Burrell v. Central Mississippi Correctional, et al

Filing 28

MEMORANDUM OPINION AND ORDER. Signed by Senior Judge Neal B. Biggers on 7/25/17. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION

TYRONE BURRELL

PETITIONER

V.

CIVIL ACTION NO. 3:17CV9-NBB-RP

ATTORNEY GENERAL JIM HOOD and
CENTRAL MISSISSIPPI CORRECTIONAL

RESPONDENTS

MEMORANDUM OPINION AND ORDER
Petitioner Tyrone Burrell, a Mississippi inmate currently housed at the Central
Mississippi Correctional Facility, has filed a federal habeas petition pursuant to 28 U.S.C. § 2254
challenging his State court conviction for kidnapping. Having considered the submissions of the
parties, the State court record, and the law applicable to Burrell’s claims, the Court finds that an
evidentiary hearing is unnecessary, and that the petition should be denied.
I
Background Facts and Procedural History
On November 5, 2012, Burrell approached seventy-five year old Charlie Jeter at Bally’s
Casino in Tunica, Mississippi, offering to sell Charlie Pall Mall cigarettes for $1 a carton. See
Doc. #10-3 at 138-140, 148. Charlie agreed to purchase the cigarettes, and Burrell asked him for
$20. Id. at 139-40. Charlie paid Burrell $20 and then retrieved the car keys from his wife,
Fredna, so that he could put the cigarettes that Burrell was going to sell him in the car. Id. at
119-120. Charlie and Burrell went into the parking lot, where Burrell displayed a gun and
demanded that Charlie drive him to Memphis. Id. at 140-141. Upon their arrival at a
subdivision in Memphis, Burrell demanded more money, at which point Charlie gave him an
additional $65. Id. at 141. Burrell told Charlie to leave, and Charlie did so, driving back to the

casino. Id. at 141-32. By the time Charlie arrived at the casino, police were already at the
casino, having been alerted by Fredna that Charlie was missing. See, e.g., id. at 77-81. Burrell
was subsequently arrested.
On May 9, 2014, Tyrone Burrell was convicted of kidnapping in the Circuit Court of
Tunica County, Mississippi. Doc. #10-4 at 60. Burrell was charged as an habitual offender
under Miss. Code Ann. §99-19-83, a statute under which a conviction carries a life sentence. See
Doc. #10-1 at 12. Additionally, his charge carried an enhancement under Miss. Code Ann. § 9919-351, which allows the sentence to be doubled if the victim is over the age of 65, and an
enhancement under Miss. Code Ann. § 97-37-37, which allows for an additional five-year
sentence if a firearm is used in the crime. Id. at 10-12. The trial court did not double the
sentence or impose the additional five years, but rather, sentenced Burrell to thirty years in the
custody of the Mississippi Department of Corrections as an habitual offender under Miss. Code
Ann. § 99-19-81. Doc. # 10-4 at 79-81. On direct appeal, the Mississippi Supreme Court
affirmed Burrell’s conviction and sentence. See Burrell v. State, 183 So. 3d 19 (Miss. 2015),
reh’g denied January 21, 2016 (Cause No. 2014-KA-00670-SCT). Burrell did not seek a writ of
certiorari in the United States Supreme Court.
Aggrieved the direct appeal decision, Burrell sought permission from the Mississippi
Supreme Court to proceed with a motion for post-conviction collateral relief. See Doc. #10-8 at
40-96. His application was denied by the Mississippi Supreme Court. See Doc. #9-2 (Cause No.
2016-M-00576). Thereafter, Burrell filed a “Motion to Correct Illegal Sentence” in the
Mississippi Supreme Court, alleging that he was illegally sentenced and attaching a second
application for permission to file for post-conviction relief to the motion, maintaining that he

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received the ineffective assistance of counsel. See Doc. #10-8 at 6-19, 20-36. The Mississippi
Supreme Court interpreted the entire pleading as a second application for leave to file a petition
for post-conviction relief and denied it. Doc. #9-3 (Cause No. 2016-M-00576).
Thereafter, on or about January 13, 2017, Burrell filed the instant petition, raising the
following grounds for relief, as summarized by Respondents:
Ground One: The trial court erred in selecting alternative jurors.
Ground Two: The trial court erred in denying Petitioner’s motion for a new trial
because the verdict was against the overwhelming weight of the evidence.
Ground Three: The trial court imposed an illegal sentence as an habitual offender
pursuant to Miss. Code Ann. § 99-19-81, when Petitioner was indicted pursuant
to Miss. Code Ann. § 99-19-83.
Ground Four: Ineffective assistance of trial counsel for failure to call witness
Patricia Newell.
II
Legal Standard
The Court’s review of Burrell’s claims is governed by the Antiterrorism and 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 prevents 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
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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, 412 (2000). The “unreasonable application” clause is reserved for
decisions that either fail to identify the correct governing law, or identify the correct governing
law but misapply it to the case. Id. at 407. 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 reviewing habeas court considers only the state court’s conclusion when
determining whether there has been an unreasonable application of federal law, not the court’s
reasoning in reaching the decision. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002).
When considering whether the state court’s decision was based on unreasonably
determined facts, the federal court must presume that the state court determined the facts
reasonably; it is the petitioner’s burden to prove otherwise with clear and convincing evidence.
Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); 28 U.S.C. § 2254(e)(1).
III
Procedurally Barred Claims
The claims raised by Burrell in Grounds One, Three, and Four were found procedurally
barred by the Mississippi Supreme Court. The Court notes that “[w]hen a state court declines to
hear a prisoner’s federal claims because the prisoner failed to fulfill a state procedural
requirement, federal habeas relief is generally barred if the state procedural rule is independent
and adequate to support the judgment.” Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001)
(citing Coleman v. Thompson, 501 U.S. 722 (1991)). The adequacy of the procedural bar
applied to Burrell’s claims in State court depends on “whether Mississippi has strictly or
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regularly applied it.” Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997), (citing Lott v.
Hargett, 80 F.3d 161, 165 (5th Cir. 1996)). However, Burrell bears the burden of demonstrating
“that the state did not strictly or regularly follow a procedural bar around the time of his appeal”
and “must demonstrate that the state has failed to apply the procedural bar rule to claims
identical or similar to those raised by the petitioner himself.” Id.
If a petitioner cannot demonstrate the inapplicability of a procedural bar, federal habeas
courts are precluding from reviewing State cases applying such a bar unless the petitioner can
demonstrate cause and actual prejudice, or that a fundamental miscarriage of justice would result
if the claim were not reviewed. See Coleman, 501 U.S. at 750; see also Martin v. Maxey, 98
F.3d 544, 849 (5th Cir. 1996) (citing Sawyer v. Whitley, 505 U.S. 333(1992)). The Supreme
Court has held that in order for a court to find the cause necessary to excuse such procedural
default, “there must be something external to the petitioner, something that cannot fairly be
attributed to him.” Coleman, 501 U.S. at 753 (emphasis in original). Examples of objective
factors that have been found to constitute such cause include “interference by officials” and “a
showing that the factual or legal basis for a claim was not reasonably available to [the
petitioner].” McClesky v. Zant, 499 U.S. 467 (1991). Attorney error may constitute “cause” in
some circumstances; however, attorney error that does not amount to constitutional
ineffectiveness will not excuse a procedural default. Murray v. Carrier, 477 U.S. 478, 488
(1986).
If a petitioner is unable to demonstrate cause and prejudice, he may nonetheless obtain
review of his claim by demonstrating that the application of the procedural bar would result in a
miscarriage of justice because he is actually innocent of the crime. See, e.g., House v. Bell, 547

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U.S. 518, 537-38 (2006). However, a persuasive claim of actual innocence requires that a
petitioner support his claim “with new, reliable evidence that was not presented at trial and show
that it was more likely than not that no reasonable juror would have convicted him in light of the
new evidence.” Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (citing Schlup v. Delo,
513 U.S. 298, 327 (1995)).
i) Ground One
Burrell claims that the trial judgment improperly chose alternate jurors by allowing the
Clerk to draw names out of a cup at the conclusion of trial. See Doc. #1 at 5-6. On direct
appeal, this claim was barred due to Burrell’s failure to lodge a contemporaneous objection.
Specifically, the State court found:
Burrell asserts that Judge Webster abused his discretion by ignoring the rules for
selecting alternate jurors and, instead, drawing their names out of a paper cup. We
hold that Burrell waived his claim about the judge's method of selecting alternate
jurors because he did not lodge a timely objection.
At the beginning of voir dire, Judge Webster explained that fourteen jurors would
be selected. Rather than selecting twelve jurors and then two alternates, all
fourteen would be selected at one time. He gave each attorney seven peremptory
challenges; rather than allowing six challenges for the regular jurors followed by
an additional one for alternates, he gave them seven without distinction between
the regular and alternate jurors. Judge Webster explained that, at the end of the
trial, he would pull two names out of a hat to determine who the alternates would
be. Judge Webster commented that he “liked doing it that way.” The attorneys did
not object when he announced the method. After voir dire, fourteen jurors were
selected; alternates were not designated.
At the end of the trial, Judge Webster put all of the jurors' names into a paper cup.
The deputy clerk drew out two names, and Judge Webster designated the
individuals as the alternate jurors. Burrell's attorney objected to the judge's
method at that point, citing Rule 4.05. He acknowledged that Judge Webster
usually employed the method, but he wanted to make his objection for the record.
Judge Webster overruled the objection, saying he found the rules regarding jury
selection to be “directory only, not mandatory.” At that point, the jury retired to

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deliberate, and Judge Webster told the newly designated alternates they could
leave.
When Judge Webster announced his intention to select the jury in his usual
manner, neither side objected. Burrell's attorney did not object until after trial,
when Judge Webster said he would draw names from a cup to decide who the
alternates would be. Burrell waived the claim by not objecting at the beginning of
voir dire when the judge could have changed his proposed method. Vaughn v.
State, 712 So.2d 721, 725 (¶ 15) (Miss.1998) (citing Myers v. State, 565 So.2d
554, 557 (Miss.1990)) (“a party who fails to object to the jury's composition
before it is empaneled waives any right to complain thereafter”).
Burrell v. State, 183 So. 3d at 22.
Counsel did not object when the trial court first stated its means of selecting alternate
jurors, nor did counsel object during the selection of jurors. See id. Rather, an objection was
lodged at the end of trial, when no remedy existed. The Fifth Circuit has held that such a failure
to present an issue to the trial court is an independent and adequate state procedural bar. Smith v.
Black, 970 F.2d 1383, 1387 (5th Cir. 1992) (recognizing contemporaneous objection rule as
regularly and consistent applied, with an exception not implicated here). Burrell has not
demonstrated that the rule is inapplicable, and therefore, he has defaulted his federal habeas
claim pursuant to an independent and adequate State law rule. The Court finds that Burrell has
not demonstrated cause and prejudice or actual innocence in order to overstep the procedural bar,
and therefore, the Court is precluded from considering the merits of Burrell’s allegation in
Ground One.
Alternatively, even if this claim were not procedurally barred, the Court notes that there
is nothing before the Court to indicate that the selection of alternate jurors violated any federallyprotected right, as the alternate jurors were subject to the same challenges, given the same
qualifications, and were selected from the same source as were the deliberating jurors.

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ii) Grounds Three and Four
Both of the claims raised as Ground Three and Ground Four of the instant petition were
found procedurally barred by the Mississippi Supreme Court due to waiver and as part of an
impermissible successive petition. See, e.g., Miss. Code Ann. § 99-39-21(1) and § 99-39-27(9).
See also Doc. #9-3. The waiver provision, Miss. Code Ann. §99-39-21(1) 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, regardless of whether such are based on the laws and the
constitution of the state of Mississippi or of the United States, shall constitute a
waiver thereof and shall be procedurally barred, but the court may upon a
showing of cause and actual prejudice grant relief from the waiver.
The successive petition provision, Miss. Code Ann. §99-39-27(9) reads, in relevant part:
The dismissal or denial of an application under this section is a final judgment
and shall be a bar to a second or successive application under this article.
Excepted from this prohibition is an application . . . in which the prisoner can
demonstrate either that there has been an intervening decision of the Supreme
Court of either the State of Mississippi or the United States that would have
actually adversely affected the outcome of his conviction or sentence or that he
has evidence, not reasonably discoverable at the time of trial, that is of such
nature that it would be practically conclusive that, if it had been introduced at
trial, it would have caused a different result in the conviction or sentence. . . . [.]
a) Ground Three
In Ground Three, Burrell complains that he was illegally sentenced as a non-violent
habitual offender pursuant to Miss. Code Ann. §99-19-81, which mandates a maximum sentence,
while he was indicted as a violent habitual offender pursuant to Miss. Code Ann. §99-19-83,
which mandates a life sentence.
In this case, the Mississippi Supreme Court recognized that allegations of an illegal
sentence may be excepted from the waiver and successive writ bars of the Mississippi Uniform
Post-Conviction Collateral Relief Act, Miss. Code Ann. §99-39-1, et. seq. See Doc. #9-3.
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However, that court found that in order to overstep the bars, “some arguable basis for the truth of
the claim must exist.” Id. The Mississippi Supreme Court ultimately found:
After due consideration, we find that Burrell’s illegal-sentence claim lacks any
arguable basis and is thus barred. The Court addressed the legality of Burrell’s
sentence on direct appeal. Burrell v. State, 183 So. 3d 19, 24-26 (Miss. 2015).
Further, “this Court repeatedly has held that no error occurs when a defendant’s
sentence is illegally lenient.” Williams v. State, 158 So.3d 309, 313 (Miss. 2015)
(citation omitted).
Id.
Burrell argues that since this issue was raised on direct appeal, this claim is not subject to
a procedural bar. See, e.g., Doc. #15 at 6. However, on direct appeal, Burrell argued that the
habitual-offender portion of his indictment and sentence were illegally imposed because no one
testified to certify the documentation of his prior convictions. See Burrell, 183 So. 3d at 24-25.
The claim raised by Burrell on direct appeal did not contain the same facts and legal theories as
presented in the instant claim. Rather, he did not argue that his sentence is illegal because he
was sentenced under a different statutory provision than the statute of indictment until his second
post-conviction petition. Therefore, the precise claim raised here was waived in direct appeal
and his initial post-conviction petition.
The Fifth Circuit Court of Appeals has held that the waiver found in Miss. Code Ann.
§99-39-21(1) is an independent state procedural bar. Stokes v. Anderson, 123 F.3d 858, 860 (5th
Cir. 1997). Further, while noting the absence of a Fifth Circuit decision on the adequacy of the
successive writ bar contained in Miss. Code Ann. § 99-39-27(9), this Court has found the
successive writ provision to be an adequate procedural State bar. McManis v. DeSoto County
Circuit Court, No. 2:04CV261-M-B, 2007 WL 869617, at *4 (N.D. Miss. March 20, 2007)

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(noting Fifth Circuit has upheld Mississippi’s successive writ bar in an almost identical statute,
citing Moawad v. Anderson, 143 F.3d 942, 947 (5th Cir. 1998)).
While Burrell argues, correctly, that an allegation of illegal sentence may be excepted
from the procedural bars of the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss.
Code Ann. § 99-39-1, et seq., the Mississippi Supreme Court has also found there must be some
basis for the claim in order to exempt application of the bar. See Doc. #9-3. In this case, the
State court found Burrell’s claim barred as it lacked any arguable basis. See id. Therefore, the
Court finds that Burrell has not demonstrated that the either the successive writ or the waiver
bars are inapplicable, and he has not demonstrated cause and prejudice or actual innocence to
overstep the bar. Burrell has defaulted his federal habeas claim pursuant to an independent and
adequate State law rule.
b) Ground Four
In Ground Four, Burrell asserts that his trial counsel was constitutionally ineffective for
failing to call Patricia Newell as a defense witness. Burrell raised these allegations in his second
application for permission to proceed with a motion for post-conviction collateral relief. The
State court found this claim to be procedurally barred due to its waiver provisions in Miss. Code
Ann. §99-39-21(1) and as part of an impermissible successive petition pursuant under Miss.
Code Ann. §99-39-27(9).
As noted above, while some allegations of ineffective assistance of counsel may be
exempted from the waiver and successive writ bars under Mississippi law if there is some
arguable basis for the truth of the claim, the State court found in this case that “Burrell’s
ineffective assistance claims lack any arguable basis and are thus barred.” Doc. #9-3. The Court

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finds that Burrell has not demonstrated that the either the successive writ or the waiver bar is
inapplicable, and he has not demonstrated cause and prejudice or actual innocence to overstep
the bar. Therefore, he has defaulted his federal habeas claim pursuant to an independent and
adequate State law rule.
IV
Ground Two
Burrell claims that the trial court erred in failing to grant his motion for a new trial,
because the verdict was against the overwhelming weight of the evidence. It is a fundamental
principle that “[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). A challenge to the sufficiency of the evidence may, however, form a basis
for federal habeas relief if the evidence, viewed in the light most favorable to the State, is such
that no reasonable factfinder could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
This issue was considered by the Mississippi Supreme Court on direct appeal. That court
held:
Kidnapping can be proven in three ways. To be convicted of kidnapping, the State
must prove that the defendant:
1. acting without lawful authority, and
2. with or without intent to secretly confine,
a. forcibly seized and confined another person; or
b. inveigled or kidnapped another person with intent to cause such person
to be confined or imprisoned against his will; or
c. forcibly seized, inveigled or kidnapped any vulnerable person as
defined in Section 43–47–5 or any child under the age of sixteen (16)
years against the will of the parents or guardian or person having the
lawful custody of the child.
See Miss.Code Ann. § 97–3–53 (Rev.2014). In the instant case, the indictment
invoked the first method, charging that Burrell did “without authority of law, and
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with or without intent to secretly confine, forcibly seize and confine Charlie
Jeter.” We hold that the evidence was sufficient for the jury to find that Burrell
forcibly seized and confined Charlie.
***
Burrell's claim that he may be guilty of trickery, but not kidnapping, is entirely
without merit. Intent to kidnap is not required. “[K]idnaping is not a specific
intent crime. Therefore, it is sufficient that the surrounding circumstances resulted
in a way to effectively become a kidnaping as opposed to the actual intent to
kidnap.” Milano v. State, 790 So.2d 179, 187 (¶ 32) (Miss.2001) (quoting
Williams v. State, 445 So.2d 798, 809 (Miss.1984)). Burrell did not need to have
intended to kidnap Charlie.
It is undisputed that Burrell told Charlie he could get cigarettes for $1 a carton
and enticed Charlie to the parking lot to procure the cigarettes. Surveillance
footage showed Burrell and Charlie walking through the casino together. At one
point Charlie got his wallet out and appeared to be looking for cash. They stopped
at a machine where, according to Burrell, Charlie cashed in his tickets. They
stopped again, apparently to get the keys from Fredna, although she was not
visible on the video. Then they walked out of the casino and into the parking lot
together. A gun was not visible in the surveillance footage, but the security
personnel and officers who testified said a gun would not be visible from that
distance. Thus, the fact that a gun is not visible in the footage is not proof that
there was no gun. Burrell claimed that Charlie had let him into the car willingly
under the premise of driving to the Exxon to get the cigarettes. Charlie, however,
testified that Burrell had ordered him into the car at gunpoint. Charlie and Burrell
both testified that Charlie had dropped off Burrell at his neighborhood. Charlie
drove straight back to the casino, where his wife had involved the police because
Charlie had been gone for two hours. Fredna and several others testified that
Charlie was visibly shaken up when he returned.
“The jury determines the weight and credibility of witness testimony.” Jones, 154
So.3d at 880 (¶ 24) (quoting Nelson v. State, 10 So.3d 898, 905 (¶ 29)
(Miss.2009)). The jury was responsible for determining whether Charlie or
Burrell was more believable. If the jury believed Charlie, then the testimony and
circumstantial evidence were sufficient to prove that Burrell “forcibly seized and
confined” Charlie. According to Charlie, Burrell enticed him to the parking lot
with his cigarette con, forced him into the car at gunpoint, confined him in the
car, and forced him to drive to Memphis. The surveillance footage and other
testimony support Charlie's account. “[C]ircumstantial evidence is sufficient to
sustain a charge of kidnaping.” Milano v. State, 790 So.2d 179, 187 (¶ 32)
(Miss.2001) (citing Underwood v. State, 708 So.2d 18, 35 (Miss.1998)). Viewing
the evidence in the light most favorable to the verdict, the verdict is not “so
contrary to the overwhelming weight of the evidence that to allow it to stand

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would sanction an unconscionable injustice.” Jones, 154 So.3d at 880 (¶ 24). The
issue is without merit.
Burrell, 183 So. 3d at 22-24.
Burrell’s challenge to the weight of the evidence is not cognizable on federal habeas
review. Insofar as Burrell challenges the sufficiency of the evidence, however, Court finds that
the evidence presented in this case is sufficient such that a reasonable factfinder could find the
elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Accordingly,
the Court finds that the decision rejecting this claim is not based on an unreasonable
determination of facts in light of the evidence presented, and that the decision is not contrary to,
nor does it involve an unreasonable application of, clearly established federal law. This claim
will be dismissed.
V
Certificate of Appealability
Burrell must obtain a certificate of appealability (“COA”) before appealing this Court’s
decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). A COA will not issue unless a
petitioner makes “a substantial showing of the denial of a constitutional right” of any claim
rejected on its merits, which he may do by demonstrating that “reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” 28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on a claim that has
been rejected on procedural grounds, Burrell 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

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procedural ruling.” Slack, 529 U.S. at 484. Applying this standard, the Court concludes that a
COA should be denied in this case.
VI
Conclusion
For the foregoing reasons, Burrell’s petition for a writ of habeas corpus is DENIED and
DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. A separate final
judgment in accordance with this opinion and order will issue today.
SO ORDERED, THIS the 25th day of July, 2017.

/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE

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