Long v. Sparkman et al
Filing
16
MEMORANDUM OPINION re 15 Judgment. Signed by District Judge Sharion Aycock on 9/20/2011. (psk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
CHARLIE DEMEKO LONG
PETITIONER
v.
No. 3:11CV29-A-A
E. L. SPARKMAN, ET AL.
RESPONDENTS
MEMORANDUM OPINION
This matter comes before the court on the pro se petition of Charlie Demeko Long for a
writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition. Long
has not replied, and the time to do so has expired. 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
Charlie (Charles) Demeko Long is in the custody of the Mississippi Department of
Corrections and is currently housed in the Mississippi State Penitentiary in Parchman,
Mississippi. He was convicted in the Circuit Court of Grenada County, Mississippi, on Count
One of his indictment in his case for sale of a schedule II controlled substance and in Count Two
for possession of cocaine with intent to sell, transfer, distribute or deliver. On October 14, 2008,
he was sentenced as a habitual offender to serve two consecutive life sentences in the custody of
the Mississippi Department of Corrections (“MDOC”). State Court Record (“SCR”), Vol. 1, p.
81-82.
Long appealed his convictions and sentences in the Mississippi Supreme Court, raising
the following issues (as stated by counsel):
Issue 1.
The verdict was against the overwhelming weight of the evidence.
Issue 2.
The court erred in admitting evidence of prior bad acts.
Issue 3.
Black potential jurors were systematically and unconstitutionally
stricken from the jury.
Issue 4.
The sentence violated appellant Long’s constitutional rights.
That court found no merit to the issues raised and, on May 6, 2010, affirmed the judgment of the
circuit court. Long v. State, 33 So.3d 1122 (Miss. 2010)(Case No. 2008-KA-01877-SCT).
In the present Petition for Writ of Habeas Corpus filed on February 28, 2011, Long raises
the following issues (as stated by Long pro se):
Ground One.
The verdict was against the overwhelming weight of the
evidence.
Ground Two.
Whether the trial court erred in admitting evidence of prior
bad acts.
Ground Three.
Black potential jurors were systematically and
unconstitutionally stricken from the jury.
Ground Four:
Whether sentences violated petitioner’s constitutional
rights.
Long has exhausted his state court remedies as to all grounds in his petition.
All Grounds for Relief Were Reviewed on the Merits in State Court
The Mississippi Supreme Court has already considered all grounds in Long’s petition on
the merits and decided those issues against him; 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
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court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
Id. (emphasis added). The first exception, subsection (d)(1), applies to questions of law. Morris
v. Cain, 186 F.3d 581 (5th Cir. 2000). The second exception, subsection (d)(2), applies to
questions of fact. Lockhart v. Johnson, 104 F.3d 54, 57 (5th Cir. 1997). Since the petitioner’s
claims challenge both the application of law and the finding of fact, this court must consider the
exceptions in both subsections.
Under subsection (d)(1), a petitioner’s claim merits habeas review if its prior adjudication
“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law.” Id. (emphasis added). A state court’s decision is contrary to federal
law if it arrives at a conclusion opposite to that reached by the United States Supreme Court on a
question of law, or if it decides a case differently from the Supreme Court on a set of “materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523 (2000). A state
court’s decision involves an unreasonable application of federal law if it identifies the correct
governing principle but unreasonably (not just incorrectly) applies that principle to facts of the
prisoner’s case; this application of law to facts must be objectively unreasonable. Id. at 1521. As
discussed below, the petitioner has not shown that the Mississippi Supreme Court unreasonably
applied the law to the facts, or that the court’s decision contradicted federal law. Accordingly,
the exception in subsection (d)(1) does not apply to any grounds of the petitioner’s claim.
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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: Verdict Against the Overwhelming Weight of the Evidence
Long argues in Ground One of his petition that the jury’s verdict was against the
overwhelming weight of the evidence. The Mississippi Supreme Court held this issue to be
meritless. “A federal habeas court has no power to grant habeas relief because it finds that the
state conviction is against the ‘weight’ of the evidence . . . .” Young v. Kemp, 760 F.2d 1097,
1105 (11th Cir. 1985), cert. denied, 476 U.S. 1123, 106 S.Ct. 1991, 90 L.Ed.2d 672 (1986). The
weight of the evidence is decided by the trial jury and, if found to be inadequate, the remedy is a
new trial. In the present case, however, the Mississippi Supreme Court examined the evidence,
considered it in the light most favorable to the prosecution, and accepted all credible evidence
consistent with the verdict as true, Long v. State, 33 So.3d at 1126, and held: “Both Long and the
State presented evidence. The jury weighed the evidence and determined that the State proved
beyond a reasonable doubt that Long was guilty. Therefore, this issue is without merit.” Id. The
court held that it was reasonable for the jury to conclude Long was guilty of both possession and
sale of cocaine based upon the evidence given at trial. Evidence of Long’s guilt (introduced by
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Officer Mark Beck) included video and audio testimony of the sale and possession of cocaine.
SCR, vol. 2, p. 71, 91. Both the confidential informant, Wesley Rogers, and Long’s former
girlfriend, Lakendal Barnes, identified Long as the person who sold the cocaine to Rogers. SCR,
vol. 2, p.117; vol. 3, p. 161. Barnes also testified that, when she was pulled over for a traffic
violation, Long was in her car and attempted to pass her some drugs, but she refused. SCR, vol.
3, p.156. The jury considered the evidence presented and found it sufficient to convict Long on
both charges. Given these facts and the governing law, the Mississippi Supreme Court’s
resolution of the issue in Ground One was not contrary to clearly established federal law, nor did
it involve an unreasonable application of clearly established federal law as determined by the
Supreme Court of the United States. As such, this ground for federal habeas corpus relief will
be denied.
Ground Two: The Trial Court Erred in Admitting
Evidence of Long’s Prior Bad Acts
The Mississippi Supreme Court ruled that this issue was meritless. A claim challenging
the state court’s ruling on the admissibility of evidence is not proper for federal habeas corpus
review, as a state court evidentiary ruling is an issue of state law only . A state prisoner is
entitled to relief under 28 U.S.C. § 2254 only if he is held “in custody in violation of the
Constitution or laws or treaties of the United States.” Engle v. Isaac, 456 U.S. 107, 118 (1981).
A mere error of state law is not a denial of due process; otherwise every “erroneous decision by a
state court on state law would come [to this Court] as a federal constitutional question.” Id. at
121 n.21 (citations omitted). “A state court' evidentiary rulings present cognizable habeas
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claims only if they run afoul of a specific constitutional right or render the petitioner' trial
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fundamentally unfair.” Johnson v. Puckett, 176 F.3d 809, 820 (5th Cir. 1999) (citing Cupit v.
Whitley, 28 F.3d 532, 536 (5th Cir.1994). “[I]n reviewing state court evidentiary rulings, the
federal habeas court’s role ‘is limited to determining whether a trial judge’s error is so extreme
that it constituted a denial of fundamental fairness’ under the Due Process Clause.” Castillo v.
Johnson, 141 F.3d 218, 222 (5th Cir. 1998) (citations omitted). The “erroneous admission of
prejudicial testimony does not justify habeas relief unless the evidence played a ‘crucial, critical,
and highly significant’ role in the jury’s determination.” Jackson v. Johnson, 194 F.3d at 656.
Long challenges the trial court’s ruling to admit evidence of his prior bad acts. Rogers,
the confidential informant, testified that he had previously witnessed Long selling cocaine some
fifteen to twenty times. SCR, Vol. 2, p. 116. The trial court weighed the testimony outside the
presence of the jury under MISS. R. EV. 403, SCR, Vol. 2, p. 110, and held:
Okay. Well, of course, this matter, according to the Defendant' wishes, has not
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been severed where possession with intent and sale are both counts that are
against him in this particular case. The State can’t prove the entire case with one
witness. The case law is clear that this testimony is admissible where one of the
charges is that he was possessing drugs with the intent, with the intent to sell
them. But it is limited by the fact that it must pass the 403 test, and then there
must be a limiting instruction to the jury.
The court finds that the probative value in this case outweighs the prejudicial
effect, and the court is going to allow it. But it will grant a limiting instruction
that limits the consideration of this to the count that it is a possession count. Now
should this not be all tied together at the end, you can, you may have another
motion.
SCR, Vol. 2, p. 114. The court gave an instruction to the jury limiting the testimony to the count
regarding possession. Jury Instruction 11 (C-3), SCR, Vol. 1, p. 70. That instruction reads:
“You are not, however, under any circumstances, to consider any evidence of alleged prior
cocaine sales in reaching a verdict as to the charge of Sale of Cocaine as charged in Count I of
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the indictment, or for any other purpose not specifically authorized by this instruction.” Id. As
the trial court properly instructed the jury regarding the evidence of prior bad acts, the ruling on
this evidence was correct under state law. The Mississippi Supreme Court, the final arbiter of the
law of Mississippi, so found. As such, this ground for relief will be dismissed for failure to state
a claim upon which habeas corpus relief could be granted.
Ground Three: Challenge Under
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986)
In Ground Three, Long claims that black potential jurors were systematically and
unconstitutionally stricken from the jury. The United States Supreme Court, in Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), set forth the principles to establish
a prima facie case of purposeful discrimination in the selection of a jury. To do so, the defendant
must demonstrate that: “(1) he is a member of a cognizable racial group; (2) the prosecutor
exercised peremptory challenges to excuse a venire person of the defendant’s race; and (3) there
is an inference that the venire persons were excluded on account of their race.” Batson v.
Kentucky, 476 U.S. at 96. Once an accused has made such a prima facie showing of
discrimination, the burden of proof shifts to the prosecution to present race neutral reasons for
challenging the jurors. Id.
In this case, the Mississippi Supreme Court ruled that this issue had no merit, holding:
Pursuant to the Batson standard stated above, Long established that: (1) he is a
member of cognizable racial group; and (2) that the prosecutor has exercised
peremptory challenges to remove from the venire members of Long' race.
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However, Long has failed to establish that the “facts and any other relevant
circumstances raise an inference that the prosecutor used that practice to exclude
the veniremen from the petit jury on account of their race.” Batson, 476 U.S. at
96, 106 S.Ct. 1712. Neither Long nor the record establishes that the prosecutor
engaged in a pattern of strikes on the basis of race or gender. Moreover, neither
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Long nor the record establishes that the decision of the trial court was “clearly
erroneous or contrary to the overwhelming weight of the evidence.” Flowers, 947
So.2d at 917. For these reasons, we find that this issue is without merit.
Long, 33 So.3d at 1130.
As the Mississippi Supreme Court held, Long’s Batson challenge was without merit. The
strikes did not indicate a pattern of discrimination such that a prima facie case had been
established. The final jury consisted of three black female jurors, six white female jurors, three
white male jurors. SCR, Vol. 2, p. 67-69. In response to the defense attorney’s invocation of
Batson, the trial court observed:
Let the record reflect that on the panel there are - out of the first 32, which would
include going through the alternate selection, there are 20 white people and 12
black people on the panel. On the jury that was tendered that we have just
selected, there are nine whites and three blacks. The State exercised all of its
peremptory challenges, two of which were on white females, four of which were
on black. One, I believe, was a male and the other three were black females. The
Court finds that that does not make a prima facie case for racial discrimination in
this case. Therefore, the Batson challenge is overruled.
SCR, vol. 2, p. 68-69. This state court finding is entitled to great deference under the
Antiterrorism and Effective Death Penalty Act. See § 2254(e)(1). Under these facts, the
Mississippi Supreme Court’s resolution of the claim in Ground Three was not contrary to nor an
unreasonable application of clearly established federal law as determined by the Supreme Court
of the United States. This ground for relief is without merit and will be denied.
Ground Four: The Sentences Imposed Were
Constitutionally Disproportionate to the Crime
In Ground Four, Long argues that his sentences were unconstitutionally harsh. The
Mississippi Supreme Court held that this issue had no merit. Long was sentenced as to serve life
in prison for sale of cocaine (Count One) in violation of MISS. CODE ANN. § 41-29-8-
139(a)(1)(b)(1). In addition, he was sentenced to serve life in prison for possession of cocaine
with intent to sell, transfer, distribute, or deliver (Count Two) – also in violation of MISS. CODE
ANN. § 41-29-139(a)(1)(b)(1). SCR, Vol. 1, p. 2-3, 81. Long’s punishments were enhanced, as
he qualifies as a habitual offender under MISS. CODE ANN. § 99-19-83.1 Long has two prior drug
convictions as well as a conviction for attempted aggravated assault. SCR, vol. 1, p. 3-4. The
Mississippi Supreme Court held: “Long' sentence was in the statutory range, it was mandatory,
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and he has failed to establish that his sentence is grossly disproportionate to his crime.
Therefore, the trial court did not err in sentencing Long to two consecutive terms of life
imprisonment.” Long, 33 So.3d at 1132-1133.
Habeas corpus relief is proper only if a petitioner is able to show that the sentence
imposed “exceeds or is outside the statutory limits, or is wholly unauthorized by law.” Haynes v.
Butler, 825 F.2d 921, 923 (5th Cir. 1987). In Lockyer v. Andrade,2 the United States Supreme
Court held that there is no “clear or consistent path for courts to follow” in determining whether
a sentence is so disproportionate that it violates the Eighth Amendment. Lockyer, 123 S.Ct. at
1173. Nonetheless, the law under § 2254(1) is clear in one respect: A gross disproportionality
1
Section § 99-19-83 provides:
Every person convicted in this state of a felony who shall have been convicted
twice previously of any felony or federal crime upon charges separately brought
and arising out of separate incidents at different times and who shall have been
sentenced to and served separate terms of one (1) year or more in any state and/or
federal penal institution, whether in this state or elsewhere, and where any one (1)
of such felonies shall have been a crime of violence shall be sentenced to life
imprisonment, and such sentence shall not be reduced or suspended nor shall
such person be eligible for parole or probation. (Emphasis added.)
2
Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).
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principle is applicable to sentences for terms of years. Id. The Court noted that this principle is
warranted only in “‘exceedingly rare’ and ‘extreme’ cases.” Id. (citations omitted). Long’s
sentences do not qualify as either illegal or grossly disproportionate. Further, his sentence was
required by statute because he was a habitual offender. The Mississippi Supreme Court’s
resolution of the claim in Ground Four was not, therefore, contrary to or an unreasonable
application of clearly established federal law as determined by the Supreme Court of the United
States. As such, Long’s claim in Ground Four will be denied.
In sum, all grounds for relief in the present petition for a writ of habeas corpus will be
denied. A final judgment consistent with this memorandum opinion shall issue today.
SO ORDERED, this the 20th day of September, 2011.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE
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