Pierce v. Lee et al
ORDER denying petition for writ of habeas corpus. Certificate of appealability is denied.. Signed by District Judge Debra M. Brown on 5/12/17. (jtm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
RICKY SHANNON PIERCE
EARNEST LEE; and JIM HOOD
Ricky Shannon Pierce, proceeding pro se, has filed a federal habeas petition pursuant to
28 U.S.C. § 2254 challenging his conviction for sexual battery in the Circuit Court of Coahoma
County, Mississippi. Having considered the submissions of the parties, the state court record,
and the law applicable to Pierce’s claims, the Court finds that the petition should be denied.
Background Facts and Procedural History
A. Indictment and Trial
On December 5, 2011, Pierce was indicted for engaging in oral sexual intercourse
without consent. Doc. #11-1 at 6–7. On May 7, 2012, the indictment, on motion of the State of
Mississippi, was amended by order of the Circuit Court of Coahoma County, Mississippi, to
charge Pierce as a habitual offender under Mississippi law. Id. at 33–34.
At a two-day trial, the State of Mississippi presented evidence showing:
The victim in this case, H.H.,1 was a twenty-four year old male who lived with his
parents at their home in Clarksdale, Mississippi, at the time the crime at issue took place. Doc.
#11-3 at 5–6, 27. Pierce met H.H. at a restaurant where Pierce worked. Doc. #11-2 at 138.
Though mention of his mental state was excluded at trial, H.H. is mildly mentally disabled. Doc. #11-2 at 46–56.
This Court refers to the victim by his initials to protect his privacy.
According to Pierce, H.H. asked Pierce to be his friend on Facebook and, on July 9, 2011, H.H.
telephoned Pierce. Doc. #11-3 at 49–50. During the telephone conversation, Pierce told H.H.
that he would come to his house so that they could speak in person. Id. at 50. Pierce drove to
H.H.’s home and parked on the street a few houses away from the residence where H.H. lived
with his parents. Doc. #11-2 at 144–45. Shortly after midnight, Clarksdale Police Department
Patrol Officer Romeisha Moore responded to a call on a suspicious vehicle, which was later
identified to be Pierce’s car. Id. at 141, 143–44. Officer Moore had called a tow truck when
Pierce approached her and offered to move his vehicle. Id. at 144, 146. Pierce, who appeared
nervous and was sweating heavily, informed Moore that he was just visiting a friend and did not
know exactly where the friend lived when he parked. Id. at 145. Officer Moore recognized that
Pierce and another male had been sitting on the lawn of H.H.’s address before Pierce approached
According to H.H., when Pierce came to his home around midnight, he came out to talk
to Pierce even though he was not allowed to be out at that time. Doc. #11-3 at 28, 33. He stated
that the two went to the back of his house, where Pierce kissed him in the mouth and licked his
“Johnny Bug,” the victim’s name for his penis. Id. at 29, 36. H.H. stated that Pierce also licked
his bellybutton, and that Pierce tried to put H.H.’s foot in his mouth. Id. at 29. H.H. testified
that he did not give Pierce permission to do these things and told him to stop. Id. at 30. He
stated that he was frightened, and that when the police came, he ran to his father’s vehicle and
stood by it until Pierce left. Id. at 30, 38. H.H. reported the incident to his parents the next
morning. Id. at 30.
Clarksdale Police Detective Corporal Nicholas Turner investigated the incident. Doc.
#11-3 at 4.
Through subpoenaed phone records, he determined that Pierce and H.H. had
numerous phone conversations. Id. at 19–20. He discovered that phone calls were made after
midnight on the night of the incident lasting for eighteen seconds, sixty-one minutes, twentyseven minutes and thirteen seconds, one and a half minutes, six seconds, sixteen and a half
minutes, and four minutes, respectively. Id. at 23. There were also six phone calls before
midnight on the night of the incident lasting thirty seconds, nine and a half minutes, twentyseven seconds, twenty-six seconds; sixteen seconds, and forty-nine and a half minutes,
respectively. Id. at 24–25.
B. Verdict and Appeal
At the close of trial, the jury found Pierce guilty of sexual battery. Doc. #11-3 at 96.
Because Pierce had been indicted as a non-violent habitual offender pursuant to Miss. Code Ann.
§ 99-19-81, following the guilty verdict, the State presented evidence of Pierce’s two prior
convictions for obtaining a controlled substance by fraud. Doc. #11-3 at 101–105. Thereafter,
Pierce was sentenced as a non-violent habitual offender to serve a thirty-year term of
imprisonment in the custody of the Mississippi Department of Corrections. Doc. #11-3 at 114;
see also Doc. #11-1 at 70–72.
Pierce appealed his conviction with the assistance of newly-retained counsel,2 raising as
the sole appeal issue whether “[t]he trial court erred in denying the defendant’s motion for
directed verdict, peremptory instruction, and for judgment notwithstanding the verdict, as there
was a complete failure of proof as to lack of consent.” Doc. #11-5 at 13–35. Pierce’s conviction
and sentence were affirmed on appeal. Pierce v. State, 135 So.3d 206 (Miss. Ct. App. 2014),
reh’g denied, October 28, 2014; see also Doc. #10-1. The Mississippi Supreme Court denied
Pierce a writ of certiorari. Pierce v. State, 158 So.3d 1153 (Miss. 2015); see also Doc.#10-2.
See Doc. #11-4 at 40, 80, 83–84, 86.
Pierce, proceeding pro se, filed in the Mississippi Supreme Court an application for leave
to file a motion for post-conviction relief. Doc. #11-6. Pierce’s motion for post-conviction relief
asserted four grounds for relief: (1) his counsel was ineffective; (2) he was not granted a
competency hearing; (3) the State failed to prove the elements of sexual battery; (4) the
indictment failed to “set out or to assert the elements of sexual battery;” and (5) the trial court
failed to instruct the jury on the elements of sexual battery.
The Mississippi Supreme Court denied Pierce’s application, holding, in pertinent part:
Petitioner now alleges that he was deprived of effective assistance of counsel at
trial, that he was improperly denied a competency hearing, that he was improperly
charged with sexual battery, that his indictment was defective, and that the jury
was improperly instructed.
We find that the issues raised by Petitioner lack sufficient merit to warrant an
evidentiary hearing. The Application for Leave to File Motion for Post Conviction
Collateral Relief is not well taken and should be denied.
Doc. #10-3 (internal citation omitted).
C. This Petition
On or about May 12, 2016, Pierce filed the instant habeas petition. Doc. #1. On June 8,
2016, United States Magistrate Judge Jane M. Virden issued an order directing the State to
respond to the petition before August 8, 2016. Doc. #5. On July 5, 2016, the State answered
Pierce’s petition. Doc. #10. Pierce filed a traverse on August 15, 2016. Doc. #12.
Procedurally Barred Claims
Pierce’s petition raises five grounds for relief: “(1) deprived of effective assistance at
trial (2) that he was improperly denied a competency hearing (3) that he was denied or
improperly charged with sexual battery (4) that his indictment was defective and (5) that the jury
improperly was instructed.” Doc. #1 at 3.
In its response, the State interpreted Pierce’s third and fourth grounds as raising the same
issue and, therefore, responded to Pierce’s petition as raising four grounds:
Ground One: Ineffective Assistance of Counsel:
Failure to challenge the charge and indictment;
Failure to seek a competency hearing;
Failure to object to improper jury instructions by the trial court;
Failure to file motions for a preliminary hearing or a speedy trial;
Failure to adequately investigate witnesses; and
Appellate counsel’s failure to file motions for rehearing or certiorari.
Ground Two: Petitioner was denied a competency hearing.
Ground Three: Petitioner was improperly charged with sexual battery because of
an alleged lack of evidence of penetration, resulting in an illegal indictment.
Ground Four: Improper jury instructions that failed to set forth the statutory
Doc. #10 at 5.
In its response, the State argues that Pierce has “defaulted the ineffective assistance of
counsel claims in Ground One (B), (C), (D), (E), and (F) and this Court is now precluded from
reviewing the claims.” Doc. #10 at 7. In his traverse, Pierce concedes that Ground One (D)3 and
Ground One (F) were not raised before the Mississippi Supreme Court. Doc. #12 at 2. Pierce
further concedes that it “would be futile to try and return to the state court to exhaust these
claims” and “prays that this Honorable Court will strike these two claims from the instant
petition and move on his other claims that are exhausted.” Id.
A. Exhaustion and Procedural Default
“Under 28 U.S.C. § 2254(b)(1), federal habeas petitioners must fully exhaust remedies
available in state court before proceeding in federal court. To satisfy this requirement, a habeas
In his traverse, Pierce utilizes the same numbering used in the State’s response. The Court will do the same.
petitioner must have fairly presented the substance of his claim to the state courts.” Ward v.
Stephens, 777 F.3d 250, 257–58 (5th Cir. 2015) (internal quotation marks omitted). “If a claim
is ... unexhausted but not procedurally defaulted, then, absent waiver by the state, a district court
must either dismiss the federal petition or stay the federal proceeding while the petitioner
exhausts the unexhausted claim in state court.” Norman v. Stephens, 817 F.3d 226, 231 n.1 (5th
Cir. 2016). If, however, the “claim is both unexhausted and procedurally defaulted, then a
district court may deny the federal petition outright.” Id. “Procedural default occurs when a
prisoner fails to exhaust available state remedies and the court to which the petitioner would be
required to present his claims in order to meet the exhaustion requirement would now find the
claims procedurally barred.” Williams v. Thaler, 602 F.3d 291, 305 (5th Cir. 2010) (internal
alterations and quotation marks omitted).
There is no dispute that Pierce did not raise any ineffective assistance of counsel claims
on direct appeal. Furthermore, Mississippi laws bars successive motions for post-conviction
collateral relief after entry of an “order dismissing the petitioner’s motion or otherwise denying
relief ....” Miss. Code Ann. § 99-39-23(6). Accordingly, any ineffective assistance claims not
presented to the Mississippi Supreme Court in a motion for post-conviction relief will be deemed
1. Ground One (B): Failure to Seek a Competency Hearing
A review of the state court record demonstrates that while Pierce did not list counsel’s
The United States Supreme Court has recognized that a court may consider a procedurally defaulted claim when
the petitioner has made “a showing of cause and prejudice to excuse the default” or when “the habeas applicant can
demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually innocent of the
underlying offense or, in the capital sentencing context, of the aggravating circumstances rendering the inmate
eligible for the death penalty.” Dretke v. Haley, 541 U.S. 386, 388 (2004). Pierce has made no such showing here.
failure to seek a competency hearing as a discrete claim of ineffective assistance of counsel, he
argued that the trial court failed to conduct a competency hearing that “[d]efense counsel was
incompetent in failing to make the motion for [a competency] hearing and examination in light
of the nature of the charges made.” Doc. #11-6 at 28. Therefore, this claim is exhausted.
2. Ground One (C): Failure to Object to Improper Instructions
In his post-conviction application, Pierce argued that “[t]he Court failed to render an
instruction to the jury which set out the statutory elements which the state must prove in order to
sustain a conviction for the offense of sexual battery.” Doc. #11-6 at 33. He did not, however,
argue counsel’s ineffectiveness with regard to this claim.
Because a claim for ineffective
assistance of counsel is distinct from an independent constitutional claim, the Court concludes
that Pierce failed to exhaust this ground and that the claim is procedurally defaulted. See
Hernandez Gonzalez v. Quarterman, No. 06-CA-354, 2006 WL 3098776, at *12 n.43 (W.D.
Tex. Oct. 30, 2006) (“He did not specifically complain about this matter in state court in the
context of ineffective assistance of appellate counsel, and thus he failed to exhaust that particular
complaint.); Wagner v. Smith, 581 F.3d 410, 417 (6th Cir. 2009) (“The brief does mention the
pertinent conduct of the prosecutor, but it does so in the context of ineffective assistance
allegations, not in the context of a prosecutorial misconduct claim.”).
3. Ground One (E): Failure to Adequately Investigate and Obtain Medical Records
The Court has reviewed Pierce’s state court submissions and has found no passage which
would have provided fair notice of an ineffective assistance claim based on failure to investigate.
Accordingly, this claim is procedurally barred.
Pierce’s claims identified as Ground One (C), (D), (E), and (F) are procedurally barred
from federal habeas review.
A. Ground One (A): Ineffective Assistance of Counsel –
Failure to Challenge Charge and Indictment
Pierce argues his trial counsel rendered ineffective assistance in failing to challenge the
charge and indictment against him. Claims of ineffective assistance of counsel are governed by
Strickland v. Washington, 466 U.S. 668 (1984), which requires that a petitioner “show both that
counsel rendered deficient performance and that counsel’s actions resulted in actual prejudice.”
Rhoades v. Davis, 852 F.3d 422, 431 (5th Cir. 2017). To establish deficient performance, the
petitioner must show that, “in light of the circumstances as they appeared at the time of the
conduct, counsel’s representation fell below an objective standard of reasonableness as measured
by prevailing professional norms.” Id. at 431–32 (internal quotation marks omitted). “To
demonstrate prejudice …, [the petitioner] must show counsel’s deficient performance was so
serious as to deprive him of a fair trial, a trial whose result is reliable. This requires the showing
of a reasonable probability that but for counsel’s deficiencies, the result of the proceeding would
have been different.” Id. at 432 (internal alterations, quotation marks, and footnotes omitted).
On habeas review, the issue for the reviewing court is not whether the Strickland standard
is met, but rather, whether the state court’s decision that Strickland was not met warrants relief
under AEDPA standards. See Harrington v. Richter, 562 U.S. 86, 105 (2011) (“When 2254(d)
applies, the question is not whether counsel’s actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied Strickland’s deferential standard.”).
Accordingly, when a Strickland claim has been rejected on its merits by a state court, a petitioner
“must demonstrate that it was necessarily unreasonable for the [state] Supreme Court” to rule as
it did in order to obtain federal habeas relief. Cullen v. Pinholster, 563 U.S. 170, 190 (2011).
Pierce claims he was improperly charged with sexual battery under Miss. Code Ann. §
97-3-95(1) because there was no evidence of penetration. He claims his attorney should have
objected to the charge based on the lack of evidence. Doc. #1 at 20. The sexual battery statute,
Miss. Code Ann. § 97-3-95(1), states:
A person is guilty of sexual battery if he or she engages in sexual penetration
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically helpless person;
(c) A child at least fourteen (14) but under sixteen (16) years of age, if the person
is thirty-six (36) or more months older than the child; or
(d) A child under the age of fourteen (14) years of age, if the person is twentyfour (24) or more months older than the child.
The statutory definition of “sexual penetration” provides:
“Sexual penetration” includes cunnilingus, fellatio, buggery or pederasty, any
penetration of the genital or anal openings of another person’s body by any part of
a person’s body, and insertion of any object into the genital or anal openings of
another person’s body.
Miss. Code. Ann. § 97-3-97(a).
H.H. testified at trial that Pierce licked his penis. The Mississippi Supreme Court has
recognized that “proof of skin to skin contact between a person’s mouth, lips, or tongue and the
genitalia of a person’s body, whether by kissing, licking, or sucking, is sufficient proof of ‘sexual
penetration.’” Hennington v. State, 702 So.2d 403, 408 (Miss. 1997). Therefore, the allegation
that the sexual penetration element was not met is without merit under the law, and counsel did
not render ineffective assistance for failing to raise the 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.”).
Moreover, in his motion for a directed verdict, counsel did lodge an objection challenging
the evidence regarding penetration. Doc. #11-3 at 42–43. The trial court rejected the argument
and denied the motion. Id. at 43–44. Accordingly, the Court finds that counsel did not fail to
raise this issue, and Pierce has not demonstrated that the rejection of this argument under a
proper application of existing law resulted in a decision contrary to, or involving an unreasonable
application of, clearly established federal law, or that it resulted in a decision based on an
unreasonable determination of facts in light of the evidence presented.
B. Ground Two and Ground One (B): Claims Related to Lack of Competency Hearing
Pierce claims the trial court should have held a competency hearing in this case, as his
competency issues were “reasonably clear from the nature of the charges.” Doc. #1 at 19. He
also alleges trial counsel rendered ineffective assistance in failing to seek a competency hearing.
“[T]he standard for competence to stand trial is whether the defendant has sufficient
present ability to consult with his lawyer with a reasonable degree of rational understanding and
has a rational as well as factual understanding of the proceedings against him.” Godinez v.
Moran, 509 U.S. 389, 396 (1993) (internal quotation marks omitted). Mississippi Uniform
County and Circuit Court Rule 9.06 governs competency hearings in Mississippi courts and
provides in pertinent part:
If before or during trial the court, of its own motion or upon motion of an
attorney, has reasonable ground to believe that the defendant is incompetent to
stand trial, the court shall order the defendant to submit to a mental examination
by some competent psychiatrist selected by the court in accordance with § 99-1311 of the Mississippi Code Annotated of 1972.
In his petition, Pierce asserts that a “Notice of Criminal Disposition” for a prior offense,
which was provided to his trial counsel in discovery, demonstrates that he suffers from a mental
Doc. #12 at 6, 10.
Pierce alleges that counsel knew he was having trouble
communicating with Pierce and should have investigated Pierce’s mental illness. Id. at 7.
The “Notice of Criminal Disposition” cited by Pierce and attached as an exhibit to his
traverse indicates only that certain unspecified psychological or psychiatric conditions were
attached to his sentence for obtaining a controlled substance by fraud. See Doc. #12 at 10. At
most, this shows that Pierce suffers from an unknown psychological or psychiatric malady. It
does not establish a reasonable ground to believe that, at the time of trial, Pierce was
incompetent. See generally Mays v. Stephens, 757 F.3d 211, 216 (5th Cir. 2014) (“A defendant
can be both mentally ill and competent to stand trial.”).
Next, while it is true Pierce’s counsel sought to withdraw based on Pierce’s refusal to
cooperate, nothing in the motion suggests that his counsel had any reason to believe the lack of
cooperation was due to incompetency. Indeed, there is no evidence in the record to suggest that
Pierce was incapable of cooperating with counsel or assisting in his defense. In short, there is no
evidence in the record from which to reasonably question Pierce’s competency.
conclusory allegation to the contrary fails to raise a constitutional issue. See Ross v. Estelle, 694
F.2d 1008, 1012 (5th Cir. 1983). Additionally, inasmuch as there is no merit to his claim that he
should have had a competency hearing, Pierce cannot sustain an ineffective assistance of counsel
claim based on counsel’s failure to seek one. See, e.g, Sones v. Hargett, 61 F.3d 410, 415 n.5
(5th Cir. 1999) (noting where underlying issue is without merit, ineffective assistance claim must
fail). Therefore, Pierce has not demonstrated that the rejection of this claim meets the AEDPA
standards for relief.
C. Ground Three: Improper Charge
Pierce alleges that his indictment was illegal, as there was no evidence of sexual
penetration to support a charge of sexual battery. The Court has already determined that Pierce’s
act of licking the victim’s penis qualifies as sexual penetration under Mississippi law. See Miss.
Code Ann. § 97-3-97; Hennington, 702 So.2d at 408. Accordingly, Pierce was properly charged
and indicted under Mississippi law.
D. Ground Four: Insufficient Jury Instruction
Pierce asserts that the jury was not instructed of the statutory elements that the State must
prove in order to sustain a conviction for sexual battery. Doc. #1 at 22. Although not argued in
his petition, based on Pierce’s state court motion for post-conviction relief, it appears Pierce
bases this contention on the fact that instruction C-20, a consent instruction with the elements of
sexual battery, was not stamped as given by the state clerk. See Doc. #11-6.
Under the AEDPA, “a determination of a factual issue made by a State court shall be
presumed to be correct.” 28 U.S.C. § 2254(e)(1). “The presumption of correctness not only
applies to explicit findings of fact, but it also applies to those unarticulated findings which are
necessary to the state court’s conclusions of mixed law and fact.” Valdez v. Cockrell, 274 F.3d
941, 948 n. 11 (5th Cir. 2001).
In Mississippi, “it is fundamental error to fail to instruct the jury of the essential elements
of a crime.” Reddix v. State, 731 So.2d 591, 592 (Miss. 1999) (internal quotation marks
omitted). Accordingly, in denying Pierce’s motion for post-conviction relief, the Mississippi
Supreme Court implicitly found that the jury was properly instructed on the elements of the
charged crime. This implicit finding is entitled to a presumption of correctness which has not
been rebutted here. Valdez, 274 F.3d at 948.
While it is true that C-20 was not stamped as given, the “Clerk’s Papers” from the
proceedings reflect that C-20 was given. Furthermore, beyond the lack of a stamp, nothing in the
record suggests that the instruction, which was agreed to by both parties, was not given. Neither
party objected to the absence of the consent instruction. Under these circumstances, the Court
concludes that Ground Four must be rejected as a basis for habeas relief.
Hardaway v. Withrow, 305 F.3d 558, 564 (6th Cir. 2002) (“Unwilling to suspend the exercise of
its common sense, the Michigan Court of Appeals gave the obvious answer: the transcript
notwithstanding, the trial judge had not given the jury a new and different instruction on
Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, “[t]he district court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” 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 a petitioner 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, a
petitioner must demonstrate “that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
Applying this standard, the Court concludes that a COA should be denied in this action.
For the reasons herein, it is ORDERED that Pierce’s petition for a writ of habeas corpus
is DENIED. A certificate of appealability is DENIED. A separate final judgment will issue.
SO ORDERED, this 12th day of May, 2017.
/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE
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