Holmes v. King et al
MEMORANDUM OPINION re 10 Order Dismissing Case. Signed by District Judge Sharion Aycock on 8/9/2011. (psk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
JAMES EARL HOLMES,
RONALD KING, ET AL.
This matter comes before the court on the pro se petition for a writ of habeas corpus
under 28 U.S.C. § 2254. The state has responded to the petition, and the petitioner has replied.
The matter is ripe for resolution. For the reasons set forth below, the instant petition for a writ of
habeas corpus will be denied.
Facts and Procedural Posture
James Earl Holmes, is lawfully in the custody of the Mississippi Department of
Corrections and currently housed at the South Mississippi Correctional Institution in Leakesville,
Mississippi. Holmes was convicted of sexual battery in the Circuit Court of Clay County,
Mississippi. On July 26, 2007, he was sentenced as a habitual offender to serve thirty years in
the custody of the Mississippi Department of Corrections (“MDOC”) and to pay a $10,000.00
fine. State Court Record (“SCR”), Vol. 1, p. 60-61.
Holmes filed an appeal of his convictions and sentences in the Mississippi Supreme
Court, raising the following issue (as stated by counsel):
The trial court erred in failing to grant Holmes’ motion for directed
verdict, in denying his request for peremptory instruction of not
guilty, and in denying his motion for judgment notwithstanding the
verdict as the sufficiency of the evidence did not support a
conviction of sexual battery.
On December 2, 2008, the Mississippi Court of Appeals found no merit to the issue raised and
affirmed the judgment of the circuit court. Holmes v. State, 20 So.3d 681 (Miss. App. 2008)
reh’g denied Aug. 4, 2009, cert. denied Nov. 5, 2009 (Cause No. 2007-CT-01344-COA).
On May 7, 2009, Holmes filed an application for leave to proceed in the trial court with a
motion for post-conviction relief in the Mississippi Supreme Court. He raised the following
issues (pro se):
Holmes chose not to testify as of right and the prosecutor
repeatedly violated Holmes fifth amendment right by referring to
the prosecution’s evidence as being undisputed, uncontroverted
The prosecutor abused the prosecution’s position when it used the
government’s own position to assure the jury that the prosecution
witness told the truth, and that the prosecution witness did not lie.
Defense counsel failed to cross-examine Holmes most favorable
witness that the prosecution offered.
The prosecutor urged her personal belief in the guilt of Holmes in
her last words to the jury by stating, with conviction “and he’s
Holmes argues here that he was not taken to trial under the
indictment the grand jury returned, violating his fifth
amendment.... Nor did the court have proper jurisdiction to hear
When one combines all the errors listed herein, Holmes was denied
due process of law, and, fair trial.
Holmes asserts ineffective assistance of trial and appellate counsel
in each of his six (6) grounds for relief.
The application was denied on May 5, 2010. See Misc. Briefs and Pleadings, Cause Number
In the instant petition for writ of habeas corpus, filed on June 1, 2010, Holmes raises the
following issues (pro se):
The evidence is legally insufficient to support the crime of
Petitioner was denied his constitutional right to a fair trial
and effective assistance of counsel where the prosecutor
violated petitioner’s fifth amendment rights without objection
Petitioner was denied his constitutional right to a fair trial
and effective assistance of counsel to where, without any
objection, the prosecutor improperly vouched for their
Petitioner was denied his constitutional right to a fair trial
and effective assistance of counsel where counsel failed to
effectively cross examine prosecution witness.
Petitioner was denied his constitutional right to a fair trial
and effective assistance of counsel to where the prosecutor
misused the government’s position in assuring the jury that
Holmes was guilty without any objection thereto from
Whether the trial court erred by allowing the state to amend
the indictment and/or whether the court held proper
jurisdiction of this subject matter.
Cumulative effects of errors require the conviction to be
Holmes has exhausted his state court remedies as to the claims raised in his petition.
Grounds Reviewed on the Merits in State Court
The Mississippi Supreme Court has already considered all seven grounds of the instant
petition on the merits and decided those issues against the petitioner; hence, these claims are
barred from habeas corpus review by the Antiterrorism and Effective Death Penalty Act, 28
U.S.C. § 2254(d), unless they meet one of its two exceptions:
(d) 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.
Id. (emphasis added). The first exception, subsection (d)(1), applies to questions of law. Morris
v. Cain, 186 F.3d 581 (5th Cir. 2000). The second exception, subsection (d)(2), applies to
questions of fact. Lockhart v. Johnson, 104 F.3d 54, 57 (5th Cir. 1997). Since the petitioner’s
claims challenge both the application of law and the finding of fact, this court must consider the
exceptions in both subsections.
Under subsection (d)(1), a petitioner’s claim merits habeas review if its prior adjudication
“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law.” Id. (emphasis added). A state court’s decision is contrary to federal
law if it arrives at a conclusion opposite to that reached by the United States Supreme Court on a
question of law, or if it decides a case differently from the Supreme Court on a set of “materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523 (2000). A state
court’s decision involves an unreasonable application of federal law if it identifies the correct
governing principle but unreasonably (not just incorrectly) applies that principle to facts of the
prisoner’s case; this application of law to facts must be objectively unreasonable. Id. at 1521. As
discussed below, the petitioner has not shown that the Mississippi Supreme Court unreasonably
applied the law to the facts, or that the court’s decision contradicted federal law. Accordingly,
the exception in subsection (d)(1) does not apply to any of the petitioner’s claims.
Nevertheless, under § 2254(d)(2) these grounds may still merit review if those facts to
which the supreme court applied the law were determined unreasonably in light of the evidence
presented. Because the supreme court is presumed to have determined the facts reasonably, it is
the petitioner’s burden to prove otherwise, and he must do so with clear and convincing
evidence. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); 28 U.S.C. § 2254(e)(1). As
discussed below, the petitioner has failed to meet this burden; as such, he cannot use subsection
(d)(2) to move these claims beyond § 2254(d), which bars from habeas corpus review issues
already decided on the merits.
Ground One: Insufficiency of the Evidence
In Ground One, Holmes challenges the sufficiency of the evidence for his sexual battery
conviction. The Mississippi Court of Appeals and Mississippi Supreme Court reviewed this
claim in Holmes’ direct appeal and found it to have no merit. A challenge to the sufficiency of
the evidence can support a claim for habeas relief only if the evidence, when viewed in the light
most favorable to the State is such that no reasonable fact finder “could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see also Marler v. Blackburn, 777 F.2d 1007, 1011 (5th
Cir. 1985). This standard of review “preserves the integrity of the trier of fact as the weigher of
the evidence.” Bujol v. Cain, 713 F.2d 112, 115 (5th Cir. 1983). The standard allows the trier of
fact to find the evidence sufficient to support a conviction even if “the facts also support one or
more reasonable hypotheses consistent with the defendant’s claim of innocence.” Gilley v.
Collins, 968 F.2d 465, 468 (5th Cir. 1992).
The Mississippi Court of Appeals held in this case:
While penetration must be proved beyond a reasonable doubt, “it need not be
proved in any particular form of words, and circumstantial evidence may suffice.”
Lang v. State, 230 Miss. 147, 158-59, 87 So.2d 265, 268 (1956). B.L. stated
repeatedly at trial that Holmes was “having sex” with her daughter, physically
demonstrated for the jury the positions in which she found Holmes and her
daughter, and described the demeanor of both R.L. and Holmes. Based on this
testimony, the jury could have found beyond a reasonable doubt that sexual
penetration was occurring at the moment B.L. walked in on R.L. and Holmes.
Additionally, although R.L. was unable to explain what had happened to her due
to her mental status, the nurse who examined her at the hospital stated that R.L.
pointed to her rectum when explaining where Holmes had touched her. Even the
employee from the crime lab, who was Holmes' witness, testified that it was
possible for sexual penetration to have occurred without the presence of seminal
Accordingly, we find that the trial court did not err in denying Holmes' motion
for a directed verdict, request for a peremptory instruction, and motion for a
JNOV. We, therefore, affirm Holmes' conviction and sentence.
Holmes, 20 So.3d at 683.1
Holmes’ claim is without merit, as the evidence presented at trial was more than
sufficient to sustain his conviction for sexual battery.2 Testimony at trial showed that the victim
was mentally retarded, having an IQ somewhere between 25 and 50. In addition, the victim’s
mother testified that she entered the kitchen, saw Holmes “having sex” with the victim, described
precisely how it looked, and then graphically demonstrated the act described, from the
perspective of both Holmes and the victim. This evidence was sufficient to sustain the
petitioner’s conviction. The state court’s ruling on this issue was reasonable in both fact and
law; as such, the petitioner’s claim in Ground One of the petition will be denied.
Grounds Two, Three, Four, and Five: Ineffective Assistance of Counsel
In Grounds Two Three, Four, and Five, Holmes argues that he was denied effective
assistance of counsel both at trial and on appeal. The Mississippi Supreme Court found no merit
Due to the sensitive nature of the case, the Mississippi Court of Appeals identified the
victim and her mother only by their initials. This court will do likewise.
Holmes was indicted for sexual battery under Mississippi Code Annotated section
97-3-95(1)(b) (Rev.2006), which states: “A person is guilty of sexual battery if he or she
engages in sexual penetration with .... [a] mentally defective, mentally incapacitated or physically
to these issues, which Holmes raised in his Motion for Post-Conviction Collateral Relief. To
prove that his counsel was ineffective under the Sixth Amendment, Holmes must show first that
counsel’s performance was deficient, then that the deficiency caused prejudice to Holmes’ legal
position. Under the deficiency prong of the test, the petitioner must show that counsel made
errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland, 466 U.S. at 687. The court must analyze counsel’s actions based upon
the circumstances at the time – and must not use the crystal clarity of hindsight. Lavernia v.
Lynaugh, 845 F.2d 493, 498 (5th Cir. 1988). The petitioner “must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’”
Strickland, 466 U.S. at 689 (citation omitted). To prove prejudice, petitioner must demonstrate
that the result of the proceedings would have been different or that counsel’s performance
rendered the result of the proceeding fundamentally unfair or unreliable. Vuong v. Scott, 62 F.3d
673, 685 (5th Cir.), cert. denied, 116 S.Ct. 557 (1995); Lockhart v. Fretwell, 506 U.S. 364, 369
(1993); Sharp v. Johnson, 107 F.3d 282, 286 n.9 (5th Cir. 1997). Holmes cannot meet this
In Grounds Two, Three, and Five, Holmes alleges that defense counsel failed to make
proper objections. The Mississippi Supreme Court found no merit to these issues. “Failure to
raise meritless objections is not ineffective lawyering, it is the very opposite.” Clark v. Collins,
19 F. 3d 959, 966 (5th Cir. 1994). In these grounds, Holmes states that defense counsel should
have objected to statements by the prosecutor that “violated petitioner’s fifth amendment rights,”
“vouched for [the prosecution’s] witness’ testimony,” and “misused the government’s position
in assuring the jury that Holmes was guilty.” A review of the record reveals that the prosecution
made no improper statements; therefore, objections would have been baseless. Counsel showed
competence in deciding not to object in this instance.
The following excerpts appear to be the comments to which the petitioner objects in
Grounds Two and Three. During the state’s closing argument, the following statements were
She [the victim’s mother] walked in, she caught him, he stopped. No semen. If
she had waited a little bit longer? Had she not gotten out of bed at the time that
she did? The evidence is uncontradicted. She took the stand, she got down, she
told you, she physically showed you what she saw. And she has no reason to lie.
There isn'any evidence before you as to why that woman' lying. None.
SCR, Vol. 3, p. 204-5. At the end of the state’s final closing argument, the following statements
were made to the jury by the prosecutor:
On June 4th, 2006, that man sitting right there had sex with [the victim]. It'
unconscionable. It' wrong. She can'protect herself, she can'say no. And he
knew her her entire life. Her entire life. He knew her. He knew how she was,
how she thought, and he didn'care. Yeah, it' serious.
I' asking you to follow your oath to follow the law and apply the evidence as it
was in this courtroom, from what you heard, and don'speculate. Take the
evidence that you heard. That' what you base your judgment on, or your verdict
on, excuse me, what you heard. And it is uncontroverted, there is nothing before
you to dispute what [the victim’s mother] told you. Nothing. And he' guilty.
SCR, Vol. 3, p. 217. The prosecution’s closing arguments were proper, as he simply recounted
the proof at trial as he interpreted it. Indeed, the proof at trial supported the prosecutor’s closing
arguments. As such, the defense had no cause to object. This issue, therefore, is without merit.
Ground Four: Failure to Cross-Examine Prosecution Witness Effectively
Holmes alleges in Ground Four that counsel failed to effectively cross examine a
prosecution witness. The Mississippi Supreme Court found this issue to be meritless. Emergency
Room Nurse Shelly Thomas testified about the emergency room procedure, the victim’s
responses, and collection of evidence for the rape kit at the time of the emergency room
evaluation. Counsel raised a hearsay objection to this testimony, and the trial judge cautioned the
prosecution to follow closely MISS. R. EV. 803(4) regarding hearsay exceptions involving
statements made for purposes of medical diagnosis or treatment. Defense counsel chose not to
question Ms. Thomas at the conclusion of the state’s direct examination.
If counsel entirely fails to subject the prosecution' case to meaningful adversarial
testing, then there has been a denial of Sixth Amendment rights that makes the
adversary process itself presumptively unreliable. No specific showing of
prejudice was required in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39
L.Ed.2d 347 (1974), because the petitioner had been “denied the right of effective
cross-examination” which “‘would be constitutional error of the first magnitude
and no amount of showing of want of prejudice would cure it.’” Id., at 318, 94
S.Ct., at 1111 (citing Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 749, 19
L.Ed.2d 956 (1968), and Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246,
16 L.Ed.2d 314 (1966)).
U.S. v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039 (1984). The Court also held:
Apart from circumstances of that magnitude, however, there is generally no basis
for finding a Sixth Amendment violation unless the accused can show how
specific errors of counsel undermined the reliability of the finding of guilt. See
Strickland v. Washington, 466 U.S., at 693-696, 104 S.Ct., at 2067-2069; see
generally Davis v. Alabama, 596 F.2d 1214, 1221-1223 (CA5 1979), vacated as
moot, 446 U.S. 903 (1980); Cooper v. Fitzharris, 586 F.2d 1325, 1332-1333
(CA9 1978) (en banc); McQueen v. Swenson, 498 F.2d 207, 219-220 (CA8 1974);
United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115 (CA3 1970); Bines,
Remedying Ineffective Representation in Criminal Cases: Departures from
Habeas Corpus, 59 Va.L.Rev. 927 (1973); Note, Ineffective Representation as a
Basis for Relief from Conviction: Principles for Appellate Review, 13
Colum.J.Law & Social Prob. 1, 76-80 (1977).
Id. at n. 26. Counsel’s decision not to present to the jury further testimony about the after-effects
of the sexual encounter – and the victim’s severe retardation – clearly constitutes sound trial
strategy. The victim’s mother witnessed the sexual encounter – and graphically demonstrated it
for the jury. The victim’s testimony further showed her extremely low mental ability – leaving
the impression of an extremely sympathetic victim. Given the straightforward nature of Ms.
Thomas’ testimony, it appears that defense counsel could not have elicited much useful
testimony – but would again fix in the jury’s minds the victim’s condition and injuries. Counsel
defended Holmes as best he could given the overwhelming evidence of against him. A review of
the State Court Record reveals that counsel cross-examined witnesses, called a witness to attack
the state’s case, and made motions and objections on Holmes’ behalf. Holmes has shown neither
deficient performance of trial counsel, nor prejudice as a result of counsel’s actions. As such, the
allegation in Ground Four that counsel was ineffective will be dismissed for want of substantive
Holmes also claims in the present petition that appellate counsel should have raised the
issue in Ground Five (failure of defense counsel to object to statements of the prosecution during
closing arguments). The Strickland standard of review applies to appellate counsel, as well as
trial counsel. See Evitts v. Lucey, 469 U.S. 387, 397-399 (1985). Appellate counsel does not
have a duty to raise every “colorable” claim on appeal; indeed, counsel has broad discretion in
determining issues are most likely to meet with success on appeal. Jones v. Barnes, 463 U.S.
745, 751-754 (1985). As discussed above, none of Holmes’ claims of ineffective assistance of
trial counsel has merit, as such, Holmes’ claims that appellate counsel failed to challenge the
actions of trial counsel will be denied for want of substantive merit.
Ground Six: The Indictment Was Insufficient
to Charge an Offense Under Mississippi Law
The sufficiency of a state indictment is not a matter for federal habeas corpus review
unless it can be shown that the indictment was so defective that the convicting court had no
jurisdiction. Riley v. Cockrell, 339 F.3d 308, 313-14 (5th Cir. 2003); McKay v. Collins, 12 F.3d
66, 68 (5th Cir. 1994) (citing Branch v. Estelle, 631 F.2d 1229 (5th Cir. 1980). The indictment
The Grand Jurors of the State of Mississippi, taken from the body of the good and
lawful men and women of said County, duly elected, empaneled, sworn and
charged, at the Term aforesaid of the Court aforesaid, to inquire in and for the
body of the County aforesaid, in the name and by the authority of the State of
Mississippi, upon their oaths present: that
JAMES HOLMES, a person above the age of 18 years;
late of the County aforesaid, on or about the 4th day of June, 2006, in the County
aforesaid, did unlawfully, wilfully, and feloniously, engage in sexual penetration
with [the victim], a female person who is mentally defective, contrary to the form
of the Mississippi statutes in such cases made and provided, and against the peace
of dignity of the State of Mississippi.
S.C.R., Briefs and Other Pleadings. The indictment clearly charged Holmes with Sexual Battery
in violation of MISS. CODE ANN. § 97-3-95(1)(b) in Clay County, Mississippi, on or about the 4th
day of June, 2006. SCR, Vol. 1, p. 10. Section 97-3-95(1)(b) reads, “A person is guilty of sexual
battery if he or she engages in sexual penetration with .... [a] mentally defective, mentally
incapacitated or physically helpless person[.]” Holmes received fair notice of the charges against
him. See Robinson v. State, 920 So. 2d 1009, 1014 (Miss. App. 2003). In addition, Rule 7.6 of
the Uniform Rules of Circuit and Chancery Court requires that the indictment include:
(1) The name of the accused;
(2) The date of which the indictment was filed in court;
(3) A statement that the prosecution is brought in the name and authority of the
State of Mississippi ;
(4) The county and judicial district in which the indictment is brought;
(5) The date and, if applicable, the time at which the offense was alleged to have
been committed. Failure to state the correct date shall not render the indictment
(6) The signature of the foreman of the grand jury issuing it; and
(7) The words “against the peace and dignity of the state.”
The indictment in this case meets all the requirements of state law; therefore, Holmes cannot
show that the indictment was so defective it deprived the court of jurisdiction. Finally, if an
indictment is sufficient under state law, “a federal court need not address that issue.” McKay, 12
F.3d at 68 (citations omitted). The Mississippi Supreme Court found that Holmes’ challenge to
the indictment in his motion for post-conviction (the same issue as in the present case), was
without merit. As such, the court need not address the issue, and the petitioner’s claim
challenging the indictment in Ground Six will be denied.
Ground Seven: Cumulative Error
In Ground Seven, Holmes argues that the cumulative errors from his trial require reversal
of his conviction. The Mississippi Supreme Court found that this issue had no merit. Cumulative
error may be an independent basis for federal habeas corpus relief, but only where “(1) the
individual errors involved matters of constitutional dimensions rather than mere violations of
state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors
‘so infected the entire trial that the resulting conviction violates due process.’” Westley v.
Johnson, 83 F.3d 714, 726 (5th Cir. 1996) (citing Derden v. McNeel, 978 F.2d 1453, 1454 (5th
Cir. 1992)). Neither meritless claims nor claims that are not prejudicial can be cumulated,
regardless of the total number of such errors raised. Derden, 978 F.2d at 1461. In addition,
Holmes has not shown that errors, capable of review, can be collected to cast doubt upon whether
the state court proceeding satisfied due process. As discussed above, none of the petitioner’s
claims in the present case has merit, and he has not proven that the alleged errors caused him
prejudice. As such, Holmes’ allegation of cumulative error will be denied as meritless. The
Mississippi Supreme Court’s resolution of the issue in Ground Seven was not contrary to clearly
established federal law, nor did it involve an unreasonable application of clearly established
federal law as determined by the Supreme Court of the United States. Therefore, Holmes’
request for federal habeas corpus relief in Ground Seven of the instant petition will be denied.
In sum, all of the petitioner’s grounds for relief are without merit, and the instant petition
for a writ of habeas corpus will be dismissed. A final judgment consistent with this
memorandum opinion will issue today.
SO ORDERED, this the 9th day of August, 2011.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE
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