Walton v. State of Mississippi

Filing 39

ORDER ADOPTING REPORT AND RECOMMENDATIONS of Magistrate Judge Michael T. Parker dismissing claim with prejudice. All other pending motions are denied as moot. A separate Judgment shall be entered. Signed by District Judge Keith Starrett on March 15, 2012 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
DESMOND D. WALTON, #113961
VS.

CIVIL ACTION NO. 2:09CV117-KS-MTP

JACQUELYN BANKS

ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION
AND DISMISSING CASE WITH PREJUDICE, ETC.
This cause is before the Court on Pro Se Petition of Desmond D. Walton for Writ
of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. The Court has reviewed the
submissions of the parties, the record herein, the applicable law, the Report and
Recommendation of the Magistrate Judge [34] and the Objection [36] filed by Petitioner,
and the Court is of the opinion that the Petitioner’s request for relief pursuant to 28
U.S.C. § 2254 should be denied for the following reasons:
I. PROCEDURAL HISTORY
On August 2, 2005, Petitioner Desmond D. Walton was convicted of murder in
the Circuit Court of Forrest County, Mississippi and was sentenced to life
imprisonment.1 Walton filed a direct appeal of his conviction and sentence to the
Mississippi Supreme Court based on the following grounds: 1) “Whether Walton’s
statements to police should have been suppressed”; and 2) “Whether Walton’s trial
counsel was ineffective by not seeking a jury instruction for the lesser included offense
of manslaughter.”2 On November 13, 2007, the Mississippi Court of Appeals affirmed
1

See State Court Record, Vol. 1 of 6 [16-3] at 121-23. The page numbers of the
State Court Record cited to herein refer to those assigned by the state court.
2

See State Court Record, Briefs [16-10].

Walton’s conviction and sentence in a written opinion. See Walton v. State, 998 So. 2d
1011 (Miss. Ct. App. 2007), reh’g denied March 28, 2008; Ex. A to Answer [15-2]. The
Mississippi Supreme Court granted Walton’s request for certiorari review, and thereafter
affirmed the judgments of both the circuit court and the court of appeals in a written
opinion. Walton v State, 998 So. 2d 971 (Miss. 2008), reh’g denied Jan. 29, 2009; Ex.
B to Answer [15-2].
On or about March 3, 2009, Walton sought leave from the Mississippi Supreme
Court fo file his Petition for Post-Conviction Collateral Relief (“PCR”)3 in which he
asserted the following claims:
1)

“Whether the error in ‘not’ suppressing petitioner’s second (2) statement
was harmless error.”

2)

“Whether trial counsel was ineffective in not seeking a ‘lesser-included
offense’ instruction of manslaughter.”4

On April 15, 2009, the Mississippi Supreme Court denied Walton’s application
stating,
The panel finds that Walton’s application fails to make a
substantial showing of the denial of a state or federal right as
required by Miss. Code Ann. 99-39-27(5) and should
therefore be denied.
Walton filed the instant petition [1] for writ of habeas corpus on or about June 19,
2009. By that petition and his amended petition [5], he asserts the following grounds
for relief:
Ground 1:

“Wherein the trial court ruled that it was not reversible error for

3

He had three years from the date his “direct appeal [was] ruled upon” to do so.
See Miss. Code Ann § 99-39-5(2).
4

See State Court Record, Misc. Filings from the Supreme Court of Mississippi

[16-9].

them to have refused to suppress a clearly prejudicial video-pate.”
Ground 2:

“Wherein the courts dismissed petitioner’s ineffective assistance of
counsel claim for failure to request a manslaughter instruction.”

II. STANDARD OF REVIEW
When a party objects to a Report and Recommendation this Court is required to
“make 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). See
also Longmire v. Gust, 921 F.2d 620, 623 (5th Cir. 1991) (Party is “entitled to a de novo
review by an Article III Judge as to those issues to which an objection is made.”) Such
review means that this Court will examine the entire record and will make an
independent assessment of the law. The Court is not required, however, to reiterate the
findings and conclusions of the Magistrate Judge. Koetting v. Thompson, 995 F.2d 37,
40 (5th Cir. 1993) nor need it consider objections that are frivolous, conclusive or general
in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1997).
No factual objection is raised when a petitioner merely reurges arguments contained in
the original petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).
III. PETITIONER’S OBJECTIONS AND ANALYSIS
In his objections to the Report and Recommendation, Walton points out that the
issues have been fully exhausted, which is true. Then he begins a factual argument as
to why the admission of the unmirandized statement entitles him to habeas relief. A
significant portion of his argument addresses the fact that the admission of the
unmirandized statement was error. However, this is conceded and it was so found by
the Mississippi Court of Appeals in the opinion resulting from the original appeal.

Following that, Walton goes into a discussion of why the error entitled him to habeas
relief. He points to inconsistencies in the testimonies of his co-defendants and the fact
that there is no actual proof of him committing the crime.
However, Walton omits the testimony of his co-defendants. The state’s argument
before the Court of Appeals was that the error was harmless because the whole record
demonstrated beyond a reasonable doubt that Walton was not prejudiced because
there was more than enough other evidence to convict him of the crime. Judge Parker
quotes the finding of the Court of Appeals and succinctly states what the proof was
against Walton at the trial. It is as follows:
Three witnesses testified against [Walton]. Two testified that
Walton shot the unarmed Anderson. One testified that
Walton made a subsequent that “Walton had to do him.”
Anderson was shot in the back. No weapon was found on,
or near, his body. The Halloween mask was introduced at
trial. Walton presented no evidence in his defense. Upon
this record, the jury had no basis to make any finding other
than Walton shot Anderson. Further, no lesser included
instruction was requested. The case went to the jury on a
straight up guilty or not guilty of murder theory. Even given
the improper admission of Walton’s statement, the verdict of
guilty of murder was beyond a reasonable doubt. There is
no merit in this assignment of error. Walton, 998 So. 2d at
1015.
The Mississippi Supreme Court granted certarirai to address this issue and
affirmed the holding of the Court of Appeals. The error was deemed harmless. Walton,
998 So. 2d at 973-78. The objections listed by Walton do not address the actual facts
of the trial, other than to say there were inconsistencies and that he would not have
been convicted but for the improperly admitted statement. The record does not bear him
out. Accordingly, the habeas relief requested on his first ground must be denied and
his objections overruled.

GROUND TWO: In his objections as to Ground 2, Walton admits that there is
something called trial tactics and trial strategy. He argues that the trial tactics and trial
strategy of his attorney were unwise. In Judge Parker’s Report and Recommendation,
his analysis finds that there was no basis to support an instruction for manslaughter.
Walton’s second ground alleges ineffective assistance of counsel because his trial
counsel did not ask for a lesser-included offense (manslaughter) instruction. The record
clearly shows that there was no evidence to support the instruction and this Court
concurs with Judge Parker’s analysis.
Additionally, there was significant reason for the trial counsel to not ask for the
lesser included offense instruction. There is a deferential standard in this circuit
presuming that counsel has exercised reasonable professional judgment. In this case it
is certainly justified, but in light of the fact that there was no proof justifying the
manslaughter instruction, there is not need to get to the trial strategy portion of this
argument.
The bottom line is that Walton does not address the findings in this Report and
Recommendation regarding Ground 2, and this Court finds that Walton’s objections to
Ground 2 are without merit.
IV. CONCLUSION
As required by 28 U.S.C. § 636(b)(1) this Court has conducted an independent
review of the entire record and a de novo review of the matters raised by the objections.
For the reasons set forth above, this Court concludes that Petitioner’s Objections lack
merit and should be overruled. The Court further concludes that the Report and
Recommendation is an accurate statement of the facts and the correct analysis of the

law in all regards. Therefore, the Court accepts, approves and adopts the Magistrate
Judge’s factual findings and legal conclusions contained in the Report and
Recommendation. Accordingly, it is ordered that the United States Magistrate Judge
Michael T. Parker’s Report and Recommendation is accepted pursuant to 28 U.S.C. §
636(b)(1) and that Desmond D. Walton’s claim is dismissed with prejudice. All other
pending motions are denied as moot.
SO ORDERED this, the 15th day of March, 2012.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE