UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DONIELLE SIMS,

 Petitioner,

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v. CAUSE NO. 3:15-CV-154-PPS

SUPERINTENDENT,

 Respondent.

OPINION AND ORDER

Donielle Sims was convicted by a jury Lake County, Indiana of attempted

robbery, criminal confinement, and aggravated battery. He challenges those convictions

in this habeas corpus action brought pursuant to Title 28 United States Code, Section

2254. 

Factual Background

Let’s start with the facts as they were summarized by the Court of Appeals of

Indiana and which I presume to be correct unless rebutted with clear and convincing

evidence. 28 U.S.C. § 2254(e)(1). Here’s what happened: 

The evidence most favorable to the conviction is that on December 17,

2008, as Tamicka Smith returned to her apartment in Gary, she was

approached by Sims, who was holding a gun and told her to hurry up and

open her door. When Smith was unable to open her door quickly, Sims

threatened to shoot her and punched her in the temple. After Smith

opened the door, Sims pushed her down onto a couch and began asking

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her where her gun was. Sims apparently knew that Smith was employed

as a security guard, and she was carrying a handgun in a holster on her

right hip. She withdrew the gun from her holster as if she was going to

give it to Sims, but she shot him instead. Smith and Sims then exchanged

several shots, each hitting the other. Sims eventually fled from the

apartment, screaming.

Smith was transported to a hospital. Before undergoing surgery, she told

police that she knew and had recognized her attacker from the way he

talked and that his name was Donny, but she could not remember his last

name. Smith later positively identified Sims as her attacker. Smith's

surgery required the removal of part of her intestine, and she spent three

weeks recovering from her wounds.

Sims, meanwhile, sought treatment for his gunshot wounds at a different

hospital. When police asked him how he had sustained his wounds, Sims

claimed he had been shot by two Hispanic men. Police managed to

recover DNA from blood stains and a cap left in Smith's apartment, and

the DNA matched Sims’s. In March 2009, Sims wrote Smith a letter in

which he asked her to forgive him for shooting her.

The State charged Sims with Class A felony attempted robbery, Class A

felony burglary, Class B felony criminal confinement, Class B felony

aggravated battery, and Class C felony battery. A jury trial was conducted

on January 11–13, 2010. Sims testified that he had agreed to be Smith's

boyfriend in exchange for $500, but he decided he did not want to be her

boyfriend, which led to a confrontation in Smith's apartment. Sims

essentially claimed he shot Smith in self-defense after she shot him first.

Sims was found guilty of all charges except the criminal confinement

charge. The trial court subsequently entered judgment of conviction only

for Class A felony attempted robbery and sentenced Sims to an executed

term of forty-five years. 

Sims v. State, 937 N.E.2d 436 (Ind. Ct. App. 2010); ECF 8-5 at 2-3. 

Sims argues that he is entitled to habeas corpus relief, alleging that he was

denied effective assistance of counsel when trial counsel: (1) failed to conduct an

adequate investigation regarding his relationship with the victim and failed to challenge

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the victim’s testimony with witnesses who could have corroborated Sims’ testimony

regarding the relationship; (2) failed to suppress Sims’ letter to the victim and Sims’

statements to the police, who did not give him a Miranda warning; (3) failed to advise

Sims that he should avoid testifying about his prior convictions; and (4) failed to object

to the prosecutor’s references to Sims’ prior convictions during closing argument.

Exhaustion of State Remedies

The first step in any habeas case is to ensure that the matter is properly before me

by asking whether the petitioner has exhausted all available remedies in state court. 28

U.S.C. § 2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). A petitioner

can’t come to federal court complaining of an error unless he fairly presents his federal

claims to the state courts. Boyko v. Parke, 259 F.3d 781, 788 (7th Cir. 2001). Fair

presentment “does not require a hypertechnical congruence between the claims made in

the federal and state courts; it merely requires that the factual and legal substance

remain the same.” Anderson v. Brevik, 471 F.3d 811, 814–15 (7th Cir. 2006) (citing Boyko,

259 F.3d at 788). It does, however, require “the petitioner to assert his federal claim

through one complete round of state-court review, either on direct appeal of his

conviction or in post-conviction proceedings.” Lewis, 390 F.3d at 1025 (internal

quotations and citations omitted). “This means that the petitioner must raise the issue at

each and every level in the state court system, including levels at which review is

discretionary rather than mandatory.” Id. “A habeas petitioner who has exhausted his

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state court remedies without properly asserting his federal claim at each level of state

court review has procedurally defaulted that claim.” Id.

Sims presented his claim that trial counsel failed to conduct an adequate and

professional investigation and failed to call witnesses to challenge the victim’s

testimony first to the Indiana Court of Appeals and then to the Indiana Supreme Court.

ECF 8-8 at 4-10; ECF 8-11. Therefore, I must consider the merits of this one claim. But

the balance of his claims—claims 2, 3 and 4 as listed above—cannot go forward. Sims

failed to assert these remaining claims at every level of state court review. It is true that

he presented them to the Court of Appeals of Indiana. ECF 8-8 at 11-18. But he

abandoned those claims when he petitioned for transfer to the Indiana Supreme Court.

ECF 8-11. Because he did not fully and fairly present these other claims through one full

round of state court review, they are procedurally defaulted. 

A habeas petitioner can overcome a procedural default by showing both cause

for failing to abide by state procedural rules and a resulting prejudice from that failure.

Wainwright v. Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir.

2008), cert. denied, 129 S. Ct. 2382 (2009). Cause sufficient to excuse procedural default is

defined as “some objective factor external to the defense” which prevented a petitioner

from pursuing his constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492

(1986). A habeas petitioner can also overcome a procedural default by establishing that

the Court’s refusal to consider a defaulted claim would result in a fundamental

miscarriage of justice. House v. Bell, 547 U.S. 518, 536 (2006). But to meet this exception,

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the petitioner must establish that “a constitutional violation has resulted in the

conviction of one who is actually innocent of the crime.” Schlup v. Delo, 513 U.S. 298, 324

(1995). “[P]risoners asserting innocence as a gateway to defaulted claims must establish

that, in light of new evidence, it is more likely than not that no reasonable juror would

have found petitioner guilty beyond a reasonable doubt.” House v. Bell, 547 U.S. 518,

536–37 (2006). 

Sims does not argue that he was prevented from pursuing the procedurally

defaulted claims in State court. Though Sims alleges that he is actually innocent, the

new evidence he presents here, as discussed in greater detail below, does not convince

me that it is more likely than not that no reasonable juror would have found Sims

guilty. The eyewitness testimony of the victim, the fact that Sims’ DNA was found in

her apartment, and the inculpatory letter written by Sims while he was awaiting trial is

all strong proof of his guilt. He thus cannot overcome the procedural default of his

other claims. As such, I will only analyze his first claim: that he was denied effective

assistance of counsel when trial counsel failed to conduct an adequate investigation

regarding his relationship with the victim and failed to challenge the victim’s testimony

with witnesses who could have corroborated Sims’ version of events.

Ineffective Assistance of Counsel: Failure to Investigate

“Federal habeas review . . . exists as a guard against extreme malfunctions in the

state criminal justice systems, not a substitute for ordinary error correction through

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appeal.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quotation marks and citation

omitted). Relief is only available where the decision of the state court “was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or “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). 

We know from Woods that this is a very high bar to surmount: “[This] standard is

intentionally difficult to meet. We have explained that clearly established Federal law

for purposes of §2254(d)(1) includes only the holdings, as opposed to the dicta, of this

Court’s decisions.” Woods, 135 S.Ct. at 1376. Just being wrong is not enough. Instead, the

petitioner has to show that the state court’s ruling “was so lacking in justification that

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

possibility for fairminded disagreement.” Id.

Criminal defendants are entitled to a fair trial but not a perfect one. Rose v. Clark,

478 U.S. 570, 579 (1986). To warrant relief, a state court’s decision must be more than

incorrect or erroneous; it must be objectively unreasonable. Wiggins v. Smith, 539 U.S.

510, 520 (2003). “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) (quotation marks

omitted). 

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To prevail on an ineffective assistance of counsel claim in the State courts, a

petitioner must show that counsel’s performance was deficient and that the deficient

performance prejudiced him. Strickland v. Washington, 466 U.S. 668 (1984). The test for

prejudice is whether there was a reasonable probability that “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at

694. A reasonable probability is a probability “sufficient to undermine confidence in the

outcome.” Id. at 693. In assessing prejudice under Strickland “[t]he likelihood of a

different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S.

86, 112 (2011). However, “[o]n habeas review, [the] inquiry is now whether the state

court unreasonably applied Strickland.” McNary v. Lemke, 708 F.3d 905, 914 (7th Cir.

2013). “Given this high standard, even ‘egregious’ failures of counsel do not always

warrant relief.” Id.

Sims claims that the State court made an objectively unreasonable determination

that trial counsel’s failure to investigate did not constitute deficient performance and

did not prejudice Sims. At the post-conviction relief stage, Sims argued that trial

counsel failed to conduct an adequate investigation regarding his relationship with the

victim and failed to challenge the victim’s testimony with witnesses who could have

corroborated his relationship with the victim. ECF 8-8 at 4-10. He further argued that

doing so would have discredited the victim’s testimony regarding how the shooting

incident occurred, which he says would have resulted in his acquittal. Id.

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With respect to the victim’s relationship with Sims, the victim testified that she

was able to identify Sims, who was masked when he approached her at her apartment,

by his distinctive voice because she knew of him from high school and occasionally saw

him and engaged in small talk with him. Trial Tr. 71-76. She had seen him as recently as

two months before the shooting incident but did not personally know him or consider

him to be a friend. Id. She further testified that, immediately after the incident, she

informed the police that she knew the identity of her attacker but could only recall his

first name. Id. at 88-89. In response to trial counsel’s questions on cross-examination, she

testified that she had never been involved with Sims in a boyfriend-girlfriend

relationship and had never given Sims money. Id. at 116-17. She also testified that she

had a boyfriend in December 2008 and that he was present at the trial. Id. at 460.

Sims had a different version of events. He testified as follows:

Trial Counsel: Okay. Now what happened December 17th, 2008? You sat

here and you heard all the testimony from Tamicka.

Sims: Yeah.

Trial Counsel: What all happened?

Sims: We was kicking it with one another. Once I met her, like I would go

meet her every day or every day or two, but, you know, during this time,

times was hard for me because, because of my felony conviction, I couldn’t

get hired nowhere. It was hard for me to find, you know, a decent job to –-

excuse me –- the support myself. And I saw that Tamicka had a lot going for

her, a house, a car, money, money in the bank, so I devised a plan to use

Tamicka for, for some of her money just until I get on my feet.

Trial Counsel: What plan did you devise, how did you use Tamicka for

money?

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Sims: Since she already liked me, it would be easy. I started having sex with

her. During this time I told Tamicka all of my problems and I asked her can

I have five hundred dollars just until I got on my feet. She agreed only if I

would be her boyfriend. I agreed. 

Trial Counsel: So, you were Tamicka’s boyfriend, correct?

Sims: That’s what I told her, that I would be her boyfriend. She gave me the

money and after this, I stopped going around Tamicka, because, you know,

I felt bad, but, really, Tamicka didn’t turn me on. You know, she’s big and,

you know, I just don’t really, she didn’t turn me on and I felt bad about, you

know, this, but, you know, and I wanted to tell her about, about this, but I

knew Tamicka has guns, a lot of guns. Which, if you play with people’s

feelings, people will kill you, which she did shoot me. But, I knew I had to

confront Tamicka because I took her money and she kept calling my mother’s

house and I got tired of telling my mother to tell her that I, you know, I’m not

at home. So, I knew I had to confront Tamicka. And on this particular day,

I went over Tamicka’s house with the intent to let her know I’ll pay her her

money back and I just wanted to be friends with her. I didn’t want, I didn’t

want to be her boyfriend. So, when I got over there, she let me in and she

immediately started cussing me out, telling me how I used her and all I

wanted was her money and that’s when I noticed that she had two guns on

her couch. So, that’s when I immediately, I humbled myself and tried my

best just to tell her that I just wanted to be friends with her. I didn’t want to

be sexually active with her anymore and she wouldn’t let me get a word in.

So, I told her I was about to leave and she said, you are not going anywhere

and she grabbed one of the guns and I tried to keep her from pointing her

gun at me and that’s when she shot me. And I quickly went down and as I’m

going down, I grabbed the other gun that was on the couch, running towards

the back door. I just shot, shot some shots behind me just to keep Tamicka

from killing me. And once I got out the back door, I immediately went into

shock. I had never been shot before in my life. I thought I was going to die.

And when I passed out, I passed out and when I woke up, I was in St.

Catherine’s Hospital with detectives in my face.

Id. at 388-91.

During an evidentiary hearing at the post-conviction relief stage, trial counsel

testified as follows:

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Sims: Can you tell the court who you interviewed in preparation for trial?

Trial Counsel: Well, yes, I interviewed you and the victim. There was a bond

hearing, I believe it was, where she gave quite a bit of extensive testimony in

the courtroom. I reviewed what she said at that hearing, and basically that’s

it for the review of testimony from you and witnesses.

Sims: Can you tell –- was there a reason why you never interviewed any

defense witnesses and never called any defense witnesses to testify at the

jury trial in this case?

Trial Counsel: There are no defense witnesses that I was aware of, so who

was I to call and interview?

Sims: I did have two defenses witnesses as coming today, but, you know, I

guess you did never ask me.

Trial Counsel: I did not interview any witnesses, neither did you ask me to

interview any witnesses.

Sims: Was there a reason –- was there a reason why you never interviewed

the defendant in this case, never learned the facts and circumstances of this

case and never properly prepared the defendant’s testimony?

Trial Counsel: You and I spoke several times in several different locations,

in the jail, in the courtroom. I guess my answer there is you and I talked

pretty extensively.

PCR Tr. 7-9. Sims did not testify at the evidentiary hearing but presented two other

witnesses. Loretta Miller, his mother, testified that, in November and December 2008,

the victim called her residence frequently to ask about Sims’ location and the five

hundred-dollar loan. Id. at 15-18. Willie Hill, Sims’ godfather who has known Sims since

he was four years old, testified that he had given Sims a ride to the victim’s house on

two occasions. Id. at 19-20.

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The PCR court credited trial counsel’s testimony that he didn’t interview other

witnesses because he was never told by Sims that other witnesses existed. The Court of

Appeals of Indiana picked up on that theme when it found that trial counsel did not

perform deficiently because Sims never told trial counsel that there were any other

witnesses to interview and because there were no other individuals present at the time

of the altercation. ECF 8-10 at 5-6. The appellate court also noted that Sims was able to

present evidence regarding his version of the relationship with the victim through his

testimony and found that, even if trial counsel had presented witnesses to corroborate

Sims’ testimony, there was no reasonable probability that it would have affected the

outcome of the trial. Id.

After reviewing the record, I cannot find that the appellate court’s determination

regarding trial counsel’s failure to investigate or to challenge the victim’s testimony

regarding the nature of the relationship between Sims and the victim was objectively

unreasonable. Even though trial counsel had interviewed Sims and the victim and

discussed the case with Sims on multiple occasions,1

 he was not aware of any other

witnesses. Trial counsel also challenged the victim’s testimony regarding the

relationship by asking her questions on cross-examination and by asserting the selfdefense theory as an affirmative defense. Additionally, Sims was able to testify

regarding his relationship with the victim. Perhaps reasonable minds might disagree on

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Though Sims alleges that trial counsel met with him on only one occasion three

days before trial, the appellate court’s reliance on trial counsel’s testimony from the

evidentiary hearing was not objectively unreasonable. 

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whether trial counsel should have done more by way of investigation. But a reasonable

disagreement is miles apart from being able to say that the decision of the Indiana Court

of Appeals is “objectively unreasonable” or “so lacking in justification . . . (as to be) 

beyond any possibility for fairminded disagreement.” Woods, 135 S.Ct. at 1376. 

What’s more, I agree with the conclusion of the Indiana Court of Appeals that

there was no prejudice here, in any event. See DE 8-10 at 6. Given the limited nature of

the testimony from Sims’ mother and godfather and their close relationship with Sims,

there is no reasonable probability that the testimony they provided at the PCR hearing,

had it been given at trial instead, would have affected the outcome of the trial. These

witnesses had a built in bias. And a jury would likely have viewed their testimony as a

contrivance given the strong evidence against Sims in the form of the victim’s

eyewitness account, Sims’ DNA that was recovered from the apartment, the

incriminating letter that Sims sent to the victim while he was awaiting trial, and the

false exculpatory statement that Sims made to the hospital that he had been shot by a

couple of “Hispanic men.” 

In sum, the Indiana court’s determination that there was neither deficient

performance nor prejudice under Strickland was not an unreasonable application of that

Supreme Court precedent. There is no basis for habeas relief.

Pursuant to Section 2254 Habeas Corpus Rule 11, I must grant or deny a

certificate of appealability. To obtain a certificate of appealability under 28 U.S.C. §

2253(c), the petitioner must make a substantial showing of the denial of a constitutional

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right by establishing “that reasonable jurists could debate whether (or, for that matter,

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, 484 (2000). For the reasons explained in this opinion for denying

habeas corpus relief, there is no basis for encouraging Sims to proceed further. For the

same reasons, he may not appeal in forma pauperis because an appeal could not be taken

in good faith.

Conclusion

Accordingly, the court DENIES the habeas corpus petition; DENIES a certificate

of appealability pursuant to Section 2254 Habeas Corpus Rule 11; DENIES leave to

appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3); and DIRECTS the clerk to

enter judgment in favor of the Respondent and against the Petitioner.

SO ORDERED on February 8, 2018.

s/ Philip P. Simon 

Judge

United States District Court

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