Watson v. Denmark

Filing 49

ORDER denying 46 Motion for Leave to Appeal in forma pauperis; denying 47 Motion for Certificate of Appealability Signed by Honorable David C. Bramlette, III on December 5, 2017 (JBR)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
DEXTER WATSON
VS.

PETITIONER
CIVIL ACTION NO. 5:14-cv-108-DCB-MTP

RAYMOND BYRD

RESPONDENT

ORDER REGARDING CERTIFICATE OF APPEALABILITY
AND MOTION TO PROCEED IN FORMA PAUPERIS
This Cause is before the Court on a Motion to Proceed In Forma
Pauperis on Appeal [Doc. 46] and an Application for Certificate of
Appealability [Doc. 47] filed by pro se Petitioner Dexter Watson.
Having considered the record, Watson’s briefing, and applicable
statutory and case law, the Court finds as follows:
I. BACKGROUND
Watson is serving a life sentence for murder in state custody.
He petitioned this Court for habeas corpus under 28 U.S.C. § 2254
after exhausting state remedies. [Doc. 1]
Magistrate Judge Michael T. Parker recommended that the Court
deny Watson habeas relief. [Doc. 31] After reviewing de novo
Magistrate Judge Parker’s Report and Recommendation, the Court
found habeas relief unwarranted, adopted Magistrate Judge Parker’s
Report and Recommendation, and dismissed Watson’s Petition with
prejudice. [Docs. 42, 43]

Watson now asks the Court to (1) certify six issues for appeal
to the United States Court of Appeals for the Fifth Circuit, and
(2) permit him to appeal in forma pauperis (“IFP”).
II. DISCUSSION
A.

Certificate of Appealability

Before Watson can appeal the Court’s denial of habeas relief
on an issue, he must obtain a certificate of appealability (“COA”)
on the issue. 28 U.S.C. § 2253(c)(1); FED. R. APP. P. 22(b); Buck
v. Davis, 137 S. Ct 759, 773 (2017).
The Court will grant a COA on an issue if Watson makes “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). This “substantial showing” requires Watson to
demonstrate that reasonable jurists would find the Court’s denial
of relief “debatable or wrong,” or that the issues Watson has
presented

“deserve

encouragement

to

proceed

further.”

United

States v. Arledge, 873 F.3d 471, 473 (5th Cir. 2017) (internal
citations omitted).
The Court

decides

whether to grant a COA

“without full

consideration of the factual or legal bases adduced in support of
the claims.” Rhoades v. Davis, 852 F.3d 422, 427 (5th Cir. 2017)
(quoting Buck, 137 S. Ct. at 773); see also Miller-El v. Cockrell,
123 S. Ct. 1029, 1039 (2003) (“The COA determination . . . requires

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an overview of the claims in the habeas petition and a general
assessment of their merits.”).
Watson asks the Court for a COA on six issues:
1) “Whether the evidence was sufficient to convict
Petitioner of murder”;
2) “Whether the jury was instructed on the essential
elements of the charge [sic] crime”;
3) “Whether trial counsel was ineffective for failure
to do a thoroughly [sic] pretrial investigation”;
4) “Whether
trial
counsel
was
rejecting
Petitioner
[sic]
instruction of manslaughter”;

ineffective
for
lesser
offense

5) “Whether trial counsel was ineffective for failure
to request a circumstantial evidence instruction”;
and
6) “Whether appellate counsel was ineffective for not
raising Petitioner’s Fourth Amendment Claim.”
[Doc. 47, p. 2]
i) Issue One – Sufficiency of Evidence
Watson seeks a COA on the standard of review the Court applied
when it rejected his sufficiency of evidence claim. [Doc. 47, p.
2] Watson must show that reasonable jurists would find that the
Court’s denial of habeas relief on the issue was “debatable or
wrong,” or that the issue “deserve[s] encouragement to proceed
further.” Brown v. Thaler, 684 F.3d 482, 487 (5th Cir. 2012)
(internal quotations omitted).

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Watson has not made the requisite showing. No reasonable
jurist would find “debatable or wrong” the standard of review this
Court applied. See Arledge, 873 F.3d at 473. Nor would reasonable
jurists find that the issue “deserve[s] encouragement to proceed
further.” Brown, 684 F.3d at 487. Therefore, Watson fails to make
a “substantial showing of the denial of a constitutional right,”
and the Court shall not grant a COA on this issue. See 28 U.S.C.
§ 2253(c)(2).
ii) Issue Two – Jury Instructions
Watson seeks a COA on the Court’s denial of habeas relief on
his jury instruction challenge. [Doc. 47, p. 2] On this issue, the
Court ruled that habeas relief was unavailable due to operation of
an independent and adequate state procedural rule. [Docs. 31, 42]
So to obtain a COA, Watson must show that reasonable jurists would
“find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 120 S. Ct. 1595, 1604
(2000).
Watson

contends

that

reasonable

jurists

would

find

the

Court’s resolution of this issue “debatable or wrong.” He reasons
that because improper jury instructions can derail a trial, his
jury instruction complaint necessarily implicates a fundamental
right. And because it implicates a fundamental right, Watson
insists, the jury instruction argument must be excepted from
4

Mississippi’s prohibition on successive post-conviction relief
petitions. See MISS. CODE. ANN. § 99-39-27(9). Watson did not raise
this argument in prior habeas briefing; he instead sought to avoid
application of the successive-writ prohibition on the ground that
Mississippi courts did not regularly apply the bar at the time of
his appeal. [Doc. 34, p. 7]
Mississippi

law

generally

prohibits

filing

successive

petitions for post-conviction relief. See MISS. CODE. ANN. § 99-3927(9). But that ban does not apply to errors affecting fundamental
rights. Fluker v. State, 170 So. 3d 471, 475 (Miss. 2015) (en
banc). For the fundamental rights exception to apply, “there must
at least appear to be some basis for the truth of the claim.” Means
v.

State,

43

So.

3d

438,

442

(Miss.

2010).

The

only

jury

instruction error egregious enough to implicate a fundamental
right is an instruction that omits an element of the offense.
Fitzpatrick v. State, 175 So. 3d 515, 522 (Miss. 2015).
Here, Watson contends that the jury was not instructed on the
essential elements of malice aforethought murder. [Doc. 47, p. 8]
The Mississippi Supreme Court found that Watson’s jury instruction
argument failed to qualify for any exception to a procedural bar
and was, in any event, meritless. [Doc. 22-3, p. 1] And a review
of Jury Instruction No. 5 confirms that the jury was indeed

5

instructed on the elements of the offense for which Watson was
convicted. [Doc. 23-1, p. 21]
Watson fails to establish any “basis for the truth” of his
contention that his jury instruction challenge should be excepted
from the successive-writ bar. See Means, 43 So. 3d at 442. And so,
no reasonable jurist would find that the Court’s decision to deny
Watson habeas relief on the jury instruction issue was “debatable
or wrong.” Slack, 120 S. Ct. 1604. Nor would any reasonable jurist
find that the issue “deserve[s] encouragement to proceed further.”
Brown,

684

F.3d

at

487.

Therefore,

Watson

fails

to

make

a

“substantial showing of the denial of a constitutional right,” and
the Court shall not grant a COA on this issue. See 28 U.S.C. §
2253(c)(2).
iii) Issue Three – Ineffective Pre-Trial Investigation
Watson seeks a COA on the Court’s denial of habeas relief on
his

trial

counsel’s

ineffectiveness

in

failing

to

conduct

a

thorough pre-trial investigation. [Doc. 47, p. 2] To obtain a COA
on this issue, Watson must show that reasonable jurists would find
the Court’s resolution of Watson’s pre-trial-investigation-based
ineffective assistance of counsel claim to be “debatable or wrong,”
or that the issue “deserve[s] encouragement to proceed further.”
Brown, 684 F.3d at 487.

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To start, Watson did not object to Magistrate Judge Parker’s
finding that this argument lacked merit. [Doc. No. 31, p. 21] And
Watson provides no insight as to “what the investigation would
have revealed and how it would have altered the outcome of the
trial.” Trottie v. Stephens, 720 F.3d 231, 243 (5th Cir. 2013).
Nor does Watson show that the Fourth Amendment claim he faults
trial counsel for failing to investigate had even arguable merit.
See Kimmelman v. Morrison, 106 S. Ct. 2574, 2583 (1986); Ward v.
Dretke, 420 F.3d 479, 488 n. 19 (5th Cir. 2005).
Watson offers only

conclusory complaints of insufficient

investigation. Thus, no reasonable jurist would find the Court’s
denial

of

habeas

relief

on

Watson’s

pre-trial

investigation

ineffective assistance of counsel theory to be “debatable or
wrong,” or that the issue “deserve[s] encouragement to proceed
further.” Brown, 684 F.3d at 487. Therefore, Watson fails to make
a “substantial showing of the denial of a constitutional right,”
and the Court shall not grant a COA on this issue. See 28 U.S.C.
§ 2253(c)(2).
iv) Issues Four and Five – Failure to Request Jury
Instructions
Watson seeks COAs on the Court’s denial of habeas relief on
his

trial

counsel’s

ineffectiveness

in

failing

to

request

manslaughter and lesser-included-offense instructions. [Doc. 47,
pp. 11-12] To obtain COAs on these issues, Watson must show that
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reasonable jurists would find the Court’s rejection of his juryinstruction-based requests for habeas relief to be “debatable or
wrong,” or that the issues “deserve encouragement to proceed
further.” Brown, 684 F.3d at 487.
Watson’s

manslaughter-instruction-based

argument

is

unavailing. A portion of Magistrate Judge Parker’s Report and
Recommendation —— to which Watson did not object —— advised that
the evidence offered at trial did not support a manslaughter
instruction, so trial counsel cannot have been ineffective in
failing to request the instruction. [Doc. 31, p. 24]
Watson’s other instruction-based ineffective assistance claim
is similarly unpersuasive. The evidence presented at trial did not
support a lesser-included-offense instruction. [Docs. 31, 42] And
even if it did, trial counsel’s decision not to request such an
instruction could have been a matter of sound trial strategy. See
Mosley v. Quarterman, 306 F. App’x 40, 48 (5th Cir. 2008).
No reasonable jurist would find “debatable or wrong” the
Court’s denial of habeas relief on Watson’s claim that trial
counsel was ineffective in failing to request manslaughter and
lesser-included-offense instructions. Nor would any reasonable
jurist find that the issues “deserve encouragement to proceed
further.” Brown, 684 F.3d at 487. Therefore, Watson fails to make
a “substantial showing of the denial of a constitutional right,”
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and the Court shall not grant a COA on these issues. See 28 U.S.C.
§ 2253(c)(2).
v) Issue Six – Ineffective Assistance of Appellate
Counsel
Finally, Watson seeks a COA on the Court’s denial of habeas
relief for appellate counsel’s ineffectiveness in failing to seek
plain-error review of Watson’s warrantless arrest and extended
detention. [Doc. 47, pp. 13-14] To obtain a COA on this issue,
Watson must show that reasonable jurists would find the Court’s
rejection of his request for habeas relief to be “debatable or
wrong,” or that the issue “deserve[s] encouragement to proceed
further.” Brown, 684 F.3d at 487.
Watson fails to make the requisite showing. Appellate counsel
is not ineffective for declining to raise a meritless issue on
appeal. See Ricalday v. Procunier, 736 F.2d 203, 208 (5th Cir.
1984) (“[I]f there was no prejudice from the trial error, there
was also no prejudice from the appellate error.”). And the Court
has determined that the underlying Fourth Amendment violation ——
denial of a timely probable cause hearing and initial appearance
—— lacks merit. [Docs. 31, 42]
No

reasonable

“debatabl[y]

or

jurist

wrong[ly]”

would
in

find

that

concluding

this

that

Court

Watson

acted
is

not

entitled to habeas relief for his appellate counsel’s failure to
raise a meritless issue. See Arledge, 873 F.3d at 473. Nor would
9

a

reasonable

encouragement

jurist
to

conclude

proceed

that

further.”

the

Brown,

issue
684

“deserve[s]

F.3d

at

487.

Therefore, Watson fails to make a “substantial showing of the
denial of a constitutional right,” and the Court shall not grant
a COA on the issue. See 28 U.S.C. § 2253(c)(2).
B.

In Forma Pauperis Appeal

Watson asks the Court to relieve him of the obligation to
prepay the costs of appeal —— or in other words, to proceed IFP.
[Doc. 46] The IFP appeal analysis is two-tiered. First, the Court
asks whether Watson has filed a statutory-compliant affidavit of
poverty.

See

28

U.S.C.

§

1915(a)(1).

And

second,

the

Court

considers whether Watson’s appeal is taken in good faith. See 28
U.S.C. § 1915(a)(3).
On tier one, Watson must file an affidavit (1) showing he is
unable to pay for fees and costs; (2) claiming he is entitled to
redress; and (3) stating the issues he intends to present on
appeal. 28 U.S.C. § 1915(a)(1); FED. R. APP. P. 24(a)(1). Watson
has filed an affidavit satisfying these requirements. [Doc. 46-1]
On tier two, the Court asks whether Watson’s appeal is taken
in good faith. 28 U.S.C. § 1915(a)(3). If the Court certifies that
an appeal is not taken in good faith, then Watson may not appeal
IFP. See, e.g., United States v. Misher, 401 Fed. App’x 981, 982
(5th

Cir.

2001)

(per

curiam)
10

(affirming

district

court’s

certification that appeal was not taken in good faith); Robertson
v. Louisiana, 246 Fed. App’x 267 (5th Cir. 2007) (per curiam)
(same). And if the Court so certifies, it must set forth in writing
the reasons for its certification. FED. R. APP. P. 24(a)(2); Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
An appeal is taken in good faith if it seeks review of any
non-frivolous issue. Coppedge v. United States, 369 U.S. 438, 445
(1962). An issue is non-frivolous if it raises “legal points
arguable on their merits.” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983); see also Woodall v. Foti, 648 F.2d 268, 271 (5th Cir.
1981) (an appeal is frivolous if it lacks “arguable merit”).1
Watson’s appeal is not taken in good faith. None of the six
issues of which Watson seeks appellate review raises “legal points
arguable on their merits.” Howard, 707 F.2d at 220. Indeed, the
appellate issues Watson pinpoints have been rejected time-andagain by this Court and the courts of Mississippi as either
meritless,

procedurally-barred,

or

both.

The

Court

therefore

certifies that any appeal of this action would not be taken in
good faith. See 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3).

If the trial court certifies that an appeal lacks good faith, the
petitioner has two options. He may, within the time prescribed by Federal Rule
of Appellate Procedure 4, pay the full filing fee and all relevant costs and
proceed on appeal. Baugh, 117 F.3d at 202. Or, he may challenge the trial
court’s certification by moving the court of appeals for leave to proceed IFP.
Id.
1

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III. CONCLUSION
Petitioner Dexter Watson fails to demonstrate that reasonable
jurists would find “debatable or wrong” the Court’s denial of
habeas relief on any issue he has raised, or that any such issue
“deserves encouragement to proceed further.” Arledge, 873 F.3d at
473. Watson therefore fails to make “a substantial showing of the
denial of a constitutional right” on any issue, and no certificate
of appealability shall issue. 28 U.S.C. § 2253(c)(2). Also, the
Court certifies that Watson’s appeal is not taken in good faith
because none of the appellate issues identified by Watson raises
“legal points arguable on their merits.” Howard, 707 F.2d at 220.
ACCORDINGLY,
IT IS HEREBY ORDERED that petitioner Dexter Watson’s Motion
to Proceed In Forma Pauperis [Doc. 46] is DENIED, and it is
CERTIFIED that any appeal of this action would not be taken in
good faith;
FURTHER ORDERED that petitioner Dexter Watson’s Application
for Certificate of Appealability [Doc. 47] is DENIED, and no
certificate of appealability shall issue.
SO ORDERED, this the 5th day of December, 2017.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE

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