Lyons v. Bingham et al
ORDER adopting 21 Report and Recommendations of Magistrate Judge F. Keith Ball. The Report and Recommendation of United States Magistrate Judge F. Keith Ball is adopted as the finding of this Court, and the entire action should be dismissed with prejudice. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on September 29, 2011. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO.: 4:08CV57 DPJ-FKB
This petition for writ of habeas corpus is before the Court on the Report and
Recommendation  of the United States Magistrate Judge, after referral of hearing by this
Court. Magistrate Judge Ball, after considering the merits of the petition, recommended denial
of habeas relief and dismissal of the petition with prejudice. Cozell Lyons filed an Objection,
raising essentially the same arguments he asserted in his original petition for writ of habeas
corpus. Judge Ball fully examined these arguments in his well-reasoned Report and
Recommendation, and the Court finds it is unnecessary to revisit the issues in any detail. That
said, in light of the objections, the Court will add a few observations.
Grounds based on Search and Seizure
Lyons baldly asserts in his Objection that he was denied a full and fair opportunity to
litigate his Fourth Amendment search-and-seizure claims in state court. But Judge Ball’s Report
and Recommendation presupposes that Lyons received such an opportunity. And the Fifth
Circuit has held that “in the absence of allegations that the processes provided by a state to fully
and fairly litigate fourth amendment claims are routinely or systematically applied in such a way
as to prevent the actual litigation of fourth amendment claims on their merits,” then Stone v.
Powell, 428 U.S. 465 (1976) preclude habeas review. Williams v. Brown, 609 F.2d 216, 220
(5th Cir. 1980); see also Moreno v. Dretke, 450 F.3d 158, 167 (5th Cir. 2006) (same). Lyons
made no such showing.
Ground Based on Ineffective Assistance of Counsel in Plea Decision
Lyon claims that the state erred in rejecting his argument that counsel was ineffective for
failing to better explain the terms of a plea offer. Lyons described the contention in his petition
for post-conviction relief (PCR):
The only information that counsel gave petitioner about the plea offer was that,
(1) any plea or sentence to armed robbery carries mandatory time, (2) video
evidence has unique physical characteristics of the bank robber and (3) the trial
prospects of an insanity defense.
Pet.’s Pet. for PCR [11-9] at 23–24. To support this ground at the PCR stage, Lyons attached a
letter from his trial attorney, but that letter described these same three issues as “[a]dditional
factors we discussed which I consider to be relevant for you to consider in your decision to go to
trial.” Id. at 33 (emphasis added). Lyons’ PCR petition never explained to the Mississippi
Supreme Court what counsel allegedly excluded from the discussion and failed to address
prejudice in any specific way. Lyons did, however, attach his own affidavit stating that the plea
discussion was limited to the three subjects listed above and that “if counsel [illegible] informed
me of the details and efforts there is possibility that I would have accepted the plea offer.” Id. at
35 (emphasis added). The record contains no other evidence on this point.
The Mississippi Supreme Court denied Lyons’s petition for PCR, and Lyons then raised
the ground in his habeas petition. But Lyons again failed to explain the details he claims the
attorney failed to convey. That omission led Judge Ball to recommend dismissal of the claim. It
was not until his Objection that Lyons more fully explained that although his attorney discussed
“mandatory time,” he failed to explain “how many years” Lyons might receive. Pet.’s Obj. 
Lyons’s claim regarding the plea suffers from several infirmities that were not apparent
until he better explained his contentions. First, it does not appear that he properly exhausted the
argument before the state court. But even assuming he did, Lyons fails to meet his burden under
§ 2254. To establish ineffective assistance of counsel “a defendant must show both deficient
performance by counsel and prejudice.” Knowles v. Mirzayance, 556 U.S. ----, ----, 129 S. Ct.
1411, 1419 (2009). In this case, the Mississippi Supreme Court summarily denied Lyons’s PCR
petition without explaining its reasons. Nevertheless, “[w]hen a federal claim has been
presented to a state court and the state court has denied relief, it may be presumed that the state
court adjudicated the claim on the merits in the absence of any indication or state-law procedural
principles to the contrary.” Harrington v. Richter, 131 S. Ct. 770, 784–85 (2011). Although the
presumption is rebuttable, id., Lyons makes no such showing.
Given this presumption, the standard is as follows:
Federal habeas relief may not be granted for claims subject to § 2254(d) unless it
is shown that the earlier state court’s decision “was contrary to” federal law then
clearly established in the holdings of [the United States Supreme Court] . . . or
that it “involved an unreasonable application of” such law, § 2254(d)(1); or that it
“was based on an unreasonable determination of the facts” in light of the record
before the state court . . . .
Richter, 131 S. Ct. at 785. And when, as here, the state court adjudicates an ineffectiveassistance-of-counsel claim on the merits, federal habeas review is “doubly deferential.”
Knowles, 129 S. Ct. at 1420. “When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable argument that counsel
satisfied Strickland [v. Washington]’s deferential standard.” Premo v. Moore, 131 S. Ct. 733,
740 (2011) (emphasis added) (observing that “[e]stablishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the more difficult).”
Starting with the performance prong of the test, “failing to inform the defendant of a plea
offer could amount to ineffective assistance of counsel.” Teague v. Scott, 60 F.3d 1167, 1171
(5th Cir. 1995). In Teague, the attorney failed to discuss maximum possible penalties associated
with a plea, and the Fifth Circuit found that the habeas petition should not have been summarily
dismissed. It is important to note, however, that Lyons never fully explained his claim in state
court. Neither his affidavit nor his PCR petition explained what his attorney failed to convey,
and the attorney letter Lyon attached to his PCR petition suggested that more was discussed than
Lyons admitted. Based on that record, a reasonable argument could be made supporting the
Even if counsel was ineffective, Lyons must still prove prejudice. To do so in this
context, Lyons faced the burden of proving “a reasonable probability that” had counsel better
explained the terms of the plea, he “would have accepted it.” Arnold v. Thaler, 630 F.3d 367,
370 (5th Cir. 2011). The Supreme Court faced a somewhat analogous issue in Hill v. Lockhart,
where the petitioner took a plea deal and then alleged ineffective assistance of counsel because
the attorney failed to better explain the defendant’s eligibility for parole. 474 U.S. 52, 60 (1985).
The Court found no prejudice, holding that the “[p]etitioner did not allege in his habeas petition
that, had counsel correctly informed him about his parole eligibility date, he would have pleaded
not guilty and insisted on going to trial.” Id.
In this case, Lyons’s PCR petition failed to address prejudice in any specific way, and his
supporting affidavit merely stated that “there is possibility that I would have accepted the plea
offer.” Pet.’s PCR Pet. [11-9] at 35 (emphasis added). After the Mississippi Supreme Court
denied PCR, Lyons stretched his factual assertion somewhat in this Court claiming a “good
possibility” that he would have accepted the plea. Pet.  at 19. But “possibility” and
“probability” are not the same.1 Although the saying is cliché, “anything is possible.” The
standard, however, is whether Lyons showed a “reasonable probability” that he would have
changed his plea. Arnold, 630 F.3d at 370.
Ultimately, the Court asks whether “any reasonable argument” supports the Mississippi
Supreme Court’s ruling. Premo, 131 S. Ct. at 740. Given the record below and the holding in
Hill, the Court finds that Lyons has not met his burden. See, e.g., Coulter v. Herring, 60 F.3d
1499, 1504 (11th Cir. 1995) (finding no prejudice when petitioner was asked whether he would
have accepted a plea had he known the terms and responded, “Possibly, I don't know.”); Mead v.
Cain, No. 03-3058, 2010 WL 3488187, at *7 (E.D. La. Aug. 26, 2010) (finding no prejudice
where petitioner failed to establish that he would have taken plea with more complete
Black’s Law Dictionary demonstrates the distinction, defining “probability” as
“likelihood; appearance of reality or truth,” and “possibility” as “[a]n uncertain thing which may
happen.” Black’s Law Dictionary, 1165, 1201 (6th ed. 1990).
No hearing is necessary on this point given that Lyons offered the Mississippi Supreme
Court a sworn statement as to the probability he would have taken the plea. See Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011) (“We now hold that review under § 2254(d)(1) is
limited to the record that was before the state court that adjudicated the claim on the merits”) and
28 U.S.C. § 2254(e)(2) (limiting hearings to circumstances not present here).
Grounds Related to Section 97-3-79 of the Mississippi Code.
Lyons makes two arguments based on section 97-3-79. The statute states in relevant part
Every person who shall feloniously take or attempt to take from the person or
from the presence the personal property of another and against his will by
violence to his person or by putting such person in fear of immediate injury to his
person by the exhibition of a deadly weapon shall be guilty of robbery . . . .
Miss. Code Ann. § 97-3-79. According to Lyons, there was no proof that he possessed a gun
because he kept his hand in his pocket throughout the robbery. Accordingly, Lyons contends
that the state erred in finding sufficient evidence to support the verdict and in rejecting his
argument that counsel was ineffective for not seeking a lesser-include-offense instruction on
But that is not the way the Mississippi Supreme Court has interpreted this Mississippi
statute. In Dambrell v. Mississippi, the court held that “[s]o long as the victim reasonably
believes that the defendant had a deadly weapon and the defendant makes an overt act the statute
is satisfied.” 903 So. 2d 681, 689 (Miss. 2005). And as Judge Ball more thoroughly noted,
Lyons told the bank employee he had a gun and she believed him. Based on that evidence, and
its ruling in Dambrell, the state rejected Lyons’s sufficiency argument on direct appeal. The
Mississippi Supreme Court then rejected both section 97-3-79 arguments at the PCR stage.
These rulings survive under § 2254 for the reasons stated in the Report and
Recommendation, but it is mention that it is not this Court’s function to review a state’s
interpretation of its own law. Charles v. Thaler, 629 F.3d 494, 500–01 (5th Cir. 2011) (“A
federal court lacks authority to rule that a state court incorrectly interpreted its own law. When,
as here, a state court’s legal conclusions are affirmed by the highest court in that state, those
conclusions are state law.”).
Deferring to Mississippi’s construction of section 97-3-79, this Court agrees that “a
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979) (establishing that standard in habeas
cases challenging sufficiency of the evidence). Likewise, given its construction of the statute,
the Mississippi Supreme Court’s rejection of the ineffective-assistance-of-counsel claim should
not be set aside under the standards articulated Richter, 131 S. Ct. at 785. As Judge Ball noted,
there was no evidence that Lyons committed the offense in a way that would support the lesser
included offense of robbery (i.e., there was no evidence that he robbed the bank without creating
the impression that he had a weapon). See Dambrell, 903 So. 2d at 689. The state’s decision
passes the “any reasonable argument” test. Premo, 131 S. Ct. at 740.
As for the remaining issues raised in Lyons’s Objections, the Court finds no reason to
expand on the Report and Recommendation of the United States Magistrate Judge.
IT IS, THEREFORE, ORDERED that the Report and Recommendation of United States
Magistrate Judge F. Keith Ball be, and the same is hereby, adopted as the finding of this Court,
and the same entire action should be dismissed with prejudice.
A separate judgment will be entered herein in accordance with the Order as required by
Rule 58 of the Federal Rules of Civil Procedure.
SO ORDERED AND ADJUDGED this the 29th day of September, 2011.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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