Mack v. Epps
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 34 Report and Recommendations. Signed by Chief District Judge Daniel P. Jordan, III on 3/12/2018 (cwl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JAMES LEE MACK
CIVIL ACTION NO. 3:14-CV-814-DPJ-FKB
OF MISSISSIPPI DEPARTMENT
This habeas corpus proceeding is before the Court on Petitioner James Lee Mack’s
Motion for Partial Summary Judgment  and the Report and Recommendation  (“R&R”)
of United States Magistrate Judge F. Keith Ball. Judge Ball recommended dismissal, and Mack
objected. Pet’r’s Obj. . The Court finds that the R&R should be adopted as the Court’s
Mack’s Petition consists of five grounds for relief. See R&R  at 5 (listing grounds).
Judge Ball recommended dismissing all five, and Mack objects as to only the following three:
He is being unconstitutionally held because the name and social security
number on the indictment and on the sentence commitment notice are not his.
The verdict was contrary to the weight of the evidence.
His trial attorney, Faye Petersen, rendered ineffective assistance, in that
she . . . failed to meet with Mack prior to trial and prepare a defense, and,
therefore, failed to discover that he had been deemed by the state to be mentally
disabled . . . .
Mack objected to the R&R on January 2, 2018, in a letter his sister submitted on his behalf.
See Pet’r’s Obj. . He then filed a motion for more time to object, which the Court granted on
February 5, 2018, giving him until February 26 to supplement the objection. Mack submitted
nothing further before the deadline passed. The Court will therefore consider the objections it
The Court adopts the R&R as to the grounds to which Mack offered no objection and takes his
objections in sequential order.
Judge Ball first found that Grounds One and Two were procedurally defaulted in state
court. See R&R  at 6 (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). He is
correct. But Mack now asserts the manifest-injustice exception to the default rule. Assuming
this exception applies in the non-capital habeas context, Mack must show that “a constitutional
violation has probably resulted in the conviction of one who is actually innocent.” Schlup v.
Delo, 513 U.S. 298, 327 (1995). Otherwise, the claims are precluded.
Applied in this case, Mack fails to show he was actually innocent. At most, he argues
that DNA and fingerprints belonging to other individuals were found in the house where the
murder occurred. But as Judge Ball noted, witnesses testified that the house was abandoned and
had been used by other people who could have left physical evidence. See R&R  at 10. The
fingerprints and DNA were not exculpatory—especially in light of the other evidence—and
Mack has otherwise failed to show that he was actually innocent of the crime. He cannot revive
these defaulted claims, so the Court adopts Judge Ball’s R&R as to Grounds One and Two.2
Mack next says Judge Ball erred in rejecting his claim that his trial attorney was
ineffective for failing to discover Mack’s alleged mental condition:
The Magistrate suggests because the Petitioner had obtained his G.E.D. not before
his arrest at or during the time of questioning that this would indicate that the
Petitioner was capable of understanding information about his rights and the
questions posed to him, and that he was likewise capable of reading and
understanding the waiver of rights form and the typed statement.
Mack says as to Ground One that the incorrect social-security number listed on his indictment
has inhibited his ability to obtain medical treatment while incarcerated. That issue is beyond the
scope of a habeas petition challenging his conviction and will need to be raised in a separate
Pet’r’s Obj.  at 4.
This particular objection strays from Mack’s Petition, where he raised the issue of mental
health as it regarded “[f]ailure of trial counsel to meet the defendant prior to trail . . . [and
become] aware that the defendant has been deemed mentally disabled.” Pet.  at 14–15. On
that issue, Judge Ball found that counsel had met with Mack and his family and appeared to have
“some reason to suspect that he suffered from bipolar disorder, because at the hearing on the
motion to suppress, she asked Officer Jones whether his interview would have been affected had
he known that Mack was bipolar.” R&R  at 13. Nothing in Mack’s Objection challenges
Judge Ball’s findings on this ground. Accordingly, the Court adopts Judge Ball’s R&R on this
claim as well. To the extent Mack intended to make a new argument regarding his mental
health, it may be procedurally barred and otherwise comes too late in this proceeding.
Finally, Mack slips in a reference to the Eighth Amendment in his Objection. See Pet’r’s
Obj.  at 5. But that claim is not properly before the Court as Mack is raising it for the first
time on objection to the R&R. See United States v. Armstrong, 951 F.2d 626, 630 (5th Cir.
1992) (holding that issues raised first in objections to magistrate judge’s findings are “not
properly before the district court”). This Court, therefore, will not further address this newly
raised claim. See id.
In sum, the Court adopts Judge Ball’s R&R in its entirety over Mack’s Objection 
and dismisses the Petition . A separate judgment will be entered in accordance with Federal
Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 12th day of March, 2018.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE
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