not constitute a jurisdictional bar

to habeas review, a federal court, can, in the interest of judicial economy, proceed to the

merits of a habeas petition. See Smith v. State of Ohio Dept. of Rehabilitation, 463 F. 3d

426, 429, n. 2 (6th Cir. 2006)(quoting Trussell v. Bowersox, 447 F. 3d 588, 590 (8th Cir.

2006)). Simply put, this Court need not resolve the dispute over the timeliness of petitioner

habeas application. Assuming without deciding that the current petition was timely,

petitioner’s habeas application fails on the merits. See Ahart v. Bradshaw, 122 Fed. Appx.

188, 192 (6th Cir. 2005).

B. The procedural default issue.

The respondent contends that petitioner’s claims are procedurally defaulted because

6

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 6 of 19 Pg ID 2919
he raised them only for the first time in his post-conviction motion for relief from judgment

and failed to show cause and prejudice, as required by Mich.Ct.R. 6.508(D)(3), for failing

to raise these claims in his appeal of right. 

Petitioner claims that his appellate counsel was ineffective for failing to raise his

ineffective assistance of trial counsel claim on his direct appeal. Ineffective assistance of

counsel may establish cause for procedural default. Edwards v. Carpenter, 529 U.S. 446,

451-52 (2000). If petitioner could show that he received ineffective assistance of appellate

counsel that rose to the level of a Sixth Amendment violation, it would excuse his

procedural default for failing to raise his claims on his direct appeal in the state courts.

Seymour v. Walker, 224 F. 3d 542, 550 (6th Cir. 2000). Given that the cause and prejudice

inquiry for the procedural default issue merges with an analysis of the merits of petitioner’s

defaulted claims, it would be easier to consider the merits of his ineffective assistance of

trial counsel claim. See Cameron v. Birkett, 348 F. Supp. 2d 825, 836 (E.D. Mich. 2004). 

Moreover, petitioner could not have procedurally defaulted his ineffective assistance of

appellate counsel claim, because state post-conviction review was the first opportunity that

he had to raise an ineffective assistance of appellate counsel claim. See Guilmette v.

Howes, 624 F. 3d 286, 291 (6th Cir. 2010). 

C. The ineffective assistance of counsel claims.

Petitioner alleges that trial counsel was ineffective for failing to present evidence to

establish that the murder victim’s time of death took place hours before the official time of

death. Petitioner claims that an earlier time of death would establish that the murder

victim’s husband, who had a history of domestic violence towards his wife, was the actual

killer. Petitioner further alleges that appellate counsel was ineffective for not raising trial

7

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 7 of 19 Pg ID 2920
counsel’s ineffectiveness on the appeal of right.

To show that he was denied the effective assistance of counsel under federal

constitutional standards, a defendant must satisfy a two prong test. First, the defendant

must demonstrate that, considering all of the circumstances, counsel’s performance was

so deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth

Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the

defendant must overcome a strong presumption that counsel’s behavior lies within the wide

range of reasonable professional assistance. Id. In other words, petitioner must overcome

the presumption that, under the circumstances, the challenged action might be sound trial

strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such

performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must

show that “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. 

“Strickland’s test for prejudice is a demanding one. ‘The likelihood of a different result must

be substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir.

2011)(quoting Harrington, 562 U.S. at 112). The Supreme Court’s holding in Strickland

places the burden on the defendant who raises a claim of ineffective assistance of counsel,

and not the state, to show a reasonable probability that the result of the proceeding would

have been different, but for counsel’s allegedly deficient performance. See Wong v.

Belmontes, 558 U.S. 15, 27 (2009). The Strickland standard applies as well to claims of

ineffective assistance of appellate counsel. See Whiting v. Burt, 395 F. 3d 602, 617 (6th

Cir. 2005). 

More importantly, on habeas review, “the question ‘is not whether a federal court

8

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 8 of 19 Pg ID 2921
believes the state court’s determination’ under the Strickland standard ‘was incorrect but

whether that determination was unreasonable-a substantially higher threshold.’” Knowles

v. Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473

(2007)). “The pivotal question is whether the state court’s application of the Strickland

standard was unreasonable. This is different from asking whether defense counsel’s

performance fell below Strickland’s standard.” Harrington v. Richter, 562 U.S. at 101. 

Indeed, “because the Strickland standard is a general standard, a state court has even

more latitude to reasonably determine that a defendant has not satisfied that standard.”

Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to

the § 2254(d)(1) standard, a “doubly deferential judicial review” applies to a Strickland claim

brought by a habeas petitioner. Id. This means that on habeas review of a state court

conviction, “[A] state court must be granted a deference and latitude that are not in

operation when the case involves review under the Strickland standard itself.”Harrington,

562 U.S. at 101. “Surmounting Strickland's high bar is never an easy task.” Id. at 105

(quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). 

Because of this doubly deferential standard, the Supreme Court has indicated that:

Federal habeas courts must guard against the danger of equating

unreasonableness under Strickland with unreasonableness under § 2254(d). 

When § 2254(d) applies, the question is not whether counsel’ s actions were

reasonable. The question is whether there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.

Harrington v. Richter, 562 U.S. at 105.

In addition, a reviewing court must not merely give defense counsel the benefit of

the doubt, but must also affirmatively entertain the range of possible reasons that counsel

may have had for proceeding as he or she did. Cullen v. Pinholster, 563 U.S. 170, 196

9

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 9 of 19 Pg ID 2922
(2011). 

Finally, this Court is aware that “[R]eliance on ‘the harsh light of hindsight’ to cast

doubt on a trial that took place” twenty years ago and an appeal of right that took place

over eighteen years ago “is precisely what Strickland and AEDPA seek to prevent.”

Harrington v. Richter, 562 U.S. at 107.

In his motion and at the evidentiary hearing before the trial judge, petitioner argued

that Mrs. Sims must have died between 9:00 and 10:00 a.m. on July 1, 1995, rather than

later, as witnesses testified at trial. Petitioner presented the testimony of Dr. Jeffrey

Jentzen, an expert in forensic pathology. Dr. Jentzen testified that, based primarily on the

emergency medical technician’s (E.M.T.) notation that Mrs. Sims showed signs of lividity

in her hands when first examined at the scene at 12:07 p.m., she could not have died after

11:00 a.m. when Mr. Sims and Mr. Dingle testified that they left the apartment. Dr. Jentzen

also noted that the ambulance runsheet indicated that Ms. Sims’s skin condition was cool

and that it would be unusual for a body to be cool to the touch within an hour of death. Dr.

Jentzen testified that it was more plausible that Ms. Sims died between 9:30 and 10:00

a.m. (Tr. 5/24/12, pp. 13-14, 17, 21-22, 26, 34, 37). 1

Petitioner also presented the testimony of Krystyan Anderson, who was 11 years old

when the crime occurred. Anderson lived in the apartment below the Sims’s residence and

was home alone with his younger brother when he heard noises coming from the stairway

up to the Sims’s apartment. Mr. Anderson testified that he heard Ms. Sims repeatedly tell

someone to “shut up,” before hearing three “pops” that “sounded like a stick hitting the

1

 The trial transcript from May 24, 2012 was incorrectly listed as the transcript for 5-24-2002 and

can be found at Docket Entry 5-11 of this Court’s docket. See also Docket Entry 9. 

10

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 10 of 19 Pg ID 2923
stair.” Anderson also heard someone who sounded like Ms. Sims repeatedly say “ouch.” 

Mr. Anderson talked to the police, but did not speak to any lawyers until the Michigan

Innocence Clinic contacted him in 2009. Mr. Anderson testified that he heard the noise in

the stairwell while watching a television program called “Reboot” which aired at 9:30 or

10:00 a.m., which was confirmed by the television listing on that date. (Tr. 6/11/12, pp. 5-

12, 17-18, 21-30). On cross-examination, Mr. Anderson testified that he could not

remember anything about the particular episode of Reboot or the other television programs

he watched on the morning of the shooting, nor could he recall what time his mother left

for work that morning. (Id., pp. 17-18, 30).

Significantly, petitioner also presented the testimony of Michael Ware, who now

recanted his identification of petitioner as the person he saw going into the Sims’

apartment. Ware acknowledged that he was now an inmate who had prior convictions for

receiving and concealing stolen property and embezzlement. (Tr. 6/11/12, pp. 33-41). On

cross-examination, Ware acknowledged that the police did not force him to falsely implicate

petitioner. Ware admitted that he had nothing to gain at the time from implicating petitioner

and did so simply because “it was the right thing to do.” (Id., p. 42). Although Ware now

claimed that he did not see the face of the person running down the street, he

acknowledged that his parents at the time contacted the police to arrange for Ware to

speak with them. (Id., p. 53). Significantly, Ware did not recant his testimony that it was

approximately 11:45 a.m. when he heard the shooting. 

Wayne County Medical Examiner Dr. Carl Schmidt disagreed with Dr. Jentzen’s

opinion. Dr. Schmidt testified that it was doubtful that the E.M.T.s could accurately assess

the lividity in Ms. Sims’ hands even if they showed lividity, but even if her hands exhibited

11

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 11 of 19 Pg ID 2924
lividity, this could happen in minutes after death, not hours. Dr. Schmidt pointed to

literature from several respected forensic pathologists that showed that liver mortis could

happen within twenty minutes to half an hour after death. (Tr. 6/27/12, pp. 28-29). Dr.

Schmidt also testified that the relevant medical literature indicates that skin temperature is

not a scientific basis for determining the time of death, only internal measurements are

accurate. (Id., pp. 11, 32-33, 55). Dr. Schmidt pointed out that a person who gets shot will

have cool skin even before they die because blood gets rerouted to vital organs or leaks

out of the body. The ambulance run sheet for surviving gunshot victim Durrell Sims

showed that his skin was cool. (Id., pp. 31-32). Even Dr. Jentzen admitted that skin cools

faster than the core of the body and that exposed skin would cool faster than covered skin.

(Tr. 5/24/12, pp. 22-24). 

Dr. Schmidt and Dr. Jentzen both agreed that it would take at least two to three

hours for a dead body to become stiff to the touch. (Tr. 5/24/12, pp. 33-34, Tr. 6/27/12, p.

36-37). Dr. Jentzen had started counting backwards from 12:30 p.m., but the “stiff to touch”

finding was not made until 1:30 p.m., if not later. (Tr. 6/27/12, pp. 5, 26-27, 36-37; See also

Wayne County Medical Examiner’s Report, attached as Attachment A to Plaintiff-Appellee’s

Brief on Appeal [Dkt. # 5-26]). Dr. Jentzen admitted that the EMS report for Ms. Sims did

not mention any rigor mortis at the time that they rolled the victim over. (Tr. 5/24/12, p. 20). 

Dr. Schmidt opined that Ms. Sims could have been alive as late as 11:30 a.m. that

morning. (Id., pp. 37-38). 

The Michigan Court of Appeals rejected petitioner’s ineffective assistance of trial

counsel claim:

12

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 12 of 19 Pg ID 2925
Defendant contends that defendant’s trial counsel and appellate counsel

should have better investigated the time of Mrs. Sims’s death and talked to

and presented the testimony of Mr. Anderson at trial and on appeal.

However, in light of the evidence presented at trial, it was clearly sound trial

strategy for defense counsel to present an alibi defense. As discussed, Mr.

Ware testified that the shooting inside the Sims’s apartment occurred at

approximately 11:45 a.m., and he specifically stated that defendant entered

the apartment with a gun right before shots were fired, and that defendant

ran out immediately afterward. While Mr. Ware now claims that he could not

actually identify defendant as the person who entered the apartment, he

again testified that he heard the shooting and that it occurred minutes before

police arrived at the Sims’s residence, which was at approximately 11:50

a.m. At trial, Mr. Sims and Mr. Dingle testified that they left the apartment at

11:00 a.m. and that Mrs. Sims was alive. Both also testified that defendant

ambushed them in a nearby alley while they were on their way home,

verbally confronted defendant about their prior altercation involving Mrs.

Sims, and then shot Mr. Sims and shot at Mr. Dingle. Evidence also showed

that defendant chased Mr. Dingle as he tried to run from the scene. Medics

arrived to assist Mr. Sims at approximately 11:30 a.m. And, as noted, the

bullets used to injure Mr. Sims and to kill Mrs. Sims came from the same

weapon. 

Again, to establish ineffective assistance of counsel, “‘[a] defendant must

overcome the strong presumption that his counsel’s action constituted sound

trial strategy under the circumstances.’” People v. Buie, 491 Mich. 294, 311;

817 NW2d 33 (2012), quoting People v. Toma, 462 Mich. 281, 302; 613

NW2d 694 (2000). Again, in light of the evidence presented at trial, it was

clearly sound trial strategy for counsel to use the alibi defense. The timeline

of events was not the focus of the prosecution or the defense at trial, and

defense counsel had three witnesses who testified that defendant was

elsewhere when trial evidence showed the crime occurred. While counsel is

required to make a reasonable investigation of the case, counsel easily could

have concluded that the information Mr. Anderson provided to the police

would not assist the defense. Rather, under the circumstances, it was a

reasonable decision not to obtain testimony from Mr. Anderson, who was a

child at the time of the crime, when the alibi defense made his input

unnecessary. Strickland, 466 U.S. at 690–691. Indeed, had defense counsel

elicited testimony from Mr. Anderson that he heard something occur earlier

in the morning, or evidence that Mrs. Sims died earlier based on the EMT’s

notation of lividity, it would have been reasonable to suppose that the

evidence would be rebutted by other lay and expert testimony, as occurred

during the evidentiary hearing. More importantly, however, had defense

counsel relied on a theory that Mrs. Sims died earlier, defendant’s

whereabouts were not accounted for before 10:00 a.m. Rather, defendant’s

alibi took him away from the area between 10:00 a.m. and at least 1:00 or

13

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 13 of 19 Pg ID 2926
2:00 p.m., which was consistent with the trial evidence regarding when the

crimes occurred. But even if he could also establish an alibi to cover an

earlier time of death for Mrs. Sims, as the trial court clearly recognized, it

would have been strategically unsound for counsel to rely on the theory

specifically posed by counsel here in arguing the motion for relief from

judgment: that (a) Mr. Sims killed his wife earlier that morning while she was

walking up the stairs to the apartment, (b) Mr. Sims shot himself or had

someone shoot him in the middle of his chest with the same weapon in an

alley down the street, and (c) Mr. Sims then staged a chase down the street

by Mr. Dingle and some other man holding a gun.

And, while defendant also makes the point that he does not have to offer a

theory of what actually happened, but merely that counsel should have done

more investigation to pinpoint the time of death, if evidence showed

defendant was several miles away from the crime scene when trial evidence

showed Mrs. Sims died, it was entirely logical for counsel, at trial and on

appeal, to rely on that fact. Moreover, it is well-settled that “decisions

regarding what evidence to present and which witnesses to call are

presumed to be matters of trial strategy, and we will not second-guess

strategic decisions with the benefit of hindsight.” People v. Dunigan, 299

Mich. App 579, 589–590; 831 NW2d 243 (2013). Here, no evidence

suggests that counsels’ performance fell below an objective standard of

reasonableness. Accordingly, defendant failed to show ineffective assistance

of counsel and failed to show good cause for the trial court to grant his

motion for relief from judgment.

People v. Robinson, 2013 WL 5762991, at *4-5.

Petitioner is not entitled to relief on his claim for several reasons.

First, trial counsel cross-examined the medical examiner about his inability to

pinpoint the specific time of Ms. Sims’s death. The medical examiner, in fact, indicated that

he could not pinpoint the time of death “very well” and could only testify that it appeared to

be within “the previous twelve hours [of the autopsy].” (Tr. 3/27/96, p. 125). Trial counsel

later argued in closing argument that the coroner was unable to pinpoint the specific time

of death and argued “How do we know when and where this young lady was shot?” (Id.,

p. 236). 

The Supreme Court has noted that: “[I]n many instances cross-examination will be

14

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 14 of 19 Pg ID 2927
sufficient to expose defects in an expert’s presentation.” Harrington v. Richter, 562 U.S. at

111. Defense counsel’s decision to cross-examine the medical examiner, instead of calling

defense witnesses to establish an earlier time of death, was a reasonable trial strategy that

defeats petitioner’s ineffective assistance of trial counsel claim. See Tinsley v. Million, 399

F.3d 796, 806 (6th Cir. 2005).

Secondly, trial counsel presented several alibi witnesses to testify that petitioner was

with them from approximately 10:00 a.m. until 2:00 p.m. the day of the shootings. The

testimony at trial established that Durrell Sims was shot at about 11:15 a.m. and his wife

was shot and killed at approximately 11:45 a.m. Petitioner’s alibi, if believed, would have

absolved him of these crimes. Moving the timeline of the murder to before 10:00 a.m.

would have undermined petitioner’s alibi. Counsel was not ineffective for failing to present

evidence that would have undermined or destroyed petitioner’s alibi defense. See, e.g.,

Neal v. Acevedo, 114 F.3d 803, 805–06 (8th Cir.1997)(trial counsel’s failure to take actions

inconsistent with defendant's alibi defense held not constitutionally ineffective); Johnson

v. Bagley, 544 F.3d 592, 605 (6th Cir. 2008)(unreasonable for counsel to present expert

who will contradict the sole defense theory and render worthless other helpful testimony);

Cathron v. Jones, 190 F. Supp. 2d 990, 1000-01 (E.D. Mich. 2002)(counsel not ineffective

in failing to request instruction on accessory after the fact, as this would have undermined

the petitioner’s alibi defense). 

Thirdly, there were a number of problems with petitioner’s theory that the shooting

happened earlier than 10:00 a.m. Dr. Schmidt testified that skin temperature is not an

accurate method for determining time of death. More importantly, a person who gets shot

will have cool skin even before they are dead. The ambulance run sheet for Durrell Sims,

15

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 15 of 19 Pg ID 2928
the surviving victim, shows that his skin was cool, even though he was still alive. Thus, the

fact that Ms. Sims’s skin was cool would not necessarily suggest an earlier time of death.

Dr. Schmidt also testified that lividity could occur within twenty to thirty minutes of death. 

Relevant forensic pathology literature supported Dr. Schmidt’s testimony. Again, the fact

that Ms. Sims’ hands showed signs of lividity does not conclusively prove an earlier time

of death. Both Dr. Schmidt and Dr. Jentzen indicated it would take from two to three hours

for a dead body to became rigid. Dr. Jentzen counted backwards three hours from 12:30

p.m. to 9:30 a.m. to estimate an earlier time of death for Ms. Sims. The stiff to touch

finding, however, was not made until at least 1:30 p.m. Thus, it was possible for Ms. Sims 

to have been shot at 11:30 a.m. With respect to Krysytan Anderson, the trial judge ruled

that his testimony would not have made a difference at trial because he could not

remember what the Reboot episode that he was watching was about nor could he

remember the other shows he watched that day. The judge noted that Anderson could not

even remember what time his mother left home or when the police arrived. (Tr. 12/11/12,

p. 15). In contrast to this testimony, there was testimony from Michael Ware that he

witnessed petitioner go into the Sims’ house at about 11:45 a.m. while armed with a

weapon and heard shots fired. Although Ware has now recanted his identification of

petitioner as the person he saw with the firearm, he never recanted the time that he

witnessed the armed suspect going into the house.

Based on the evidence presented at trial, coupled with lack of evidence to support

petitioner’s argument, this Court concludes that trial counsel was neither deficient for failing

to challenge the timeline of the murder nor was petitioner prejudiced by trial counsel’s

failure to do so. See Cowans v. Bagley, 624 F. Supp. 2d 709, 795 (S.D. Ohio 2008); aff'd,

16

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 16 of 19 Pg ID 2929
639 F.3d 241 (6th Cir. 2011).

Finally, there was absolutely no evidence to support petitioner’s theory that Durrell

Sims was the person who murdered his wife. In fact, such a defense would have been

somewhat outlandish because it would have required trial counsel to argue that Durrell

Sims shot and killed his wife and then went to an alley ninety minutes later with the same

gun that was used to kill his wife, before either shooting himself, or having someone else

shoot him, in the xiphoid, which is in the middle of the chest, where the heart, liver, and

diaphragm are located. Such a wound would have been life threatening. (Tr. 6/27/12, p.

41-42). Sims would then have had to chase his friend Collins Dingle down the street while

suffering from this severe wound. Since there was no evidence linking Durrell Sims to the

murder of his wife, trial counsel was not ineffective in failing to pursue a third party

culpability defense. See e.g. Robins v. Fortner, 698 F. 3d 317, 331 (6th Cir. 2012). Trial

counsel was not ineffective.

In his second claim, petitioner contends that appellate counsel was ineffective for

failing to raise his ineffective assistance of trial counsel claim on his direct appeal. 

The Sixth Amendment guarantees a defendant the right to the effective assistance

of appellate counsel both on appeals of right, See Evitts v. Lucey, 469 U.S. 387, 396-397

(1985), and on first-tier discretionary appeals. Halbert v. Michigan, 545 U.S. 605, 609–10

(2005). However, court appointed counsel does not have a constitutional duty to raise

every nonfrivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751

(1983). Because petitioner has failed to show that his trial counsel was ineffective,

petitioner is unable to establish that appellate counsel was ineffective for failing to raise his

ineffective assistance of trial counsel claim on his direct appeal. See e.g. Fautenberry v.

17

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 17 of 19 Pg ID 2930
Mitchell, 515 F. 3d 614, 642 (6th Cir. 2008). Petitioner is not entitled to relief on his second

claim.

IV. Conclusion

The Court will deny the petition for writ of habeas corpus with prejudice. The Court

will also deny a certificate of appealability to petitioner. In order to obtain a certificate of

appealability, a prisoner must make a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show

that reasonable jurists could debate whether, or agree that, the petition should have been

resolved in a different manner, or that the issues presented were adequate to deserve

encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). “The

district court must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. §

2254; See also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).

For the reasons stated in this opinion, the Court will deny petitioner a certificate of

appealability because he has failed to make a substantial showing of the denial of a federal

constitutional right. See Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001). The

Court will also deny petitioner leave to appeal in forma pauperis, because the appeal would

be frivolous. Id. 

IV. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas

corpus is DENIED WITH PREJUDICE.

IT IS FURTHER ORDERED That a certificate of appealability is DENIED.

18

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 18 of 19 Pg ID 2931
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma

pauperis.

s/ Nancy G. Edmunds 

HON. NANCY G. EDMUNDS

UNITED STATES DISTRICT COURT 

Dated: January 28, 2016

19

2:15-cv-11007-NGE-MKM Doc # 10 Filed 01/28/16 Pg 19 of 19 Pg ID 2932