Rogers v. The State of Mississippi et al
Filing
31
MEMORANDUM OPINION AND ORDER ADOPTING 26 REPORT AND RECOMMENDATIONS, dismissing petition for writ of habeas corpus with prejudice. A certificate of appealability is granted as to two issues, as set out herein. A separate judgment shall be entered. Signed by District Judge Tom S. Lee on 9/25/12 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
DERWIN ROGERS
PETITIONER
VS.
CIVIL ACTION NO. 3:07CV600TSL-FKB
THE STATE MISSISSIPPI AND
RESPONDENTS
CHRISTOPHER EPPS
MEMORANDUM OPINION AND ORDER
This cause came on this date to be heard upon the report and
recommendation of United States Magistrate Judge F. Keith Ball
and the court, having fully reviewed the report and
recommendation entered in this cause on March 5, 2012, and being
duly advised in the premises, finds, based on the following, that
said report and recommendation should be adopted as the opinion of
this court.
On August 15, 2011, having adopted in part the magistrate
judge’s March 15, 2011 report and recommendation, the court
remanded the case to the magistrate judge for further
consideration of grounds one and three, in light of the arguments
and authorities addressed in the petitioner’s objections to the
March report and recommendation and respondents’ response thereto,
which had not been fairly presented to the magistrate judge for
his consideration.
By his objections to the first report and
recommendation, Rogers mounted a challenge to the magistrate
judge’s finding that federal review of claims one and three was
precluded because of the Mississippi Supreme Court’s refusal to
consider the merits of grounds one and three on post-conviction
review in reliance on Mississippi Code Annotated § 99-39-21(1)
(the “contemporaneous objection” bar).
See Coleman v. Thompson,
501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d (1991) (holding that
where state prisoner has defaulted on his federal claims in state
court pursuant to an independent and adequate state procedural
rule, federal habeas review of those claims is barred unless the
prisoner can demonstrate cause for default and actual prejudice as
a result of alleged violation of federal law, or demonstrate that
failure to consider claims will result in fundamental miscarriage
of justice).
According to Rogers, the magistrate judge erred in
his conclusion that the Mississippi Supreme Court’s application of
§ 99-39-21(1) to the choice-of-counsel issue and to the issue
regarding the sufficiency of the indictment was adequate.
See
Amos v. Scott, 61 F.3d 333, 339 (5th Cir. 1995) (state procedural
rule is “adequate” if it “is strictly or regularly followed” by
the state courts and is “applied evenhandedly to the vast majority
of similar claims”).
By his March 5, 2012 report and recommendation, the
magistrate judge again recommended denial of relief as to grounds
one and three.
In so doing, the magistrate judge found that
Rogers had not sustained his burden of demonstrating that around
the time of his direct appeal, the Mississippi courts did not
strictly or regularly follow a procedural bar set out in § 99-3921(1) to choice-of-counsel claims and claims challenging
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substantive amendments to the indictment.
Stokes v. Anderson, 123
F.3d 858, 860 (5th Cir. 1997)(“The petitioner bears the burden of
showing that the state did not strictly or regularly follow a
procedural bar around the time of his direct appeal.
Moreover,
the petitioner must demonstrate that the state has failed to apply
the procedural bar rule to claims identical or similar to those
raised by the petitioner himself.”) (internal citations omitted).
According to Rogers, Rowland v. State, 42 So. 2d 503 (Miss.
2010), stands for the proposition that the law in Mississippi has
historically been that post-conviction claims involving
fundamental rights were excepted from the procedural bars
contained in the Uniform Post-Conviction Collateral Relief Act
(UPCCRA) and that because in the Rowland decision, the Mississippi
Supreme Court acknowledged that the exception had been
inconsistently applied,1 he has satisfied his burden to show his
claims in this court are not procedurally barred.
However, at the
time of the Mississippi Supreme Court’s decisions regarding
Rogers’ direct appeal and motion for post-conviction relief, the
fundamental rights exception to the procedural bars imposed by
UPCCRA was understood to apply more narrowly to claims involving
1
See Rowland, 42 So. 3d at 506 (“We acknowledge that our
jurisprudence in this area is less than consistent. We take this
opportunity to hold, unequivocally, that errors affecting
fundamental rights are excepted from the procedural bars of the
UPCCRA.”).
3
the fundamental right to due process in sentencing2 and the
fundamental state law right not to be tried for a felony without
an indictment.3
See Luckett v. State, 582 So. 2d 428 (Miss.
1991), overruled by Rowland v. State, 42 So. 3d 503 (Miss. 2010)
(while court could consider claim of illegal life sentence,
defendant’s claims in motion to vacate conviction, based on defect
in indictments, double jeopardy violation, coercion of pleas of
guilty, and ineffective assistance of counsel were time-barred);
Mann v. State, 490 So. 2d 910 (Miss. 1986), overruled by Rowland
v. State, 42 So. 3d 503 (Miss. 2010), (defendant’s double jeopardy
claim barred by § 99-39-21(1)); Jennings v. State, 700 So. 2d 1326
(Miss. 1997), overruled by Rowland v. State, 42 So. 3d 503 (Miss.
2010) (defendant’s double jeopardy claim barred by § 99-39-21(1));
Pinkney v. State, 757 So. 2d 297 (Miss. 2000), overruled by
Rowland v. State, 42 So. 3d 503 (Miss. 2010) (defendant’s double
jeopardy argument procedurally barred); Tate v. State, 961 So.2d
763 (Miss. Ct. App. 2007) (finding defendant’s claim regarding
2
See Ivy v. State, 731 So. 2d 601 (Miss. 1999) (defendant’s
claim that he received illegal sentence for capital murder not
barred by UPCCRA’s three-year statute of limitations); Kennedy v.
State, 732 So. 2d 184 (Miss. 1999)(claim of illegal sentence
exception to bar imposed by UPCCRA); Ethridge v. State, 800 So. 2d
1221 (Miss. Ct. App. 2001) (same).
3
See Gray v. State, 881 So 2d 351 (Miss. Ct. App. 2002)
(defendant’s claim that he was prosecuted for felony via
fraudulent indictment in violation of state constitution survived
procedural bar imposed by Miss. Code Ann. § 99-39-21(5) (barring
successive petitions)).
4
defective indictment to be procedurally barred while reviewing
merits of her claim of illegal sentence); Stokes, 123 F.3d at 860
(concluding that § 99-39-21(1) contained independent state
procedural bar and in attempting to overcome bar, petitioner could
not rely upon Mississippi case wherein claim involving a
sentencing error was excepted from the bar, because he was not
alleging illegal sentence).
This, taken together with the fact
that Rogers has not shown the exception to the contemporaneous
objection bar, as it was then understood, was not consistently
applied to claims regarding the sufficiency of the indictment or
to a defendant’s choice of counsel,4 leads the court to the
conclusion that Rogers has not sustained his burden with regard to
the procedural bar.5
See Scott, 61 F.3d at 345 (petitioner failed
4
See Hathorn v. Lovorn, 457 U.S. 255, 262, 102 S. Ct.
2421, 2426, 72 L. Ed. 2d 824 (1982) (“State courts may not avoid
deciding federal issues by invoking procedural rules that they do
not apply evenhandedly to all similar claims.”); Robson & Mello,
Ariadne's Provisions: A “Clue of Thread” to the Intricacies of the
Procedural Default, Adequate and Independent State Grounds, and
Florida's Death Penalty (1988) 76 CALR 98, 111 (essential notion
of adequacy principle “is that state procedural rules may not be
employed as a subterfuge to evade the vindication of federal
rights”).
5
The court is not persuaded that either Rogers’ citation to
numerous cases wherein on direct appeal, as opposed to an
application for post-conviction review, Mississippi state courts
“repeatedly held that the failure to state the essential elements
of the offense rendered the indictment void; and therefore subject
to challenge at any time regardless of the failure to object at
trial or on appeal,” or his citation to a 2010 Mississippi opinion
(which was subsequently withdrawn), wherein the Mississippi
Supreme Court concluded that a challenge to the sufficiency is not
waivable and is excepted from procedural bars, satisfies his
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to establish that Texas courts had inconsistently applied its
fundamental rights exception to Texas contemporaneous objection
rule).
Moreover, even were consideration of the claims not
procedurally barred, the court is not persuaded that Rogers is
entitled to relief as to either claim.
As the magistrate judge
observed in the February 2011 report and recommendation, while
perhaps arguable, the trial judge’s decision to deny the
continuance was neither unreasoned nor arbitrary.
Morris v.
Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610
(1983) (right to counsel is implicated only by “unreasoning and
arbitrary insistence upon expeditiousness in the face of a
justifiable delay”) (internal quotation omitted).
Further,
regarding the sufficiency of the indictment, the court is not
persuaded that the magistrate judge erred in his conclusion that
the indictment gave Rogers reasonable notice that he was being
prosecuted for the crime of forcible rape or that it was specific
enough to allow him to defend the charges or to protect against
double jeopardy.
See McKay v. Collins, 12 F.3d 66, 69 (5th Cir.
1994) (according deference to state court’s conclusion that defect
in indictment did not deprive trial court of jurisdiction and
burden to show that around the time of his direct appeal (or the
ruling on his application for post-conviction relief), the state
courts did not strictly or regularly apply the procedural bar
contained in § 99-39-21(1) to claims identical or similar to the
two claims at issue here.
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concluding that, in any event, petitioner was not entitled to
habeas relief in federal court because “indictment should be found
sufficient unless no reasonable construction of the indictment
would charge the offense for which the defendant has been
convicted”).
Accordingly, it is ordered that the report and recommendation
of United States Magistrate Judge F. Keith Ball entered on March
5, 2012, be, and the same is hereby adopted as the finding of this
court, and the petition for writ of habeas corpus is hereby
dismissed with prejudice.
It is further ordered that a certificate of appealability
should issue as to two issues.
First, a certificate of
appealability is granted as to whether petitioner has sustained
his burden to demonstrate that the procedural bar set out in
§ 99-39-21(1) was not consistently and regularly applied to claims
identical or similar to the claims raised in grounds one and
three.
See Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595,
146 L. Ed. 2d 542 (2000) ("jurists of reason would find it
debatable whether [this] court was correct in its procedural
ruling").
Additionally, a certificate of appealability shall
issue as to whether “the trial court impermissibly denied Rogers
his federal constitutional right to counsel of his choice by
denying him a one-week continuance so that his attorney, who had
an unexpected conflict in another court, could represent him at
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trial.”
See id. (regarding claims addressed on merits,
certificate of appealability should issue if petitioner
“demonstrate[s] that reasonable jurists would find the . . .
court’s assessment of the constitutional claims debatable or
wrong”).
A separate judgment will be entered herein in accordance with
this order as required by Rule 58 of the Federal Rules of Civil
Procedure.
SO ORDERED this the 25th day of September, 2012.
/s/ Tom S. Lee_______________
UNITED STATES DISTRICT JUDGE
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