Graves v. Banks

Filing 60

ORDER ADOPTING 49 REPORT AND RECOMMENDATIONS, that Marshall P. Graves' claim is DISMISSED WITH PREJUDICE. Signed by District Judge Keith Starrett on 09/30/2020. [Copy of Order mailed to Petitioner] (CS)

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

MARSHALL P. GRAVES, # 71683
VERSUS

PETITIONER
CAUSE NO. 2:17CV141-KS-RPM

SUPERINTENDENT J. BANKS

RESPONDENT

ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION
AND DISMISSING CASE WITH PREJUDICE, ETC.
This cause is before the Court on Petition [2] for writ of habeas corpus filed by Marshall
P. Graves (“Petitioner”) pursuant to 28 U.S.C. § 2254, Response [9] thereto filed by J. Banks, ,
Report and Recommendation [49] entered by Magistrate Judge Robert H. Walker, Objections
[53] and [54] to Report and Recommendation filed by Graves, and Response in Opposition [55]
to Objection filed by J. Banks, and the records and pleadings herein and the Court does hereby
find that the Objections lack merit and that the Report and Recommendation of Magistrate Judge
Robert H. Walker should be accepted by this Court and the Petition filed herein dismissed with
prejudice.
I. PROCEDURAL HISTORY
Marshall P. Graves filed a 28 U.S.C. § 2254 petition for writ of habeas corpus
challenging his state court conviction and sentence. A jury in the Circuit Court of Lamar
County, Mississippi, convicted Graves on two counts of fondling (Miss. Code Ann. § 975- 23(1)) and one count of sexual battery (Miss. Code Ann. § 97-5-95(1)(d)). Doc. [10-2]
at 67, 127-30. The alleged victim, G.W., was 10 years old at the time of the incident. The

evidence at trial consisted primarily of the victim’s testimony, as well as testimony from
individuals with whom G.W. had spoken about her encounters with Graves. Graves also
was charged and sentenced under Mississippi’s habitual offender statute (Miss. Code
Ann. § 99-19-81). Id. at 128. The trial court sentenced Graves to serve prison terms of 15
years on each count of fondling and life imprisonment for sexual battery, with the
sentences to be served concurrently. Doc. [10-2] at 127-30. Graves filed a notice of
appeal. Graves’ appellate counsel (Daniel Hinchcliff) filed a brief in compliance with
Lindsey v. State of Mississippi, 939 So.2d 743 (Miss. 2005), certifying to the Mississippi
Supreme Court that the record presented no arguable issues for appeal. Doc. [10-7] at 212. Graves also filed a pro se appellate brief raising numerous issues he felt should be
considered on appeal: (1) defective indictment; (2) ineffective assistance of counsel; (3)
evidence of prior bad acts presented to the jury; (4) trial court allowed testimony of a
surprise witness; (5) admission of Case 2:17-cv-00141-KS-RPM Document 49 Filed
05/14/20 Page 1 of 31 2 hearsay; (6) sufficiency of the evidence; (7) conflicting witness
testimony; (8) jury verdict against the overwhelming weight of evidence; (9)
prosecutorial misconduct; (10) trial court improperly denied motion to sever the
indictment; (11) prosecution’s reference to a jury instruction during closing argument;
and (12) cumulative error. Doc. [10-7] at 60-112. The Mississippi Supreme Court found
that Graves’ appeal presented no arguable issues and therefore affirmed his conviction
and sentence. Graves v. State of Mississippi, 216 So.3d 1152 (Miss. 2016). Graves then
pursued several claims with the State court in an application for postconviction collateral
relief and two subsequent amended applications: (1) trial counsel failed to provide
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competent and loyal assistance when representing Graves; (2) trial counsel failed to
object to prosecutorial misconduct; (3) trial counsel failed to inform Graves of a five-year
plea bargain offered by the State; (4) the verdict was not supported by the weight and
sufficiency of the evidence; (5) jury instruction number six was unconstitutional; (6)
appellate counsel was ineffective; and (7) witness perjury violated Miss. Code Ann. § 979-59 and the Confrontation Clause. Doc. [9] at 5-23, 31-103. The Mississippi Supreme
Court denied Graves’ applications. Id. at 3-4. Graves next filed the instant § 2254 federal
habeas petition and accompanying memorandum wherein he asserted the following
claims: (1) trial counsel was ineffective because he (a) vouched for a prosecution witness,
(b) failed to raise timely objections to prosecutor’s expression of personal beliefs or
opinions as to Graves’ guilt, (c) failed to object to the prosecutor referring to Graves as a
pedophile, child molester, pervert, and sexual predator, (d) failed to hire expert witnesses,
(e) failed to obtain a medical examination of the victim, (f) elicited prejudicial testimony
from the victim on cross-examination, (g) should not have introduced into evidence the
child advocacy counselor’s videotaped interview with the victim, Case 2:17-cv-00141KS-RPM Document 49 Filed 05/14/20 Page 2 of 31 3 (h) failed to object to the tender
years hearsay testimony, (i) failed to inform Graves of a plea offer of five years, and (j)
failed to object to prosecutorial misconduct during closing argument; (2) the evidence
was insufficient to sustain the conviction; (3) the trial court erred in allowing jury
instruction number six; (4) ineffective assistance of appellate counsel; and (5) the
cumulative effect of errors deprived Graves of a fair trial. Doc. [2] & [3]. Graves filed a
motion for summary judgment, which the Court denied. Doc. [11] [21] [25] Judge Walker
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concluded that Graves’ motion for summary judgment was procedurally improper and
unnecessary. In treating Graves’ petition; however, the undersigned has considered the
arguments raised in his “Demand for Summary Judgement” filed on February 22, 2018.
See Doc. [21] at 3. By Order dated February 13, 2020, the Court directed Respondent to
supplement the record. Doc. [34]. The Court instructed Respondent to provide the Court
with a copy of the videotaped interview of G.W. conducted by Cheryl Caldwell. This
interview was introduced at the trial as Exhibit 1 and played to the jury. The State court
record originally filed with Respondent’s answer did not include a copy of the interview.
The Court further instructed Respondent to supplement the record regarding Graves’
claims of ineffective assistance of counsel relating to an alleged five-year plea offer and
relating to counsel’s decision not to use the services of Dr. Julie Teater as an expert
witness. Respondent supplemented the record as directed. Respondent also supplemented
the response in opposition to Graves’ petition based on the additional evidence of record.
Doc. [44] [45]. Graves then filed a response to Respondent’s supplementation. Doc. [46]
[47]. The matter is now ripe for disposition.

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
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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. PROCEDURAL BAR
Judge Walker’s Report and Recommendation [49] addresses a claim of Procedural
Bar claimed by the Respondent. The Court finds that Judge Walker’s reasoning is correct
regarding the Procedural Bar. Additionally, Graves does not challenge Judge Walker’s
finding of Procedural Bar [53-2]. Petitioner pursues these claims under a plain error
claim. The Court will address the alleged prosecutorial misconduct under the plain error
standard. The Court recognizes that the Petitioner is changing his strategy, but the Court
will address it regardless.
The Objections that exist that will be addressed by the Court are as follows:
1. Plain error review for ineffectiveness of counsel
2. Failure to object to prosecutorial misconduct as ineffectiveness of
counsel
3. Failure to call expert witness amounting to ineffective assistance of
counsel
4 Failure to obtain medical expert amounting to ineffective assistance of
counsel
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5. Victim’s prejudicial testimony admitted without objection
As ineffective assistance of counsel
6. Child advocacy counselor video
7. Admitting children’s advocacy center video into evidence amounting to
ineffective assistance of counsel
8. Failure to object to testimony submitted under tender years hearsay
exception rising to the level of ineffective assistance of counsel
9. Failure to relay plea offer amounting to ineffective assistance of counsel
10. Ineffective assistance of appellate counsel
11. Cumulative error
The Court will address these in that order.

Claims of Ineffective Assistance of Counsel that rise to Plain Error
Graves attempts to re-urge his free-standing claims of prosecutorial misconduct
and challenging jury instruction number 6 being argued to the jury based on the plain error
standard. As stated above the Mississippi Supreme Court found these claims to be
procedurally barred. Graves v. State, So.3d 1152, 1161-62 (Miss. 2016). As Judge Walker
found, these claims have no merit. A criminal trial, or for that matter any trial, in our
system of justice is an adversarial proceeding. Questions can be asked and arguments
presented during closing argument that are based on the evidence that is before the Court
and reasonable inferences that can be taken from the evidence. The questions and
arguments that are objected to by Graves are clearly within the evidence that was before
the jury and the arguments were reasonable. Additionally, the trial strategy pursued by
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counsel for Petitioner allowed these types of questions and presentations to be made. The
Court finds that Judge Walker’s Report and Recommendation is correct and that this
objection is without merit.

Failure to Object to Prosecutor’s Misconduct in Making Certain Statements
Petitioner alleges prosecutorial misconduct and that his attorneys failed to object to
certain statements made by the prosecutors. A decision not to object during closing
argument is a matter of trial strategy on many occasions and also attorneys are cognizant
of annoying the jury with unfounded objections. If the evidence and reasonable inferences
therefrom are before the jury, then they are fair game for argument. The Court has gone
through this extensive record and finds that there is no merit in this claim. The
prosecutor’s remarks were not so prejudicial as to render them fundamentally unfair.
Indeed, the remarks were not improper. The Court finds that this objection pursued by the
Petitioner is unfounded and the Court finds that it has no basis.

Failure to Call Expert Witness
While funds were obtained by previous counsel to retain Dr. Julie Teater as an
expert witness, none were called. Graves makes no claim as to what the witness would
have said if she had been called or if the testimony would have been favorable to him.
Petitioner fails to allege with specificity how the calling of Dr. Teater would have altered
the outcome of the trial, which he failed to do. Accordingly, this Court finds that this
objection is without merit and finds that it should be overruled.
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Failure to Obtain Medical Examination
Extensive argument was put forth regarding the calling of a medical doctor to
perform a forensic examination of the victim and to testify. The period of time that lapsed,
almost a year, would have greatly affected the value of any testimony. This Court finds
that Judge Walker’s reasoning on this particular issue is valid and that it was not
ineffective assistance of counsel not to call a medical expert in this case.

Victim’s Prejudicial Testimony on Cross-Examination
Petitioner argues that trial counsel was ineffective because he elicited unfavorable
testimony during the cross-examination of the victim. After reviewing the record on this
point the Court finds that there is no basis for this objection and the Court overrules this
objection.
Child Advocacy Counselor Video
Graves argues that his counsel was ineffective by introducing into evidence the
video tape of Ms. Caldwell, the child advocacy counselor. Defense counsel explicitly
introduced the video tape into evidence for impeachment purposes, and the Court finds
that this objection is without merit.

Tender Years Hearsay Exception Testimony
Counsel was aware of the tender years hearsay exception but chose not to object.
This objection to the Report and Recommendation of Judge Walker is without merit.
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Failure to Relay Plea Offer
While it is clear that defense counsel has a duty to communicate formal offers from
the prosecution to accept a plea on certain terms and conditions, Judge Walker found that
this objection was without merit. While Petitioner regretted after he was found guilty that
he did not accept the plea offer, this does not create error or evidence of ineffective
assistance of counsel. Petitioner’s attorneys emphatically stated that Graves was informed
of the plea offer and the recommended sentence and that Graves rejected the offer.
Petitioner persisted in his claims of innocence and he established no reasonable probability
that he would have accepted the plea bargain offer if he had known about it. Judge
Walker’s Report and Recommendation addresses this question, and the Court finds that
the objection to the Report and Recommendation regarding this particular issue is without
merit and is overruled.

Ineffective Assistance of Appellate Counsel
Graves conclusory assertion of ineffective assistance of appellate counsel fails to
state how appellate counsel was ineffective and how it rises to the level of a constitutional
issue for Federal habeas review. The Mississippi Supreme Court rejected this claim and
Graves fails to explain how the Mississippi Supreme Court’s decision was contrary to, or
involved an unreasonable application of clearly established Federal Law. Therefore, the
Court finds that Graves conclusory assertion of ineffective assistance of appellate counsel
is without merit and should be overruled.
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Sufficiency of the Evidence
Graves argues that the evidence presented at trial was insufficient to support a
conviction. Establishing an insufficiency of the evidence claim is difficult to establish and
was rejected by the lower court. This Court is required to accept all credibility choices and
conflicting inferences in favor of the jury’s verdict. The Court finds that this objection to
the Report and Recommendation is without merit and is overruled.

Cumulative Error
Graves argues that the cumulative effect of errors deprived him of a fair trial. In
order to establish cumulative error, the Petitioner must establish the following:
1. The individual errors involve matters of constitutional dimensions
rather than mere violations of State Law;
2. the errors were not procedurally defaulted for habeas purposes; and
3. the errors so infected the entire trial that the resulting conviction
violates due process.
This objection by Petitioner is without merit as he has not established any of the
requirements necessary for cumulative error.

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 Graves’ Objections lack merit and should be overruled.
The Court further concludes that the proposed Report and Recommendation is an accurate
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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 United States Magistrate Judge Robert H. Walker’s Report
and Recommendation is accepted pursuant to 28 U.S.C. §636(b)(1) and that Marshall P. Graves’
claim is DISMISSED WITH PREJUDICE. .
SO ORDERED this the ___30th____ day of September, 2020,

____s/Keith Starrett _______________
UNITED STATES DISTRICT JUDGE

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