Stone v. Epps

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by District Judge Debra M. Brown on 5/22/17. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
TED STONE

PETITIONER

V.

NO. 1:14-CV-147-DMB-RP

CHRISTOPHER B. EPPS

RESPONDENT

ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is the Report and Recommendation issued by United States Magistrate
Judge S. Allan Alexander recommending that Ted Stone’s petition for writ of habeas corpus be
dismissed with prejudice. Doc. #10. Because Judge Alexander’s Report and Recommendation
accurately states the facts and law, it will be adopted as the order of this Court.
I
Procedural History
A. The Petition and Briefing
On August 20, 2014, Ted Stone filed in this Court a petition for writ of habeas corpus
challenging his 2010 state court conviction for aggravated assault on his older sister, Carolyn.
Doc. #1. In his petition, Stone argues that his defense counsel was constitutionally ineffective.
Specifically, Stone claims his attorney: (1) “was ineffective in failing to subpoena witnesses and
documents to trial;” (2) withdrew a self-defense instruction; (3) failed to make “a specific
objection” at trial to the introduction of a restraining order issued against Stone; (4) failed to
“inquire about” and “require” the production of the cane allegedly used in his crime; (5) failed to
object at trial to the authenticity of an audio recording allegedly of Stone at a bail hearing; (6)
failed to object at trial to the audio recording on Fifth Amendment grounds; and (7) “failed to
call witnesses, and failed to subpoena or produce documents.”

On October 28, 2014, Judge Alexander issued an order directing the respondent,
Christopher Epps, to respond to the petition. Doc. #4. Epps filed a response to the petition on
January 20, 2015. Doc. #7. However, for reasons unknown, the Court did not receive the state
court record until April 6, 2016. Doc. #9.
B. Report and Recommendation
On April 21, 2016, Judge Alexander entered a Report and Recommendation
recommending that Stone’s habeas petition, which was filed with the assistance of retained
counsel, be dismissed with prejudice. Doc. # 10. In the Report and Recommendation, Judge
Alexander set forth the relevant factual record as follows:
Ted Stone, Kay Stone Hill, and Carolyn Stone are the children of Seretha Stone.
On June 7, 2010, Ted Stone (“petitioner”) went to visit his mother Seretha Stone
at his sister Carolyn Stone’s house. Due to prior threats and assaults by petitioner,
Carolyn previously had obtained a restraining order requiring him to stay off her
property. Carolyn, Kay and Seretha testified to the following events: after
petitioner arrived at Carolyn’s house, an altercation occurred, and petitioner beat
Carolyn with his walking cane. Seretha grabbed the cane and tried to take it away
from Stone. As she was pulling the cane, the rubber tip came off. Kay attempted
to thwart the attack by striking petitioner with a cordless telephone. Stone pushed
her into a chair, and then Kay ran outside and called the police.
A grand jury indicted Stone for the aggravated assault of Carolyn Stone on July
26, 2010. Stone’s jury trial began on October 5, 2010 in Itawamba County Circuit
Court. Stone testified at trial, and offered a different version of events. He
testified that his mother Seretha allowed him to enter the house. He sat in a chair
in the living room, and was talking with Kay when Carolyn entered the room and
began beating Seretha for allowing Stone to enter the house and arguing with
Stone about the ownership of the house. Carolyn initiated the violence when she
picked up the cordless phone and began striking Stone with it. He told her to stop,
but she continued. He hit a footstool with his cane, at which point he conjectured
that the cane’s rubber tip must have fallen off. He then hit Carolyn “as hard as
[he] could” in an attempt to get her away from him. He then agreed to leave, and,
as he was limping out with his cane, Carolyn pushed him. As he was falling, he
again hit her with the cane, this time causing her head to bleed. He testified that
he awakened on the floor some time later and left the house immediately.
Carolyn testified at trial that on various occasions between 2002 and 2005 Stone
had slapped her, hit her in the face with a flyswatter, held a baseball bat over her
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head while she was in bed while threatening to “beat [her] to a pulp” and kill her,
and threatened to stalk, kill, and beat her with a hammer. In January 2005,
Carolyn obtained a restraining order prohibiting Stone from entering her property.
She testified that she and her mother actively avoided Stone – locking their doors
and staying out of the front yard to avoid seeing Stone if he drove by – and, thus,
had not seen much of Stone for the five months before the assault. As a result,
Carolyn was surprised and afraid when she saw him in her living room on June 7.
At trial, the State sought to introduce into evidence Stone’s multiple threats and
attacks of Carolyn to prove motive, intent, preparation, plan, knowledge, and
absence of mistake or accident. The State asserted that evidence of these threats
and prior assaults was necessary to reveal the complete story of the crime for
which Stone was being tried. The trial court agreed, and, after determining that
the evidence was more probative than prejudicial, allowed the State to introduce
evidence of Stone’s prior bad acts. After the State had presented its case in chief,
the trial judge denied petitioner’s motion for a directed verdict. After receiving
proper instruction from the court, the jury returned a guilty verdict of aggravated
assault. Stone was sentenced to twenty years, with four years suspended, and a
fine of $4,000. The court denied Stone’s motion for judgment notwithstanding the
verdict.
Id. at 1–3 (internal footnotes and citations omitted).
Judge Alexander rejected Stone’s first and seventh enumerations of error (related to the
failure to investigate and subpoena documents) because Stone could not show that the failure to
call the identified witnesses or subpoena the identified medical records would have caused the
jury to have “reasonable doubt about his guilt. Doc. #10 at 9 (citing Earhart v. Johnson, 132
F.3d 1062, 1068 (5th Cir. 1998)). Specifically, Judge Alexander noted that “Stone provided no
affidavits of the former justice court judge, the former sheriff[,] petitioner’s physician, or
attorney ..., all of whom if called at petitioner’s trial would ... have testified favorably to Stone.”
Id.
Judge Alexander rejected the second ground (withdrawal of a self-defense instruction)
because the record showed that Stone’s attorney only withdrew the proposed self-defense
instruction after the Court agreed to give an instruction that “was almost verbatim” to the
proposed instruction. Id. at 10–11.
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Judge Alexander denied the third ground (failure to specifically object to the alleged
restraining order and related bad acts) because defense counsel objected to the introduction of the
order and “[e]ven assuming defense counsel could be deemed deficient for ‘allowing’ this order
into evidence, there was no prejudice in its admission given the overwhelming evidence of
Stone’s guilt introduced at trial.” Id. at 12.
The Report and Recommendation rejected the fourth ground (failure to “inquire” about
and “require” production of the cane used in the alleged attack) because: (1) the record showed
“Defense counsel clearly inquired” about the cane; (2) Stone could not show prejudice in failing
to require production because “there was no question based on the testimony at trial and
petitioner’s own admission that he hit the victim with a cane;” and (3) Stone was not entitled to a
spoliation of evidence instruction. Id. at 13–14.
Judge Alexander rejected the fifth and sixth grounds (failure to object to the admission of
the audio recording) because: (1) the challenges to the authenticity of the recording were
“conclusory;” (2) the statement at the bail hearing was not a product of custodial interrogation;
and (3) in light of the evidence presented at trial, Stone could not show prejudice arising from the
introduction of the tape. Id. at 18–19.
No objection to the Report and Recommendation was filed within the initial deadline for
doing so.
C. Withdrawal of Stone’s Attorney and Stone’s Pro Se Objections
On May 26, 2016, Stone filed a motion for an enlargement of time to object to the Report
and Recommendation, arguing that his counsel essentially abandoned him and refused to answer
inquiries as to the status of his case. Doc. # 11. Days later, on May 31, 2016, David Daniels
filed a motion to withdraw as Stone’s attorney, representing that his recent hire as Assistant

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District Attorney prohibited him from continuing to represent Stone. Doc. # 12. The next day,
Daniels filed a second motion to withdraw. Doc. #13. The second motion to withdraw included
a certificate of service stating that the motion had been mailed to Stone. Doc. #13-2. The
second motion to withdraw was granted on June 2, 2016, and a copy of the order was mailed to
Stone the same day.1 Doc. # 14.
On June 14, 2016, this Court extended the deadline to object to the Report and
Recommendation through and until July 14, 2016. Doc. #17. On July 18, 2016, the Court
received from Stone pro se objections to the Report and Recommendation, set forth in a
document titled, “Motion Opposing Report and Recommendation.” Doc. #23. The objections
include a certificate of service, signed by Stone, stating that the document was mailed on July 12,
2016. Id. at 41.
II
Standard of Review
Where objections to a report and recommendation have been filed, a court must conduct a
“de novo review of those portions of the ... report and recommendation to which the Defendants
specifically raised objections. With respect to those portions of the report and recommendation to
which no objections were raised, the Court need only satisfy itself that there is no plain error on
the face of the record.” Gauthier v. Union Pac. R.R. Co., 644 F.Supp.2d 824, 828 (E.D. Tex.
2009) (citing Douglass v. United Serv. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996)).
III
Analysis
In his objections, Stone argues that this Court should not adopt the Report and
Recommendation because: (1) it is based on an “unquestioning acceptance of Carolyn’s perjured

1

Stone is currently proceeding pro se in this action.

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testimony,” which he maintains could have been rebutted if his trial counsel had subpoenaed the
proper witnesses and records, investigated the facts, and challenged the evidence; (2) it found
Carolyn had obtained a restraining order against Stone; (3) the Mississippi Supreme Court’s
decision on direct appeal refusing to consider his ineffective assistance of counsel claims and
holding his claim of a Miranda2 violation procedurally barred represents a “catch-22” that
prevented him from pursuing these claims properly; (4) the Magistrate Judge erred in concluding
that Stone had failed to provide affidavits from uncalled witnesses; (5) the Magistrate Judge
erred in adopting the state court’s “unreasonable” interpretation of the facts regarding the source
of the injury as a “metal” cane, as well as the extent of the injury suffered by the victim and the
force necessary to cause it; (6) the Magistrate Judge erred in concluding that the state’s failure to
produce the cane used in the assault was not prejudicial; (7) the Magistrate Judge failed to
address relevant authority; (8) the Magistrate Judge erred in failing to consider that the victim
was manipulated into testifying; and (9) Stone himself was impaired during his trial due to his
use of prescription painkillers. See Doc. #23 at 3–39.
A. Witnesses and Records
As explained by Judge Alexander, Stone’s complaints that his trial counsel failed to
produce evidence and investigate facts are speculative.

Stone has not presented evidence

(beyond his conclusory assertion) that Carolyn was ever convicted of perjury, or that records
(medical or otherwise) exist that would have supported his claim of self-defense or otherwise
impeached Carolyn’s testimony in any meaningful way. While Stone argues that the records are
not before the Court because of the ineffectiveness of his trial counsel, the Court notes that Stone

2

Miranda v. Arizona, 384 U.S. 436 (1966).

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could have produced such evidence on post-conviction review.3 See, e.g., Doc. #9-8 at 23–26.
He did not. As a result, his allegations fail to raise a constitutional issue. Miller v. Johnson, 200
F.3d 274, 282 (5th Cir. 2000) (conclusory allegations of ineffective assistance of counsel do not
raise constitutional issue in federal habeas proceeding) (citations and quotation marks omitted).
B. “Restraining Order”
In a footnote to his objections, Stone writes that, had Judge Alexander conducted a proper
review of the record, she “would have seen that Carolyn had never at any time obtained a
restraining order ….” It appears Stone’s objection is based on the fact that Stone was never
actually subjected to a “restraining order” but was instead, as a condition of obtaining a
suspended sentence for a 2005 conviction for trespass, prohibited from entering Carolyn’s
property. See Stone v. State, 94 So.3d 1078, 1088 (Miss. 2012) (Chandler, J., dissenting).
However, while the Report and Recommendation may have mislabeled the relevant document,
nothing in the opinion suggests that this misnomer had any impact on the ultimate decision.
Accordingly, this enumeration of error is without merit.
C. Mississippi Supreme Court Decision
Stone argues that the Report and Recommendation does not acknowledge that the
Mississippi Supreme Court’s decision on direct appeal prevented him from properly raising his
ineffective assistance of counsel and Miranda claims. It is unclear what this objection has to do
with Judge Alexander’s Report and Recommendation. Nevertheless, Stone was permitted to

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In his objections, Stone argues that the identities of potential witnesses and the contents of their potential testimony
were “matter[s] of record” based on testimonies in other proceedings. Doc. #23 at 15. However, even if Stone
could establish what perspective witnesses would have said, he still would not be entitled to relief here because he
has offered no evidence that the relevant witnesses were available and willing to testify at trial. As Judge Alexander
explained, a petitioner challenging the absence of a witness must “demonstrate that the witness was available to
testify and would have done so ….” Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009).

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raise such claims on post-conviction review, and the claims were considered on their merits. See
Doc. #9-8 at 23–27; 35-42; see also Doc. #7-2.
D. Judge Alexander’s Observation Regarding Lack of Affidavits
Stone maintains that Judge Alexander incorrectly noted in the Report and
Recommendation that Stone had failed to provide affidavits from witnesses stating that they
would have testified for him favorably at trial. Specifically, Stone points to the affidavit of
former Itawamba County Sheriff Leon Hayes, which is in the record. See Doc. #23 at 16-17.
The record does contain an affidavit from Hayes; however, the affidavit does not state that he
was willing to testify on Stone’s behalf at his trial, or that he would have been able to provide
relevant testimony to Stone’s claims of self-defense. In the absence of such statements, Stone’s
objection must be overruled. See Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (“Thus,
to prevail on an ineffective assistance claim based on counsel’s failure to call a witness, the
petitioner must name the witness, demonstrate that the witness was available to testify and would
have done so, set out the content of the witness's proposed testimony, and show that the
testimony would have been favorable to a particular defense.”).
E. “Adoption” of State Court Facts
Stone also argues that the state court unreasonably interpreted the facts in this case,
claiming that the cane he used in the attack was inaccurately described and depicted as a deadly
weapon. On review, state court factual determinations are presumed correct unless rebutted with
clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (“[A] determination of a factual issue
made by a State court shall be presumed to be correct.”).
Stone asserts that the state court erroneously described the lightweight cane used in the
assault as being made of metal, and he claims that the laws of basic physics dictate that the cane

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could not be a deadly weapon. See Doc. #1 at 17 (Stone’s description of cane as “amazingly
light and thin”). He also maintains that the state’s failure to produce the cane was prejudicial, as
had the jury seen the cane, it would have been able to determine that an aggravated assault could
not have occurred due to the physics involved. See Doc. #23 at 22–28. He additionally argues
that the state court misstated the number of head wounds the victim suffered, and that the doctor
testifying as to her injuries improperly equated blood loss with extent of injury. Stone claims
that the Magistrate Judge erred in adopting the state court’s “unreasonable” interpretation of the
facts regarding the extent of the injury suffered by the victim and the force necessary to cause it.
The Court notes that the emergency room doctor who testified at trial stated that the
victim told him she had been struck with a metal cane, and the victim’s “significant” injuries
were consistent with being struck with a metal cane. See Doc. #9-3 at 2-3, 8. Therefore, there
was testimony in the record to support the conclusion that the cane used in the assault was metal.
While Stone asserts that the state court decision mentioned multiple scalp injuries while the
emergency room doctor only mentioned one scalp injury, the state court found that the photos of
the victim taken by the paramedics following the assault showed multiple head wounds. Stone,
94 So. 3d at 1083. Additionally, while the emergency room doctor testified the medical records
stated that the victim sustained “only the one significant laceration” to her scalp “that required
staples,” he stated that smaller contusions are often not included in reports. Doc. #9-2 at 152.
Therefore, Stone has failed to rebut the state court’s findings with regard to these issues.
F. Absence of the Cane
Regarding the failure to produce the cane, the Court notes that a defendant may be guilty
of aggravated assault under Mississippi law in one of two ways: (1) by attempting to cause or
purposely or knowingly causing any degree of bodily injury with a deadly weapon; or (2) by

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attempting to cause serious bodily injury or causing such injury purposely, knowingly, or
recklessly under circumstances manifesting extreme indifference to the value of human life.
Miss. Code Ann. § 97-3-7(2). It is not necessary under Mississippi law that “serious bodily
injury” with a “deadly weapon” both be proved to support a conviction of aggravated assault.
See, e.g., Russell v. State, 924 So. 2d 604, 607 (Miss. Ct. App. 2006). Therefore, the jury could
have found the nature of the victim’s injuries sufficient to support Stone’s guilt without
determining that he employed a deadly weapon. See, e.g., Vance v. State, 803 So. 2d 1265,
1269–70 (Miss. 2002) (noting evidence could support finding that defendant was likely to
produce serious bodily injury even though he only used his hand to strike victim once in head).
Additionally, whether an item that is not inherently dangerous is a deadly weapon is a
factual question to be determined by a jury. State v. Sims, 80 Miss. 381, 386 (1902). Under the
facts presented, Stone’s jury could find that someone beaten with a cane had been assaulted with
a deadly weapon. See, e.g., Westbrook v. State, 29 So. 3d 828, 836 (Miss. Ct. App. 2009)
(baseball bat can be deadly weapon); Jenkins v. State, 913 So. 2d 1044, 1049-50 (Miss. Ct. App.
2005) (pistol used to strike victim in head deadly weapon). Therefore, the exculpatory value of
the cane is not apparent, and Stone has not demonstrated how counsel’s failure to secure its
presence at trial prejudiced him.
G. Omission of Relevant Authority
In his objections, Stone argues that the Report and Recommendation “fails to address Old
Chief [v. United States, 519 U.S. 172 (1997)] or the State’s effective denial of the Petitioner’s 5th
Amendment right not to testify.” Although it is less than clear, it appears Stone is arguing that
the trial court erred in admitting the bad acts testimony and that Judge Alexander erred in failing
to reach such a conclusion. However, this argument misstates the grounds for Judge Alexander’s

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recommendation. Judge Alexander did not hold the trial court properly admitted the prior bad
acts evidence. Rather, Judge Alexander held that Stone’s trial counsel did not fail to object to
the introduction of such evidence and that even if he did, such failure was harmless given the
weight of evidence supporting guilt. Doc. #10 at 11–13. Given this analytical structure, Stone’s
objection, which relates to the correctness of the admission of evidence, is irrelevant.
H. “Manipulated” Testimony and Drug Use
Stone’s allegations that Carolyn was manipulated into testifying and that he was under
the influence of pain medication at the time of trial does not appear to be an objection to the
Report and Recommendation, but rather, a newly-raised independent argument for why the writ
should issue in this case. Therefore, these allegations are waived and do not warrant discussion.
See Cupit v. Whitley, 28 F.3d 532, 535 & n.5 (5th Cir. 1994) (party waived legal argument by
failing to raise it before magistrate judge).
IV
Conclusion
For the reasons above, the Court concludes that Judge Alexander’s order granting
Daniels’ motion to withdraw was neither clearly erroneous nor contrary to law. Stone’s motion
for reconsideration [19], which this Court has interpreted as objections to Judge Alexander’s
order, is OVERRULED. Accordingly, the Report and Recommendation [10] is ADOPTED as
the opinion of this Court. Stone’s petition [1] is DISMISSED with prejudice.
SO ORDERED, this 22nd day of May, 2017.

/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

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