Flowers v. Davis
ORDER ADOPTING REPORT AND RECOMMENDATIONS 12 - The Court adopts the Report and Recommendation 12 as its opinion with the modification that any federal claims related to DNA testing are dismissed without prejudice for failure to exhaust. Otherwise, Flowers's petition is dismissed with prejudice. A separate judgment will be entered in accordance with Federal Rule of Civil Procedure 58. Signed by District Judge Daniel P. Jordan, III on 2/24/2017 (ND)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
MARCUS O’NEAL FLOWERS
CIVIL ACTION NO. 3:14cv178-DPJ-FKB
This 28 U.S.C. § 2254 habeas corpus case is before the Court on the Report and
Recommendation  of United States Magistrate Judge F. Keith Ball. Judge Ball
recommended that habeas relief be denied and Petitioner Marcus O’Neal Flowers’s petition be
dismissed with prejudice. Flowers filed Objections  to the Report and Recommendation.
For the reasons that follow, the Court adopts the Report and Recommendation as the opinion of
the Court as modified herein.
In a thorough, twelve-page Report and Recommendation, Judge Ball addressed each of
Flowers’s six grounds for relief, concluding that none warranted federal habeas relief. In his
Objections, Flowers makes an argument as to each ground for relief. The Court will address the
arguments in turn.
Ground One: DNA Testing
In his Objections, Flowers agrees that “DNA testing is an issue of state law.” Obj.  at
4; see Report & Recommendation  at 6 (“Whether or not Flowers is entitled to additional
DNA testing is solely a question of state law, specifically, Miss. Code Ann. § 99-39-5.”). As
Judge Ball correctly held, federal habeas relief is not available for alleged errors of state law.
Id.; see 28 U.S.C. § 2254(a) (providing that writ of habeas corpus is available “only on the
ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the
United States”); Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In conducting a federal habeas
review, a federal court is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.”).
Flowers nevertheless contends that his DNA-testing claim “does involve a federal
constitutional issue, that is the right to substantive and procedural due process of law under the
5th and 14th amendments to the U.S. Constitution.” Obj.  at 4. But Flowers did not present
his DNA-testing claim to the Mississippi Supreme Court as a federal-due-process claim; in his
Application for Leave to File Motion for Post-Conviction Relief, he couched the claim solely as
one under state law. State Ct. R. Vol. 6 [8-6] at 12–16. Any federal claim related to DNA
testing is therefore unexhausted and due to be dismissed without prejudice. 28 U.S.C. §
2254(b)(1)(A) (“An application for a writ of habeas corpus . . . shall not be granted unless it
appears that . . . the applicant has exhausted the remedies available in the courts of the State . . .
.”); see Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (“It is not enough that all the facts
necessary to support the federal claim were before the state courts or that a somewhat similar
state-law claim was made. Indeed, where petitioner advances in federal court an argument based
on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion
requirement.” (internal quotation marks and citations omitted)).1 Therefore, the Court adopts the
To the extent that Flowers now seeks “DNA testing of crime-scene evidence,” rather
than “‘immediate or speedier release’ from confinement” based on his DNA claims, he may have
a cause of action for violation of his rights under 42 U.S.C. § 1983. Skinner v. Switzer, 562 U.S.
521, 524, 525 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). But as the Supreme
Court noted in Skinner, “the federal action a state prisoner may bring for DNA testing” is
“severely limit[ed].” Id. at 525 (citing Dist. Attorney’s Office for Third Judicial Dist. v.
Osborne, 557 U.S. 52 (2011)); see Garcia v. Castillo, 431 F. App’x 350, 353 (5th Cir. 2011)
(explaining that a § 1983 plaintiff “can only prevail if he shows that [a state] statute, as applied,
violated his rights under the Constitution” and noting that the Court in Skinner “did not enlarge
the ‘slim’ right of a state prisoner seeking DNA testing ‘to show that the governing state law
denies him procedural due process’” (quoting Skinner, 562 U.S. at 525)).
Report and Recommendation on this point except to the extent that the federal DNA claims shall
be dismissed without prejudice.
Grounds Two and Three: Calvin Ruffin
Judge Ball considered Flowers’s claims regarding Ruffin and concluded that there was no
violation of Flowers’s “right to compulsory process or any other constitutional rights.” Report &
Recommendation  at 8. In his Objections, Flowers takes issue with this conclusion and
claims he is entitled to an evidentiary hearing to present “newly discovered evidence.” Obj. 
at 6. Flowers’s objection “to the findings to the extent that the court finds that no federal right is
violated” is conclusory and overruled. Id. As to his request for an evidentiary hearing, generally
“[a] petitioner must develop the factual basis of his claim in state court to be entitled to an
evidentiary hearing in federal court.” Gallegos v. Quarterman, 265 F. App’x 300, 303 (5th Cir.
2008). Neither of the exceptions to this rule enunciated in 28 U.S.C. § 2254(e)(2) exists here,
and Flowers’s unsupported allegation that Ruffin’s unknown testimony “could prove Flowers[’s]
innocence” does not indicate that the factual basis of his claim was developed in state court.
Obj.  at 6 (emphasis added).
Ground Four: In-Court Identification
Judge Ball correctly characterized Flowers’s next ground for relief as a challenge to the
evidence in his state-court trial. Flowers has not established that the Mississippi Supreme
Court’s rejection of this ground “involved an unreasonable application of clearly established
[f]ederal law” or “was based on an unreasonable determination of the facts in light of the
evidence.” 28 U.S.C. §2254(d). And as to his alternative argument based on Neil v. Biggers,
409 U.S. 188 (1972), in his Objections, “Flower[s] agrees . . . that Neil . . . does not apply here.”
Obj.  at 8.
Grounds Five and Six: Ineffective Assistance and Cumulative Error
Considering Flowers’s ineffective-assistance-of-counsel claim, Judge Ball concluded that
“a reasonable jurist could conclude that the state court’s rejection of this claim was a reasonable
application of Strickland [v. Washington, 466 U.S. 668 (1984)].” Report & Recommendation
 at 11. And regarding his cumulative-error claim, Judge Ball noted that “Flowers has
identified no errors that amounted to a violation of his constitutional rights. Thus, there is
nothing to cumulate.” Id. at 12. The Court agrees with these conclusions.
In his Objections, Flowers “asks the Court to specifically allow both sides to brief or file
a memorandum of law on” the ineffective-assistance issue “prior to ruling on the Report and
Recommendation.” Obj.  at 8. But Flowers has had several opportunities to brief the issue,
including in his Objections, and has not shown why he should receive yet another opportunity or
what additional arguments he might make in a supplemental brief. And Flowers does not
address the alleged cumulative error except to ask for a hearing without explaining why he is
entitled to one. The Objections are overruled.
For the foregoing reasons, the Court adopts the Report and Recommendation  as its
opinion with the modification that any federal claims related to DNA testing are dismissed
without prejudice for failure to exhaust. Otherwise, Flowers’s petition is dismissed with
prejudice. A separate judgment will be entered in accordance with Federal Rule of Civil
SO ORDERED AND ADJUDGED this the 24th day of February, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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