Kirkwood v. King et al
MEMORANDUM OPINION re 20 Final Judgment. Signed by District Judge Michael P. Mills on 8/14/14. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
RON KING, ET AL.
This matter comes before the court on the pro se petition of Thurman Kirkwood for a writ of
habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition, and Kirkwood 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
Thurman Kirkwood was convicted of burglary of a dwelling (Count I), felony fleeing (Count
II), possession of a firearm by a convicted felon (Count III), and grand larceny (Count IV) in the
Circuit Court of Coahoma County, Mississippi. State Court Record, (“S.C.R.”), Vol. 1, pg. 9.
Kirkwood was sentenced as a habitual offender to serve a term of twenty-five years on Count I, five
years on Count II, ten years on Count III, and ten years on Count IV, all to be served in the custody of
the Mississippi Department of Corrections without the possibility of parole. S.C.R., Vol. 1, pp. 12-23.
The sentences on Counts I, II, and III were ordered to run consecutively to each other and a sentence
previously imposed in Coahoma County Circuit Court Cause No. 2007-0105, while the sentence in
Count IV was ordered to run concurrently with the sentences in Counts I, II, and III, as well as the
sentence in Cause No. 2007-0105. S.C.R., Vol. 1, pp. 12-23.
Kirkwood appealed his convictions to the Mississippi Supreme Court, raising the following
grounds for relief (as stated by Petitioner through counsel):
Whether the trial court erred when it allowed the prosecutor to submit
the Appellant=s prior felony convictions in spite of the Appellant=s offer
of a stipulation.
Whether the trial court erred in failing to correctly apply Mississippi
Rule of Evidence 609, including conducting a balancing test on the
record and/or giving limiting instructions when the State improperly
impeached the Appellant regarding this prior convictions during crossexamination, furthermore, whether the trial court erred in determining
that the Appellant Aopened the door@ to such cross-examination by
answering a question posed to him by the State.
Whether the evidence was sufficient to support a conviction on grand
larceny when there was no testimony or evidence as to the actual value
of the item alleged to have been stolen.
Whether the Appellant=s conviction for grand larceny was against the
overwhelming weight of the evidence when the only evidence
presented by the State was a witness=s testimony as to purchase price
which was in no way anchored by a date and when, as shown in the
exhibits, the vehicle in question was in an obvious shape of disrepair.
Whether the trial court erred in denying the Appellant=s circumstantial
evidence jury instruction when it applied the improper method of
analysis in concluding the direct evidence of the occurrence of a crime
is the appropriate method of analysis, rather that direct evidence
showing the guilt of the Appellant.
Whether the trial court erred in overruling defense counsel=s
peremptory instruction when the State failed to provide sufficient
evidence that the building in question was a dwelling house.
Whether any of the above errors concerning violation of the
Appellant=s fair trial rights may be considered harmless.
Whether cumulative error deprived the Appellant of his fundamental
right to a fair trial.
The Mississippi Court of Appeals affirmed Kirkwood=s convictions and sentences. Kirkwood v. State,
53 So.3d 7 (Miss. App. 2010), reh=g. denied June 15, 2010 (Cause No. 2008-KA-01349-COA). The
Mississippi Supreme Court then granted a writ of certiorari and reversed Kirkwood=s convictions and
sentences on Counts I and IV because Athere was no direct evidence that Kirkwood committed the
crimes of burglary of a dwelling or grand larceny,@ and the trial court had denied a circumstantial
evidence instruction. Kirkwood v. State, 52 So.3d 1184, 1187 (Miss. 2011). The Mississippi Supreme
Court affirmed Kirkwood=s convictions and sentences in Counts II and III.
Kirkwood then filed an application in the Mississippi Supreme Court seeking permission to
proceed in the trial court with a petition for post-conviction collateral relief, raising the following
grounds for relief, (as stated by Petitioner pro se):
Whether the evidence to support a conviction of possession of a
firearm by a convicted felon was sufficient to convict.
Whether the State proved that Kirkwood was an habitual offender
beyond a reasonable doubt at the sentencing hearing the alleged
document were not properly authenticated and Kirkwood=s attorney
was denied the opportunity to cross-examine a person of authority in
which to authenticate said documents.
Whether Kirkwood received effective assistance of counsel in various
stages of his trial and sentencing.
Trial counsel failed to file meaningful motions at crucial phases of
Kirkwood then filed a supplemental brief to his petition for post-conviction collateral relief, raising the
following additional grounds (summarized by the court):1
The trial court erred in denying Petitioner a continuance and refusing to
appoint petitioner new counsel.
Petitioner=s trial attorney was constitutionally ineffective in:
In his supplemental brief, Kirkwood also raised the claim that the State had failed to
adequately prove he was a habitual offender and that trial counsel had been deprived the right to crossexamine the individual who prepared the documents presented in support of his habitual offender
status. As this is the same Issue Two in Kirkwood’s original application for state post-conviction
collateral relief, the court did not include while summarizing the grounds in the supplement to avoid
confusion and duplication of issues to discuss.
Failing to communicate with Petitioner and adequately prepare a defense.
Failing to interview alibi witnesses.
Failing to object to inconsistent statements made by Officer Powe.
The Mississippi Supreme Court denied Kirkwood=s application, holding:
Kirkwood challenges the sufficiency of the evidence regarding his conviction of
possession of a firearm by a convicted felon. He also claims that the state failed to
prove his habitual offender status at sentencing. Both of these issues were capable of
being raised at trial and/or on direct appeal, and they are now procedurally barred.
Miss. Code Ann. '99-39-21(1). Notwithstanding the procedural bar, the issues are
without merit. Kirkwood also raises several claims of ineffective assistance of
counsel. Kirkwood was represented on appeal by counsel who did not represent him
at trial. Accordingly, his claims of ineffective assistance of counsel are procedurally
barred. M.R.A.P. 22(b). Notwithstanding the procedural bar, Kirkwood=s ineffective
assistance of counsel claims do not pass the standard set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984). After due consideration, the panel finds
Kirkwood=s Application for Leave to Proceed in the Circuit Court, and his supplement
thereto, should be denied.
In the instant petition, Kirkwood raises the following grounds for relief (summarized by the
Ground One: The evidence was insufficient to support a conviction for felon in
possession of a firearm.
Ground Two: The evidence was insufficient to show that Kirkwood was a habitual
Ground Three: Ineffective assistance of counsel:
Trial counsel violated Kirkwood=s rights under the Confrontation
Clause by failing to challenge the State=s evidence.
Trial counsel refused to subpoena the individuals who actually
committed the crimes.
Trial counsel should have objected to the State=s failure to adequately
prove that Kirkwood was a habitual offender.
Ground Four: The Mississippi Supreme Court=s decision on post-conviction
collateral review was erroneous and did not provide adequate
The Doctrines of Procedural Default and Procedural Bar
If an inmate seeking habeas corpus relief fails to exhaust an issue in state court – and no
more avenues exist to do so – under the doctrine of procedural default that issue cannot be raised
in a federal habeas corpus proceeding. Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995). Similarly,
AWhen a state court declines to hear a prisoner=s federal claims because the prisoner failed to fulfill a
state procedural requirement, federal habeas is generally barred if the state procedural rule is
independent and adequate to support the judgement.@ 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)). This doctrine is known as procedural bar.
Grounds Three (A) and (C): Procedural Default
Kirkwood=s allegations of ineffective assistance of counsel in Ground Three (A) and (C) have
never been raised before the State=s highest court. Kirkwood never raised the allegation that trial
counsel failed to protect his Confrontation Clause rights and to challenge the adequacy of the State=s
proof that Kirkwood was a habitual offender on either direct appeal or during post-conviction
proceedings. If a habeas corpus petitioner fails to raise allegations on either direct appeal or through
a motion for post-conviction collateral relief, then he has waived his opportunity to have Mississippi’s
appellate courts review the claims on the merits. As such, Kirkwood has defaulted these claims; they
cannot be raised in a federal habeas corpus proceeding, Sones v. Hargett, 61 F.3d 410, 416 (5th Cir.
1995), and they should be dismissed with prejudice. O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct.
1728 (1999) (citing Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 115 L.Ed.2d 640
(1991). When Ait is obvious that the unexhausted claim would be procedurally barred in state court,
we will forego the needless >judicial ping-pong= and hold the claim procedurally [defaulted and thus]
barred from habeas review.@ Sones, supra, quoting Steele v. Young, 11 F.3d 1518, 1524 (10th Cir.
1993). Kirkwood has had both a direct appeal and post-conviction collateral review in Mississippi
courts; as such, he no longer has an available state avenue through which to exhaust these allegations
of ineffective assistance of counsel. Therefore, these federal habeas corpus claims must be dismissed
as procedurally defaulted. In addition, as discussed below, these claims do not meet any of the criteria
to overcome the default.
Grounds One, Two, and Three (B): Procedural Bar
On post-conviction collateral review, the Mississippi Supreme Court found Kirkwood=s
allegations in Grounds One, Two and Three (B) to be procedurally barred. The claims contained in
Grounds One and Two were barred under Miss. Code Ann. § 99-39-21(1)2, and the claim raised in
Ground Three (B) was barred under Mississippi Rule of Appellate Procedure 22(b)3. AWhen a state
court declines to hear a prisoner=s federal claims because the prisoner failed to fulfill a state procedural
requirement, federal habeas is generally barred if the state procedural rule is independent and adequate
Section 99-39-21(1) of the Mississippi Code reads: AFailure by a prisoner to raise objection,
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
Miss. R. App. P. 22(b) reads AIssues which may be raised in post-conviction proceedings
may also be raised on direct appeal if such issues are based on facts fully apparent from the record.
Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to
raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in postconviction proceedings.@
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)).
The Mississippi Supreme Court held Grounds One and Two (alleging insufficient evidence to
support his convictions) to be procedurally barred under Miss. Code Ann. § 99-39-21(1) (for failure to
raise the issues at trial or on direct appeal) – and, alternatively, without merit. Similarly, the
Mississippi Supreme Court found that Kirkwood=s allegation of ineffective assistance of trial counsel,
as raised in Ground Three (B) (failure to call witnesses), was procedurally barred under Miss. R. App.
P. 22(b) – and alternatively without merit. Mississippi Code Section 99-39-21(1) is an independent
state procedural bar. Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997). Rule 22(b) is also an
independent state procedural bar, it operates in substantially the same way as Miss. Code Ann. § 9939-21(1). The adequacy of the procedural bars applied in state court as to Kirkwood=s claims depends
on Awhether Mississippi has strictly or regularly applied [them].@ Id. (citing Lott v. Hargett, 80 F.3d
161, 165 (5th Cir. 1996)). However, Kirkwood Abears the burden of showing that the state did not
strictly or regularly follow a procedural bar around the time of his appeal@ and Amust 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. He has not carried this burden because he has not shown Ainconsistent and
irregular@ application of either bar. Kirkwood’s federal claims in Grounds One, Two, and Three (B)
are thus barred because the state court found that he defaulted those claims in accordance with
independent and adequate state procedural rules. Id. at 861.
Kirkwood Cannot Overcome Procedural Default or Procedural Bar
Whether a petitioner faces procedural default or procedural bar, the path to overcome it is
the same: He must show cause for the default – and actual prejudice from its application. United
States v. Flores, 981 F.2d 231 (5th Cir. 1993). To find the cause necessary to excuse procedural default
or procedural bar, Athere 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 external factors
constituting cause include Ainterference by officials@ and Aa showing that the factual or legal basis for a
claim was not reasonably available to [Petitioner].@ McClesky v. Zant, 499 U.S. 467 (1991). In
addressing cause for procedural default which may be attributed to attorney error, the Supreme Court
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
Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986).
Even if a petitioner cannot meet the cause and prejudice standard, he may still overcome the
procedural default or bar if he can show that a fundamental miscarriage of justice would result if the
default or bar were applied. Martin v. Maxey, 98 F.3d 844, 849 (5th Cir. 1996) (citing Sawyer v.
Whitley, 505 U.S. 333 (1992)). To prove that a fundamental miscarriage of justice would occur, the
petitioner must show, “as a factual matter, that he did not commit the crime of conviction.@ Fairman v.
Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (citing Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)).
The standard for establishing the “fundamental miscarriage of justice” exception is high. To do so, a
petitioner must support his allegations with new, reliable evidence, that was not presented at trial, and
must show that it was Amore likely than not that no reasonable juror would have convicted him in light
of the new evidence.@ Fairman, 188 F.3d at 644 (citations omitted).
Kirkwood Has Shown No Legitimate Cause for His Default
To ensure that his claims of ineffective assistance of counsel would overcome the procedural
bar applied as to Grounds One and Two of his petition (insufficiency of the evidence), on postconviction collateral review, Kirkwood should have raised and exhausted the allegation that appellate
counsel was ineffective in choosing not raise these two claims on direct appeal. Edwards v.
Carpenter, 529 U.S. at 451-452. Kirkwood, however, chose not to challenge appellate counsel=s
performance in his pro se state court applications for post-conviction collateral relief. In addition,
Kirkwood has not shown cause for his failure to allege that appellate counsel was deficient. As such,
Kirkwood cannot rely on a claim of ineffective assistance of appellate counsel to overcome the
procedural bar as to Grounds One and Two (insufficiency of the evidence). Neither did Kirkwood
raise the issues in Grounds Three (A), (B), and (C) (ineffective assistance of trial counsel) on direct
appeal, and he has not identified an external cause for his decision not to do so. In addition, during his
pursuit of post-conviction relief, Kirkwood failed to challenge appellate counsel’s decision not to raise
the issues regarding ineffective assistance of trial counsel. As discussed above, these failures
constitute procedural default and procedural bar, but Kirkwood has not demonstrated – or even alleged
– what might be the cause for these failures. Thus, Kirkwood has neither shown cause for defaulting
his claims in Grounds Three (A) and (C); nor has he shown cause why his claims in Grounds One,
Two, and Three (B) should not be barred. In the absence of a showing of cause, the court need not
discuss whether application of the default or bar would result in prejudice.
Kirkwood Has Not Shown that a Fundamental Miscarriage
of Justice Would Occur If the Default and Bar Are Applied.
The court’s decision to decline consideration of Kirkwood=s claims on the merits will not
result in a Afundamental miscarriage of justice.@ See Martin, 98 F.3d at 849 (citing Sawyer v. Whitley,
505 U.S. 333 (1992)). Kirkwood has not set forth any new, reliable evidence – not available at trial –
showing that it was Amore likely than not that no reasonable juror would have convicted [Kirkwood]
in light of the new evidence.@ Fairman, 188 F.3d at 644 (citations omitted). On the contrary,
Kirkwood=s allegations in Grounds One and Two simply challenge the sufficiency of the evidence
presented at trial and at sentencing. Likewise, his claims in Ground Three (A), (B), and (C) challenge
the actions of trial counsel. The basis for these claims would have been apparent to Kirkwood at the
time of trial and sentencing. Clearly the facts to support these claims were available at trial and thus
do not meet the criteria to establish that a fundamental miscarriage of justice would result if the court
declined to rule on the merits. Thus, Kirkwood cannot use the fundamental miscarriage of justice
exception to overcome the doctrines of procedural default and procedural bar as to Grounds One,
Two, and Three (A), (B), and (C).
Ground Four: Failure of the Mississippi Supreme Court
to Discuss the Merits of Kirkwood’s Issues on Appeal
and During Post-conviction Collateral Review
In Ground Four, Kirkwood argues that he Areceived an erroneous decision from the Miss.
Supreme Court without explanation as to why his claims did not reach the level of merits to succeed.@
ECF doc. 3, pg. 23. Using the liberal construction for pro se pleadings required under Haines v.
Kerner, 404 U.S. 519 (1972), the court interprets this as an allegation that the Mississippi Supreme
Court=s decision on post-conviction collateral review was not a decision on the merits for the purposes
of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). However, in order to satisfy the
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AEDPA’s requirement that there be a decision on the merits, a state court need not explain the
reasoning behind a summary order denying relief. Harrington v. Richter, 131 S.Ct. 770, 785 (2011).
The Supreme Court held:
There is no text in the statute [28 U.S.C. '2254] requiring a statement of reasons. The
statute refers only to a Adecision,@ which resulted from an Aadjudication.@ As every
Court of Appeals to consider the issue has recognized, determining whether a state
court's decision resulted from an unreasonable legal or factual conclusion does not
require that there be an opinion from the state court explaining the state court's
Harrington, 131 S,Ct. at 784. Indeed, a state court is not required to cite or even know the relevant
Supreme Court cases under 28 U.S.C. '2254(d) in order to be entitled to deference. Id. On the
contrary, even when a state court=s decision is summary in nature, a petitioner seeking habeas corpus
relief still bears the burden to demonstrate that there was no reasonable basis for the decision. Id.
Thus, A[w]hen a federal claim has been presented to a state court and the state court has denied relief,
it may be presumed that the state court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.@ Harrington, 131 S.Ct. at 784-785.
Therefore, the Mississippi Supreme Court=s denial of Kirkwood=s state court motion for postconviction collateral relief, was a decision on the merits for the purposes of the AEDPA, and this court
has given the decision proper deference. Therefore, Kirkwood’s claims for relief in Ground Four of
the instant petition are without merit and will be denied.
In sum, Grounds One, Two, and Three (B) will be dismissed as procedurally barred. In
addition, Grounds Three (A), and Three (C) will be dismissed as procedurally defaulted, and
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Ground Four will be denied. A final judgment consistent with this memorandum opinion will issue
SO ORDERED, this, the 14th day of August, 2014.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI
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