Ferguson v. Mississippi Department of Corrections et al
MEMORANDUM OPINION AND ORDER adopting Report and Recommendations re 20 Report and Recommendations.; granting 23 Motion to Amend/Correct. Ordered that the 2254 Petition is denied. Signed by District Judge Halil S. Ozerden on 11/13/17. (JCH)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JAMES M. FERGUSON
Civil No. 1:15cv261-HSO-RHW
MEMORANDUM OPINION AND ORDER GRANTING
PETITIONER’S  MOTION TO AMEND OBJECTIONS;
OVERRULING PETITIONER’S ,  OBJECTIONS; ADOPTING
 PROPOSED FINDINGS OF FACT AND RECOMMENDATION; AND
DENYING  PETITION FOR WRIT OF HABEAS CORPUS
This matter is before the Court on Petitioner James M. Ferguson’s Objections
 to the Proposed Findings of Fact and Recommendation  of United States
Magistrate Judge Robert H. Walker, and Petitioner’s Motion  to Amend his
Objections . After thoroughly reviewing the Motion  to Amend, Proposed
Findings of Fact and Recommendation , the record, the position of Petitioner
advanced in his Objections, and relevant legal authority, the Court will grant
Petitioner leave to amend his Objections and will consider the Objections raised in
both Petitioner’s original Objections  and his Motion  to Amend. The Court
nevertheless concludes Petitioner’s Objections ,  should be overruled and
that the Magistrate Judge’s Proposed Findings of Fact and Recommendation 
should be adopted as the finding of the Court. Petitioner James M. Ferguson’s 28
U.S.C. § 2254 Petition  for Writ of Habeas Corpus should be denied, and this case
dismissed with prejudice.
State Court Proceedings
On December 19, 2011, a grand jury of the Circuit Court of Harrison County,
Mississippi, First Judicial District (the “Circuit Court”), returned an indictment
against Petitioner James M. Ferguson (“Petitioner” or “Ferguson”) for aggravated
assault in violation of Mississippi Code § 97-3-7(2)(b), as a habitual offender in
accordance with § 99-19-81. R. [16-1] at 10-11. Petitioner was accused of
“unlawfully, feloniously, wilfully and purposely caus[ing] bodily injury to [an
individual], with a deadly weapon, to wit: a knife, by stabbing the said [individual]
with said weapon . . . .” Id. at 10.
On August 9, 2012, Petitioner was found guilty of aggravated assault
following a jury trial. Id. at 101. The trial court sentenced Petitioner to life in the
custody of the Mississippi Department of Corrections pursuant to Mississippi Code
§ 99-19-83. Id. On August 10, 2012, Petitioner’s trial counsel filed a Motion for
New Trial and for Acquittal Notwithstanding the Verdict, id. at 110-11, which the
trial court denied, id. at 114.
On January 18, 2013, the Circuit Court granted Petitioner’s Petition for PostConviction Relief, permitting Petitioner to file an out-of-time appeal. R. [16-4] at
147-48. Petitioner appealed. R. [16-1] at 121. On appeal to the Mississippi
Ferguson, through appellate counsel, raise[d] the following issues: (1)
that the trial court erred in denying Ferguson’s motions for directed
verdict and judgment notwithstanding the verdict; (2) that the trial court
erred in refusing to grant one of his proposed jury instructions; and (3)
that the trial court erred by refusing to admit into evidence drug
paraphernalia found in [the victim’s] apartment.
Ferguson v. State, 137 So. 3d 240, 242-43 (Miss. 2014); see also R. [16-5] at 10-14
(appellant’s brief). The Mississippi Supreme Court affirmed Petitioner’s conviction
and sentence, denied his motion for rehearing, and issued its mandate on May 22,
2014. R. [16-4] at 2.1
On June 30, 2015, Petitioner filed in the Mississippi Supreme Court a pro se
Application for Leave to Proceed in the Trial Court for Post-Conviction Relief
Proceeding. R. [16-6] at 4. Petitioner asserted that his appellate counsel did not
address certain issues on appeal, and that Petitioner was denied due process of law
because he was purportedly convicted of an offense other than the one charged in
the indictment and because he was not given adequate notice that he would be tried
for, and the indictment was constructively amended to charge him with, causing the
victim “injuries with hair dryer, curling iron, and radio.” Id. at 7-12. Petitioner
argued that no stab wounds were found on the victim to support a charge that he
stabbed the victim with a knife. Id. at 12-13.
The Mississippi Supreme Court denied Petitioner’s Application on July 15,
2015. R. [16-6] at 2. The court found that Petitioner’s “indictment-related claim
lacks an arguable basis,” and that his “ineffective assistance of counsel claim fails to
On May 9, 2014, Petitioner filed a petition for writ of habeas corpus in this Court.
Ferguson v. Miss. Dep’t of Corr., 1:14cv204-HSO-RHW (S.D. Miss. May 9, 2014). The
petition was dismissed without prejudice on June 16, 2015, for failure to exhaust state law
remedies. Ferguson v. Miss. Dep’t of Corr., No. 1:14cv204-HSO-RHW, 2015 WL 3752346
(S.D. Miss. June 16, 2015).
meet the requisite prongs of deficient performance and prejudice provided by
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Section 2254 Petition
On August 13, 2015, Petitioner filed a 28 U.S.C. § 2254 Petition  for Writ
of Habeas Corpus in this Court. Petitioner claims that his trial counsel rendered
ineffective assistance in failing to object to the introduction of a curling iron, hair
dryer, and portable radio into evidence, and in failing to object to the prosecution’s
references to injuries caused by these items in opening and closing arguments.
Petitioner asserts that the indictment was constructively amended by the admission
of the hair dryer, curling iron, and radio into evidence at trial. Underlying each of
these claims is Petitioner’s continued challenge as to the sufficiency of the evidence.
Petitioner maintains that there was no evidence that the victim was stabbed with a
knife, and that he was not charged with assaulting the victim with a hair dryer,
curling iron, or radio.
Respondent Marshall Fisher (“Respondent”) filed an Answer to the Petition
on December 14, 2015. Ans.  at 1. Respondent identifies an additional claim by
Petitioner, that he was deprived a fair trial when the judge allowed the admission
of these three items into evidence. Id. at 6. As the Magistrate Judge ultimately
found, the Petition does not seem to raise this claim, but out of an abundance of
caution the Court will address it.
Magistrate Judge’s Proposed Findings of Fact and Recommendation
The Magistrate Judge entered a Proposed Findings of Fact and
Recommendation  on April 27, 2017. To the extent Petitioner professes his
innocence, the Magistrate Judge determined that there was constitutionallysufficient evidence to convict Petitioner of the offense as charged. See Proposed
Findings of Fact and Recommendation  at 4. With respect to the ineffective
assistance of counsel claims, the Magistrate Judge found that counsel’s performance
could not be deemed constitutionally deficient and that Petitioner could not
demonstrate prejudice. Id. at 6-8. The Magistrate Judge concluded that
Petitioner’s constructive amendment to the indictment claim lacked merit. Id. at 89. According to the Magistrate Judge, “[t]he record demonstrates that [Petitioner]
was convicted of the same conduct for which he was indicted.” Id. at 9.
The Magistrate Judge recommended that Petitioner’s claim regarding the
admissibility of the curling iron, hair dryer, and radio be dismissed based upon
Petitioner’s failure to exhaust state remedies. Id. at 9-10. In the alternative, the
Magistrate Judge found that the claim lacked merit because these items were
admissible in evidence. Id. at 9-12. In sum, the Magistrate Judge recommended
that the § 2254 Petition be denied and dismissed with prejudice. Id. at 12.
Petitioner submitted Objections  to the Proposed Findings of Fact and
Recommendation , rearguing the claims in his Petition. Petitioner contends
that the State was allowed to constructively amend the indictment to include the
victim’s injuries from the hair dryer, curling iron, and radio, and that his trial
counsel was ineffective in failing to object to the introduction of these items into
evidence. Obj.  at 2-9. Petitioner claims that he is actually innocent of the
crime charged, id. at 9-10, and attempts to distinguish between lacerations and
“stab wounds,” maintaining that the medical records prove the victim was not
stabbed, id. at 10-11.
Petitioner later filed a Motion  to Amend his Objections , asking the
Court to consider additional legal and factual arguments. These include that a
detective of the Gulfport Police Department (“GPD”) erroneously stated in his
investigative reports that the victim’s medical records documented that she suffered
multiple stab wounds to her face. Mot.  at 3. According to Petitioner, after the
GPD detective presented this information to a grand jury, the grand jury returned
an indictment charging him with stabbing the victim. Id. However, Petitioner
insists that the medical report did not state that the victim suffered stab wounds,
constituting plain error. Id. Petitioner attaches exhibits which are also found in
the state-court record.
The Court will grant Petitioner’s Motion  to Amend.
Petitioner seeks to have the Court consider additional legal and factual
arguments. While Petitioner’s arguments do not change the result here, the Court
will nevertheless grant Petitioner’s Motion  and consider all objections he has
raised in his original Objections  and in his Motion  to Amend.
The Court will overrule Petitioner’s Objections and adopt the Magistrate
Judge’s Proposed Findings of Fact and Recommendation .
Standard of Review
Because Petitioner has filed written Objections to the Magistrate Judge’s
Proposed Findings of Fact and Recommendation , the Court “make[s] a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Rule 8(b) of
Rules Governing Section 2254 Cases in the United States District Courts. “Such
review means that this Court will examine the entire record and will make an
independent assessment of the law.” Lambert v. Denmark, Civil No. 2:12-cv-74-KSMTP, 2013 WL 786356, *1 (S.D. Miss. Mar. 1, 2013). In conducting a de novo
review, the Court is not “required to reiterate the findings and conclusions of the
magistrate judge.” Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993).
Having conducted a de novo review of the record, and for the reasons that
follow, the Court agrees with the conclusions reached by the Magistrate Judge and
will adopt his Proposed Findings of Fact and Recommendation.
Relevant Legal Authority
28 U.S.C. § 2254(d) provides that
[a]n 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
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.
28 U.S.C. § 2254(d). “This is a difficult to meet, and a highly deferential standard
for evaluating state-court rulings, which demands that state-court decisions be
given the benefit of the doubt.” Boyer v. Vannoy, 863 F.3d 428, 440–41 (5th Cir.
2017) (quotation omitted).
Petitioner’s Insufficiency of the Evidence Claim
The United States Supreme Court has held that
in a challenge to a state criminal conviction brought under 28 U.S.C. §
2254—if the settled procedural prerequisites for such a claim have
otherwise been satisfied—the applicant is entitled to habeas corpus relief
if it is found that upon the record evidence adduced at the trial no
rational trier of fact could have found proof of guilt beyond a reasonable
Jackson v. Virginia, 443 U.S. 307, 324 (1979). “In applying this standard, a federal
habeas court refers to the state’s criminal law for the substantive elements of the
offense.” Hughes v. Johnson, 191 F.3d 607, 619 (5th Cir. 1999).
Petitioner was charged with aggravated assault in violation of Mississippi
Code § 97-3-7(2)(b).2 This statute provides, in relevant part, that a person is guilty
of aggravated assault if he attempts to cause or purposely or knowingly causes
bodily injury to another with a deadly weapon or other means likely to produce
death or serious bodily harm. Miss. Code Ann. § 97-3-7(2)(b) (2011).3 The
Petitioner does not challenge his sentence or the determination that he qualified
as a habitual offender under Mississippi Code § 99-19-81.
This subsection is now located at Mississippi Code § 97-3-7(2)(A)(ii).
indictment charged that Petitioner used a deadly weapon, specifically a knife. R.
[16-1] at 11.
Petitioner does not dispute that he assaulted the victim. The crucial factual
dispute, in Petitioner’s view, is whether lacerations the victim sustained on her face
were caused by a knife or by shards of glass from the victim’s eye glasses. However,
evidence was adduced at trial demonstrating that the lacerations were caused by
Petitioner stabbing the victim. The jury was presented with sufficient evidence
from which a rational trier of fact could have found proof of Petitioner’s guilt beyond
a reasonable doubt, including the victim’s own testimony that Petitioner stabbed
her in the face and head with a knife, R. [16-2] at 130-31, and the testimony of an
emergency room physician who treated the victim that the victim’s lacerations were
consistent with being stabbed or cut with a knife, R. [16-3] at 3.
Petitioner’s Ineffective Assistance of Counsel Claims
To establish ineffective assistance of counsel, Petitioner bears the burden of
proving deficient performance and prejudice. Strickland v. Washington, 466 U.S.
668, 687 (1984). The Court “must strongly presume that trial counsel rendered
adequate assistance and that the challenged conduct was the product of a reasoned
trial strategy.” Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). “With
respect to prejudice, a challenger must demonstrate ‘a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting
Strickland, 466 U.S. at 694).
The standards created by Strickland and § 2254(d) are “highly deferential.”
Id. at 105 (quoting Strickland, 466 U.S. at 689). The Supreme Court has held that,
“when the two apply in tandem, review is ‘doubly’ so.” Id. (quoting Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009)). When § 2254(d) applies, the question is not
whether counsel’s actions were reasonable, but whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard. See id. As the
Magistrate Judge pointed out, there are reasonable arguments that Petitioner’s
counsel satisfied Strickland’s deferential standard. See Proposed Findings of Fact
and Recommendation  at 6-8.
Admission of Hair Dryer, Curling Iron, and Radio into Evidence
Evidence of another offense is admissible if that offense is so clearly related
to the charged crime as to form a single transaction or a closely related series of
transactions. See Townsend v. State, 681 So. 2d 497, 506 (Miss. 1996). Such
evidence “must be integrally related to time, place, and fact to that for which
defendant stands trial.” Id. The evidence must be essential for telling a complete,
rational, and coherent story. See id.
The victim testified Petitioner hit her with the hair dryer, curling iron, and
radio after the knife he was using to stab her broke. See R. [16-2] at 131-33. These
items were admissible because they were substantially necessary to present the
complete story of the crime to the jury. See, e.g., id.; Davis v. State, 40 So. 3d 525,
530 (Miss. 2010). “Because failure to make a frivolous objection does not cause
counsel’s performance to fall below an objective level of reasonableness,” Green v.
Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998), Petitioner has not shown
constitutionally deficient performance by his trial counsel in this regard.
Nor has Petitioner shown prejudice. The trial court instructed the jury in
relevant part that, in order to convict Petitioner of aggravated assault, it had to find
beyond a reasonable doubt that Petitioner feloniously, willfully, and purposefully
caused bodily injury to the victim “with a deadly weapon, to wit, a knife” by
stabbing the victim “with said deadly weapon.” R. [16-3] at 92-93. The jury is
presumed to have followed the trial court’s instructions. Charles v. Thaler, 629
F.3d 494, 500 (5th Cir. 2011).
The Prosecution’s Reference to Injuries Caused by the Hair Dryer,
Curling Iron, and Radio
Petitioner has not demonstrated deficient performance by his trial counsel in
not objecting to the prosecutor’s reference to injuries caused by the hair dryer,
curling iron, and radio. A prosecutor may comment upon any facts introduced into
evidence and may draw whatever deductions seem to him proper from these facts,
Bell v. State, 725 So. 2d 836, 851 (Miss. 1998), and “failure to make a frivolous
objection does not cause counsel’s performance to fall below an objective level of
reasonableness,” Green, 160 F.3d at 1037.
Petitioner’s Constructive Amendment Claim
“[I]n federal courts, the fifth amendment’s guarantee of a grand jury
indictment prohibits . . . constructive amendment of the indictment . . . .” Tarpley v.
Estelle, 703 F.2d 157, 161 n.7 (5th Cir. 1983). “That constitutional protection,
however, has never been incorporated into the fourteenth amendment’s due process
clause; it is inapplicable to state proceedings.” Id.
Petitioner had a Sixth Amendment right to adequate notice of the charges
against him. See Nelson v. Scott, 66 F.3d 323, 1995 WL 534996, *2 n.2 (5th Cir.
1995) (citing McKay v. Collins, 12 F.3d 66, 69 (5th Cir. 1994)). “An indictment
should be found sufficient unless no reasonable construction of the indictment
would charge the offense for which the defendant has been convicted.” McKay, 12
F.3d at 69 (citation omitted). In considering the sufficiency of an indictment, the
standard is based upon practical considerations, not technical ones, and “involves
minimal constitutional standards, not whether a better indictment could have been
written.” Id. However, unless an indictment is so defective that it deprived the
state court of jurisdiction, the sufficiency of a state indictment is not a matter for
federal habeas relief. See id. at 68.
As the Magistrate Judge found, the record demonstrates that Petitioner was
convicted of the charge for which he was indicted. The indictment set forth each of
the prima facie elements of the offense of aggravated assault, fairly informed
Petitioner of the charges against him, and provided Petitioner with a double
jeopardy defense against future prosecutions. See id.; see also R. [16-1] at 11-12
(indictment). This constituted fair notice of the nature and cause of the accusation
and comported with the Sixth Amendment. Petitioner is not entitled to relief on his
claim of constructive amendment.
Petitioner’s Claim as to the Admissibility of Evidence
To the extent Petitioner claims that the trial court erred in admitting the
hair dryer, curling iron, and radio into evidence, such argument is unavailing. The
Court agrees with the Magistrate Judge’s determination that this claim should be
dismissed based upon Petitioner’s failure to exhaust state remedies because his
claims are now procedurally barred in state court and also in this Court. See
Proposed Findings of Fact and Recommendation  at 9-11 (citing Finley v.
Johnson, 243 F.3d 215, 220 (5th Cir. 2001)). Nor has Petitioner shown cause for the
non-exhaustion or prejudice, and he cannot demonstrate the Court’s failure to
consider his claim on its merits will result in a fundamental miscarriage of justice
because Petitioner has not demonstrated that he is actually innocent of the
substantive offense. See Hughes v. Quarterman, 530 F.3d 336, 341 (5th Cir. 2008);
Morris v. Dretke, 413 F.3d 484, 491-92 (5th Cir. 2005). In this case, the State
presented overwhelming evidence of Petitioner’s guilt at trial.
In addition, “in reviewing state court evidentiary rulings, the federal habeas
court’s role is limited to determining whether a trial judge’s error is so extreme that
it constituted denial of fundamental fairness under the Due Process Clause.”
Castillo v. Johnson, 141 F.3d 218, 224 (5th Cir. 1998) (quotation omitted). As the
Court stated earlier, it finds no error in the admission of the hair dryer, curling
iron, and radio in order to tell the complete and coherent story of the crime. Even if
the admission of this evidence was erroneous, Petitioner has not demonstrated that
the error was so extreme that it rose to the level of denial of fundamental fairness.
Alleged Misrepresentation to the Grand Jury
Petitioner’s next claim is that a GPD police detective’s purported
misstatement in his investigative report was presented to the grand jury. Mot. 
at 3. Petitioner appears to assert that, because of this alleged misrepresentation,
his indictment was constitutionally defective. The alleged misrepresentation was
“that the victim’s medical records documented that the victim suffered multiple
stab wounds to her face,” as opposed to lacerations, which caused the grand jury to
return an indictment accusing Petitioner of stabbing the victim. Id.
Petitioner appears to raise this claim for the first time in his Objections to
the Magistrate Judge’s Proposed Findings of Fact and Recommendation . For
this reason, this claim should be dismissed due to Petitioner’s failure to exhaust
state remedies. Petitioner cannot return to the Mississippi courts to cure this
deficiency because Mississippi Code § 99-39-23(6) would bar a second motion for
post-conviction relief. See, e.g., Turner v. Epps, 460 F. App’x 322, 329 (5th Cir.
2012). Petitioner has not shown cause for this default or prejudice attributable to
it, nor has he demonstrated that failure to consider the federal claim will result in a
fundamental miscarriage of justice. See Finley, 243 F.3d at 220. This claim is
procedurally defaulted. See id.
Alternatively, this claim lacks merit. There is no allegation that the State
knowingly used perjured testimony to obtain a conviction. Nor has Petitioner
shown that the State knowingly used perjured testimony to secure a grand jury
indictment. In fact, Petitioner has not demonstrated that any false testimony was
presented to the grand jury. “Laceration” is a medical term meaning “a tearing or
rupturing of soft tissue (e.g., skin, brain, liver) by blunt trauma,” or a “torn or
jagged wound.” Stedmans Medical Dictionary 475050. The GPD detective’s
investigation apparently led him to the conclusion that the medical records
demonstrated that the victim had suffered multiple stab wounds to her face, see
Detective’s Report [23-1] at 1, which is not inconsistent with the victim’s medical
records. Petitioner’s claim on this point should be dismissed.
To the extent the Court has not addressed any of the parties’ arguments, it
has considered them and determined that they would not alter the result.
Petitioner’s Objections ,  should be overruled, the Magistrate Judge’s
Proposed Findings of Fact and Recommendation  should be adopted as the
finding of the Court, and Petitioner’s Petition  for Writ of Habeas Corpus should
IT IS, THEREFORE, ORDERED AND ADJUDGED that Petitioner
James M. Ferguson’s Motion  to Amend his Objections  is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that Petitioner James
M. Ferguson’s Objections ,  to the Proposed Findings of Fact and
Recommendation  of United States Magistrate Judge Robert H. Walker are
IT IS, FURTHER, ORDERED AND ADJUDGED that the Magistrate
Judge’s Proposed Findings of Fact and Recommendation  is ADOPTED as the
finding of the Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that the 28 U.S.C. §
2254 Petition for Writ of Habeas Corpus  filed by Petitioner James M. Ferguson
SO ORDERED AND ADJUDGED, this the 13th day of November, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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