Tarver v. Banks et al
Filing
21
MEMORANDUM OPINION re 20 FINAL JUDGMENT DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Michael P. Mills on 9/7/2011. (lpm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
LORENZO TARVER
PETITIONER
v.
No. 4:10CV159-M-A
WARDEN JACQUELYN BANKS, ET AL.
RESPONDENTS
MEMORANDUM OPINION
This matter comes before the court on the pro se petition of Lorenzo Tarver for a writ of
habeas corpus under 28 U.S.C. § 2254. The State has answered the petition. Tarver 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
Lorenzo Tarver is in the custody of the Mississippi Department of Corrections and is
currently housed at the Marshall County Correctional Facility in Holly Springs, Mississippi. He
was convicted of possession of marijuana with intent to sell and sentenced to serve a term of
sixty years incarceration under MISS. CODE ANN. §§ 41-29-139 and 41-29-142. State Court
Record (S.C.R.), Vol. 3, pg. 312.
Tarver appealed his conviction and sentence to the Mississippi Supreme Court, raising as
grounds for relief:
I.
Whether prosecutor’s closing argument insinuating criminal conduct by
Tarver’s Jackson lawyers in stealing the missing evidence and then
appealing to jury prejudice that counsel thinks they’re ignorant constitutes
misconduct that deprived Tarver of a fundamental right to a fair and
impartial trial?
II.
Whether the trial court abused its discretion in (1) excluding for cause
jurors who expressed concern about missing evidence (2) permitting the
prosecutor to talk about two trials: Tarver’s and whoever stole the
evidence and (3) striking an impaneled juror?
III.
Whether the trial court abused its discretion in denying Tarver’s motion to
sever the gun count of the indictment?
IV.
Whether the trial court abused it’s discretion in denying Tarver’s motion
for continuance?
V.
Whether the trial court abused its discretion in denying Tarver’s motion to
suppress his criminal record?
VI.
Whether the trial court committed reversible error when it permitted the
State to amend the indictment to allege the crime was committed within
1,500 feet of a day car center instead of a park?
VII.
Whether Tarver received ineffective assistance of counsel?
VIII.
Whether Tarver is entitled to a new trial because of lost or destroyed
evidence?
IX.
Whether Tarver’s right to a speedy trial were denied?
X.
Whether the trial court abused its discretion in denying Tarver’s motion
for recusal?
XI.
Whether Tarver’s sentence was excessive and constituted cruel and
unusual punishment in violation of the United States and Mississippi
Constitutions?
XII.
Whether the trial court abused its discretion in denying Tarver’s motion to
suppress evidence?
XIII.
Whether the cumulative effects of errors deprived Tarver of the right to a
fundamental fair and impartial trial?
The Mississippi Court of Appeals affirmed the conviction and sentence. Tarver v. State, 15
So.3d 446 (Miss. App. 2009), reh’g. denied May 26, 2009, cert. denied August 20, 2009 (Cause
No. 2006-KA-01260-COA). The United States Supreme Court denied Tarver’s petition for a
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writ of certiorari.
Tarver then filed an “Application for Leave to Proceed in the Trial Court,” with an
attached “Motion for Post-Conviction Relief,” setting forth the following claims (as stated by
Tarver pro se):
A.
Petitioner entitled to a new trial based on newly discovered evidence.
B.
Petitioner entitled to a new trial due to illegal search and seizure, lacking
probable cause.
C.
Petitioner’s conviction derived from abuse of discretion by the trial court.
D.
Petitioner’s conviction derived from prosecutorial misconduct.
E.
Petitioner was denied his right to effective assistance of counsel.
F.
Petitioner entitled to a new trial due to lost of evidence, that was subject to
discovery.
G.
Petitioner’s sentence is illegal as a matter of law and/or in the interest of
justice.
The Mississippi Supreme Court denied Tarver’s application holding, in pertinent part:
After due consideration, the panel finds that Tarver raises many of the same issues
that were raised on appeal. Those issues are barred by the doctrine of res judicata
pursuant to Miss. Code Ann. §99-39-21(3). Tarver also asserts that he has newly
discovered evidence in the form of recanted witness testimony. However, that
issue was before the trial court on a motion to suppress evidence and was raised
on direct appeal. Therefore, Tarver’s claim of newly discovered evidence is
without merit. Tarver’s application should be denied.
See Exhibit C of State’s Response.
Tarver then filed a petition for a writ of habeas corpus in this court raising the following
grounds for relief (as summarized by the court):
Ground One: Petitioner is entitled to a new trial based on newly discovered
evidence.
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Ground Two: Petitioner is entitled a new trial based on illegal search and seizure.
Ground Three: Petitioner’s conviction was the result of prosecutorial misconduct.
Ground Four: Petitioner received ineffective assistance of counsel.
Ground Five: Petitioner’s conviction was the result of an abuse of discretion by
the trial court.
Ground Six:
Petitioner is entitled to a new trial due to the lost evidence.
Ground Seven: Petitioner’s sentence is illegal.
Ground Eight: Petitioner was denied his right to a speedy trial.
Ground Nine: Petitioner was denied due process in that witnesses have recanted
testimony and claimed that their testimony was coerced.
Ground Ten: Petitioner was denied due process in that his convictions were
based on evidence which was obtained based on coerced
testimony.
Ground Eleven: Petitioner has new evidence which demonstrates that the search
warrant was illegal.
Ground Twelve: Petitioner was denied his right to a fundamentally fair trial.
Discussion
Most of Tarver’s twelve grounds for relief contain several sub-grounds, and many of the
claims contain no facts to support them. The State has done an admirable job of sifting through
the allegations in an attempt to discern what, precisely, Tarver’s constitutional claims might be.
The court agrees with the State’s interpretation, and has set forth an analysis of each issue below.
Ground Two: Search and Seizure of the Marijuana and Firearms
Ground Two of Tarver’s petition, a Fourth Amendment claim challenging the validity of
the state’s search and seizure of marijuana and firearms from his home, will be dismissed, as he
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had a full and fair opportunity to litigate the claim in state court. “[W]here the state has provided
an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not
be granted federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial . . . .” Id. at 482. The petitioner
seeking habeas corpus relief bears the burden to prove the denial of a full and fair hearing.
Davis v. Blackburn, 803 F.2d 1371, 1372 (5th Cir. 1986). Tarver presented argument during a
two-day suppression hearing on this issue and others prior to his trial. He has not shown that the
lengthy hearing was either insufficient or unfair. As such, this ground for relief will be
dismissed.
Remaining Claims – Denied on the Merits in State Court
The Mississippi Supreme Court has already considered the remaining grounds for relief
on the merits and decided those issues against the petitioner; hence, these claims are barred from
habeas corpus 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
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
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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 these grounds of the petitioner’s claim.
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
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(d)(2) to move these claims beyond § 2254(d), which bars from habeas corpus review issues
already decided on the merits.
Grounds One, Nine, Ten, and Eleven:
Probable Cause for the Warrant to Search Tarver’s Home
Grounds One, Nine, Ten, and Eleven set forth the same claim: that the State did not
establish probable cause to obtain the warrant used to conduct a search of his home because the
confidential informant recanted his statement implicating Tarver. In each of these grounds for
relief, Tarver argues that Chris Davis, a witness who testified at the suppression hearing in
Tarver’s case, has come forward to state that the information he supplied to law enforcement,
which was used to establish the probable cause to obtain a search warrant, was false and coerced
by police officers. First, Tarver had a full and fair opportunity to litigate this issue in state court,
and, as set forth in the discussion of Ground Two above, this court may not review that Fourth
Amendment decision in a habeas corpus proceeding. See Stone v. Powell, 428 U.S. 465 (1976).
These grounds for relief will be dismissed for that reason.
Tarver’s claim also fails on the merits. Tarver argues that this information regarding
Chris Davis constitutes “newly discovered evidence” to prove that the State did not have
probable cause to search his property. However, the “newly discovered evidence” had, in fact,
been presented to the trial court during the motion to suppress and had also been raised on direct
appeal. As such, the Mississippi Supreme Court held that the recantation was not “newly
discovered evidence” and the issue was without merit. Indeed, in the present habeas corpus
petition, Tarver states that he “was aware of this testimony (evidence) at the time of trial but not
in its full extent.” ECF doc. 9-1, pp. 7-8. The recantation of Chris Davis does not constitute
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“newly discovered evidence;” as such, Tarver’s claims in Grounds One, Nine, Ten, and Eleven
will be dismissed.
Ground Three: Violation of Tarver’s Right to Due Process
Through Prosecutorial Misconduct
In Ground Three Tarver claims that the state court violated his right to due process
because of prosecutorial misconduct, namely (1) the use of leading questions; (2) introducing
testimony regarding Tarver’s prior conviction; (3) introducing false testimony; (4) commenting
on the evidence during examination of a witness on redirect; (5) attempting to rehabilitate State
witnesses; and (6) the cumulative effect of the alleged misconduct. An examination of the record
reveals that the prosecutor conducted himself appropriately.
The rule for evaluating claims of prosecutorial misconduct in a habeas corpus proceeding
is straightforward:
This court' review of an assertion of prosecutorial misconduct takes place in two
s
steps. First, we must initially decide whether or not the prosecutor made an
improper remark. United States v. Munoz, 150 F.3d 401, 414 (5th Cir.1998). If an
improper remark was made, we must then evaluate whether the remark affected
the substantial rights of the defendant. Id. at 415; Garza, 608 F.2d at 663. In
assessing whether statements made by a prosecutor were improper, it is necessary
to look at them in context. United States v. Washington, 44 F.3d 1271, 1278 (5th
Cir.1995).
U.S. v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999).
Expounding upon this rule, Fifth Circuit held:
To determine whether the argument affected the defendant’s substantial rights, we
examine (1) the magnitude of the statement’s prejudice, (2) the effect of any
cautionary instructions given, and (3) the strength of the evidence of the
defendant' guilt. [United States v. Lowenberg, 853 F.2d 295, 302 (5th Cir.1988)].
s
As we will not set a conviction aside if the prosecutor' conduct did not contribute
s
to the guilty verdict, this analysis is equivalent to review for harmless error.
United States v. Cardenas, 778 F.2d 1127 (5th Cir.1985); United States v. Beckett,
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706 F.2d 519 (5th Cir.1983).
U.S. v. Simpson, 901 F.2d 1223, 1227 (5th Cir. 1990).
As to the allegation that the prosecutor inappropriately used leading questions, the record
reflects that in each instance, either (1) the questions were not leading, or (2) the trial court
admonished the prosecutor not to lead the witness.1 In any event, these instances were minor and
could not have affected the outcome of the trial. This issue is thus without merit.
Tarver also alleges that the State inappropriately introduced evidence of his prior
conviction on drug charges, citing S.C.R., Vol. 6, pg. 426-427 and Vol. 7, pg. 568. On pages 426
to 427, the prosecution, without defense objection, entered a certified copy of a judgement from
Tarver’s previous drug-related conviction. In addition, the trial court gave the jury the following
instruction regarding the use of that judgment:
The Court instructs the Jury that during the course of this trial you have heard
proof that the Defendant has previously been convicted a felony crime. Proof of
this conviction is offered for the purpose of determining whether the Defendant
was a convicted felon at the time of the alleged crime. Proof of this prior
conviction is also offered for the purpose of establishing the Defendant’s intent to
sell, transfer or distribute marijuana in this case. The jury may not consider this
evidence for any other purpose.
S.C.R., Vol. 2, pg. 274. Given the self-authenticating nature of the document under MISS. R.
EV. 901(1), and its general admissibility as a hearsay exception under MISS. R. EV. 803(22), as
well as the court’s limiting instruction, there was no error in admitting the judgment into
evidence.
Tarver also challenges the following exchange found on pages 567-568, arguing that the
1
As the State noted in its response to the instant petition, though Tarver references many
pages in the record in this ground, only pages 472 and 519 of the trial transcript appear to contain
relevant statements and objections. The court will thus limit its discussion to these two pages.
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prosecutor made references to Tarver’s prior conviction or bad acts:
Q:
How did you know 506 was where Lorenzo Tarver stayed?
A:
I been at the police department since 1980 and on several occasions I’ve
had dealings with Lorenzo, and I’ve always known that to be his address
especially with other police reports where he’s been arrested and listed that
address.
Q:
And those would be on drug related issues?
A:
There were a couple of drug related issues, yes, sir.
S.C.R., Vol. 7, pp. 567-568.
Even if the testimony were improper (which does not appear to be the case), such error is
harmless because the prosecution otherwise presented the jury with overwhelming evidence of
Tarver’s guilt. Officers served a search warrant on 506 Cypress Avenue in Greenwood, MS, on
June 18, 2004. S.C.R., Vol. 6, pg. 399. There was testimony that, when officers arrived at the
house, Tarver walked up to the front door, was startled by the police and opened the door for
them. S.C.R., Vol. 6, pg. 400, Vol 7, pp. 514, 570. Further, two bags containing marijuana were
found in a bedroom that appeared to be Tarver’s, which Tarver admitted that he owned. S.C.R.,
Vol. 6, pg. 401, Vol. 7, pp. 517, 571-572. This marijuana was later found to weigh 4.2
kilograms. S.C.R., Vol. 6, pg. 413. Photos of this marijuana were admitted into evidence and
identified by witnesses. S.C.R., Vol. 7, pg. 452, 521, 572. At Tarver’s direction, police found a
scale under the bed and nude pictures in an envelope stuffed in a phone book and placed between
the mattresses, in the bedroom where the marijuana was found. S.C.R., Vol. 6, pp. 401-402, Vol.
7, pp. 457, 517, 572. Officers also found envelopes addressed to Tarver at the 506 Cypress
address and a large amount of cash inside of a safe found in the bedroom, to which Tarver had a
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key. S.C.R., Vol. 6, pg. 402, Vol. 7, pp. 457, 573. Further, officers discovered a room
containing illegal gaming machines in a back room, which Tarver admitted he owned, and
officers also found a 40 caliber Baretta stamped “Shelby County Sheriff’s Office” in that room.
S.C.R., Vol. 6, pg. 403.
After the marijuana was discovered in the bedroom, the officers stationed outside noticed
a strong smell of marijuana coming from a locked shed. S.C.R., Vol. 7, pg. 481. The keys to this
shed were also found on Tarver’s person. S.C.R., Vol. 7, pg. 462. Inside the shed, another sixty
pounds of marijuana were found stored in large black garbage bags. S.C.R., Vol. 6, pg. 413.
Photos of the marijuana recovered from the shed were admitted into evidence and identified by
witnesses. S.C.R., Vol. 6, pg. 418, Vol. 7, pg. 482. A transfer sheet was admitted demonstrating
the marijuana had been transported to the crime lab for testing. S.C.R., Vol. 7, pg. 504. The
crime lab technician testified that core samples were taken from the marijuana submitted and test
results demonstrated that the substance was, in fact, marijuana. S.C.R., Vol. 7, pp. 534-536.
These core samples were admitted into evidence. S.C.R., Vol. 7, pg. 536. In addition, a crime
lab report was admitted – and verified that the two sets of marijuana submitted weighed 4.8 and
28.3 kilograms respectively. S.C.R., Vol. 7, pg. 538. Given this evidence, the single reference to
prior police calls to Tarver’s home involving “drug related issues” is harmless.
Ground Four: Ineffective Assistance of Counsel
In Ground Four Tarver claims that counsel rendered ineffective assistance by his: (1)
failure to object to the introduction of the firearm into evidence; (2) failure to object to the
introduction of the keys to his shed; (3) failure to object to introduction of documents showing
his prior conviction for drug-related crimes; (4) failure to object to the State’s use of Eric Owens
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to prove that Tarver resided at the address searched (arguing that, although Owens was a parole
officer, he was not Tarver’s parole officer); (5) failure to object to the court’s dismissal of Juror
No. 11; and (6) introduction of evidence of Tarver’s prior convictions and the commission of
unrelated crimes. Again, the state court record belies these claims.
Claims that counsel was ineffective are governed by the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). To merit habeas corpus relief on a claim of ineffective
assistance of counsel, a petitioner must prove both constitutionally deficient performance by
counsel – and actual prejudice as a result of the deficient performance. See also Motley v.
Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (summarizing the Strickland standard of review). A
petitioner’s failure to establish either prong of the Strickland test warrants rejection of his claim.
Moawad v. Anderson, 143 F.3d 942, 946 (5th Cir. 1998); Bates v. Blackburn, 805 F.2d 569, 578
(5th Cir. 1986)(overruled on other grounds).
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 by professional norms. Strickland, 466
U.S. at 688. The court must analyze counsel’s actions based upon the circumstances at the time –
and must not use the crystal clarity of hindsight. Lavernia v. Lynaugh, 845 F.2d 493, 498 (5th
Cir. 1988).. Lavernia v. Lynaugh, 845 F.2d 493, 498 (5th Cir. 1988). “[T]he [petitioner] must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland, 466 U.S. at 689 (citation omitted). A strong
presumption exists that counsel has exercised reasonable professional judgment. Strickland, 466
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U.S. at 689; Martin v. McCotter, 796 F.2d 813, 187 (5th Cir. 1986).
To prove prejudice, Tarver must show that the result of the proceedings would have been
different – or that counsel’s performance rendered the result of the proceeding fundamentally
unfair or unreliable. He must prove that counsel’s errors were “so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable,” Strickland, 466 U.S. at 687, and
demonstrate a reasonable probability that, but for counsel’s errors, the results of the proceeding
would have been different. Id. at 694. See also Mayabb v. Johnson, 168 F.3d 863,869 (5th Cir.
1998); Goodwin v. Johnson, 132 F.3d 162, 170 (5th Cir, 1998). A “reasonable probability” is one
sufficient to undermine confidence in the outcome of the proceeding. Moawad v. Anderson,
supra. An error by counsel, even if professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no effect on the judgment. Summit v.
Blackburn, 795 F.2d 1237,1242 (5th Cir. 1986).
Under this standard, all Tarver’s claims of ineffective assistance of counsel must be
denied.
Trial Counsel Failed to Make Key Objections to Inadmissible Evidence
Tarver argues that trial counsel was ineffective for: (1) failing to object to the admission
of the firearm into evidence; (2) failing to object to the admission of the keys into evidence; (3)
failing to object to testimony regarding Tarver’s prior convictions; (4) failing to object to calling
of Eric Owens as a rebuttal witness; (5) failing to object to the dismissal of Juror No. 11; and (6)
eliciting testimony regarding Tarver’s prior convictions or other bad acts.
Trial Counsel Failed to Object to the Admission of the .40 Beretta
Tarver complains that the stolen Shelby County Sheriff’s Office 40 caliber Beretta (found
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in the search of Tarver’s home) was admitted into evidence without objection as Exhibit S-4.
S.C.R., Vol. 6, pp. 407-408. Tarver argues that trial counsel should have objected to the
admission of this evidence because “there was no connection between Petitioner and the gun.”
ECF doc. 9-1, pg. 14. This claim is frivolous, as the firearm had been part of the evidence trial
counsel sought to exclude during a two-day suppression hearing. S.C.R., Vol. 4, pg. 1 through
Vol. 5, pg. 279. Indeed, prior to the admission of the stolen Beretta, there had been testimony
that Tarver was alone in the house when the police arrived to conduct the search and, after being
ordered to do so, let the officers into the home. S.C.R., Vol. 6, pg. 400. Further, Tarver admitted
to the possession of the marijuana found in the bedroom of the house and directed officers to the
scale and nude pictures concealed in the room. S.C.R., Vol. 6, pp. 401-402. Tarver also had
provided the key to a safe in the bedroom which contained letters addressed to Tarver at that
address. S.C.R., Vol. 6, pg. 402. In addition, there was testimony that Tarver admitted that the
illegal gambling machines in the room where the Baretta was found belonged to him. S.C.R.,
Vol. 6, pg. 403. As such, the jury had ample evidence to determine that Tarver was a resident of
that address – and thus had control over the property contained there. Therefore, the trial judge
previously ruled the gun admissible (over Tarver’s objection), and there was more than enough
evidence for the jury to find that Tarver possessed the .40 Beretta. Under these circumstances,
any objection lodged to the admission of the Baretta would have been meritless. Clearly, the
court will not hold counsel deficient for failing to lodge a meritless objection. See Clark v.
Collins, 19 F. 3d 959, 966 (5th Cir. 1994) (“Failure to raise meritless objections is not ineffective
lawyering, it is the very opposite.”).
Trial Counsel Failed to Object to the Admission of the Keys to the Shed.
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Tarver also complains that trial counsel failed to object to the admission of evidence
demonstrating “Petitioner’s connection with the marijuana allegedly found in the shed.” ECF
doc. 9-1, pg. 14. Although this allegation is far from clear, Tarver cites Exhibit S-3, which was
the set of keys recovered from Tarver’s person containing keys which opened both the safe found
in the bedroom and the padlocked shed in the backyard. These keys were admitted without
objection. S.C.R., Vol. 6, pp. 406-407. As with the Beretta discussed above, the keys were
retrieved from Tarver during the course of the legal search, and the trial judge denied Tarver’s
motion to suppress the evidence seized during this search. Further, the keys were found on
Tarver’s person (not merely in the residence), and Officer Bedell demonstrated that a key on the
ring fit the safe which had been recovered from the bedroom. S.C.R., Vol. 6, pg. 406. Any
objection to the admission of these keys would have been without merit, and trial counsel was
wise not to object to their introduction. Clark v. Collins, 19 F. 3d at 966.
Trial Counsel Failed to Object to the Admission of
Proof of Tarver’s Prior Conviction
Although Tarver states his claim as a challenge to counsel’s failure to object to testimony
regarding his prior conviction, he cites to Exhibit S-15, the certified judgment of his prior
conviction. As such, the court has construed this allegation as a challenge to counsel’s decision
not to object to the admission of the judgment. Counsel initially objected to the line of
questioning regarding the judgment as hearsay. S.C.R., Vol. 6, pg. 427. However, the
prosecutor then had Officer Bedell verify that the judgment was a certified copy from the United
States District Court and submitted the exhibit as a self-authenticating document. S.C.R., Vol. 6,
pg. 427. At that point, the judgment was entered into evidence without objection. S.C.R., Vol.
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6, pg. 428. The judgment was clearly admissible under MISS. R. EV. 803(22) and 902. Thus,
counsel’s decision not to challenge it was reasonable. Clark v. Collins, 19 F. 3d at 966. This
claim for relief is therefore without merit.
Trial Counsel Failed to Object to the Calling of Eric Owens as a Rebuttal Witness
To rebut Tarver’s contention that he did not exercise dominion over the house searched,
the State called Eric Owens, a federal probation officer for the Northern District of Mississippi.
S.C.R., Vol. 8, pg. 699. Tarver complains that Owens had not been his probation officer and
could only testify to “second-hand” information regarding Tarver’s residence. Owens, however,
testified that Tarver had been supervised by Owens’ partner, but that Owens had access “to all
the records and documents and information” regarding Tarver. S.C.R., Vol. 8, pg. 699. Tarver’s
probation form was admitted into evidence as Exhibit S-25; it bore Owens’ signature and listed
the 506 Cypress house as Tarver’s address. S.C.R., Vol. 8, pg. 700. Indeed, Owens testified that
he personally met with Tarver at the 506 Cypress address “on more than one occasion,” and that
Tarver had indicated that was his residence. S.C.R., Vol. 8, pp. 700-701. Owens’ testimony
contained only information of which he had personal knowledge; as such, there was no basis for
an objection to his testimony. Tarver’s counsel cannot be held deficient for failing to object to
Owen’s rebuttal testimony. Clark v. Collins, 19 F. 3d at 966.
Trial Counsel Failed to Object to the Dismissal of Juror No. 11
Tarver next complains that trial counsel did not object to, or make an adequate record of,
the court’s dismissal of Juror No. 11 without first holding an in camera examination of the juror.
Before the close of the State’s case, the prosecution brought to the attention of the judge that:
One of the male jurors, and I think it was – it may have been – I think it was Juror
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11, Jimmy Tribblett, who has a blue – seemed like a blue striped shirt, glasses –
that was it Jimmy Tribblett – as he’s walking out of the courtroom, he had
motioned and said something to one of the guys that were back here that were
waiting on Lorenzo Tarver after the trial.
S.C.R., Vol. 7, pg. 589. The trial then decided that the matter should be resolved at the close of
trial. S.C.R., Vol. 7, pg. 589. Then, after the jury instruction conference, the State again
discussed their concerns regarding Juror No. 11, stating:
Juror No. 11, as he left the courtroom for lunch, was seen by myself and I think
James Payne trying to make a – was saying something to one of the friends of the
defendant back here, but also he’s been making eye contact with the defendant
throughout the trial. But I was most concerned about the – in the open court the
blatant hello or whatever it was.
S.C.R., Vol. 8, pp. 722-723. Trial counsel indicated the he had no knowledge of any such
incident and complained that “every juror there has looked at the defendant at some point.”
S.C.R., Vol. 8, pg. 723.
James Payne was then placed under oath and allowed to testify as to his observations.
S.C.R., Vol. 8, pg. 724. Payne testified that:
I’m aware of – I don’t know exactly what number he was, but he have on a blue
striped shirt, long hair, and eyeglasses. When he was exiting the courtroom, there
was a civilian sitting in the bench out there – he had on a tank top – and they was
conversating, and I turned around and I say, you can’t talk to the jurors. And he
said, well, I wasn’t talking to him. So he left and went out of the courtroom.
S.C.R., Vol. 8, pg. 724. Following this testimony, trial counsel argued that “it’s no one
connected to this trial or this case, matter, and there’s no evidence that whatever he said was out
of line. I think he could have said, good day, how you doing, or whatever.” S.C.R., Vol. 8, pg.
725. Trial counsel made other arguments that the juror should not be excused. S.C.R., Vol. 8,
pp. 725-727. However, the trial court held:
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Well, Rule 3.06, Conduct of Jurors, “Jurors are not permitted to mix and mingle
with the attorneys, parties, witnesses, and spectators in the courtroom.” And so I
think that the evidence clearly establishes that the juror has violated Rule 3.06. So
I’m going to strike that juror from the panel and substitute Ms. Cole, who would
be the next juror. She’s alternate No. 1.
S.C.R., Vol. 8, pg. 727.
Following the trial court’s ruling, trial counsel continued to argue against the trial judge’s
decision. S.C.R., Vol. 8 pp. 728-729. In fact, trial counsel requested that the trial judge “allow
the juror to come in and defend himself.” S.C.R., Vol. 8, pg. 729. However, the trial judge felt it
would be inappropriate to do so and “would taint the pool, the panel for the Court to interrogate
one of them outside of the presence of the others.” S.C.R., Vol. 8, pg. 730. After closing
arguments, trial counsel requested a mistrial based, in part, on the dismissal of Juror No. 11.
S.C.R., Vol. 9, pg. 758. However, the trial judge indicated that he had ruled regarding Juror No.
and denied the motion for mistrial. S.C.R., Vol. 9, pg. 760. Given counsel’s many attempts to
keep Juror No. 11 in the pool, Tarver’s claim that counsel failed to do so is frivolous. Once
again, Tarver’s claims do not square with the court record. This claim will be dismissed as
frivolous.
Trial Counsel Improperly Elicited Testimony of Petitioner’s Prior Conviction
or the Commission of Unrelated Crimes.
Tarver does not specify what portions of the testimony he challenges in this claim. ECF
doc. 9-1 pg. 15.2 Thus, the allegation is a mere legal conclusion and fails to state a constitutional
claim for relief. Clark v. Collins, 19 F. 3d at 966. As such, Tarver is not entitled to federal
2
Instead of providing further argument on this ground, Tarver argues that the search
warrant was illegal. ECF doc. 9-1, pp. 15-16. This argument does not support the allegation of
ineffective assistance of counsel set forth in this ground.
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habeas corpus relief on this ground.
As set forth above, Tarver has not shown (in any of his ineffective assistance of counsel
claims) that trial counsel deficient in any way, and, even if he could show deficient performance,
he has not shown that counsel’s actions caused prejudice to his case. Indeed, had counsel acted
as Tarver wished, an acquittal would have been nigh on impossible, given the mountain of
evidence adduced against him. Therefore, the Mississippi Supreme Court’s holding that Tarver
failed to demonstrate constitutionally ineffective assistance of counsel was neither contrary to,
nor did it involve an unreasonable application of, clearly established federal law, as determined
by the Supreme Court of the United States. Additionally, the decision was not based on an
unreasonable determination of the facts in light of the evidence. Therefore, Tarver is not entitled
to habeas corpus relief on Ground Four.
Ground Five: Abuse of Discretion
In Ground Five Tarver argues that the trial court abused its discretion by: (1) denying
defense counsel’s motion for recusal of the trial judge; (2) denying Tarver’s motion to suppress
evidence recovered during the search of his home – and evidence of his prior convictions; (3)
denying Tarver’s motion to dismiss for violation of his right to a speedy trial; (4) denying
Tarver’s request for a reduction of his bond; (5) denying Tarver’s motion to sever the counts of
the indictment; (6) dismissing potential jurors; (7) enhancing Tarver’s sentence under MISS.
CODE ANN. § 41-29-142 using evidence not presented to the jury; and (8) dismissing Juror No.
11. None of these grounds for relief has any basis in the law; as such, they will be denied.
Denial of Motion for Trial Judge to Recuse Himself
Prior to trial, Tarver’s original counsel, Chokwe Lumumba, moved for the judge to recuse
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himself. S.C.R., Vol. 4, pg. 7. In support of this motion, Lumumba argued that the trial judge
had unnecessarily delayed ruling on a petition for a writ of habeas corpus in a separate case of
Tarver’s. S.C.R., Vol. 4, pp. 8-9. Lumumba also argued that he had previously been late to court
and, upon arriving in the courtroom, had gotten into a disagreement with the prosecutor and court
administrator and was instructed by the bailiff to “leave the front.” S.C.R., Vol. 4, pp. 9-12. He
further complained that someone told him the trial judge had commented that Lumumba was
always late to court. S.C.R., Vol. 4, pg. 13. The trial judge denied Lumumba’s motion to recuse,
holding:
Okay. Well, I' going to deny the motion. I think that you may have stated some
m
case for you and the prosecutor to go to the Bar with your dispute or something
like that, but I don'see how you can say that relates to the Court, because I wasn'
t
t
even present when any of that happened. And, you know, as far as for Monday,
Court was set at 8:30. The docket went out. You were late to Court. I think you
have appeared before me this year about five times. You' been on time one
ve
time which was the second day of the trial involving the gentleman who was set
for sentencing on Monday. I can'recall his name at the present time. All the rest
t
of the times you' been an hour late, an hour and a half late. You were even late
ve
an hour when we were picking a jury, and we had to delay the trial. And you'
re
very tardy in your approach to appearing before the Court. And if you think that
that does aggravate the judges, it does a little bit. You know, you' not the only
re
one that' late, so I' not going to hold it against you and I' certainly not going
s
m
m
to hold it against your client. But we do have all these rules and we expect them
to be followed. And when you came in this morning and you didn'appear at
t
docket call at 8:30 on Monday to -- like everybody else is supposed to and like
everybody else in this case did, and you did not advise the Court that you had
motions that you wanted to have heard. And that' the rule in this district, and it'
s
s
on the docket sheet. It is the responsibility of the moving lawyer to see these
cases and have them heard by the judge seven days in advance of the trial, so these
should have been set before last week. And when the lawyer does not set them
according to the rules, the Court assumes that they are abandoned. And that
happens all the time. We have -- you know, the dockets are full of motions that
lawyers abandon prior to the trial for whatever reason, and I don'know why they
t
abandon them but they do, and I assumed -- well, I didn'assume anything on this
t
case, because I didn'have copies of these motions. That' another thing. You
t
s
must serve the judge with a copy of a motion. And I checked the file at my office
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and there' no -- we' been served with none of this, so, you know, that' another
s
ve
s
thing. But, anyway, the motion is denied, and I' not going to hold your behavior
m
in Court against you or your client. And as far as what goes on when I' not in
m
the Court, I don'even care about that.
t
S.C.R., Vol. 4, pp. 17-19.
Lumumba later filed a written motion to recuse arguing that the trial judge’s court
administrator had filed a bar complaint against Lumumba. S.C.R.,Vol. 1, pg. 55. The trial court
entered a written order noting that Lumumba had since been temporarily suspended from the
practice of law. In addition the trial judge stated that, “[h]aving reviewed the Code of Judicial
Conduct, this Court cannot find just cause to recuse himself and therefore the motion shall be
denied.” S.C.R., Vol. 2, pg. 197. The appellate court considered this issue on direct appeal and
held:
Although Tarver complains that he believes the judge was biased against
Lumumba, Tarver was represented by ShamsidDeen at trial since Lumumba was
suspended from the practice of law. There has been no evidence presented that
suggests the circuit court judge was biased or not qualified. The motions that were
denied were not based on biases against Tarver, but they were denied for reasons
discussed throughout this opinion. The circuit court judge refused to recuse
himself stating that he “[could] not find just cause to recuse himself.”
Accordingly, we find no reason to doubt the judge' impartiality. This issue is
s
without merit.
Tarver, 15 So.3d at 463.
“All questions of judicial qualification may not involve constitutional validity. Thus
matters of kinship, personal bias, state policy, [and] remoteness of interest would seem generally
to be matters merely of legislative discretion.” Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437,
441 71 L.Ed.2d 749 (1927). “‘[O]nly in the most extreme of cases’ does the Due Process Clause
require disqualification of a judge.” Public Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir.
-21-
2001) (citing Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821, 825-26, 106 S.t. 1580, 89 L.Ed.2d
823 (1986)). “For the requisite ‘extreme case,’ a party must show a judge has a ‘direct, personal,
substantial, pecuniary interest in reaching a conclusion against him in his case.’” Id. Judicial
remarks made during the course of a proceeding do not support a claim of bias unless the
remarks “reveal such a high degree of favoritism or antagonism as to make fair judgment
impossible.” Nichols v. Scott, 69 F.3d 1256, 1277 (5th Cir. 1995) (citations omitted). A trial
judge’s justifiable rebuke of an attorney who is often late to arrive for a court date does not rise
to that level.
Under these facts, Tarver cannot demonstrate that the trial judge had a “direct, personal,
substantial, pecuniary interest in reaching a conclusion against [Tarver] in his case.” Bomer,
supra. As such, Tarver has not shown that the trial judge’s decision was based on an erroneous
view of the law or a clearly erroneous assessment of the evidence. As such, the appellate court’s
decision upholding the trial judge’s denial of the motion to recuse was neither contrary to, nor
did it involve an unreasonable application of, clearly established federal law, as determined by
the Supreme Court of the United States. In addition, the decision was not based on an
unreasonable determination of the facts in light of the evidence. Tarver is not entitled to relief as
to this claim.
Trial Court’s Denial of Tarver’s Motion to Suppress
The court already rejected this ground for relief in the discussion above regarding
Tarver’s motion to suppress.
Violation of Tarver’s Right to a Speedy Trial
Tarver next complains that the trial judge abused his discretion in denying his motion to
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dismiss his case for violation of Tarver’s speedy trial rights. On the contrary, as addressed below
in the discussion of Ground Eight, the State did not violate Tarver’s right to a speedy trial.
Failure of the Trial Judge to Reduce Tarver’s Bond
Tarver complains that the trial judge erred in denying his motion to reduce his bond.
Trial counsel filed a written motion to reduce Tarver’s bond from $250,000.00 to $25,000.00 or
less. S.C.R., Vol. 1, pg. 66. However, the trial judge ruled:
The Court held a hearing on June 22, 2005, at which the videotaped statement of
Chris Davis was put into evidence. The Court hereby takes judicial notice of said
statement, already in evidence in this cause. Based on the statement of Chris
Davis, which the Court previously accepted as truthful, the Court finds Lorenzo
Tarver to represent[] a danger to the community and therefore denies the motion
for reduction in bail.
S.C.R., Vol. 2, pg. 198.
The Eighth Amendment prohibits excessive bail. “‘Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ The eighth
amendment applies to the states. See Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63
L.Ed.2d 382 (1980).” Terrebonne v. Blackburn, 624 F.2d 1363, FN 5 (5th Cir. 1980). However,
the Fifth Circuit has also recognized that “the Supreme Court has not squarely considered the
issue.” Simon v. Woodson, 454 F.2d 161, 165 (5th Cir. 1972). The United States Supreme Court
has never clearly established what constitutes “excessive bail” so as to render an certain amount
unconstitutional. Thus, in the absence of clearly established Supreme Court law, the state
appellate court’s decision that the trial judge’s denial of the motion of bond was correct is not
contrary to clearly established federal law as required by the Antiterrorism and Effective Death
Penalty Act. In any event, the trial judge’s decision was reasonable based upon the record.
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Tarver has not shown that the trial judge’s decision was based on an erroneous view of the law or
a clearly erroneous assessment of the evidence. See Ragsdale, supra. The Mississippi Supreme
Court was therefore correct in finding that the trial judge did not abuse his discretion in denying
Tarver’s motion for a reduction of bail, and Tarver is not entitled to habeas corpus relief on this
claim.
Denial of Tarver’s Motion to Sever the Indictment
Tarver also complains that the trial judge abused his discretion in denying his motion to
sever the counts of the indictment. “Severance is within the discretion of the trial court and is
required only in cases of compelling prejudice.” United States v. MacIntosh, 655 F.2d 80, 84 (5th
Cir. 1981), cert. denied, 455 U.S. 948, 102 S.Ct. 1450, 71 L.Ed.2d 662 (1982). “The burden of
demonstrating prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed
by a reviewing court.” United States v. Abshire, 471 F.2d 116, 118 (5th Cir.1972). In addition,
“[a] number of cases before [the Fifth Circuit] have upheld the denial of severance even when
one of the charged offenses involves proof of a prior felony.” Breeland v. Blackburn, 786 F.2d
1239, 1241 (5th Cir. 1986).
Tarver filed a motion to sever the two counts of the indictment. S.C.R., Vol. 1, pg. 41.
The trial judge denied this motion holding that the two charges were based on the same act or
transaction “as the defendant was allegedly in possession of the marijuana at the same time he
was in possession of a firearm” and that “any prejudice to the defendant that may result from the
admitting his prior criminal record can be adequately limited by the Court giving a limiting
instruction to the jury in this cause.” S.C.R., Vol. 2, pg. 202. The trial judge instructed the jury
regarding the limited purpose of the admission of Tarver’s prior criminal record. S.C.R., Vol. 2,
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pg. 274.
The appellate court considered the trial judge’s denial of the motion to sever and held:
We find no merit in Tarver' argument that he was prejudiced by trying the two
s
offenses together in the same criminal proceeding. The circuit court properly
instructed the jury on the limited purpose for which the evidence of Tarver' prior
s
conviction was admitted. Furthermore, the jury did not find that Tarver was guilty
of the second count of the indictment, in which he was charged with possession of
a firearm by a convicted felon; therefore, the jury was clearly able to separate and
differentiate between the two crimes. Accordingly, the circuit court did not abuse
its discretion in denying Tarver' motion to sever.
s
Tarver, 15 So.3d at 456.
Especially in light of the jury’s finding of “not guilty” as to the felon in possession
charge, Tarver cannot establish that the trial judge’s decision was based on an erroneous view of
the law or a clearly erroneous assessment of the evidence as required by Ragsdale, supra.
Therefore, the Mississippi Supreme Court’s decision (that the trial judge did not abuse his
discretion in denying the motion to sever the counts of the indictment) was neither contrary to,
nor did it involve an unreasonable application of, clearly established federal law, as determined
by the Supreme Court of the United States. Neither was the decision based on an unreasonable
determination of the facts in light of the evidence. As such, Tarver is not entitled to habeas
corpus relief on this allegation of error.
Dismissal of Certain Jurors (7, 12, 16, 45, 53, 59, 60)
Tarver next complains that the trial court abused its discretion in dismissing certain
members of the venire for cause “solely because they would be affected in a specific way,
because of the missing evidence (marijuana) in this case.” ECF doc. 9-1, pg. 17. However,
Tarver fails to specify the jurors involved or to provide citations to any particular pages of the
trial transcript in support of his argument. The court has, however, identified the jurors which
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were stricken for cause based on their answers regarding the stolen marijuana – and will discuss
the issue as to those jurors.
There are good reasons to apply the statutory presumption of correctness to the
trial court' resolution of these questions. First, the determination has been made
s
only after an often extended voir dire proceeding designed specifically to identify
biased veniremen. It is fair to assume that the method we have relied on since the
beginning, e.g., United States v. Burr, 25 F.Cas. No. 14,692g, p. 49, 51 (No.
14,692g) (CC Va.1807) (Marshall, C.J.), usually identifies bias. Second, the
determination is essentially one of credibility, and therefore largely one of
demeanor. As we have said on numerous occasions, the trial court' resolution of
s
such questions is entitled, even on direct appeal, to “special deference.” E.g.,
Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500, 104 S.Ct. 1949,
1959, 80 L.Ed.2d 502 (1984). The respect paid such findings in a habeas
proceeding certainly should be no less. See Marshall v. Lonberger, 459 U.S. 422,
434-435, 103 S.Ct. 843, 850-851, 74 L.Ed.2d 646 (1983).
Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 2892-2893. Keeping this deference in
mind, the court will analyze the dismissal of the jurors in question.
During voir dire, the prosecutor asked the venire “After hearing all this, is there anybody
who would say that they’re automatically going to vote not guilty because the State won’t be able
to bring in these big bales of marijuana? It’s okay if you do. We just need to know it.” S.C.R.,
Vol. 6, pg. 326. As the State set forth in detail in its answer, each of the jurors in question
expressed doubt as to his ability to render a fair verdict if the overwhelming bulk of the
marijuana in question could not be produced. See, S.C.R. pg. 326-371. The court set forth its
rationale for excusing the jurors in question for cause, as each expressed doubt as to whether he
could render a fair verdict based upon the evidence available.
As such, the state supreme court’s decision that the trial judge did not abuse his discretion
with regard to jury selection was neither contrary to, nor did it involve an unreasonable
application of, clearly established federal law, as determined by the Supreme Court of the United
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States. Additionally, the decision was not based on an unreasonable determination of the facts in
light of the evidence. This issue will therefore be denied for want of substantive merit.
Enhancing Tarver’s Sentence Under MISS. CODE ANN. § 41-29-142
Using Evidence Not Presented to the Jury
Tarver argues that the trial judge abused his discretion in enhancing his sentence under
MISS. CODE ANN. § 41-29-142 without requiring the facts supporting this enhancement to first be
presented to the jury as required by Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi
the Supreme Court held:
Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt. With that exception, we endorse the statement
of the rule set forth in the concurring opinions in that case: “[I]t is
unconstitutional for a legislature to remove from the jury the assessment of facts
that increase the prescribed range of penalties to which a criminal defendant is
exposed. It is equally clear that such facts must be established by proof beyond a
reasonable doubt.”
Id, 530 U.S. 466, 120 S.Ct. at 2363. In this case, Tarver’s sentence was enhanced under MISS.
CODE ANN. § 41-29-142, because the marijuana was located on a property which was within
1,500 feet of a daycare center. S.C.R., Vol. 1, pg. 1. After, the jury returned a verdict of guilty
with regard to possession of marijuana with intent to distribute and was excused, the State put
Officer Bedell on the stand. S.C.R., Vol. 9, pg. 765. Officer Bedell testified that he personally
took a measurement from the property line of 506 Cypress to the property line of the Willow
Street Development Center and obtained a measurement of 899 feet. S.C.R., Vol. 9, pg. 766.
Further, a photograph of the development center was introduced without objection as Exhibit S26. S.C.R., Vol. 9, pg. 766. Thereafter, the trial court found that the State had proven beyond a
reasonable doubt that the crime occurred within 1,500 feet of a daycare center. S.C.R., Vol. 9,
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pg. 773. The evidence supporting the enhancement was not presented to the jury.
Apprendi’s requirement that such facts be decided by a jury can, however, be waived. In
Blakely v. Washington, 542 U.S. 296 (2004), the Court examined criticism of Apprendi, supra.
The Court held that “[e]ven a defendant who stands trial may consent to judicial factfinding as to
sentence enhancements, which may well be in his interest if relevant evidence would prejudice
him at trial.” Blakely, 542 U.S. at 310. See also Shepard v. U.S., 544 U.S. 13, 24 and FN5
(2005). Tarver did not object that evidence used to enhance his sentence was not presented to the
jury. S.C.R., Vol. 9, pg. 761-775. Neither did he raise a claim on direct appeal that his sentence
was improperly enhanced for this reason. See Appellant’s Brief. Instead, Tarver chose to raise
this issue for the first time in his state court petition for post-conviction relief. In failing to object
to the State’s presentation of the enhancement evidence to the trial judge rather than the jury,
Tarver waived any claim to a constitutional violation under Apprendi, supra.
In any event, use of evidence that Tarver committed his crimes within close proximity to
a school is harmless, as his sentence was also subject to doubling because he had a prior drug
felony conviction. See MISS. CODE ANN. § 41-29-149. A certified copy of Tarver’s prior federal
felony drug conviction was admitted into evidence at trial without objection. S.C.R., Vol. 6, pg.
428. The existence of this prior conviction would warrant a doubling of Tarver’s sentence under
MISS. CODE ANN. § 41-29-147, which provides for sentence enhancement for subsequent drug
offenders. Apprendi does not require that the fact of prior convictions to be decided by a jury; as
such, a simple amendment to Tarver’s indictment would also allow for his sentence to be
doubled. Any error in failing to present the enhancement evidence to the jury was harmless, as
there is no reasonable probability that doing so would have prevented Tarver’s sentence from
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being doubled. Thus, the state supreme court’s decision that the trial judge did not abuse his
discretion with regard to the sentence enhancement was neither contrary to, nor did it involve an
unreasonable application of, clearly established federal law, as determined by the Supreme Court
of the United States. Further, the decision was not based on an unreasonable determination of
the facts in light of the evidence. As such, Tarver this ground for habeas corpus relief will be
denied.
Dismissing Juror No. 11
Tarver also argues that the trial court abused its discretion in releasing Juror number 11
(without an in camera examination) based on the testimony of the prosecutor’s investigation of
the juror. As discussed above, the trial judge excused this juror because he had violated Uniform
County and Circuit Court Rule 3.06, which governs the conduct of jurors. S.C.R., Vol. 8, pg.
727. Moreover, the trial judge chose not to conduct an in camera examination of the juror
because he feared it would taint the jury pool. S.C.R., Vol. 8, pg. 730. For these reasons
discussed above Tarver’s allegations regarding the dismissal of Juror number 11 are without
substantive merit. As such, the trial judge’s decision to release Juror No. 11 was reasonable, and
the trial judge was well within his discretion in doing so. Therefore, the Mississippi Supreme
Court’s decision that the trial judge did not abuse his discretion with regard to jury selection was
neither contrary to, nor did it involve an unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United States. Further, the decision was not
based on an unreasonable determination of the facts in light of the evidence. Tarver is not
entitled to habeas corpus relief on this claim.
For these reasons, all of Tarver’s claims for relief in Ground Five will be dismissed for
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want of substantive merit.
Ground Six: Theft of Most of the Marijuana from the Sheriff’s Department
In Ground Six Tarver claims that he is entitled to a new trial because the bulk of the
marijuana recovered during the search was stolen from the sheriff’s department prior to trial –
and was thus unavailable to enter into evidence for the jury’s consideration. First, as the
evidence at issue (a large amount of a controlled substance) would tend to incriminate Tarver, its
absence could only inure to his benefit. Second, a plethora of other incriminating evidence
(including photographs of the huge amount of marijuana recovered during the search, core
samples sent to the crime lab, and portions of the marijuana not stolen from the sheriff’s
department) was introduced against Tarver at trial; as such, the marijuana itself was not the only
evidence used to establish his guilt. For these reasons, Tarver’s claim in Ground Six is without
merit.
Ground Seven: Illegal Sentence under Apprendi, Improper Amendment of Indictment
In Ground Seven, Tarver argues that his sentence is illegal because: (1) it was doubled,
based in part on facts not presented to the jury (the distance between the location of the crime and
the location of a nearby school) and thus violated the rule set forth in Apprendi v. New Jersey,
530 U.S. 466 (2000); and (2) Tarver’s indictment was improperly amended to replace the words
“within fifteen hundred (1,500) feet of a park,” with “within fifteen hundred (1,500) feet of a
daycare.”
Tarver argues that the trial judge abused his discretion in enhancing his sentence under
MISS. CODE ANN. § 41-29-142 without requiring the facts supporting this enhancement to first be
presented to the jury as required by Apprendi v. New Jersey, 530 U.S. 466 (2000). The Supreme
-30-
Court ruled i Apprendi that:
Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt. With that exception, we endorse the statement
of the rule set forth in the concurring opinions in that case: “[I]t is
unconstitutional for a legislature to remove from the jury the assessment of facts
that increase the prescribed range of penalties to which a criminal defendant is
exposed. It is equally clear that such facts must be established by proof beyond a
reasonable doubt.”
Id, 530 U.S. 466, 120 S.Ct. at 2363. In this case, Tarver’s sentence was enhanced under MISS.
CODE ANN. § 41-29-142, because the marijuana was located on a property which was within
1,500 feet of a daycare center. S.C.R., Vol. 1, pg. 1.
This claim fails for several reasons. First, Tarver waived his Apprendi claim because he
neither posed a contemporaneous objection during sentencing nor raised the issue on direct
appeal. See MISS. CODE ANN. § 99-39-21(1)3. In addition, any Apprendi error was harmless
because Tarver’s sentence (which was doubled under MISS. CODE ANN. § 41-29-142) was also
subject to enhancement under MISS. CODE ANN. § 41-29-147, which doubles the penalty for a
drug crime when a defendant, such as Tarver, has previously been convicted on a felony drug
charge. A certified copy of Tarver’s prior felony drug conviction was entered into evidence at
trial. As such, as the trial judge obviously wished to enhance Tarver’s penalty upon conviction,
he could have done so under § 147, rather than § 142. Both sections call for doubling the
3
§ 99-39-21. Waiver; defenses; res judicata; burden of proof
(1) Failure by a prisoner to raise objections, 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.
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sentence of the present conviction in light of a previous one. The result is the same, either way.
As such Tarver can show no harm from his Apprendi error claim.
Tarver’s claim that the state indictment was improperly modified must also be dismissed,
as the rules governing amendment of an indictment are matters of state law only – thus outside
the purview of federal habeas corpus review. Williams v. Collins, 16 F.3d 626, 637 (5th Cir.
1994) (citing Yohey v. Collins, 985 F.2d 222, 229 (5th Cir.1993). The only exception is when the
indictment was so defective that the convicting court had no jurisdiction. Id. The indictment in
this case clearly charged an offense under state law, whether the language referred to a school or
a park – and thus bestowed the trial court with jurisdiction. This claim is without substantive
merit and will be denied.
Ground Eight: Violation of Right to a Speedy Trial
In Ground Eight Tarver argues that the state violated his right to a speedy trial. However,
under the four-factor test set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33
L.Ed.2d 101 (1972), this claim must also fail. The four factors to be weighed in evaluating a
speedy trial claim are: (1) length of delay, (2) reason for the delay, (3) the accused' assertion of
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the speedy trial right, and (4) prejudice to the accused. These factors must be considered
together, and no single factor is determinative.
As to the first factor, the delay in trying Tarver was substantial enough to warrant further
inquiry. “The relevant period of delay is that following accusation, either arrest or indictment,
whichever occurs first.” Robinson v. Whitley, 2 F.3d 562, 568 (5th Cir. 1993), citing Dillingham
v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). As the delay between his
arrest and trial (726 days) was over one year, the delay was presumptively prejudicial. Nelson v.
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Hargett, 989 F.2d 847, 851 (5th Cir. 1993). This factor weighs in favor of Tarver’s speedy trial
claim.
Regarding the third factor, Tarver asserted his right to a speedy trial, S.C.R., Vol. 1, pg.
52; thus, the appellate court was correct in holding that this factor weighs in Tarver’s favor.
Tarver, 15 So.3d at 462.
The fourth factor is whether the delay caused prejudice to the defendant. This factor
favors the State. The interests the speedy trial right protects are: (1) to prevent oppressive
pretrial incarceration, (2) to minimize anxiety and concern of the accused, and (3) to limit the
possibility that the defense will be impaired. Barker, 407 U.S. at 532. The most serious interest
is the last, “because the inability of a defendant adequately to prepare his case skews the fairness
of the entire system.” Id. In his petition, Tarver does not allege that he has suffered any
prejudice as a result of the delay. Moreover, although “Tarver complains that the delay
contributed to hardships he faced in locating two of his witnesses[;] . . . he does not provide any
evidence of how those two witnesses could have affected the outcome of his case. Therefore, this
factor weighs in favor of the State.” Tarver, 15 So.3d at 462.
The second factor, reasons for the delay, also favors the State, as it appears that the delays
arose both from the time necessary for the state crime lab to process drug and fingerprint
evidence – and from actions by Tarver’s counsel which delayed the trial. The court held a
hearing, before the trial, on Tarver’s motion to dismiss for violation of his right to a speedy trial.
At this hearing, the State called Sgt. Lawrence Williams. Williams testified that Tarver was
arrested on June 18, 2004, and the next grand jury was scheduled for September 2004. S.C.R.,
Vol. 5, pg. 237. Williams stated that, “[t]his was a narcotics case, and I believe that there were
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results and so forth that the D.A.’s office was requesting that were not in, and my understanding
that the investigation was not completed at that time of that grand jury.” S.C.R., Vol. 5, pg. 237.
Williams also testified that the fingerprint analysis was not received from the crime lab until
December 2004. S.C.R., Vol. 5, pg. 254. The next available grand jury was scheduled to begin
February 5, 2005, and the indictment was returned March 7, 2005. S.C.R., Vol. 5, pg. 238. The
record reveals that trial was originally set for June 22, 2005; however, on the day of trial Tarver’s
original defense counsel, Chokwe Lumumba, sought to argue motions. S.C.R., Vol. 4, pg. 2-3
and Vol. 5, pg. 230. These motions required a two-day suppression hearing to resolve. Indeed,
the record shows that, at the close of the first day of this hearing (the date set for the first day of
trial), defense counsel stated that he was scheduled to be out of town and asked if they could
“convene other than tomorrow or this week.” S.C.R., Vol. 5, pg. 168. As set forth in the trial
judge’s order denying Tarver’s motion to dismiss for lack of a speedy trial, after the hearings,
trial was reset for December 1, 2005, because Tarver’s counsel was not available during the
current term of court. S.C.R., Vol. 1, pg. 50. Thereafter, Lumumba filed a notice that he had a
conflict for the week of July 3 through July 7, 2005. S.C.R., Vol. 1, pg. 35. On October 6, 2005,
a hearing was held on Tarver’s motion to reduce his bond and the State’s motion to amend the
indictment. S.C.R., Vol. 5, pg. 280.
An agreed order granting a continuance was then entered “upon the motion of the
defendant,” because “counsel for the defendant will not be available until after April 2006.”
S.C.R., Vol. 2, pg. 204. On March 28, 2006, defense counsel again moved for a continuance of
the trial then scheduled for April 12, 2006, because he was involved in a federal trial. S.C.R.,
Vol. 2,pg. 218. On June 12, 2006, defense counsel moved for another continuance due to a
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conflicting trial. S.C.R., Vol. 2, pg. 237.
Tarver’s trial began on June 14, 2006. The delay in bringing Tarver’s case to trial arose
largely from Tarver’s repeated requests for extensions, not to the actions of the State. In
addition, it is telling that Tarver sought his many extensions after the delays attributable to the
State – which shows a lack of urgency on Tarver’s part to reach trial. For these reasons, the state
appellate court was correct in finding that “this factor weighs in the State’s favor.” Tarver, 15
So.3d at 462. A balancing of the Barker factors weighs in favor of the State. The state court’s
decision to deny this ground for relief was reasonable in fact and law; as such, Tarver’s claim in
Ground Eight is without merit and will be denied.
Ground Twelve: Cumulative Error
Finally, in Ground Twelve, Tarver argues that the cumulative effect of the errors alleged
in previous grounds rendered his trial fundamentally unfair. Cumulative error may only rise to
the level of a habeas corpus claim when “(1) the individual errors involved matters of
constitutional dimensions rather than mere violations of state law; (2) the errors were not
procedurally defaulted for habeas purposes; and (3) the errors ‘so infected the entire trial that the
resulting conviction violates due process.’” Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996)
(citing Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992)). That is not the case in the
present habeas corpus petition. As discussed above, none of Tarver’s claims has merit; as such,
there are no errors to aggregate. The state appellate court captured the issue well, holding that
“[b]ecause we find that each of Tarver’s individual complaints is without merit, we find the same
to be true on this issue.” Tarver, 15 So.3d at 465. Thus, Tarver’s final ground for relief is also
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without merit.
In sum, all of the claims in the instant petition for a writ of habeas corpus are without
merit, and the petition will be dismissed. A final judgment consistent with this memorandum
opinion will issue today.
SO ORDERED, this the 7th day of September, 2011.
/s/ MICHAEL P. MILLS
CHIEF JUDGE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
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