Kitchens v. Caskey et al

Filing 13

MEMORANDUM OPINION re 12 Order Dismissing Case. Signed by District Judge Sharion Aycock on 10/25/2011. (psk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
LAMAR KITCHENS

PETITIONER

v.

No. 1:10-CV-209-A-V

DALE CASKEY, ET AL.

RESPONDENTS
MEMORANDUM OPINION

This matter comes before the court on the pro se petition of Lamar Kitchens for a writ of
habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition, and Kitchens
has filed a traverse. 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
Lamar Kitchens is in the custody of the Mississippi Department of Corrections and is
currently housed at the East Mississippi Correctional Facility in Meridian, Mississippi. Kitchens
was convicted in the Circuit Court of Winston County, Mississippi, on two counts of aggravated
assault. The trial court sentenced the Kitchens on May 10, 2006, to serve consecutive terms of
twenty years on each count in the custody of the Mississippi Department of Corrections. As to
Count II, the order provided that “[after] the defendant has served a period of ten years, the
Mississippi Department of Corrections is hereby ordered to place him in a program of postrelease supervision . . . for a period of ten (10) years [the first Five Years being supervised with
the remaining Five Years being unsupervised] . . .” See State Court Record (S.C.R.) (Cause No.
2008-KA-01940-SCT), Vol. 1, pp. 88-89.
Kitchens, through new appellate counsel, appealed his judgments of conviction and

sentences to the Mississippi Supreme Court, assigning as error the following (as stated by
petitioner’s counsel):
A. Whether the verdicts were against the overwhelming weight of the evidence.
On August 27, 2009, the Mississippi Supreme Court per curiam affirmed Kitchens’
convictions and sentences. See (mandate of the Mississippi Supreme Court (Cause No. 2008KA-1940-SCT)).
Kitchens then filed an “Application for Leave to Proceed in the Trial Court” in which he
raised the same claims raised in the instant federal petition for a writ of habeas corpus, as will be
listed below – but for the claim challenging the weight of the evidence raised by his counsel on
direct appeal. The Mississippi Supreme Court denied Kitchens’ application for post-conviction
relief, holding:
After due consideration, the panel finds that Kitchens’ claims regarding his arrest,
his interview with police, his initial appearance, the indictment, his right to testify,
judicial misconduct, prosecutorial misconduct, jury instructions and his right to a
speedy trial are procedurally barred and/or without merit. MISS. CODE ANN. § 9939-21(1). The panel further finds that Kitchens’ claims that he received
constitutionally ineffective assistance of counsel at trial and on appeal fail to meet
both prongs of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). The panel finds that Kitchens has failed to make a
substantial showing of the denial of a state or federal right. MISS. CODE ANN. §
99-39-27(5). Accordingly, Kitchens’ application for post-conviction collateral
relief should be denied.
See Denial of Kitchens’ application for post-conviction collateral relief) (Cause No. 2009-M01427).
Kitchens filed the instant petition for writ of habeas corpus in this court, raising the
following claims (as stated by Kitchens):

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Ground One: Whether the verdicts were against the overwhelming weight of the
evidence?
Ground Two: Petitioner’s arrest was illegal and unlawful in violation of his
Fourth Amendment.
Ground Three: Petitioner’s initial appearance hearing was unconstitutional in
violation of Sixth Amendment.
Ground Four: Petitioner’s indictment was facially and fatally defective in
violation of Fifth Amendment.
Ground Five: Petitioner’s right to testify was denied in violation of Fifth
Amendment.
Ground Six: Petitioner was denied his right to a fair trial by judicial misconduct
in violation of his Sixth Amendment.
Ground Seven: Petitioner was denied his right to a fair trial by prosecutorial
misconduct in violation of Sixth Amendment.
Ground Eight: Petitioner was denied effective assistance of counsel in violation
of Sixth Amendment.
A. Counsel failed to conduct any meaningful investigation of
interviewing any of the state’s witnesses.
B. Counsel failed to motion to suppress petitioner’s statement on
grounds that said statement had only one witness signature on it
when the waiver of rights had two signatures.
C. Counsel failed to motion to suppress petitioner’s gun due to an
unlawful arrest.
D. Counsel failed to have the Eubanks’ statements suppressed due
to the fact that only one, as opposed to two, witness’ signatures
was on it.
E. Counsel failed to motion for a mental evaluation.
F. Counsel failed to investigate “911" to verify that petitioner’s
son and daughter-in-law made the call to 911, as opposed to State’s
witness.
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G. Counsel failed to have petitioner examined by doctor to
determine the assault by the victim upon petitioner.
H. Counsel failed to motion to quash indictment based upon the
said defects.
I. Counsel failed to file motion to quash indictment based upon
speedy trial violation.
J. Counsel failed to have the victim’s gun tested since the State
had refused to.
K. Counsel failed to motion to suppress due to the change of
custody violation.
L. Counsel failed to quash indictment due to him not having his
rights read.
M. Counsel failed to object to victim’s gun and holster being
brought to the courtroom.
N. Counsel failed to have the sign post examined.
O. Counsel failed to object to playing of petitioner’s taped
statement.
P. Counsel introduced petitioner’s first written statement to the
jury but refused petitioner to testify.
Q. Counsel failed to establish a meaningful defense of selfdefense.
R. Counsel failed to investigate why no one else was not tested for
gun shot residue.
S. Counsel failed to cross-examine expert witness.
T. Counsel denial and refused to allow petitioner’s son and
daughter-in-law to testify.
U. Counsel filed Jury Instruction D-6, but refused to allow
petitioner to testify concerning accident.
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V. Counsel withdrew jury instruction on simple assault as to count
two when evidence would support it.
W. Counsel should not have given Jury Instructions D-3, D-4, D-5
because no evidences given to support them.
X. Counsel failed to argue for a self-defense instruction since said
statement spoke of it.
Y. Appellate counsel failed to perfect a meaningful appeal to the
supreme court when the trial was replete with constitutional errors.
Z. Appellate counsel failed to raise an ineffective assistance of
counsel claim when the trial counsel performance as replete with
errors.
Ground Nine: Petitioner’s jury instructions were defective in violation of Fifth
Amendment.
Ground Ten: Petitioner’s right to a speedy trial was denied in violation of Sixth
Amendment.
Kitchens has exhausted his state court remedies as to all of the issues raised in the instant
petition.
Procedural Bar: Grounds Two, Three, Four, Five, Six, Seven, Nine, and Ten
The petitioner’s claims in Grounds Two, Three, Four, Five, Six, Seven, Nine and Ten of
this federal habeas corpus petition were raised in Kitchens’ motion for post-conviction relief and
held to be procedurally barred MISS. CODE ANN. § 99-39-21(1) by the Mississippi Supreme
Court.1 Therefore, the court cannot review these claims. “When a state court declines to hear a

1

Section 99-39-21(1) provides as follows: “Failure by a prisoner to raise objections,
defenses, claims, questions, issues or errors either in fact or law which were capable of
determination at trial, and/or on direct appeal, regardless of whether such are based on the laws
and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver
thereof and shall be procedurally barred, but the court may upon a showing of cause and actual
prejudice grant relief from the waiver.”
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prisoner’s federal claims because the prisoner failed to fulfil a state procedural requirement,
federal habeas is generally barred if the state procedural rule is independent and adequate to
support the judgment.” Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001) (citing Coleman v.
Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991); Amos v. Scott, 61
F.3d 333, 338-39 (5th Cir. 1995)).
Section 99-39-21(1) is an independent state procedural bar. Stokes v. Anderson, 123 F.3d
858, 860 (5th Cir. 1997). The adequacy of the procedural bar applied to Kitchens’ claims in state
court depends on “whether Mississippi has strictly or regularly applied it.” Id. (citing Lott v.
Hargett, 80 F.3d 161, 165 (5th Cir. 1996)). However, the petitioner “bears the burden of showing
that the state did not strictly or regularly follow a procedural bar around the time of his appeal”
and “must demonstrate that the state has failed to apply the procedural bar rule to claims identical
or similar to those raised by the petitioner himself.” Id. Kitchens has not shown that the
Mississippi Supreme Court has inconsistently or irregularly applied the bar of § 99-39-21(1) and
has, therefore, defaulted his federal claim. Id. at 861.
This court could, however, review these claims if the petitioner could show cause for his
default and actual prejudice resulting from it. See Coleman, 501 U.S. at 750; see also Martin v.
Maxey, 98 F.3d at 849 (citing Sawyer v. Whitley, 505 U.S. 333 (1992)). In explaining the cause
necessary for excusing a default, the Supreme Court instructed that “there must be something
external to the petitioner, something that cannot fairly be attributed to him.” Coleman, 501 U.S.
at 753 (emphasis in original). Examples of objective factors which have been found to constitute
cause to excuse a procedural default include “interference by officials” and “a showing that the
factual or legal basis for a claim was not reasonably available to [petitioner].” McCleskey v.
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Zant, 499 U.S. 467 (1991). Kitchens has shown neither cause nor prejudice from application of
the default.
In addressing attorney error as a potential cause for a procedural default, the United States
Supreme Court held:
We think, then, that the question of cause for a procedural default does not turn on
whether counsel erred or on the kind of error counsel may have made. So long as
a defendant is represented by counsel whose performance is not constitutionally
ineffective under the standard established in Strickland v. Washington, supra, we
discern no inequity in requiring him to bear the risk of attorney error that results in
a procedural default.
Murray v. Carrier, 477 U.S. at 488.
While Kitchens argued ineffective assistance of counsel with regard to certain of the
barred claims in his state court pleadings, the state court determined that all of Kitchens’ claims
of ineffective assistance of counsel were without merit because Kitchens failed to meet both
prongs of Strickland, supra. Since Kitchens fails to establish cause, the court need not consider
whether he suffered actual prejudice to petitioner. Saahir v. Collins, 956 F.2d 115 (5th Cir.
1992).
Neither has Kitchens shown that a “fundamental miscarriage of justice” occurred, another
circumstance which might warrant a review of his claims despite his procedural default. To
benefit from this exception, Kitchen must show “as a factual matter, that he did not commit the
crime of conviction.” Fairman v. Anderson, 188 F.3d 635, 644 (citing Ward v. Cain, 53 F.3d
106, 108 (5th Cir. 1995)). He has not supported his allegations with new, reliable evidence that
was not presented at trial and must show that it was “more likely than not that no reasonable
juror would have convicted him in light of the new evidence.” Id. Indeed, Kitchens has not
proffered any new evidence to establish that a miscarriage of justice will result if his claims in
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Grounds Two, Three, Four, Five, Six, Seven, Nine and Ten of the instant petition are not
considered on the merits. As such, these claims will be dismissed under the doctrine of
procedural default.
Grounds One and Eight: Decided on the Merits in State Court
The Mississippi Supreme Court has already considered Grounds One and Eight on the
merits and decided those issues against the petitioner; hence, these claims are barred from habeas
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
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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 Grounds One and Eight of the petitioner’s
claim.
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: Conviction Was Against the Weight of the Evidence
In Ground One, Kitchens challenges the weight of the evidence to support his conviction.
A habeas corpus challenge to the weight of the evidence is not an issue within the purview of a
federal court. Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985)(“A federal habeas court has
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no power to grant habeas corpus relief because it finds that the state conviction is against the
‘weight’ of the evidence . . . .”) As such, Kitchens is not entitled to relief based on his challenge
to the weight of the evidence in Ground One.
Ground Eight: Ineffective Assistance of Counsel
Ground Eight contains Kitchens’ twenty-six allegations that counsel was ineffective; these
allegations literally run from A to Z. After setting forth the standard of review for such claims,
the court will discuss each, in turn, below.
To merit habeas corpus relief on a claim of ineffective assistance of counsel, one seeking
federal habeas corpus relief must show both constitutionally deficient performance by counsel –
and actual prejudice as a result of the deficiency. Strickland v. Washington, 466 U.S. 668 (1984);
see also Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (summarizing the Strickland
standard of review). A petitioner’s failure to establish either prong of the Strickland test requires
the court to reject the claim. Moawad v. Anderson, 143 F.3d 942, 946 (5th Cir. 1998); Bates v.
Blackburn, 805 F.2d 569, 578 (5th Cir. 1986)(overruled on other grounds).
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. Counsel’s performance is deficient if “it falls below
an objective standard of reasonableness” as measured by professional norms. Strickland, 466
U.S. at 688. The “defendant 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). 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
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(5th Cir. 1988). Indeed, a strong presumption exists that counsel has exercised reasonable
professional judgment. Strickland, 466 U.S. at 689; Martin v. McCotter, 796 F.2d 813, 187 (5th
Cir. 1986).
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).
Grounds 8(A), 8(F), 8(N), and 8(R): Failure to Investigate
Kitchens alleges in Grounds 8(A), 8(F), 8(N), and 8(R) that counsel failed to investigate
various aspects of the case. Kitchens does not provide any detail regarding any of these
allegations; as such, the allegations are conclusory – thus insufficient to warrant habeas corpus
review. Kitchens first contends in Ground 8(A) that counsel failed to conduct a meaningful
investigation and failed to interview the state’s witnesses. Kitchens also contends in Ground
8(F) that counsel failed to investigate who placed the 911 call. Kitchens further argues in
Ground 8(R) that counsel failed to investigate why no one else was tested for gunshot residue.
He also claims in Ground 8(N) that counsel failed to have a signpost examined. Kitchens does
not state what additional investigation or preparation should have been undertaken by counsel,
what additional investigation would have revealed, or how additional investigation or preparation
would have altered the outcome of his trial. Mere “conclusory allegations of ineffective
assistance of counsel do not raise a constitutional issue in a federal habeas proceeding.” Miller v.
Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (citations omitted); see also Collier v. Cockrell, 300
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F.3d 577, 587 (5th Cir. 2002) (“conclusory allegations of ineffective assistance of counsel do not
raise a constitutional issue in a federal habeas proceeding.”). By raising only conclusory
allegations, Kitchens has not raised an issue proper for habeas corpus review in Grounds 8(A),
8(F), 8(N), and 8(R). These grounds for relief will therefore be dismissed.
Ground 8(B) and 8(D): Failure to Seek Suppression
of Statements Bearing Only One Signature
Kitchens next challenges counsel’s decision not to seek suppression of statements by
Kitchens, one of the victims, and his wife. Kitchens argues that the statements were signed by
only one witness, rather than two. These allegations provide no constitutional basis upon which
counsel could have lodged an objection. As such, Kitchens has shown neither deficiency nor
prejudice in counsel’s actions. See, e.g., Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994)
(“Failure to raise meritless objections is not ineffective lawyering; it is the very opposite.”); see
also United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (attorney not required to file
meritless motions). These grounds for relief are without merit and will be dismissed.
Ground 8(C): Failure to Seek Suppression
of the Petitioner’s Gun Due to Unlawful Arrest

Kitchens argues in Ground 8(C) that counsel failed seek suppression of his gun
“due to an unlawful arrest.” Kitchens does not, however, set forth the basis for such a
motion – why his arrest was unlawful. Kitchens does not support this argument at all.
The record reflects that Kitchens shot at one of the victims, hit him over the head with
pliers, then shot the other victim. Kitchens was arrested on the scene and turned his gun
over to police at that time. As there was no basis upon which counsel could have
objected, Kitchens has shown neither deficiency nor prejudice in counsel’s actions. This
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ground for relief will be dismissed for want of substantive merit.
Ground 8(E): Failure to Seek a Mental Evaluation of the Petitioner

Kitchens argues in Ground 8(E) that counsel was ineffective for choosing not to
seek a mental evaluation. Kitchens, once again, fails to proffer record evidence that
counsel had reason to file such a motion – and provides no support for a finding that such
a motion would have been successful. As such, Kitchens has proven neither a deficiency
nor prejudice in counsel’s actions; instead this ground for relief is conclusory, and
Ground 8(E) will be dismissed as meritless.
Ground 8(G): Failure to Have Petitioner Examined
by a Doctor to Show that He Was Attacked by the Victim.
Kitchens claims in Ground (G) that counsel was ineffective for failing to have
petitioner examined by a doctor to determine whether the victim assaulted the petitioner.
However, the record reflects that counsel argued from the outset of the case that the
victims “beat down” his client. S.C.R. Vol. 2, p. 16. Indeed, during trial, Kitchens’
counsel introduced photographs of Kitchens taken on the night of the assault showing
abrasions on his arms. S.C.R. Vol. 2, p. 62. Counsel’s decision to use the photographs,
rather than a doctor’s evaluation, is a matter of trial strategy, as a doctor may not have
agreed with Kitchens’ assessment that the wounds were defensive in nature. The court
will not second-guess this strategic decision. The state court’s decision on this matter is
reasonable in fact and in law; as such, this ground for relief is without merit and will be
dismissed.
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Grounds 8(H), 8(I), and 8(L): Counsel’s Failure
to Seek to Quash the Indictment
Kitchens argues in Grounds 8(H), 8(I), and 8(L) that counsel was ineffective for
failing to move to quash the indictment based upon an alleged speedy trial violation and
because the police allegedly did not relay to Kitchens his rights under Miranda v.
Arizona, 384 U.S. 436 (1966). First, the indictment, which is contained in the state court
record, is proper on its face, S.C.R. Vol. 1, p. 3, as it sets forth the charges against
Kitchens, including the applicable section of the criminal statute, the crime charged, and
the factual basis for the charge. In addition, the indictment is signed by both the grand
jury foreman and an Assistant District Attorney. Id. Counsel had no basis upon which to
seek to quash the indictment, and counsel provided effective assistant in deciding not to
do so.
Kitchens also argues that counsel should have moved to quash the indictment
because the arresting officers did not recite his Miranda warnings. This appears to be a
challenge to the statement Kitchens gave to police – a statement which was used in
support of his indictment. These claims are refuted by the record, which contains a
“Waiver of Rights” executed on July 9, 2007, signed by Kitchens, and witnessed by two
officers. In the statement Kitchens said that he understood the rights he was waiving and
was willing to make a statement. S.C.R. Vol. 1, p. 11. In addition, testimony at trial
established that Kitchens made a voluntary statement to police. S.C.R. Vol. 2, pp. 52-56.
Indeed, counsel stressed this fact to the jury during cross-examination. S.C.R. Vol. 2, p.
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58. As such, counsel rendered effective assistance in his decision not to seek to quash the
indictment. As to the alleged speedy trial violation, there was none, as counsel sought
and obtained multiple continuances which inured to Kitchens’ benefit. These grounds for
relief are without merit and will be dismissed.
Ground 8(J): Counsel’s Failure to Have the Gun Tested
Kitchens also claims that counsel was ineffective in failing to have the victim’s
gun tested to determine whether it was fired. First, record does not reflect whether
counsel had the gun tested or not. In addition, no witness testified that any other weapons
were fired during the fight. Indeed, testimony from one of the state’s witnesses
established that all shots fired at the scene were from the same gun. S.C.R. Vol. 2, p. 92.
Kitchens also fails to suggest that any evidence exists to form a basis for seeking such a
test. Finally, this decision is one of strategy. It appears that counsel decided to crossexamine the state’s witnesses regarding the presence of another firearm at the scene – and
the investigator regarding the lack of tests for gunshot residue – in an attempt to create
reasonable doubt in the jury’s minds during deliberations. S.C.R. Vol. 2, pp., 23, 40, 63,
112. A gunshot residue test might well have shown that the victim’s weapon was not
fired – thus supporting the prosecution’s case against Kitchens. Again, the court will not
second-guess counsel’s strategic decision. Kitchens has shown neither deficient
performance nor resulting prejudice as to this issue, which will be dismissed.

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Ground 8(K): Failure to Suppress Due to Change of Custody Violation
Kitchens argues that counsel failed to “motion to suppress due to the change of
custody violation.” Kitchens does not explain this argument – or offer any factual support
for it at all. As such, this is a conclusory allegation, which cannot form the basis of a
habeas corpus claim. Hence, Kitchens has shown neither that counsel’s performance was

deficient nor that he was prejudiced by counsel’s actions. This ground for relief is
without merit and will be dismissed.
Grounds 8(M) and 8(O): Failure to Object to the Presence of the
Victim’s Gun and Holster in the Courtroom

Kitchens argues that counsel erred in failing to lodge objections regarding (1) the
victim’s gun and holster being brought to the courtroom and (2) the playing of Kitchens’
taped statement. As to the gun and holsters, counsel’s decision object to their presence in
the courtroom was one involving strategy. The jury saw the size of the weapon and heard
that another weapon was on the scene the night of the crime. In addition, Kitchens has
not set forth the basis for an objection – or how counsel’s failure to object prejudiced him
at all. Regarding counsel’s failure to object to the playing of petitioner’s taped statement,
again, Kitchens has not offered a basis for an objection, as testimony at trial established
that the statement was given after Kitchens was advised of his Miranda rights and signed
a waiver of them. S.C.R. Vol. 1, pp. 11; Vol. 2, pp. 52-56, 57-61 Indeed, counsel sought
to have Kitchens’ written statement introduced into evidence in support of his defense of
accident, and stressed on cross-examination that the statement was, in fact, a voluntary
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one. S.C.R. Vol. 2, pp. 57-61. For these reasons, Kitchens has shown neither deficiency
nor prejudice in counsel’s actions, and this ground for relief will be dismissed for want of
substantive merit.
Ground 8(P) and 8(U): Introduction of Petitioner’s Written Statement to the Jury
Without Permitting Kitchens the Opportunity to Testify

Kitchens argues that counsel introduced his written statement to the jury and filed
Jury Instruction D-6 (the defense of accident) – but refused to allow him to testify.
Initially, counsel’s decision to introduce his statement and submit the jury instruction D-6
on the defense of accident were matters of strategy which Kitchens has neither argued nor
proved were in error. Further, Kitchens’ allegation that counsel “refused to allow him to
testify,” is squarely contradicted in the record, as the trial court, itself, fully informed
Kitchens of his right to testify.
The decision regarding whether Kitchens would testify belonged to Kitchens
alone, and the trial court advised him on the record that he had that right. S.C.R. Vol. 2, p.
124. The court made clear that the decision was Kitchens’ to make. Id. Further, if
counsel indeed advised Kitchens not to testify, such advice was reasonable. The evidence
established that Kitchens committed the assaults in question, and there was nothing
before the jury to show that any weapon other than Kitchens’ was fired at the scene.
Kitchens’ counsel tried to establish reasonable doubt through cross-examination, and he
tried not to put into evidence anything that would jeopardize Kitchens’ defense or
strengthen the State’s case. Had Kitchens testified, a worthy prosecutor would have
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subjected him to vigorous cross-examination regarding the assault – with potentially
disastrous results. Kitchens has not proved that counsel’s performance was deficient – or
that Kitchens suffered prejudice due to counsel’s actions. This ground for relief is
without merit and will be dismissed.
Ground 8(Q): Defense Counsel Failed to Raise
a Meaningful Argument that Kitchens Was Merely Defending Himself
Given the record in this case of defense counsel’s near heroic efforts to challenge the
State’s prosecution in the face of overwhelming evidence of guilt, this ground for relief merits
only a brief discussion. As set forth in the court’s discussion of previous grounds, defense
counsel tested the State’s case through the use of vigorous cross-examination of the State’s
witnesses with an eye toward showing that the victims were the aggressors – or participated in a
drunken brawl which ended in an accident. Counsel elicited testimony regarding how much

the victims had to drink, who initiated the disturbance, what actions each person took
regarding the fight, and details from witness about the evening in an attempt to prove that
Kitchens was defending himself – or that the shooting an accident. S.C.R. Vol. 2, pp. 2223, 30-43, 60-62, 71-80, 92-98, 105-114. Kitchens has not shown what additional facts
counsel could have elicited to support the argument that Kitchens was merely defending himself.
This ground for relief is wholly without merit and will be dismissed.
Grounds 8(S) and 8(T): Failure to Call Certain Witnesses

Kitchens claims that counsel was ineffective for failing to cross-examine the
expert witness and failing to call Kitchens’ son and daughter-in-law to testify. An
attorney’s decision on whether to cross-examine a particular witness or call a particular
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witness is a matter of trial strategy. Counsel’s decision not to ask additional questions of
the expert witness was reasonable; that witness offered no testimony favorable to
Kitchens. Counsel appears to have determined that the less information before the jury
from the expert, the less damage the defense would sustain. Kitchens has not stated what
cross-examination counsel could have conducted or how such would have changed the
verdict. As such, Kitchens’ allegations are without merit.
Moreover, Kitchens’ allegations that counsel erred in failing to call his son and
daughter-in-law are also without merit. “Complaints of uncalled witnesses are not
favored in federal habeas corpus review because allegations of what a witness would
have testified are largely speculative.” Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir.
2001) (citations omitted). Moreover, as above, the decision on which witnesses to call is
a matter of trial strategy. Counsel made the strategic decision that Kitchens’ son and
daughter-in-law were not necessary as witnesses in this matter. It was reasonable for him
not to subject these additional witnesses to cross-examination by the State. Finally,
nothing in the record supports a finding that their testimony would have resulted in a
different outcome had counsel called them to testify. As such, Kitchens cannot prove that
counsel was ineffective for failing to call these witnesses, and these grounds for relief
will be dismissed.

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Ground 8(V), 8(W), and 8(X): Counsel Erred in Withdrawing Jury
Instructions D-2, D-3, D-4, and D-5 (Regarding Simple Assault as to Counts I and II)
– and in Failing to Argue that Kitchens Acted in Self-Defense
Kitchens also claims that counsel was ineffective with regard to certain jury
instructions. Kitchens argues that counsel provided deficient performance because he (1)
withdrew a jury instruction on simple assault as to Count II of the indictment, (2) should
not have given Jury Instructions D-3, D-4 and D-5 because no evidence supported those
instructions, and (3) failed to argue for a self-defense instruction.
Kitchens first challenges counsel’s decision to withdraw an instruction on the
lesser charge of simple assault as to Count II of the indictment, which charged Kitchens
with aggravated assault for “shooting at the said Patrick Eubanks with a handgun and by
striking him in the head with channel lock pliers . . .” S.C.R. Vol. 1, p. 3. Counsel
initially submitted Jury Instruction D-2, an instruction on simple assault as to Count II,
but later requested that the instruction be withdrawn. S.C.R. Vol. 1, p. 79; S.C.R. Vol. 2,
p. 128. The State argued that “Eubanks was hit and also fired at . . . so I don’t know that
this is really a lesser included case where it could be simple assault . . . .” S.C.R. Vol. 2,
p. 128. Defense counsel argued that the testimony could support it, but acknowledged
that D-2 had to do “with the allegation regarding the channel-lock pliers.” Id. at pp. 128129. The trial judge pointed out that Instruction D-2, which was based on the assault
through the use of channel lock pliers, was not consistent with S-1, the elements
instruction submitted by the State with regard to Count II. Id. As S-1 did not instruct the

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jury specifically with regard to the assault with pliers, but rather required the jury to find
that Kitchens caused or attempted to cause bodily injury “with a deadly weapon or other
means likely to produce death or serious bodily harm (see S.C.R. Supp. Vol, p. 2)2,”
counsel made the strategic decision to withdraw Instruction D-2 – allowing the jury to
find Kitchens guilty of the lesser crime if he assaulted Eubanks with the pliers and either
caused or attempted to cause bodily harm. S.C.R. Vol. 1, p. 79. Given the conflicting
jury instructions – and the potential to confuse the jury – counsel’s decision to withdraw
Jury Instruction D-2 was reasonable, and his performance was not deficient in so
deciding.
In addition, counsel actually proffered Instructions D-3, D-4 and D-5 (on simple
assault as to Count I and on self-defense). By offering these instructions, he tried to give
the jury a basis upon which to vote not guilty on the crimes charged. More importantly,
the trial court refused Jury Instructions D-3, D-4, and D-5. S.C.R. Vol. 1, pp. 80-82.
Thus, Kitchens can show neither deficiency nor prejudice in counsel’s submission of
instructions ultimately denied.
Finally, despite the petitioner’s statement to the contrary, counsel indeed argued
for a self-defense instruction, as he proffered Jury Instructions D-4 and D-5 on self

2

Instruction S-1, as contained in the original state court record, was missing the second
page of the instruction which set forth the required elements for a finding of guilt on Count II of
the indictment. See S.C.R. Vol. 1, p. 72. However, while on appeal, on motion of the defense,
the record was supplemented to include the missing page of the instruction, and that portion of
the instruction is included in the record in the Supplemental Volume at page two (2).
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defense. S.C.R. Vol. 1, pp. 81-82. In any even, the jury was nonetheless instructed on
self defense, as the court actually gave State’s Jury Instruction S-3 (on self-defense) to the
jury. S.C.R. Vol. 1, p. 75. Therefore, Kitchens’ claim that counsel was ineffective
regarding the submission of various jury instructions is belied by the record and without
substantive merit. These grounds for relief will be dismissed.
Grounds 8(Y) and 8(Z): Appellate Counsel Failed to Present Meritorious Issues for
Appeal, Including a Claim of Ineffective Assistance of Counsel
Kitchens argues that counsel failed to present any meritorious issues on appeal to
the Mississippi Supreme Court. Moreover, he argues specifically that counsel failed to
raise the issue of ineffective assistance of trial counsel on appeal. As “a criminal
defendant is constitutionally entitled to the effective assistance of counsel on direct
appeal as of right, the Strickland standard applies to claims of ineffective assistance of
counsel by both trial and appellate counsel.” Styron v. Johnson, 262 F.3d 438, 450 (5th
Cir. 2001) (internal citations omitted); see also Evitts v. Lucey, 469 U.S. 387, 397-399
(1985). However, appellate counsel does not have a duty to raise every “colorable” claim
on appeal. Jones v. Barnes, 463 U.S. 745, 751-54 (1985); see also Green v. Johnson, 116
F.3d 1125, 1126 (5th Cir. 1997). The decision regarding the issues to pursue on appeal is
one of strategy, and Kitchens has not shown that counsel’s strategy was a poor one. In
addition, as discussed in detail above, Kitchens’ claims of ineffective assistance of trial
counsel are without merit; therefore, the court cannot find counsel’s performance
deficient in failing to present meritless issues on appeal. See Mayabb v. Johnson, 168 F.
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3d 863, 869 (5th Cir. 1999); Ricalday v. Procunier, 736 F.2d 203, 208 (5th Cir. 1984)
(“Because the error at the appellate stage stemmed from the error at trial, if there was no
prejudice from the trial error, there was also no prejudice from the appellate error.”).
In sum, all of Kitchens’ claims for habeas corpus 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 25th day of October, 2011.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE

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