Byers v. Turner

Filing 21

ORDER adopting in part and rejecting in part Report and Recommendations as the opinion of this Court in all other respects re 14 Report and Recommendations. The petition is dismissed with prejudice. Signed by Chief District Judge Louis Guirola, Jr. on 9/16/17. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DANIEL WAYNE BYERS
v.

PETITIONER
CAUSE NO. 1:15CV395-LG-MTP

MARSHALL TURNER, Warden

RESPONDENT

ORDER ADOPTING IN PART AND REJECTING
IN PART REPORT AND RECOMMENDATION
BEFORE THE COURT is the Report and Recommendation [14] entered by
United States Magistrate Judge Michael T. Parker, in which he recommended that
the habeas petition filed by Petitioner Daniel Wayne Byers should be denied. Byers
filed an Objection [16] and Respondent Marshall Turner filed a Response [17].
After reviewing the record in this matter and the applicable law, the Court finds
that the Report and Recommendation should be rejected to the extent that the
Report and Recommendation addressed the unexhausted portion of Ground Three of
Byers’ petition, which Byers has withdrawn. The Report and Recommendation is
adopted as the opinion of this Court in all other respects.
DISCUSSION
Byers was indicted on three counts of felony child abuse (Counts I, II, and
III), one count of sexual battery (Count IV), and one count of touching a child for a
lustful purpose (Count V). Byers v. Turner, 157 So. 3d 98, 101 (¶4) (Miss. Ct. App.
2014). He was convicted of two counts of felony child abuse (Count I, which
pertained to a fracture of the victim’s right leg, and Count III, which pertained to
severe bruising, abrasions and lacerations) in the Circuit Court of Harrison County,

Mississippi, and he was sentenced to forty years imprisonment. Id. at 101 (¶5), 102
(¶11), 104 (¶17). Count II was passed to the files by the State. Id. at 101 n.5. The
trial court granted a directed verdict as to Count IV, and Byers was acquitted of the
charge in Count V. Id. at 101 (¶5) & n.5.
Byers appealed his conviction and sentence, asserting the following grounds:
Ground One: Admission of the victim’s taped forensic interview
violated Byers’ constitutional right to confront witnesses.
Ground Two: Byers’ attorney provided ineffective assistance because
the attorney failed to object to admission of the forensic interview.
Ground Three: The State failed to provide sufficient evidence to
support the conviction for Count III.
Ground IV: Byers was subjected to double jeopardy.
After the Mississippi Court of Appeals affirmed the conviction and the
Mississippi Supreme Court denied certiorari, Byers filed the present habeas
petition. Judge Parker issued a Report and Recommendation advising that Byers’
petition should be denied. Byers filed a timely Objection.
DISCUSSION
This Court will review the objected-to portions of the Report and
Recommendation de novo. See Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d
634, 646 (5th Cir. 1994); Longmire v. Guste, 921 F.2d 620, 623 (5th Cir. 1991). With
respect to those portions of the Report and Recommendation to which Byers did not
file objections, the Court reviews those findings under a clearly erroneous or
contrary to law standard. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.
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1989).
I. GROUND ONE: ADMISSION OF THE VICTIM’S FORENSIC INTERVIEW
In Ground One of his petition, Byers alleges that the trial court erred in
admitting the victim’s forensic interview into evidence, thus denying him a
meaningful opportunity to cross-examine the victim. Judge Parker recommended
that this request for relief should be denied pursuant to the procedural default
doctrine. The Mississippi Court of Appeals held that Byers was barred from
seeking review of the admission of the forensic interview because he failed to make
a contemporaneous objection at trial. Byers, 157 So. 3d at 101 (¶7). The Court of
Appeals also noted that admission of the forensic interview did not violate Byers’
constitutional rights because both participants in the interview — the victim and
the forensic interviewer — testified at trial and were thus available for crossexamination. Id. at 102 (¶8).
“When a state court declines to hear a prisoner’s federal claims because the
prisoner failed to fulfill a state procedural requirement, federal habeas is generally
barred if the state procedural rule is independent and adequate to support the
judgment.” Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001). “The procedural
default is not an adequate ground for denial of relief unless the state supreme court
applies the bar strictly or regularly to the vast majority of similar claims.” Id.
(quotation marks and ellipsis omitted). In order to obtain habeas review of claims
that are otherwise barred, a petitioner must demonstrate cause for the default and
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actual prejudice as a result of defaulting his claims based on this procedural bar, or
that failure to consider the claims would result in a fundamental miscarriage of
justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Byers does not dispute Judge Parker’s determination that the
contemporaneous objection rule is regularly and consistently applied, and this
determination is supported by Fifth Circuit precedent. See Sneed v. King, No.
2:11cv106-MPM-JMV, 2014 WL 2930398, at *6 (N.D. Miss. June 27, 2014) (citing
Smith v. Black, 970 F.2d 1383, 1386 (5th Cir. 1992)). Byers also does not object to
Judge Parker’s finding that Byers failed to demonstrate that he would suffer a
fundamental miscarriage of justice if the Court refused to consider Byers’ claim.
Since Byers failed to offer any new and reliable evidence to warrant application of
the fundamental miscarriage of justice exception, Judge Parker’s finding was
supported by Fifth Circuit authority. See Fairman v. Anderson, 188 F.3d 635, 644
(5th Cir. 1999).
It is unclear whether Byers objects to Judge Parker’s finding that Byers
failed to demonstrate cause for the default and actual prejudice. Byers had
attempted to demonstrate cause for the default by alleging ineffective assistance of
counsel. Judge Parker and the state court correctly determined that Byers’
attorney did not provide ineffective assistance of counsel. Byers’ trial counsel chose
to utilize the forensic interview to support Byers’ defense to the sexual battery and
touching a child for lustful purposes charges. As a result, the trial court granted a
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directed verdict as to the sexual battery charge, and the jury acquitted Byers of the
touching a child for lustful purposes charge. Furthermore, Judge Parker and the
state court correctly determined that Byers’ constitutional rights were not violated
by admission of the interview, because both the victim and the forensic interviewer
testified live at Byers’ trial. See Carson v. Collins, 993 F.2d 461, 464 (5th Cir.
1993).
Byers appears to argue that the procedural default doctrine should not be
applied, because he alleges that his constitutional rights were violated. The United
States Supreme Court has explained that the procedural default doctrine can be
applied to constitutional claims. Martinez v. Ryan, 566 U.S. 1, 9 (2012). Therefore,
this argument is without merit.
Byers also asserts that he has alleged “an ‘error’ affecting fundamental
constitutional rights, which are now ‘excepted’ or excused from the procedural bars
of the Post-Conviction Collateral Relief Act.” (Obj. at 3, ECF No. 16). It appears
that Byers is relying on Rowland v. State, 42 So. 3d 503, 507 (Miss. 2010), but
Rowland is inapplicable here because it concerns Mississippi’s Post-Conviction
Collateral Relief Act, not the federal habeas statutes. See Catchings v. King, No.
3:13cv397-DPJ-FKB, 2014 WL 7358083, at *1 (S.D. Miss. Dec. 23, 2014).
After conducting the required review of Judge Parker’s recommendations as
to Ground One of the petition, the Court finds that these recommendations should
be adopted as the opinion of this Court. Byers’ objections concerning Ground One
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are overruled.1
II. GROUND TWO: INEFFECTIVE ASSISTANCE OF COUNSEL
In Ground Two, Byers claims that his trial counsel provided ineffective
assistance by failing to object to the admission of the victim’s forensic interview.
Judge Parker found that Byers’ trial counsel did not provide ineffective assistance.
The trial counsel advocated admission of the forensic interview as a part of his trial
strategy, because the interview aided Byers’ defense to the charges of sexual battery
and touching a child for lustful purposes.
Byers does not object to Judge Parker’s rejection of the ineffective assistance
of counsel claim he asserted in Ground Two. An attorney’s “conscious and informed
decision on trial tactics and strategy cannot be the basis of constitutionally
ineffective assistance of counsel unless it is so ill chosen that it permeates the entire
trial with obvious unfairness.” Pape v. Thaler, 645 F.3d 281, 291 (5th Cir. 2011).
As the Mississippi Court of Appeals explained, the forensic interview aided Byers’
defense as to the charges in Count IV and Count V, because the victim denied the
allegations that formed the basis of those charges in the forensic interview. Byers,
157 So. 3d at 102 (¶10). Therefore, Judge Parker’s determination that Byers should
be denied habeas relief as to Ground Two is not clearly erroneous or contrary to law.

Byers also appears to argue that he failed to exhaust his arguments in Ground
One, such that his petition should be treated as a mixed petition. Byers’ arguments
in Ground One have not been rejected on the basis of failure to exhaust. As Byers
admitted in his petition, this Ground was presented to the state courts. Therefore,
this assertion is without merit.
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III. GROUND THREE: SUFFICIENCY OF THE EVIDENCE
In Ground Three, Byers alleges that there was insufficient evidence to convict
him of felony child abuse. Initially, Byers did not specify whether this Ground
concerned Count I, Count III, or both, but his discussion of this Ground in his
Memorandum [2] and his Objection [16] discussed both Counts.
Judge Parker found that Byers’ sufficiency of the evidence claim should be
dismissed without prejudice as to Count I due to Byers’ failure to exhaust the claim
in state court. Byers subsequently filed a Motion to Amend his petition to remove
the unexhausted portion of Ground Three. This Court granted the Motion to
Amend in a separate Order. Therefore, Judge Parker’s Report and
Recommendation is rejected to the extent that it discussed the portion of Ground
Three that has been withdrawn.
Judge Parker recommended that Byers’ sufficiency of the evidence claim as to
Count III should be dismissed with prejudice because Byers failed to establish that
the state appellate court’s decision on that issue was contrary to, or involved an
unreasonable application of, clearly established federal law, or that the decision was
based on an unreasonable determination of the facts in light of the evidence. Byers
does not object to this recommendation concerning the remaining portion of Ground
Three. The Court has reviewed Judge Parker’s thorough analysis of the evidence
supporting this Count and finds that Judge Parker’s recommendations are neither
clearly erroneous or contrary to law. Judge Parker correctly determined that Byers’
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request for habeas relief as to the remaining portion of Ground Three should be
denied.
IV. GROUND FOUR: DOUBLE JEOPARDY
Ground Four is a double jeopardy claim based on Byers’ contention that his
two convictions for felony child abuse merge. In his Report and Recommendation,
Judge Parker found that the Mississippi Court of Appeals applied the wrong test
when determining whether Byers’ convictions should merge, but he found that the
Mississippi Court of Appeals’ ultimate decision was objectively reasonable because
the Mississippi Legislature “intended to separately and distinctly criminalize any
act which constitutes prohibited conduct under [Miss. Code. Ann.] § 97-5-39(2).”
(R.& R. at 19, ECF No. 14). Furthermore, Judge Parker determined that “the
record supports a finding that Petitioner was convicted of two distinct acts of child
abuse and that these convictions do not ‘merge.’” (Id.) Count One concerned a leg
fracture while Count Three concerned bruises and abrasions that were in various
stages of healing.
In his Objection, Byers merely argues that “the failure to apply the proper
test for analysis of multiple charges under the single statute rendered the decision
objectively unreasonable in light of the evidence.” (Obj. at 5, ECF No. 16). The
failure to apply the correct test is an insufficient ground for overturning Byers’
convictions. The Fifth Circuit has explained that federal courts in habeas cases
focus “on the state court’s ultimate conclusion, not on its reasoning process.”
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DiLosa v. Cain, 279 F.3d 259, 262 (5th Cir. 2002); see also Sanders v. Cain, No. 020971, 2002 WL 32191037, at *8 (E.D. La. Dec. 6, 2002). Byers has not explained
how the Court of Appeals’ ultimate decision could be considered objectively
unreasonable. Judge Parker’s reasoning and conclusions concerning Ground Four
of Byers’ Petition are adopted as the opinion of this Court.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Report and
Recommendation [14] entered by United States Magistrate Judge Michael T.
Parker is REJECTED to the extent that it addressed the unexhausted portions of
Ground Three of the petition, which were subsequently removed from the petition
at Byers’ request. The Report and Recommendation [14] is ADOPTED as the
opinion of this Court in all other respects. The petition is DISMISSED WITH
PREJUDICE.
SO ORDERED AND ADJUDGED this the 16th day of September, 2017.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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