Grindle v. Jenkins

Filing 21

ORDER, that Petitioner's Objections 17 are overruled. The Court adopts the Magistrate's Report and Recommendation 16 as the opinion of the Court and dismisses with prejudice the Petition 1 . Signed by District Judge Keith Starrett on 10/28/2016. (CS)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
BRANDON GRINDLE

PETITIONER

v.

CAUSE NO. 2:14-CV-197-KS-MTP

LEPHER JENKINS

RESPONDENT
ORDER

This matter is before the Court on the Report and Recommendation [16] of United States
Magistrate Judge Michael T. Parker (the “Magistrate”), filed on September 2, 2016, in which he
recommends that the Court dismiss with prejudice the Petition for Writ of Habeas Corpus
(“Petition”) [1] filed by Petitioner Bobby Joe Campbell (“Petitioner”) and deny the relief requested
therein. After reviewing the record, the Objections [17], and the applicable law, the Court finds that
the Report and Recommendation [16] is both factually and legally accurate, and that it should be
adopted as the opinion of the Court.
I. DISCUSSION
A.

Standard of Review

As required by 28 U.S.C. § 636(b)(1), the Court conducts an independent review of the entire
record and a de novo review of the matters raised by parties’ objections.
A writ of federal habeas corpus shall not be granted to a state prisoner on a claim that was
adjudicated on the merits in state court unless the adjudication “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 . . . that was based on an unreasonable
determination of the facts in light of the evidence presented . . . .” 28 U.S.C. § 2254(d).
In order for relief to be granted, the applicant must have “exhausted his remedies available
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in the courts of the State” unless “there is an absence of available State corrective process” that
would be effective in the applicant’s case. 28 U.S.C. § 2254(b). A claim is presumed to have been
adjudicated on the merits by the state court even if the state court’s reasoning does not address
federal law specifically. Johnson v. Williams, 133 S.Ct. 1088, 1094, 185 L.Ed.2d 105 (2013) (citing
Harrington v. Richter, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011)). This presumption can be
overcome only in limited circumstances. Id. at 1096.
Where questions of law or mixed questions of law and fact are concerned, federal habeas
relief cannot be granted unless the state court’s decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court
decision is contrary to federal precedent if it is “diametrically different” to clearly established
Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). A state court decision, then, would be contrary to federal precedent if it “confront[s] a set
of facts that are materially indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a result different from [the Court’s] precedent.” Id.
The Fifth Circuit has adopted Justice O’Connor’s understanding of “unreasonable
application” for purposes of habeas review, calling for an evaluation of whether the application was
“objectively unreasonable.” Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (quoting Williams,
529 U.S. at 409, 120 S.Ct. 1495 (O’Connor, J., concurring)). Justice O’Connor elaborates this
standard by saying that “[t]he federal habeas court should not transform the inquiry into a subjective
one by resting its determination instead on the simple fact that at least one of the Nation’s jurists has
applied the relevant federal law in the same manner the state court did.” Williams, 529 U.S. at 40910, 120 S.Ct. 1495 (O’Connor, J., concurring). In sum, the application of federal law by a state
court is considered reasonable as long as “fairminded jurists could disagree” on its correctness.
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Richter, 131 S.Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158
L.Ed.2d 938 (2004)).
B.

Ineffective Assistance of Counsel

Petitioner raises a multitude of arguments for his contention that he received ineffective
assistance of counsel. The standard for ineffective assistance of counsel from Strickland v.
Washington requires that Petitioner show that counsel’s performance “[f]ell below an objective
standard of reasonableness” and that it caused actual prejudice. 466 U.S. 668, 688, 104 S. Ct. 2052,
80 L.Ed.2d 674 (1984). With this standard in mind, the Court will address each of Petitioner’s
arguments separately.
1.

Abandoning Self-Defense Theory

Petitioner claims that his counsel was deficient in failing to pursue his defense of selfdefense. The Magistrate found that the record demonstrated that this decision by Petitioner’s
counsel fell within “the wide range of reasonable professional assistance,” and this Court agrees.
See Strickland, 466 U.S. at 680, 104 S. Ct. 2052. There is evidence in the record that shows that
Petitioner was driving around the victim’s neighborhood with a pistol and shot the unarmed victim
as he was backing away from Petitioner’s vehicle. See Grindle v. State, 134 So.3d 330, 335 (Miss.
Ct. App. 2013). In order for a theory of self-defense to prevail under Mississippi law, Petitioner
would have to believe he was “in imminent danger of suffering death or great bodily harm at the
hands of the person killed.” Wadford v. State, 385 So.2d 951, 955 (Miss. 1980). These facts do not
support a self-defense theory of the crime, and the Court cannot say that it was an unreasonable
application of Strickland to find that counsel’s failure in asserting this defense did not “[fa]ll below
an objective standard of reasonableness.” See Strickland, 466 U.S. at 688, 104 S. Ct. 2052. Even
if this decision was unreasonable, with these facts on the record, the Court cannot find it was
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unreasonable to find the prejudice prong of Strickland not satisfied. See id.
2.

Failure to Request a Manslaughter Instruction

Under Mississippi law, “a heat-of-passion [manslaughter] instruction is not warranted where
a cooling-off period exists between the provocation and the killing.” Sanders v. State, 103 So.3d
775, 779 (Miss. Ct. App. 2012) (citations omitted). Mississippi courts have held that the
provocation “to satisfy the heat-of-passion element . . . must be immediate—that is, occurring at the
time o the killing.” Alford v. State, 5 So.3d 1138, 1143 (Miss. Ct. App. 2008); see also Smith v.
State, 76 So.3d 170, 173 (Miss. Ct. App. 2009) (holding that a one-day cooling-off period prevented
the defendant from claiming a heat-of-passion manslaughter defense). In his Objections [17],
Petitioner admits that the incident that he asserts provoked the shooting occurred two weeks
beforehand. (See Objections [17] at p. 6.) As such, under Mississippi law, a heat-of-passion
manslaughter instruction was not warranted because Petitioner had two weeks to cool off.
Because the evidence does not support a manslaughter instruction, counsel’s failure to
request one cannot be the basis for an ineffective assistance claim. See Stewart v. Kelly, No. 4:04CV-8-LS, 2006 WL 3918060, at *9 (S.D. Miss. Nov. 17, 2016) (citing Kinnamon v. Scott, 33 F.3d
462, 464 (5th Cir. 1994) (“Failure to request an instruction on a lesser included offense cannot form
the basis for an ineffectiveness claim where the evidence does not support the instruction.”).
Therefore, the Court cannot say that the state court, in denying Petitioner’s post-conviction appeal,
was unreasonable in not finding Petitioner’s counsel ineffective under this argument.
3.

Failing to Challenge Evidence of Malice

Petitioner also argues that his counsel was deficient in failing to challenge state evidence of
malice. These arguments are intertwined with his arguments that an instruction on manslaughter
should have been given, which is appropriate as “[t]he chief distinction between murder and
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manslaughter is the presence of deliberation and malice in murder and its absence in manslaughter.”
Johnson v. State, 52 So.3d 384, 391 (Miss. Ct. App. 2009) (quoting Goldsby v. State, 78 So.2d 762,
767 (Miss. 1955)) (emphasis in original). Petitioner himself points to evidence of malice in the
record, arguing only that the evidence is legally insufficient for a finding of malice. Petitioner does
not challenge the sufficiency of the evidence under the Due Process Clause, though. He argues only
that his counsel was deficient in failing challenge the evidence.
This alleged deficiency stems from what Petitioner claims was counsel’s failure to interview
certain witnesses prior to their testimony at trial. Petitioner does not, however, state what, if any,
facts this may have uncovered and has not shown that the failure to do so actually prejudiced his
case as required under Strickland. Therefore, the Court cannot find that the state court’s application
of Strickland to this argument was unreasonable.
4.

Remaining Arguments

The remaining arguments Petitioner makes concerning the ineffectiveness of his counsel,
failing to object to Jury Instruction 6, failing to make a record of jury tampering, failing to offer Jury
Instruction 4, and cumulative effect of his deficiencies, were not presented in his original
Petition [1], nor were they exhausted in state court. The Magistrate, therefore, found that they were
procedurally barred.
Petitioner makes no objection to this ruling and argues only the merits of the arguments.
Because the Court agrees with the Magistrate, Petitioner’s remaining arguments will be overruled.
C.

Dying Declaration and the Confrontation Clause

Petitioner objects to the Magistrate’s ruling concerning the statement of the victim, which
was admitted into evidence as a dying declaration at trial. Petitioner argues that it was not a dying
declaration because the victim was never stable enough to give a reliable statement. Petitioner also
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contends that the admittance of this evidence violated his rights under the Confrontation Clause.
Whether the state court properly allowed the non-verbal statements of the victim under the
dying declaration hearsay exception is a question of state law, and the Court cannot grant habeas
relief unless it was so egregious a mistake as to be an unconstitutional violation of the Due Process
Clause. See Jackson v. Johnson, 194 F.3d 641, 656 (5th Cir. 1999) (holding that, on federal habeas
review, the Court does not “review the admissibility of evidence under state law unless erroneously
evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding”).
Petitioner’s main issue with the admission of the declaration under state law is whether the victim
was conscious and possessed the requisite state of mind to make his statements. The state appeals
court ultimately found that the officer’s testimony concerning the victim’s consciousness and
statements were satisfactory enough to admit the statements as dying declarations. Grindle v. State,
134 So.3d 330, 340 (Miss. Ct. App. 2013) (internal citations omitted). The court held:
While we recognize portions of Breland’s subsequently given testimony about
Brown’s consciousness level perhaps call into question the credibility or reliability
of Officer Browning’s earlier admitted testimony, Breland’s later testimony did not
negate the fact that the trial judge had already admitted the dying declaration.
Rather, to the extent discrepancies or inconsistencies exit between Officer
Browning’s and Breland’s testimony, they were merely credibility and reliability
issues for the jury to resolve.
Id. at 337-38. Faced with this reasoning, the Court cannot find that the state court’s determination
was so extremely erroneous as to justify federal habeas relief. See Jackson, 194 F.3d at 656.
As for Petitioner’s arguments under the Confrontation Clause of the Sixth Amendment, the
Magistrate correctly held that these arguments were not properly before the Court, as they were
introduced for the first time in Petitioner’s reply brief. See Hopper v. Dretke, 106 F.App’x 221, 228
n.25 (5th Cir. 2004) (“In the absence of manifest injustice, this court will not consider arguments
raised for the first time in a reply brief.”). Nevertheless, even if they were properly before the Court,
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as the Magistrate notes, Petitioner’s arguments under the Confrontation Clause have no merit.
These arguments, though found not to be preserved for appeal, were analyzed by the state
appellate court under the plain-error doctrine. The state court noted that the Supreme Court has not
given a definite answer as to whether the Confrontation Clause applies to dying declarations. The
court pointed to a footnote in Crawford v. Washington, which first recognized the application of the
Sixth Amendment to the hearsay rules, holding that “[t]he one deviation we have found involves
dying declarations. The existence of that exception as a general rule of criminal hearsay law cannot
be disputed. Although many dying declaration may not be testimonial, there is authority for
admitting even those that clearly are.” Grindle, 134 So.3d at 342 (quoting Crawford v. Washington,
541 U.S. 36, 56 n.6, 124 S. Ct. 1354, 158 L.Ed.2d 177 (2004)) (emphasis in original). The court also
quoted Giles v. California, where the Supreme Court acknowledged “that two forms of testimonial
statements were admitted at common law even though they were unconfronted. The first of these
were declarations made by a speaker who was both on the brink of death and aware that he was
dying. Id. (quoting Giles v. California, 554 U.S. 353, 358, 128 S. Ct. 2678, 171 L.Ed.2d 488 (2008).
The state court went on to reference Justice Ginsburg’s opinion in Michigan v. Bryant, 562 U.S. 344,
131 S. Ct. 1143, 179 L.Ed.2d 93 (2011). In dissent, Justice Ginsberg noted that “the question
whether the exception for dying declarations survives our recent Confrontation Clause decisions”
had yet to be addressed by the Supreme Court. Bryant, 562 U.S. at 395-96, 131 S. Ct. 1143
(Ginsburg, J., dissenting).
With this strong precedent supporting the state appellate court’s upholding of the admission
of the dying declaration, the Court cannot find that it unreasonably applied clearly established
federal law. Therefore, habeas relief on this argument should properly be denied.
Finding the Objections [17] of Petitioner to have no merit, the Court will overrule them.
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Upon reviewing the record, the Court concludes that the Magistrate’s Report and Recommendation
[16] to be an accurate statement and analysis of the law and facts, and therefore finds that it should
be adopted as the opinion of the Court.
II. CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED that Petitioner’s Objections [17] are
overruled. After reviewing the record, the Court concludes that the Magistrate’s Report and
Recommendation [16] is an accurate statement and analysis of the law and facts. The Court adopts
it as the opinion of the Court and dismisses with prejudice the Petition [1].
SO ORDERED AND ADJUDGED this 28th day of October, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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