Osborne v. King
Filing
24
MEMORANDUM OPINION AND ORDER re 23 Final Judgment. Signed by Senior Judge Neal B. Biggers on 7/24/14. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
EMERSON OSBORNE,
v.
PETITIONER
CIVIL ACTION NO.: 2:12cv55-NBB-SAA
RONALD KING,
RESPONDENT
MEMORANDUM OPINION AND ORDER
Petitioner Emerson Osborne, Mississippi prisoner no. R-7082, has filed a federal habeas
petition pursuant to 28 U.S.C. § 2254 challenging his State court conviction for capital murder.
Having considered the submissions of the parties, the State court record, and the law applicable
to Petitioner’s claims, the Court finds that the petition should be denied.
Background Facts and Procedural History
This case involves the murder of Lucy Jackson, an eighty-six year old woman who lived
alone in her home in Shelby, Mississippi, at the time of her death in January 2006. In connection
with her death, Petitioner, along with Otis Braboy and Jimmy Giles, were indicted for capital
murder with an underlying felony of robbery. Petitioner stood trial for the crime in November
2008 in the Circuit Court of Bolivar County, Mississippi. The testimony offered at Petitioner’s
trial that is relevant to the issues raised in this petition is as follows:
Robbye Braboy testified that her son, Otis Brayboy, was charged in the same indictment
as Petitioner. She testified that she was out drinking and walking to visit her daughter around
midnight on January 14, 2006, when she saw her son, Petitioner, Giles, Ashante Jenkins, and
another male together. She stated that her son told her to go home, and she testified that she did.
Jimmy Giles testified that he knew Lucy Jackson and would periodically check on her.
1
He stated that on the night of January 14, 2006, he was walking home when Braboy and
Petitioner approached Giles and demanded that Giles go knock on the door of Jackson’s home.
Giles testified that Braboy was a “bully” that Giles had known his entire life, and that, apparently
in an attempt to encourage Giles’ cooperation, Braboy hit Giles in the face. Giles maintained
that he knocked on the door of Jackson’s home and identified himself. He stated that Jackson
unlocked the door and cracked it open, and that Braboy hit her. Giles testified that Braboy and
Petitioner then rushed in the home, striking Jackson. He stated that Jackson was pushed down,
and that Petitioner began hitting her with a stick. Giles estimated that he stood watching the
attack for two to three minutes before he fled. He testified that he was afraid, and that both
Petitioner and Braboy later threatened to kill Giles’ grandmother if Giles told anyone about what
happened at Jackson’s home.
Giles denied that he was with Ashante Jenkins on the night of Jackson’s murder, and he
stated that he never saw Ms. Braboy that evening. Giles stated that he was arrested for grand
larceny on January 16, 2006 and was released. He testified that he was arrested in connection
with Jackson’s death on January 28, 2006, and had entered a guilty plea in the case. Giles had
not been sentenced on the charge at the time of trial and testified that he did not know whether
he would receive less than the maximum fifteen-year sentence based on his cooperation in this
case.1 Defense counsel cross-examined Giles as to inconsistencies in his various statements to
authorities, which included discrepancies as to whether he knew Petitioner at the time of the
incident in question, whether he had stayed and watched the attack on Jackson, and whether a
1
Giles pleaded guilty to accessory before the fact robbery and was sentenced on May 5,
2009, to serve fifteen years in the custody of the Mississippi Department of Corrections, with ten
years suspended. (See Trial Tr. vol. 2, 260-84).
2
stick was used to beat Jackson.
Wesley Jefferson, an inmate serving jail time for aggravated assault and drive-by
shooting, testified that he was incarcerated with Petitioner in Marshall County in 2006. He
claimed that Petitioner confessed to him an involvement in Jackson’s murder. Jefferson
maintained that Petitioner said that he and Braboy were smoking crack and watching Jackson’s
home for a few days, planning to rob her. Jefferson testified that Petitioner said that they had
gotten Giles involved because they needed a third man to be a lookout. Jefferson claimed that
Petitioner told him that he and Braboy got Giles to knock on the door, and that when Jackson
opened the door, Braboy and Petitioner burst in Jackson’s house and beat her with their fists.
Jefferson stated that Petitioner told him that Jackson had scratched him, and that Braboy had
beaten her with a 2 x 4 board. Jefferson claimed that Petitioner said that Giles ran away when he
saw what was happening. Jefferson testified that Petitioner stated that he and Braboy only got
$35 or $40 from Jackson’s home.
On cross-examination, Jefferson admitted that he had called his mother, who lived in
Shelby, and discussed the case after talking about it with Petitioner. Jefferson claimed that
although he got this information from Petitioner in March 2006, he did not share the information
with authorities until June 2006. He denied, however, that he was given any promises in
exchange for his testimony.
Through the testimony of various witnesses, the jury heard how Petitioner was developed
as a suspect in this case. Apparently, sometime after January 16, 2006, Jimmy Giles was
overhearing talking at the Warrington Clinic in Shelby, Mississippi, and the receptionist at the
clinic learned that Giles might have information about Jackson’s death. The receptionist
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eventually spoke to the police, who brought Giles into the Sheriff’s Department for questioning.
Giles gave a statement, and warrants issued for Petitioner and Braboy.
Dr. Steven Hayne, the pathologist who performed the autopsy in this case, was accepted
by the trial court as an expert in anatomic and forensic pathology. He testified that Jackson died
from blunt force trauma to the head, and that her injuries were consistent with being struck with
a board or heavy stick.
After deliberations, the jury convicted Petitioner of capital murder, and he was sentenced
to serve a term of life without the possibility of parole in the custody of the Mississippi
Department of Corrections. Trial counsel filed a motion for a new trial that was denied by the
trial court.
Thereafter, Petitioner, with the assistance of counsel, appealed his conviction and
sentence to the Mississippi Supreme Court, raising the following grounds for relief:
Issue One:
Whether the trial court erred when it denied defense
counsel’s motion for a mistrial when it was brought to the
trial court’s attention that a juror made highly inappropriate
comments prior to voir dire, in the presence of other
prospective jurors.
Issue Two:
Whether the trial court erred when it allowed the State to
impeach its own witness.
Issue Three:
Whether the trial court erred when it failed to grant
Appellant his motion for a new trial on the grounds that the
weight of the evidence was such that the Appellant should
not have been convicted.
Issue Four:
Whether any of the above errors concerning violation of the
Appellant’s fair trial rights may be considered harmless.
Issue Five:
Whether cumulative error deprived Appellant of his
fundamental right to a fair trial.
4
The Mississippi Supreme Court affirmed Petitioner’s conviction and sentence. Osborne v. State,
54 So. 3d 841 (Miss. 2011); (Answer, Ex. A). Aggrieved of this decision, Petitioner, proceeding
pro se, sought permission from the Mississippi Supreme Court to file a petition for postconviction collateral relief, raising the following claims, as summarized by Respondent:
I.
Ineffective assistance of counsel for:
A. Failure to investigate the credentials of Dr. Hayne;
B. Failure to object to the certification of Dr. Hayne as an expert;
C. Failure to make the jury aware of the promises or deals made to the
State’s witnesses.
II.
The trial judge conspired to deprive Osborne of a fair trial.
III.
The trial court erred in failing to grant a mistrial upon learning that a
member of the jury had made a prejudicial comment prior to jury
selection.
IV.
The trial court erred in failing to dismiss said juror for cause.
V.
The trial judge demonstrated bias.
VI.
The State committed a discovery violation regarding the fact that their
witness, Jimmy Giles, was charged as an accessory after the fact rather
than with capital murder.
VII.
The trial court erred in certifying Dr. Hayne as an expert witness.
VIII.
Osborne’s Eighth Amendment rights were violated.
IX.
The State presented perjured testimony through Dr. Hayne, Giles, and
Jefferson.
X.
The weight of the evidence did not support conviction.
The Mississippi Supreme Court denied the petition, holding in pertinent part:
The panel finds that the issues set forth by Osborne fail to overcome the burden
established in Strickland v. Washington, 466 U.S. 668 (1984) and could have been
presented at the direct appeal of this matter. See Miss. Code Ann. § 99-39-21(1).
Notwithstanding the procedural bar, these issues fail to present a substantial
5
showing of the denial of a state or federal right as required by Miss. Code Ann. §
99-39-27. Therefore, the petition should be denied.
(Answer, Ex. B). Petitioner then filed this petition for writ of habeas corpus, raising the
following grounds for relief, as summarized2:
Ground One.
The verdict was against the weight of the evidence.
Ground Two.
The State knowingly elicited false evidence from Jimmy
Giles.
Ground Three.
The trial court erred in failing to grant a mistrial after the
defense alleged that a juror had been biased.
Ground Four.
The trial court erred in allowing Dr. Hayne to testify as an
expert.
Ground Five.
Ineffective assistance of counsel for:
A. Trial counsel’s failure to call requested witnesses;
B. Trial counsel’s failure to move for a directed verdict
when Giles stated that he did not know Osborne;
C. Trial counsel’s failure to impeach certain evidence;
D. Trial and appellate counsel’s failure to “allege actual
prejudice.”
Ground Six.
The trial judge was biased.
Ground Seven.
Osborne’s right to be protected from cruel and unusual
punishment was violated.
Ground Eight.
Prosecutorial misconduct in withholding the statements of
Giles and Dr. Hayne.
Ground Nine.
Request for an evidentiary hearing on these issues.
Legal Standard
The Court’s review of Petitioner’s claims is governed by the Antiterrorism and
2
The Court adopts Respondent’s summary of Petitioner’s claims for purposes of listing
the arguments raised by Petitioner.
6
Effective Death Penalty Act of 1996 (“AEDPA”), because his federal habeas petition was filed
after the statute’s effective date. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA
prohibits the grant of federal habeas relief on any claim adjudicated on the merits in state court
unless that adjudication (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established United States Supreme Court precedent; or (2)
resulted in a decision that was based on an unreasonable determination of the facts in light of the
presented evidence. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473
(2007).
A state court’s decision is “contrary to” Supreme Court law if (1) “the state court applies
a rule that contradicts the governing law set forth in [Supreme Court] cases,” or (2) “if the state
court confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [its] precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). The “unreasonable application” clause is reserved for
decisions that either fail to identify the correct governing law, or that identify the correct
governing law but misapply it to the case. Id. at 407-08. Under this standard, a state court’s
decision will not warrant federal habeas relief unless its application of federal law is both
“incorrect and unreasonable.” Garcia v. Dretke, 388 F.3d 496, 500 (5th Cir. 2004) (emphasis in
original) (citation omitted). A federal habeas court considers only the state court’s conclusion
when determining whether there has been an unreasonable application of federal law, and not the
court’s reasoning in reaching the decision. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002).
Discussion
7
I.
Procedurally defaulted claims.
Respondent argues that the allegations of ineffective assistance that Petitioner raises in
Ground Five (A), (B), and (D) were never presented to the State courts, and that they are,
therefore, defaulted for purposes of federal habeas review. Respondent also maintains that
Petitioner’s allegations in Grounds Two, Four, Five (C), Six, Seven, and Eight were procedurally
barred by the Mississippi Supreme Court on post-conviction review, and that they, too, are
defaulted for purposes of federal habeas review.
A.
Ground Five (A), (B), and (D).
The Court first considers Respondent’s argument that Petitioner has procedurally
defaulted some of his claims in Ground Five by failing to present the claims to the State courts
for review. “Applicants seeking federal habeas relief under § 2254 are required to exhaust all
claims in state court prior to requesting federal collateral relief.” Fisher v. Texas, 169 F.3d 295,
302 (5th Cir. 1999). To satisfy this requirement, a federal habeas petitioner must generally
present his claims to the state’s highest court in a procedurally proper manner and provide that
court with a fair opportunity to pass upon the claims. See O’Sullivan v. Boerckel, 526 U.S. 838
(1999). Here, Petitioner did not present the claims presented in Ground Five (A), (B), and (D) to
the Mississippi Supreme Court, thereby forfeiting his opportunity to have the claims reviewed on
their merits. As Petitioner did not raise these claims in either his direct appeal or in his petition
for post-conviction relief, he no longer has an available avenue through which to properly
present these claims. As such, these claims are procedurally barred from federal habeas review.
Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001) (“If a petitioner fails to exhaust state
remedies, but the court to which he would be required to return to meet the exhaustion
8
requirement would now find the claims procedurally barred, then there has been a procedural
default for purposes of federal habeas corpus relief.”); Sones v. Hargett, 61 F.3d 410, 416 (5th
Cir. 1995) (holding that when “it 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 barred from habeas review”).
Therefore, in order to obtain habeas review of his defaulted claims, Petitioner must
demonstrate cause for the default and actual prejudice as a result, or that failure to consider the
claim would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S.
722, 750 (1991). “Cause” in this context is something external to the petitioner that cannot be
fairly attributed to him. Id. at 753. While attorney error may constitute “cause” in some
instances, attorney error that is not constitutionally ineffective will not excuse a procedural
default. Murray v. Carrier, 477 U.S. 478, 488 (1986). Moreover, in order to argue the
ineffective assistance of counsel as cause to overstep the procedural bar, Petitioner would have
had to raise and exhaust an independent claim of ineffective assistance of appellate counsel for
failure to raise the claims in Ground Five (A), (B), and (D). See, e.g., Edwards v. Carpenter, 529
U.S. 446, 452 (2000). Petitioner did not assert ineffective assistance for appellate counsel’s
failure to raise on direct appeal the claims he now presents in Ground Five (A), (B), and (D).
Accordingly, Petitioner cannot rely upon appellate counsel’s failure to raise these claims as
“cause” to overcome the procedural default. Because Petitioner fails to demonstrate cause, the
Court need not question whether there is prejudice. See Martin v. Maxey, 98 F.3d 844, 849 (5th
Cir. 1996).
Neither does Petitioner establish that failure to consider his claims would result in a
9
fundamental miscarriage of justice. The “fundamental miscarriage of justice” exception is
confined to cases of actual innocence where the petitioner shows, as a factual matter, that he did
not commit the crime of conviction. Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999)
(citation and internal quotation marks omitted). A petitioner claiming this exception must
present new, reliable evidence and show that it was “more likely than not that no reasonable
juror would have convicted him in light of the new evidence.” Id. (citation omitted). Petitioner
has not identified any new, reliable evidence to support his claims. Therefore, Petitioner cannot
establish that a fundamental miscarriage of justice will result if these claims are not reviewed on
their merits. Accordingly, the allegations contained in Ground Five (A), (B), and (D) are not
cognizable on federal habeas review.
B.
Grounds Two, Four, Five (C), Six, Seven, and Eight.
The claims Petitioner presents in Grounds Two, Four, Five (C), Six, Seven, and Eight
were held procedurally barred by the Mississippi Supreme Court on post-conviction review, as
they were capable of being presented on direct appeal. (See Answer, Ex. B). The Mississippi
Supreme Court held these claims procedurally barred pursuant to Mississippi Code Section 9939-21(1). (See Answer, Ex. B). That section reads:
Failure 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. . . shall constitute waiver thereof and shall be procedurally barred,
but the court may upon a showing of cause and actual prejudice grant relief from
the waiver.
Miss. Code Ann. § 99-39-21(1). “When 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 judgment.” Sayre
10
v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001) (citation omitted). The Fifth Circuit has held that
§ 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 bar applied to Petitioner’s claims depends on “whether
Mississippi has strictly or regularly applied it.” Id. (citation omitted). 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 to
claims identical or similar to those raised by the petitioner himself.” Id. Petitioner has not
carried this burden of proof and shown an “inconsistent and irregular” application of the bar. Id.
at 861. He has, therefore, defaulted these federal claims pursuant to an independent and
adequate state procedural rule. The court may review the merits of these claims only if
Petitioner can show cause and actual prejudice, or that a fundamental miscarriage of justice
would result from the Court’s failure to consider the claims. See, e.g., Coleman, 501 U.S. at 750.
Petitioner has not identified any external action that resulted in his procedural default.
See, e.g., Coleman, 501 U.S. at 753. He has not demonstrated any actual prejudice as a result of
the imposition of this bar. Petitioner has not exhausted any allegations that appellate counsel
was ineffective, and, as a result, Petitioner may not allege deficiency in appellate counsel’s
performance in an attempt to establish “cause” for the default. See, e.g., Edwards, 529 U.S. at
452. Finally, the Court notes that Petitioner has not presented any new, reliable evidence that
would demonstrate that, “more likely than not [] no reasonable juror would have convicted him
in light of the new evidence.” Fairman, 188 F.3d at 644 (citations omitted).
The Court notes that in Ground Five (C), Petitioner raises a claim that counsel rendered
11
ineffective assistance in failing to object to or impeach Dr. Hayne’s testimony. In Martinez v.
Ryan, the Supreme Court held that where collateral proceedings present the first opportunity to
raise a claim of ineffective assistance of trial counsel, “[i]nadequate assistance of counsel at
initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a
claim of ineffective assistance of trial.” Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). State
courts in Mississippi “will consider an ineffective-assistance claim on direct appeal ‘if the
presented issues are based on facts fully apparent from the record.’” Williams v. State, 73 So. 3d
1125, 1129 (Miss. 2011). Petitioner was appointed different counsel for his direct appeal. This
record-based claim of ineffective assistance could have been raised on direct appeal. Therefore,
the claim is potentially barred. However, the Court notes that the Mississippi Supreme Court
seems to have spoken with forked tongue on this issue, as it has also stated that “ineffective
assistance of counsel claims are more appropriately brought during post-conviction
proceedings.” Archer v. State, 986 So. 2d 951, 955 (Miss. 2008). Therefore, out of an
abundance of caution, the Court will also address the merits of the claim raised in Ground Five
(C).
To merit relief on a claim of ineffective assistance of counsel, a habeas petitioner must
satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984) by demonstrating
both constitutionally deficient performance by counsel and actual prejudice as a result of such
ineffective assistance. Strickland, 466 U.S. at 687. 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
12
by professional norms. Id. at 688. Judicial scrutiny of counsel’s performance is highly
deferential, however, and “the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. at 689
(citation omitted).
A petitioner satisfies Strickland’s prejudice prong by demonstrating that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. The failure to prove either deficient
performance by counsel or actual prejudice as a result of counsel’s actions or omissions defeats a
claim of ineffective assistance. See id. at 687; Green v. Johnson, 160 F.3d 1029, 1035 (5th Cir.
1998). In a case where the state court has rejected the merits of a petitioner’s ineffectiveness
claim, the “pivotal question” in a federal habeas proceeding “is whether the state court’s
application of the Strickland standard was unreasonable.” Harrington v. Richter, ___ U.S. ___,
131 S. Ct. 770, 785 (2011).
Dr. Hayne was admitted as an expert in forensic pathology by the trial court. (Trial Tr.
vol. 6, 479). Petitioner argues that Dr. Hayne was not qualified to testify as an expert in forensic
pathology, and his attorney should have objected to Dr. Hayne’s testimony. Mississippi law
requires the State Medical Examiner to be certified in the area of forensic pathology by the
American Board of Pathology. See Miss. Code Ann. § 41-61-55. While Dr. Hayne performs
autopsies for the State Medical Examiner’s Office, he is not the State Medical Examiner and is
not required to be certified by the American Board of Pathology. See Keys v. State, 33 So. 3d
1143, 1149-50 (Miss. App. 2009). Moreover, the Mississippi Supreme Court has upheld Dr.
13
Hayne’s status as a qualified expert in the field of forensic pathology. See Lima v. State, 7 So.
3d 903 (Miss. 2009). Therefore, counsel was not deficient for failing to raise an objection to Dr.
Hayne’s qualifications, as such an objection would have been meritless. See Clark v. Collins, 19
F.3d 959, 966 (5th Cir. 1994). Petitioner is not entitled to habeas relief on this claim.
Accordingly, the claims contained in Grounds Two, Four, Five (C), Six, Seven, and Eight
are procedurally barred from federal habeas review. Additionally, for the reasons stated above,
the Mississippi Supreme Court’s alternative ruling that Petitioner’s claim of ineffective
assistance regarding Dr. Hayne’s testimony is without merit is not an unreasonable application of
Strickland.
II.
The verdict is against the weight of the evidence (Ground One).
Petitioner argues that the lack of physical evidence against him, along with the fact that
the State’s witnesses were so unreliable, resulted in a guilty verdict that is against the weight of
the evidence. Unlike a challenge to the sufficiency of the evidence3, a claim challenging the
weight of the evidence requires an assessment of the credibility of the evidence presented at trial.
Tibbs v. Florida, 457 U.S. 31, 37-38 (1982). The jury, not a reviewing court, bears “the
responsibility. . . fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Id. at 45 n.21 (citation omitted).
Therefore, the weight of the evidence is not an issue assessed on federal habeas review. See
Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) (“A federal habeas court has no power to
3
The sufficiency of the evidence may be challenged on federal habeas review. The
evidence is insufficient to support the verdict if, in viewing the evidence in the light most
favorable to the prosecution, no rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (1979).
14
grant habeas corpus relief because it finds that the state conviction is against the ‘weight’ of the
evidence[.]”).
Alternatively, the Court notes that the Mississippi Supreme Court considered Petitioner’s
challenge on direct appeal and held that the weight of the evidence supported the verdict.
Osborne, 54 So. 3d at 846-48. The court noted that Giles implicated Petitioner in the attack on
Jackson, and that Jefferson’s account of what Petitioner relayed to him corroborated Giles’
testimony. (Id. at 846-47). The court noted that the jury was made aware of Giles’ inconsistent
statements, and that the jury was instructed as how to view Giles’ testimony in light of his hopes
of immunization or leniency. (Id. at 847). It additionally noted that Jefferson specifically denied
that anyone had promised him anything in exchange for his testimony. (Id. at 846). The court
determined that the jury was in the best position to determine the credibility of Giles and
Jefferson, and it determined that the jury verdict did not contradict the overwhelming weight of
the evidence. (Id. at 846-47).
Accordingly, even if this claim were cognizable on federal habeas review, for the reasons
set forth above, the Mississippi Supreme Court’s decision that this claim is without merit is not
contrary to, nor does it involve an unreasonable application of, clearly established federal law.
The decision was not based on an unreasonable determination of facts in light of the evidence
presented. Accordingly, Petitioner is not entitled to habeas relief with regard to this claim.
III.
Trial court error in denying a mistrial after a juror admitted bias (Ground Three).
Petitioner argues that the trial court erred in failing to grant a mistrial when the defense
asserted that a juror had been biased. Following the guilty verdict but before the sentencing
hearing, one of Petitioner’s defense attorneys informed the trial court that he had been
15
approached by a former venireman during the lunch break. (Trial Tr. vol. 6, 559). This
individual, identified as Christopher Hull, stated that a venire member who was later chosen to
serve on the jury stated, “let’s go ahead and fry his ass so we can go home.” (Id. at 559-60).
Hull was referring to Juror Pitts. (Id. at 559). Defense counsel requested a mistrial. (Id. at 562).
The trial judge stated in response:
One, I don’t think this rises to the level of a mistrial. We’ve got alternate jurors if
we had needed them. You could rehabilitate a witness – I mean, a juror, under the
case law that I know about. We don’t know or have an idea at this point of really
what was said or when it was said. So we’re at an extreme disadvantage on that
end. I do know I gave all the jurors an oath and asked them questions along this
[sic] lines. So no answers were given, so we don’t have that.
(SCR vol. 6, 563-64). The defense expressed concern about questioning the juror regarding the
statement and then returning her to deliberations on the sentence. (Id. at 564-65). Eventually,
Christopher Hull was brought to give testimony on the matter. (Id. at 569). He stated that, while
they were waiting for jury selection, he heard someone identified as Juror Pitts state, “I wish we
could just hang him and get it over with and get out of here.” (Id. at 570). He stated that he told
her that her attitude was inappropriate. (Id.). When asked whether he had interpreted the
statement to mean that she was ready to impose the death penalty, Hull responded “[h]onestly, I
don’t know whether that’s what she was saying or that she just wanted out.” (Id. at 571). On
cross-examination, Hull admitted that several members of the venire, who were not eventually
chosen, were also anxious to leave. (Id. at 573).
Following this testimony, the trial judge noted, “I think that the meaning could have been
as Mr. Mellen [the prosecutor] indicated, she just wanted out of here like most everybody else
did. Perhaps it was a poor choice of words.” (Id. at 574). The trial judge further found:
But we did go through the litany of questions with regard to her ability to render a
16
fair and impartial verdict. If it was a reflection on the death penalty, that
wouldn’t apply, I don’t think, in the guilt phase. It would apply here in this
phase. I’m going to deny the motion for a directed verdict on the guilt phase.
(Id. at 576). The trial court indicated that he would replace Juror Pitts with an alternate for the
sentencing portion of trial.4 (Id. at 578-79).
Once the jury retired to deliberate at sentencing, Juror Pitts was questioned. (See id. at
581-82). Juror Pitts stated that she did not remember making the statement and noted that she
“was just trying to get out of here.” (Id.). She stated that she had not prejudged the case and
“didn’t even know what was going on” at the time of jury selection. (Id.). Further, she stated
that she answered all of the questions during voir dire truthfully and had no predisposition
towards guilt or the death penalty prior to trial. (Id. at 583).
Respondent argues that Juror Pitts was not biased; Hull was unable to state whether the
comment he heard was an actual representation of her feeling about the case, or rather, just an
expression of her frustration with the delay. Respondent notes that Juror Pitts stated that she did
not remember making the comment, but she stated that she did honestly answer the questions
posed during voir dire. She also stated that, prior to trial, she had no preconceptions regarding
Petitioner’s guilt or the appropriate sentence. Finally, Respondent claims, the trial judge stated
on the record his intention to replace Juror Pitts with an alternate for the sentencing phase of
trial.
The Fifth Circuit has held:
Actual bias exists when a juror fails to answer a material question accurately
because he is biased. In the majority of situations, the party seeking a new trial
must demonstrate bias through admission or factual proof. Bias may, however, be
4
Not all portions of the sentencing hearing were transcribed. Therefore, it is not
documented that the substitution occurred. Inasmuch as Juror Pitts remained the courtroom after
the jury retired to deliberate at sentencing, however, it is likely that a substitution did occur.
17
implied or presumed in extreme circumstances, including when the juror is
employed by the prosecuting agency, is a close relative of a participant in the
trial, or is somehow involved in the transaction that is the subject of the trial.
Indicia of partiality are particularly problematic when coupled with the juror’s
lies or other efforts to hid a potential disqualification.
United States v. Bishop, 264 F.3d 535, 554 (5th Cir. 2001) (internal citations and citation
omitted). The United States Supreme Court has held that, in order to succeed on a claim of juror
bias, “a party must first demonstrate that a juror failed to answer honestly a material question on
voir dire, and then further show that a correct response would have provided a valid basis for a
challenge for cause.” McDonough Power Equipment, Inc., v. Greenwood, 464 U.S. 548, 556
(1984).
Under both State and federal law, the decision to grant or deny a motion for a mistrial is
left to the discretion of the judge. See United States v. Honer, 225 F.3d 549, 555 (5th Cir. 2000);
Spann v. State, 771 So. 2d 883, 889 (Miss. 2000). As such, the trial court’s denial of Petitioner’s
request for a mistrial justifies federal habeas relief only if it was an “error . . . so extreme that it
constitutes a denial of fundamental fairness under the Due Process Clause.” Bridge v. Lynaugh,
838 F.2d 770, 772 (5th Cir. 1988).
On direct appeal, the Mississippi Supreme Court considered Petitioner’s allegations
regarding Juror Pitts and held:
If a prospective juror does not respond to a question posed during voir dire, this
Court must determine whether the question was "(1) relevant to the voir dire
examination; (2) ... unambiguous; and (3) whether the juror had substantial
knowledge of the information sought to be elicited." Odom v. State, 355 So.2d
1381, 1383 (Miss.1978). If all answers to the above questions are affirmative,
then we must determine if prejudice could be inferred from the juror's failure to
respond. Id.
In order to reach the Odom questions, Osborne must show Pitts failed or refused
to respond to a specific question on voir dire. While Osborne does not point to a
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particular question Pitts failed to answer during voir dire, the record does not
indicate that she withheld information when she was questioned about her
impartiality. Hull's allegation is the only evidence supporting this conclusion, and
the trial court found that it lacked merit. But, assuming all the Odom questions are
answered in the affirmative, Osborne suffered no prejudice from Pitts serving as a
juror during the guilt phase of his trial.
To show prejudice, Osborne must demonstrate the trial court's determination that
the jury was fair and impartial was clearly erroneous. Ross v. State, 954 So.2d
968, 988 (Miss.2007). Before trial, the court and both attorneys repeatedly asked
venire members about their ability to remain impartial and decide the case on the
evidence presented. Venire members confirmed their ability to render a verdict
solely on the evidence presented at trial. During individual questioning about her
views on the death penalty, Pitts affirmed that she would follow the law. Her
post-trial questioning did not contradict her answers on voir dire. On each of these
occasions, Pitts confirmed that she could perform her duties as required by law
and that she had been impartial before Osborne's trial. The trial court determined
that her statement reflected an aversion to jury duty rather than bias or a
preconceived notion of guilt. The trial judge repeatedly expressed the intent to
grant defense counsel's request to replace Pitts with an alternate juror for the
sentencing phase of Osborne's trial, although the record does not specifically state
whether he acted on that intention. By virtue of his immediate perception of the
witness and the events, the trial judge was in the best position to determine
whether the jury was impartial. Therefore, the trial court properly exercised its
discretion in refusing to grant a mistrial, and Osborne's claim for relief on this
ground is denied.
Osborne, 54 So. 3d at 844-45.
For the reasons as set forth by the Mississippi Supreme Court, this Court does not find
that the Mississippi Supreme Court’s decision rejecting this claim is either contrary to, or that it
involves an unreasonable application of, clearly established federal law. The Court further finds
that the decision is not based on an unreasonable determination of facts in light of the evidence
presented. Habeas relief on this ground is denied, but the Court will issue a certificate of
appealability on this issue.
IV.
Evidentiary hearing.
Petitioner asks that the Court grant him an evidentiary hearing on his allegations. The
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holding of federal evidentiary hearings is governed by 28 U.S.C. § 2254(e)(2), which reads:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on this claim unless
the applicant shows that (A) the claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2). The United States Supreme Court has held that “[p]rovisions like §§
2254(d)(1) and (e)(2) ensure that ‘[f]ederal courts sitting in habeas are not an alternative forum
for trying facts and issues which a prisoner made insufficient effort to pursue in state
proceedings.’” Cullen v. Pinholster, 131 S. Ct. 1388, 1401 (2011) (citations omitted). Petitioner
has failed to demonstrate that his case falls within the narrow restrictions where an evidentiary
hearing is warranted. The Court has been provided with Petitioner’s petition and supporting
memorandum, Respondent’s answer and exhibits, and the State court record. Therefore, the
Court finds that there is no need for an evidentiary hearing in this case. See, e.g., Clark v.
Johnson, 202 F.3d 760, 766 (5th Cir. 2000) (holding that the Fifth Circuit has “repeatedly found
that a paper hearing is sufficient to afford a petitioner a full and fair hearing on the factual issues
underlying the petitioner’s claims”).
Certificate of Appealability
Petitioner must obtain a certificate of appealability (“COA”) before appealing this
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Court’s decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). A COA will not issue
unless Petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To obtain a COA on any claim rejected on its merits, Petitioner must demonstrate
that “reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on a
claim that has been rejected on procedural grounds, Petitioner must demonstrate “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id. Applying these standards, the Court concludes that a
COA should be granted as to Petitioner’s claim that the trial court erred in refusing to grant a
mistrial based on allegations of juror bias (Ground Three). A COA is denied as to all other
claims.
Conclusion
It is hereby ordered that Petitioner’s petition for a writ of habeas corpus is DENIED,
and that this action is DISMISSED WITH PREJUDICE. A certificate of appealability is
GRANTED as to Petitioner’s claim that the trial court erred in denying a mistrial based on
allegations of juror bias. All pending motions are DISMISSED AS MOOT. A final judgment
in accordance with this opinion and order will issue today.
SO ORDERED, THIS the 24th day of July, 2014.
/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE
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