McKnight v. Ladner

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS - IT IS HEREBY ORDERED that Magistrate Judge Gargiulo's Report and Recommendation 24 is ADOPTED as the findings and conclusions of this Court; FURTHER ORDERED that Petitioner James Douglas McKnight&# 039;s Motion Objecting to the Magistrate Judge's Report and Recommendation 27 is OVERRULED; FURTHER ORDERED that Petitioner McKnight's Motion to Alter or Amend Judgment 26 is DENIED; FURTHER ORDERED that McKnight's Petition for W rit of Habeas Corpus 1 and Amended Petition for Writ of Habeas Corpus 5 are DISMISSED WITH PREJUDICE. A FINAL JUDGMENT dismissing this case with prejudice shall be entered of even date herewith. Signed by Honorable David C. Bramlette, III on 4/2/2019 (ND)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JAMES DOUGLAS McKNIGHT
VS.

PETITIONER
CIVIL ACTION NO. 5:17-cv-118(DCB)(JCG)

WARDEN BRIAN LADNER

RESPONDENT

ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on the Petitioner James Douglas
McKnight (“McKnight”)’s Petition under 28 U.S.C. § 2254 for a Writ
of Habeas Corpus by a Person in State Custody (docket entry 1),
filed September 5, 2017.

McKnight also filed an Amended Petition

on October 10, 2017 (docket entry 5).
Petition

challenge

McKnight’s

2013

The Petition and Amended

conviction

for

murder

and

possession of a firearm by a convicted felon.
The Respondent, Warden Brian Ladner, filed an Answer to the
Amended Petition on March 9, 2018 (docket entry 10).

In a text

order of April 5, 2018, McKnight was granted an extension of time
to file a Reply to Warden Ladner’s Answer.

On June 27, 2018,

McKnight moved for an additional extension of time (docket entry
13), and the Court granted the motion in a text order of June 28,
2018, extending the time for filing the Reply to July 30, 2018.
On

August

7,

2018,

McKnight

filed

motions

for

further

additional time (docket entry 15), to amend his Petition (docket
entry 16), and to invoke discovery (docket entry 17).

The motion

for additional time was granted and the motion to amend petition

was denied; however, the petitioner was granted leave to file
exhibits with his reply (text order of August 8, 2018).

Warden

Ladner filed his response to McKnight’s motion to invoke discovery
on August 21, 2018 (docket entry 19).
On September 6, 2018, McKnight filed a motion for extension of
time to

file

a

response/reply

McKnight’s Amended Complaint.

to

the

Respondent’s

Answer

to

The motion was granted in part and

denied in part (text order of September 7, 2018).

On October 10,

2018, McKnight filed a motion to amend his Petition (docket entry
21).

Warden Ladner filed a Response, submitting that McKnight’s

motion to amend had previously been granted to the extent that the
Court allowed McKnight to supplement his petition with the exhibits
attached to his motion to amend.

In addition, the Respondent

submitted that McKnight’s remaining arguments raised in the motion
to amend should be liberally construed as his traverse or reply to
the Respondent’s answer, and, as such, any motion to amend on those
arguments

should be

denied

given

that the

Court

had

allowed

petitioner time to file his traverse.
Magistrate Judge John C. Gargiulo entered a text order on
October 29, 2018, denying McKnight’s Motion to Amend Petition for
Writ of Habeas Corpus, but construing McKnight’s exhibits 21-1 and
21-2 as his Reply to the Response to his Petition for Writ of
Habeas Corpus for the Court’s consideration. On February 11, 2019,
the Magistrate Judge denied McKnight’s motion to invoke discovery

2

(docket entry 23).
Magistrate Judge Gargiulo issued a Report and Recommendation
(docket entry 24) recommending that the Petitioner’s request for
relief under § 2254 be denied on grounds that McKnight has not
demonstrated that he is entitled to federal habeas relief.
Following the entry of the Report and Recommendation, McKnight
filed a Motion to Alter or Amend Judgment (docket entry 26) and

a

Motion Objecting to Magistrate Judge’s Report and Recommendation
(docket entry 27).

On March 15, 2019, Warden Ladner filed a

Response in Opposition to Petitioner’s Motion to Alter and Amend
(docket entry 28) and a Response to Petitioner’s Objections to the
Report and Recommendation (docket entry 29).

Petitioner McKnight

filed a “Reply to Respondents’ Response to Petitioner’s Objections
to Report and Recommendation on March 27, 2019 (docket entry 30).
McKnight is a post-conviction inmate in the custody of the
Mississippi Department of Corrections.

After a jury trial in the

Circuit Court of Pike County, Mississippi, he was convicted of
murder and possession of a firearm by a convicted felon on June 13,
2013.
without

He was sentenced as a habitual offender to life in prison
the

possibility

of

parole

sentences to run consecutively.

on

each

conviction,

with

After his motions for judgment

notwithstanding the verdict and for a new trial were denied,
McKnight appealed, and the Mississippi Court of Appeals affirmed
his conviction.
3

In his direct appeal to the Mississippi Court of Appeals,
McKnight, who was represented by an attorney, raised seventeen
issues.

The State Court of Appeals found each of these to be

without merit and affirmed McKnight’s conviction. After his motion
for rehearing was denied, McKnight, proceeding pro se, filed a
Petition for Writ of Certiorari before the Mississippi Supreme
Court raising three grounds for relief.

The Mississippi Supreme

Court denied McKnight’s Petition on March 31, 2016.

McKnight then

filed a Motion for Post-Conviction Collateral Relief before the
Mississippi Supreme Court on April 26, 2017, raising thirty-seven
grounds for relief. The Mississippi Supreme Court found McKnight’s
claims of ineffective assistance of counsel to be without merit,
and found that the other claims were procedurally barred.
On September 5, 2017, McKnight filed his 28 U.S.C. § 2254
Petition for Writ of Habeas Corpus, then filed an Amended Petition
on October 10, 2017, in which he raises thirty-eight grounds for
relief.
Respondent Warden Ladner filed his Answer on March 9, 2018,
alleging that McKnight did not exhaust ground 19, that grounds 3,
4, 9, 10, 28 and 32 rest on adequate state law grounds, that the
remaining grounds for relief were decided on the merits in state
court, and that the state court’s decision was not an unreasonable
application of federal law.
McKnight’s Amended Petition of October 10, 2017, was denied by

4

the

Court,

but

the

Court

also

construed

McKnight’s

exhibits (docket entries 21-1 and 21-2) as his Reply.

attached
McKnight

makes additional arguments concerning Grounds 1, 2, 3, 4, 5, 6, 7,
8, 9, 11, 12, 13, 23, 35, and 39; however, he also states that the
“Court may strike” Grounds 19 and 22; therefore, the Court will not
consider those two Grounds.
Before considering the merits of a petition under 28 U.S.C. §
2254 for writ of habeas corpus, the Court must first determine if
all procedural steps necessary to preserve each issue raised for
federal review have been taken. First, the petition must be timely
filed with the Court in compliance with 28 U.S.C. § 2244(d)(1).

In

this case, there is no challenge to the timeliness of the petition.
Second, a writ of habeas corpus may not be granted unless it
appears that a petitioner has exhausted all available state court
remedies.

See 28 U.S.C. § 2254(b)(1).

To exhaust a federal

constitutional claim, a petitioner must “fairly present” in state
court both the operative facts and federal legal theory of his or
her claim in a procedurally proper manner. O’Sullivan v. Boerckel,
526 U.S. 838, 848 (1999).
As a matter of comity and federalism, federal courts generally
may not review a state court’s denial of a federal constitutional
claim if the state court’s decision rests on a state procedural
ground that is independent of the federal question and adequate to
support the judgment.

Coleman v. Thompson, 501 U.S. 722, 729-30

5

(1991).

“To qualify as an ‘adequate’ procedural ground, a state

rule must be ‘firmly established and regularly followed.’”

Walker

v. Martin, 562 U.S. 307, 316 (2011)(quoting Beard v. Kindler, 558
U.S. 53, 60-61 (2009)).

A federal court may also find claims

procedurally defaulted if the petitioner failed to present them in
state court and “the court to which the petitioner would be
required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred.”

Sones

v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995)(quoting Coleman, 501
U.S. at 735 n.1).
merits

of

a

Federal courts retain the power to consider the

procedurally

defaulted

claim

if

the

petitioner

demonstrates legitimate cause for the failure to properly exhaust
the

claim

in

state

court

and

prejudice

from

the

alleged

constitutional violation, or shows that a fundamental miscarriage
of justice would result if the claim is not heard on the merits in
federal court.

See Schlup v. Delo, 513 U.S. 298, 324-27 (1995).

Substantively, the issue in a federal habeas proceeding is not
whether there was an error in applying state law but whether there
has

been

a

Constitution.

denial

of

rights

protected

by

the

United

States

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

“[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.”

Id.

The

federal courts do not function as super appellate courts over the
states to review errors under state law and may not correct errors

6

of state law unless they also violate the constitutional rights of
an accused.

See Smith v. Phillips, 455 U.S. 209, 221 (1982);

Mendiola v. Estelle, 635 F.2d 487, 491 (5th Cir. 1981).
Even

in matters

affecting

constitutional

courts have a very limited scope of review.

rights,

federal

The Court’s authority

to grant relief to a person held in custody pursuant to a state
judgment is narrowly circumscribed by 28 U.S.C. § 2254(d), which
provides that a writ of habeas corpus shall not be granted unless
the state court adjudication of the claim:
1. resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
2. resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
As recently summarized by the Fifth Circuit Court of Appeals:
Because “§ 2254(d)(1)’s ‘contrary to’ and ‘unreasonable
application’ clauses have independent meaning,” there are
three ways a federal court can grant habeas relief: (1)
if the state court decision was contrary to clearly
established Supreme Court law; (2) if the state court
decision involved an unreasonable application of clearly
established Supreme Court law; or (3) if the state court
decision was based on an unreasonable determination of
the facts in light of the evidence presented. “AEDPA’s
standard is intentionally difficult to meet.”
Poree v. Collins, 866 F.3d 235, 245 (5th Cir. 2017)(quoting Bell v.
Cone, 535 U.S. 685, 694 (2002); Woods v. Donald, 135 S.Ct. 1372,
1376 (2015)).
be

correct.

The state court’s factual findings are presumed to
The

petitioner

may

7

rebut

“the

presumption

of

correctness

by

clear

and

convincing

evidence.”

28

U.S.C. §

2254(e)(1).
Magistrate Judge Gargiulo begins by finding that Grounds 3, 4,
9, 10, 28, and 32 are procedurally barred, because when McKnight
raised them in his Motion for Post-Conviction Collateral Relief in
State Court, the Mississippi Supreme Court held that they were
procedurally barred from review under Miss. Code Ann. § 99-3921(1).

That statute provides that a failure to raise claims at

trial and/or on direct appeal constitutes a waiver of those claims
and a procedural bar, unless the individual shows cause and actual
prejudice.
“Where a state prisoner has defaulted his federal claims in
state

court

pursuant

to

an

independent

and

adequate

state

procedural rule, this court may not review the prisoner’s habeas
petition.”

Stokes v. Anderson, 123 F.3d 858, 859 (5th Cir. 1997)

(citing Coleman, 501 U.S. at 729). However, an exception exists if
the prisoner can “demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.”

Id.

Any such state procedural bar must be “firmly established and
regularly followed.” Beard, 558 U.S. at 60-61 (internal quotations
omitted).

The Fifth Circuit has previously held that Miss. Code

Ann. § 99-39-21(1) is “an independent and adequate state procedural

8

rule.”

Stokes, 123 F.3d at 861; see also Nixon v. Epps, 405 F.3d

318, 323 (5th Cir. 2005).

McKnight “bears the burden of showing

that the state did not strictly or regularly follow a procedural
bar around the time of his direct appeal” and “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.”

Stokes, 123 F.3d at 860.

McKnight does not address this

issue; he merely argues that ineffective assistance of counsel
satisfies the cause and prejudice requirements of the exception or,
alternatively, failure to consider these claims would result in a
fundamental miscarriage of justice (ECF No. 21-2 at 67-70).
Although McKnight repeatedly argues that he should be excused
from

his

failure

to

raise

these

claims

because

he

received

ineffective assistance of counsel, McKnight does not address the
fact that he filed his state certiorari petition while proceeding
pro se and only raised three issues.
demonstrated

sufficient

cause

to

Therefore, McKnight has not

overcome

the

adequate

state

procedural bar, especially because the Mississippi Courts found his
ineffective assistance of counsel claims to be without merit.
Edwards v. Carpenter, 529 U.S. 446, 450-54 (2000).

See

Further,

McKnight has not demonstrated that the failure to consider these
claims will result in a fundamental miscarriage of justice, as he
must “show that he has a colorable claim of factual innocence.”
Shore v. Davis, 845 F.3d 627, 633, n.4 (5th Cir. 2017)(citing

9

Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).

McKnight has not

done

28,

so;

therefore,

Grounds

3,

4,

9,

10,

and

32

are

procedurally barred.
As for McKnight’s remaining grounds, the Respondent submits
that these were decided on the merits in state court, and the state
court’s determinations were not an unreasonable application of the
law.

Grounds 1, 2, 5, 6, 7, 8, 11, 12, 14, 16, 17, 18, 20, 21, 23,

24, 25, 26, 29, 30, and 40 concern ineffective assistance of trial
counsel.

Grounds 13, 31, 33, 37, 39, and 41 concern ineffective

assistance of appellate counsel.

Closely related to McKnight’s

ineffective assistance of counsel claims are Ground 15, recusal of
the original trial judge, and Ground 34, McKnight’s right to a
speedy trial. Finally, Ground 35 concerns the Mississippi Court of
Appeal’s harmless error analysis with respect to hearsay testimony.
The

Sixth

Amendment

provides

that

“[i]n

all

criminal

prosecutions, the accused shall enjoy the right ... to have the
Assistance of Counsel for his defense.”

This right to counsel “is

the right to the effective assistance of counsel.”

Strickland v.

Washington, 466 U.S. 668, 686 (1984)(quoting McMann v. Richardson,
397 U.S. 759, 771 (1970)).
counsel,

McKnight

“must

To show ineffective assistance of

show

that

counsel’s

performance

was

deficient,” which “requires showing that counsel made errors so
serious

that

counsel

was

not

functioning

as

the

‘counsel’

guaranteed the defendant by the Sixth Amendment.” Further, he must

10

show that the performance prejudiced his defense, which “requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
at 687.

Id.

However, “[j]udicial scrutiny of counsel’s performance

must be highly deferential,” and “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is the defendant must
overcome

the

presumption

that,

under

the

circumstances,

the

challenged action ‘might be considered sound trial strategy.’” Id.
at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
However, McKnight is challenging his counsel’s performance in
a habeas petition.

The Fifth Circuit has stated:

the test for federal habeas purposes is not whether [the
petitioner made the showing required under Strickland].
Instead, the test is whether the state court’s decision that [the petitioner] did not make the Strickland showing
- was contrary to, or an unreasonable application of, the
standards, provided by the clearly established federal
law (Strickland), for succeeding on his [ineffective
assistance of counsel] claim.
Busby

v.

Dretke,

359

F.3d

708,

717

(5th

Cir.

2004)(quoting

Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003))(emphasis
and alterations in original).
any

reasonable

argument

deferential standard.”

that

“The question is whether there is
counsel

satisfied

Strickland’s

Harrington v. Richter, 562 U.S. 86, 105

(2011).
McKnight first raises numerous issues concerning his trial
counsel.

These claims can be classified as relating to evidence
11

(Grounds 1, 2, 16, 17, 20, and 25), his right to a speedy trial
(Grounds 5 and 34), counsel’s failure to object (Grounds 6, 7, 8,
12, 18, 24, 26, 29, and 40), the withholding of discovery (Ground
11), the recusal of the trial judge (Grounds 14 and 15), jury
instructions (Ground 21), witnesses (Ground 23), and promises made
during opening statements (Ground 30).

He then makes various

claims concerning his appellate counsel’s alleged misstatements of
facts, failure to raise facts, and failure to raise issues on
appeal (Grounds 13, 31, 33, 37, 39, and 40).

Finally, he makes one

argument concerning the Mississippi Court of Appeals’ harmless
error analysis (Ground 34).
McKnight alleges that his trial counsel was ineffective for
failing to present “material, exculpatory, impeachment evidence,
etc.” (Grounds 1 and 2), particularly a video of the victim
stealing prescription drugs (Ground 20) and evidence concerning the
“root cause” of the murder (Ground 17).
alleges

that

responsible

co-defendant
for

stealing

Alreco

Hill

prescription

Essentially, McKnight
and

the

drugs,

victim

and

that

were
Hill

committed the murder to cover up that crime. McKnight also alleges
that there were discrepancies concerning the number of shots fired.
He alleges that his counsel had this information and should have
introduced it at trial.

The Respondent argues that McKnight has

not shown that this evidence was admissible, his allegations are
merely conclusory, and determining what evidence to admit is a

12

matter of trial strategy.
It is clear from the record that McKnight’s trial counsel
questioned Hill about selling pills (ECF No. 11-4 at 89-92) and
attempted to present an alternate theory of the crime.

He also

cross-examined witnesses concerning the number of shots fired (ECF
No. 11-4 at 110-11).

Ultimately, “a tactical decision not to

pursue and present potential mitigating evidence on the grounds
that it is double-edged in nature is objectively reasonable, and
therefore does not amount to deficient performance.”

Lamb v.

Johnson, 179 F.3d 352, 358 (5th Cir. 1999)(quoting Rector v.
Johnson,

120

F.3d

551,

564

(5th

Cir.

1997)).

Particularly

considering the double deference afforded to counsel’s decisions in
habeas cases, McKnight is not entitled to relief on Grounds 1, 2,
17, or 20.
McKnight

also

alleges

that

his

counsel

helped

suppress

evidence concerning the inducements offered to Hill in exchange for
his testimony (Ground 16).

However, the record reflects that the

prosecution discussed Hill’s plea agreement and McKnight’s trial
counsel cross-examined Hill about it (ECF No. 11-4 at 78-80, 9091).

McKnight’s disagreement with trial counsel’s strategy does

not render the state court’s decision an unreasonable application
of clearly established federal law, as the jury was clearly made
aware of Hill’s plea. Therefore, Ground 16 does not warrant habeas
relief.

13

McKnight’s last evidentiary issue involves the unidentified
evidence bag that was attached to introduced evidence (Ground 25).
During

direct

examination

of

Greg

Nester,

a

crime

scene

investigator with the Mississippi Bureau of Investigation, the
prosecution asked him about a shell casing.

He testified that the

exhibit contained the shell casing, and the seal had not been
tampered with.

However, he also testified that “[t]here is some

additional bag with paperwork attached to the back that is not
mine.” (ECF No. 11-5 at 54).

McKnight alleges that his counsel

should have demanded “a show and tell” of that bag.

Counsel asked

to voir dire the witness, but after the trial judge stated that the
notation

“with

some

additional

paperwork”

would

be

included,

counsel merely reserved his right to cross-examination (ECF No. 115 at 55).

At no point was the paperwork or any additional

“mystery” evidence admitted.

McKnight has not shown any potential

prejudice from the evidence being admitted with the notation of
“some additional paperwork,” and trial counsel’s strategic decision
does not constitute ineffective assistance of counsel.

Therefore,

Ground 25 does not warrant habeas relief.
McKnight next alleges that he was denied effective assistance
of counsel when counsel “sabotaged his right to a speedy trial”
(Ground 5) and was denied due process when the trial court did not
dismiss his case because of the speedy trial violation (Ground 34).
McKnight alleges that he asserted his right to a speedy trial when

14

he met his first appointed counsel; however, it appears that this
assertion was merely a discussion of the right with his counsel,
not a declaration to the court.

After his first appointed counsel

withdrew due to a conflict of interest, McKnight alleges that new
counsel sabotaged his right to a speedy trial by initiating the
recusal of the original trial judge and filing a motion to dismiss
right before trial began.

He also alleges that his due process

rights were violated when the trial court did not grant the motion
to dismiss.
The Mississippi Court of Appeals addressed this issue and
properly weighed the factors set out in Barker v. Wingo, 407 U.S.
514 (1972).

It concluded that the length of delay was sufficient

to presume prejudice; however, it found that the main cause was the
substitution of defense counsel, with a short portion caused by the
first trial judge’s recusal.

Because the prosecution was not

responsible, the Mississippi Court of Appeals found that this
factor weighed against McKnight.
The Appeals Court also found that the third factor, assertion
of the right, weighed against McKnight since he did not assert his
right until the motion to dismiss.

Furthermore, the Appeals Court

concluded that the motion was not equivalent to a demand for a
speedy trial. Although McKnight argues that he informed counsel of
his desire for a speedy trial early on, the “burden is ‘on the
defendant to alert the government of his grievances.’”

15

Amos v.

Thornton, 646 F.3d 199, 207 (5th Cir. 2011)(quoting Robinson v.
Whitley, 2 F.3d 562, 569 (5th Cir. 1993))(emphasis added).
Finally, the Mississippi Court of Appeals found that McKnight
did not suffer any prejudice from the delay and concluded that the
fourth factor also weighed against McKnight. The Mississippi Court
of Appeals’ decision is not an unreasonable application of federal
law. Because McKnight’s speedy trial claim is without merit, he is
foreclosed from raising an ineffective assistance of counsel claim
regarding that right.

Id. at 209-10.

Therefore, McKnight is not

entitled to habeas relief on Grounds 5 or 34.
Closely related to McKnight’s claim concerning his right to a
speedy

trial

is

his

allegation

that

he

received

ineffective

assistance of counsel when trial counsel initiated the recusal of
the original trial judge (Ground 14) and his claim that he was
denied due process under the Fourteenth Amendment when the trial
judge recused (Ground 15).

The original trial judge recused

pursuant to a circuit policy because he had signed a search warrant
related to McKnight’s case.

McKnight alleges that after the

recusal, the “evidence began to change, he was hurried into trial,
denied the right to counsel of his choice with time to prepare for
trial, [and] evidence of material, exculpatory, impeachment value
was suppressed ....”
On direct appeal, the Mississippi Court of Appeals reviewed
the judge’s decision under an abuse of discretion standard and

16

found that McKnight was not prejudiced by his recusal.
187

So.

3d

at

647.

Not

all

questions

of

McKnight,

recusal

“involve

constitutional validity.” Tumey v. Ohio, 273 U.S. 510, 523 (1927).
McKnight’s argument that the judge should not have recused does not
rise to the level of a constitutional violation, but even if it
did, the state court’s decision was not an unreasonable application
of

the

law.

Because

the

judge

did

not

violate

McKnight’s

constitutional rights when he recused, McKnight did not receive
ineffective assistance of counsel when counsel pointed out the
trial judge’s prior involvement in the case.

Therefore, McKnight

is not entitled to relief on Grounds 14 or 15.
McKnight next alleges that he received ineffective assistance
of counsel when his trial counsel failed to object at various
stages of the proceedings. He alleges that his counsel should have
objected to a “surprise” state witness (Ground 6) and should have
requested a continuance (Ground 40).

He also alleges that counsel

should have objected to the introduction of two witnesses as
McKnight’s “blood relatives” (Ground 7), perjured testimony (Ground
12), inconsistent shell casing evidence (Ground 24), and the
testimony of Dr. Levaughn (Ground 29). He then argues that counsel
should have objected to several statements of the prosecution
during closing (Grounds 8, 18, and 26).
First, McKnight argues in Ground 6 that his counsel informed
him approximately one week before trial that Terry Williams would

17

testify. He argues that counsel should have objected and requested
a continuance.

In Ground 40, McKnight argues that he received

ineffective assistance when counsel did not request a continuance
because

of

Williams.

However,

Williams

appeared

on

the

prosecution’s witness list for one of the earlier trial settings
(ECF No. 11-1 at 46).

He was also listed on the witness list for

the June 11, 2013 trial setting, which the state submitted on May
22, 2013 (ECF No. 11-1 at 49-50).

Therefore, Williams was not a

surprise witness, and there would be no grounds for such an
objection
McKnight’s

or

a

continuance.

counsel

The

cross-examined

record

also

Williams

conversation they had (ECF No. 11-4 at 126-33).

reflects

about

a

that
prior

Because Williams

was not a surprise witness, counsel had the opportunity to talk to
him prior to trial, and counsel was prepared to cross-examine him.
McKnight has not shown that he received ineffective assistance of
counsel. Magistrate Judge Gargiulo finds that Grounds 6 and 40 are
without merit.
In Ground 7, McKnight alleges that he received ineffective
assistance

of

counsel

because counsel

did not

object

introduction of Terry and Bruce Williams as his uncles.

to

the

He states

that they were his stepfather’s brothers. The record reflects that
Bruce Williams stated he was McKnight’s uncle (ECF No. 11-4 at 25).
Terry Williams stated that McKnight was his nephew (ECF No. 11-4 at
118).

Neither witness testified that he was an uncle by blood.

18

Because uncles are not necessarily related by blood and nothing in
the record contradicted their testimony, an objection would have
been meritless. Counsel cannot be ineffective for failing to raise
a meritless issue.

States v. Hall, 711 Fed. App’x 198, 201 (5th

Cir. 2017)(citing United States v. Kimler, 167 F.3d 889, 893 (5th
Cir. 1999)).

McKnight is not entitled to habeas relief on Ground

7.
In Ground 12, McKnight argues that counsel was ineffective for
failing to object to the allegedly false testimony of Hill, David
Wells, Shannon Sullivan, and Katrina Harris.

Respondent submits

that counsel’s failure to object was trial strategy, and Magistrate
Judge Gargiulo agrees, as does this Court.

The state court record

reflects that McKnight’s counsel diligently cross-examined these
witnesses

and

attempted

to

reveal

inconsistencies

in

their

testimony (ECF Nos. 11-4 at 58-61, 81-94, 108-11 & 11-5 at 12-20).
Ultimately, a “conscious and informed decision on trial tactics and
strategy

cannot

be

the

basis

of

constitutionally

ineffective

assistance of counsel unless it is so ill chosen that it permeates
the entire trial with obvious unfairness.” Richards v. Quarterman,
566 F.3d 553, 564 (5th Cir. 2009)(quoting Virgil v. Dretke, 446
F.3d 598, 608 (5th Cir. 2006)).

Particularly when considering the

deference

court

afforded

to

state

decisions

on

issues

of

ineffective assistance of counsel, McKnight is not entitled to
relief on Ground 12.

19

McKnight’s claim for relief in Ground 24 must fail for the
same reasons.
casings

at

different.

He argues that Greg Nester testified that the shell

the

crime

scene

and

in

McKnight’s

vehicle

were

He argues that counsel should have objected instead of

waiting “until closing argument to make casual mention of the
inconsistent evidence.”

(McKnight’s Petition for Writ of Habeas

Corpus, ECF No. 1-1 at 36-38; Amended Petition, ECF No. 5 at 6668). The record indicates that counsel cross-examined Nester about
the different shell casings (ECF No. 11-5 at 61-64) and then made
direct reference to the different shell casings during closing (ECF
No. 11-6 at 34).
chose

to

Counsel did not ignore the inconsistency; he

cross-examine

the

witness

about

it

and

argue

the

inconsistency in closing. This is the type of strategy that cannot
be the basis of an ineffective assistance claim. Therefore, Ground
24 is without merit.
McKnight also alleges that he received ineffective assistance
of counsel when his counsel did not object to the “assumed expert
testimony” of Dr. Levaughn, particularly an allegedly photoshopped
picture and a “bogus” autopsy report.

The prosecution called Dr.

Levaughn as a witness, and he testified that he had worked as a
pathologist for twenty-nine or thirty years, had completed medical
school, including a residency in pathology, was certified and
licensed, and had testified as an expert about once a month for the
past twenty-nine or thirty years.

20

Thereafter, he was admitted as

an expert without any objection from the defense (ECF No. 11-5 at
374-75).

Although

McKnight

references

the

“assumed

expert

testimony,” it does not appear that he takes issue with Dr.
Levaughn’s qualifications.
Instead, he argues that Dr. Levaughn should not have been
permitted to testify about his corrected autopsy report or a
particular

photograph.

As

for

the

photograph,

McKnight

has

provided no arguments or evidence about what part was photoshopped,
thus this is a conclusory allegation, which fails to “raise a
constitutional issue in a federal habeas proceeding.”

Miller v.

Johnson, 200 F.3d 274, 282 (5th Cir. 2000)(citing Ross v. Estelle,
694 F.2d 1008, 1012 (5th Cir. 1983)).

As for the autopsy report,

Dr. Levaughn testified that when reviewing for the trial, he
realized he had made a typographical error and had depicted a
gunshot wound on the incorrect shoulder (ECF No. 11-5 at 79).

Both

the original and corrected reports were admitted into evidence. On
cross-examination,

counsel

questioned

Dr.

Levaughn

about

the

differences between the reports and discrepancies between the
reports and a photograph (ECF No. 11-5 at 87-89).

However, Dr.

Levaughn unequivocally testified that the cause of death did not
change (ECF No. 11-5 at 89).

Such questioning by counsel was a

strategic decision, which does not provide a basis for habeas
relief.

Furthermore, as the cause of death did not change,

McKnight has failed to demonstrate any prejudice from his counsel’s

21

allegedly deficient performance. Therefore, Ground 29 is without
merit.
McKnight also alleges that his counsel was ineffective for
failing to object to several of the prosecution’s statements during
closing, including statements that held McKnight to “answer” for
other crimes (Ground 8), statements “vouching” for a state witness
(Ground 18), and statements containing allegedly “well known false
misleading information.”

Under Mississippi law, “[a]ttorneys on

both sides are generally afforded broad latitude during closing
arguments.”

Moffett v. State, 137 So. 3d 247, 269 (Miss. 2014)

(citing Wright v. State, 958 So. 2d 158, 161 (Miss. 2007)).

As

long as the prosecution’s arguments were related to the evidence
and the issues involved, McKnight’s counsel would not have had
grounds to make an objection.

Id. (quoting Brewer v. State, 704

So. 2d 70, 72 (Miss. 1997)).
McKnight first argues that his counsel should have objected to
the prosecution’s statement that McKnight fled to a different state
after the crime and stalked the victim. The “stalking” referred to
in closing was that McKnight shot at the victim from the car and
then chased him into the woods (ECF No. 11-6 at 21).
was supported by the trial testimony.

This argument

The prosecution also stated

during closing that Hill testified the last time he spoke to
McKnight, McKnight had said he was on his way to Oklahoma and may
go to California (ECF No. 11-6 at 30, 32).

22

That testimony is also

supported by the record, and counsel’s objection would have been
meritless.

Furthermore, McKnight was never “held to answer” for

fleeing arrest or stalking, as he was never indicted or faced a
trial on those charges.

Therefore, McKnight is not entitled to

habeas relief on Ground 8.
In Ground 18, McKnight argues that his counsel should have
objected to the state “vouching” for Hill.

He argues that the

prosecution wanted the jury to believe that Hill voluntarily turned
himself in two days after the murder.

In closing, the prosecution

did not state that Hill turned himself in two days later, but the
testimony does support that Hill voluntarily turned himself in and
gave various statements to the police.

Given the wide latitude

state law affords attorneys during closing, and given the deference
afforded to state court determinations of ineffective assistance of
counsel, McKnight is not entitled to relief on Ground 18.
For the same reasons, McKnight’s claim for relief in Ground 26
also fails.

He argues that counsel should have objected to the

prosecution’s summation of the evidence, particularly with regards
to the relationship between Hill, McKnight’s son, and the victim,
as well as the testimony offered by Bruce Williams and Harris.
McKnight’s argument is simply not an accurate reflection of the
record. The state was allowed to summarize the evidence in closing
arguments, and they did not misstate the evidence.

For example,

McKnight takes issue with the prosecution’s statement in closing

23

that the victim saw Harris after church (ECF Nos. 5 at 74 & 11-6 at
23).

However, Harris testified that the victim asked to borrow

money

from

her

after

he

left

church

(ECF

No.

11-4

at

55).

McKnight’s counsel was not ineffective for failing to object to the
state’s summation of the evidence when the summation did not go
outside the record.
In

McKnight’s

Therefore, Ground 26 is also without merit.
next

claim

for

ineffective

assistance

of

counsel, he alleges that counsel “prejudicially and maliciously
withheld requested discovery from him pretrial, from the trial
court and the jury during trial, and from Mr. McKnight’s appellate
counsel post trial.”

(ECF No. 1-1).

Magistrate Judge Gargiulo

finds that although McKnight repeatedly argues that there is
exculpatory evidence that he now has or now seeks, he has presented
nothing to show that he has been denied such evidence, either by
his counsel or by the prosecution.

McKnight’s sweeping statements

(ECF Nos. 5 & 21-2) do not warrant habeas relief.

Additionally,

McKnight stated on the record that he “got the discovery papers”
(ECF No. 11-3 at 75).

His counsel also stated that he had shared

all the evidence with McKnight (ECF Nos. 11-3 at 77 & 11-6 at 94).
The trial court found that “all discovery has been provided to
the defendant through his attorneys of record in an appropriate and
timely manner and there has been no allegation to the contrary”
(ECF No. 11-6 at 97).

The Mississippi Supreme Court had the

opportunity to review McKnight’s claim of ineffective assistance of

24

counsel as it relates to discovery matters.

In light of the

record, particularly the finding that discovery was produced, the
Mississippi

Supreme

Court’s

application of the law.

decision

is

not

an

unreasonable

McKnight is not entitled to habeas relief

on Ground 11.
In Ground 21, McKnight argues that his counsel was ineffective
for failing “to pursue a cautionary accomplice testimony instruction
and corroboration instruction.”

However, his counsel argued that an

accomplice instruction should have been given (ECF No. 11-6 at 406),
and therefore this portion of McKnight’s argument is without merit.
McKnight does not present any argument concerning the type of
“corroboration” instruction counsel should have requested; he merely
argues that co-defendant Hill’s trial testimony was uncorroborated.
However,

the

trial

judge

found

that

Hill’s

testimony

was

corroborated, citing that as an additional reason to deny the
accomplice instruction (ECF No. 11-6 at 408).

Furthermore, McKnight

has failed to show that a deficiency in the jury instruction caused
prejudice.

Therefore, the state court decision that counsel was not

ineffective with respect to the requested jury instructions is not
unreasonable.

McKnight is not entitled to habeas relief on Ground

21.
McKnight argues in Ground 23 that trial counsel should have
investigated

and

procured

various

witnesses

for

his

defense.

However, “[c]omplaints of uncalled witnesses are not favored in
federal habeas corpus review because allegations of what a witness
25

would have testified are largely speculative.”
Fields,

761

F.3d

443,

461

(5th

Cir.

United States v.

2014)(quoting

Sayre

v.

Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001))(alteration in
original).

To prevail on a claim of ineffective assistance of

counsel for failure to call certain witnesses, McKnight “must name
the witness, demonstrate that the witness was available to testify
and would have done so, set out the content of the witness’s
proposed testimony, and show that the testimony would have been
favorable

to

a

particular

defense.”

Id.

(quoting

Quarterman, 566 F.3d 527, 538 (5th Cir. 2009)).

Day

v.

Although McKnight

names several potential witnesses and sets out potential testimony
that may have been favorable, he has not shown that any of the
witnesses were available or would have testified (ECF No. 21-2 at
150-57).

In fact, McKnight even refers to these prospective

witnesses

as

“potentially

available”

(ECF

No.

21-2

at

161).

Therefore, McKnight is not entitled to habeas relief on Ground 23.
McKnight makes his final argument concerning the ineffective
assistance of his trial counsel in Ground 30.

He alleges that

counsel was ineffective for failing “to fulfill promises made to
the jury in opening statements.”

Essentially, he uses this ground

to re-argue his allegations that counsel should have presented
various pieces of evidence or made objections to various state
witnesses.

Magistrate Judge Gargiulo determined that McKnight is

not entitled to habeas relief on those grounds. Further, counsel’s

26

opening statement “emphasized [McKnight’s] most critical defense
theory,” and it was a reasonable theory of defense.

See

v. Stephens, 640 Fed. App’x 283, 292 (5th Cir. 2016).

Castillo
The mere

fact that counsel was not successful in convincing the jury of this
theory does not make counsel ineffective. See Strickland, 466 U.S.
at 689.

McKnight is not entitled to habeas relief on Ground 30.

McKnight also alleges that he received ineffective assistance
of counsel on appeal.

He argues that appellate counsel misstated

various facts to the Mississippi Court of Appeals (Ground 13) and
erred in failing to raise several issues before the Court of
Appeals, namely: whether trial counsel was ineffective for failing
to fulfill the promises made in opening statements (Ground 31);
whether McKnight was denied due process when the state introduced
allegedly perjured testimony (Ground 33); whether McKnight was
denied

the

right

to

confront

witnesses

against

him

due

to

inadmissible hearsay (Ground 37); whether trial counsel colluded
with a

detective

(Ground 39);

and

whether trial

counsel

was

ineffective for not requesting a continuance after learning of a
surprise state witness (Ground 41).
First, McKnight argues that appellate counsel was ineffective
for failing to investigate the “true facts” of the case and for
misstating the facts in the appellate brief.

In his reply,

McKnight alleges various “misstatements” of appellate counsel,
arguing that appellate counsel stated the first assigned trial

27

judge signed a warrant for McKnight’s cell phone records when he
instead signed a record for Hill’s phone records (ECF No. 21-2 at
141).

However, because the judges in that district agreed that

when one judge signed warrants in a case, the other judge would
preside over the trial, and because McKnight was not prejudiced by
the first judge’s recusal (Ground 15), this misstatement did not
prejudice McKnight.
The other misstatements concern when Bruce Williams saw a gun,
Mary

Marsalis’s

relationship

with

McKnight

and

when

she

saw

McKnight, whether Terry Williams was driving or walking down the
street at the time of the incident, and the scope of Detective
Sullivan’s testimony (ECF No. 21-2 at 142-46).

McKnight fails to

allege how he was prejudiced by these misstatements.

Furthermore,

the statements involve either minor, collateral issues or they
involve differing perceptions of the record, instead of actual
misstatements.

Therefore, the state court decision that McKnight

was not denied effective assistance on appeal is not unreasonable,
and McKnight is not entitled to habeas relief on Ground 13.
With respect to McKnight’s allegations that appellate counsel
should have raised particular issues, appellate counsel is not
required “to raise every ‘colorable’ claim suggested by a client.”
Jones v. Barnes, 463 U.S. 745, 754 (1983).

Furthermore, when the

alleged trial error did not result in prejudice, an individual will
not be prejudiced by an alleged appellate error on the same issue.

28

Amador v. Quarterman, 458 F.3d 397, 411 (5th Cir. 2006)(quoting
Mayabb v. Johnson, 168 F.3d 863, 869 (5th Cir. 1999)).

In this

case, however, McKnight’s appellate counsel did raise the issue of
inadmissible hearsay (ECF No. 11-10 at 92-93).
37 is clearly without merit.

Therefore, Ground

Grounds 31 and 41 relate to issues

McKnight also raised in this petition with respect to his trial
counsel (Grounds 30 and 40).

The state court’s determination that

McKnight did not receive ineffective assistance of counsel at trial
on these issues was not unreasonable; therefore, the determination
that he did not receive ineffective assistance of counsel on appeal
due

to

appellate

counsel’s

failure

performance cannot be unreasonable.

to

raise

trail

counsel’s

McKnight is not entitled to

habeas relief on Grounds 31 or 41.
In Ground 33, McKnight argues that appellate counsel should
have argued that the state “suborned perjury and used perjured
testimony to obtain convictions.”

Magistrate Judge Gargiulo found

that McKnight does not reference any specific instance of perjury
with respect to this Ground, and the record does not reflect any
obvious instances of perjury.

Therefore, McKnight’s argument is

nothing more than a conclusory allegation, and Ground 33 does not
provide a basis for federal habeas relief.

See Miller, 200 F.3d at

282 (citing Ross, 694 F.2d at 1012).
McKnight’s

final

argument

with

respect

to

his

appellate

counsel is that counsel should have argued that his trial counsel

29

worked in concert with Sullivan to create “a false impression of
the facts.”

In McKnight’s Amended Petition (ECF No. 5), he merely

refers the Court to Ground 38 for the supporting facts.
did not include Ground 38 in his Amended Petition.

McKnight

However, it is

clear from McKnight’s reply (ECF No. 21-2 at 191-99) that Ground 38
would have been another ineffective assistance of trial counsel
claim.

Therefore, Ground 39 fails for the same reasons as Grounds

31 and 41.

Furthermore, McKnight’s allegations that his trial

counsel colluded with Sullivan to improperly aid the state is
belied by trial counsel’s cross-examination (ECF No. 11-5 at 31119).

McKnight is not entitled to relief on Ground 39.
In Ground 35, McKnight’s final ground for relief, he argues

that he “was denied due process under the Fourteenth Amendment to
the United States Constitution when the Court of Appeals ruled the
hearsay

testimony

of

state[’]s

witness

Katrina

Harris

[w]as

harmless error.” He argues that this testimony influenced the jury
verdict and could not be harmless (ECF No. 21-2 at 172).1

Harris

testified at trial that the victim told her that if something
happened to him, McKnight did it.

The trial judge allowed the

testimony pursuant to Mississippi Rule of Evidence 803(3), the
hearsay exception for then existing state of mind. The Mississippi

1

Magistrate Judge Gargiulo finds that the arguments in
McKnight’s Reply concerning perjury, objections counsel should have
made, and discovery (ECF No. 21-2 at 167-89) should be disregarded,
since it has already been determined that those issues are without
merit.

30

Court of Appeals disagreed, holding that it was inadmissible
hearsay.

However, it concluded that the admission was harmless

error in light of the other evidence supporting the verdict.
McKnight, 187 So.3d at 650-51.
Generally, “[a] state court’s evidentiary rulings present
cognizable habeas claims only if they run afoul of a specific
constitutional right or render the petitioner’s trial fundamentally
unfair,” which occurs when the trial “has been ‘largely robbed of
dignity due a rational process.’”

Allen v. Vannoy, 659 Fed. App’x

792, 800 (5th Cir. 2016)(quoting Gonzales v. Thaler, 643 F.3d 425,
430 (5th Cir. 2011)); Johnson v. Puckett, 176 F.3d 809, 820 (5th
Cir.

1999).

In

addition,

even

if

a

state

court

“erred

in

concluding that the State’s errors were harmless, ... habeas relief
is appropriate only if the [state court] applied harmless-error
review in an ‘objectively unreasonable’ manner.”

Mitchell v.

Esparza, 540 U.S. 12, 18 (2003)(quoting Lockyer v. Andrade, 538
U.S. 63, 75-77 (2003)).
Although McKnight argues that the hearsay rendered the trial
fundamentally

unfair,

the

Mississippi

Court

of

Appeals

numerous pieces of evidence that supported the conviction.

cited
In his

Report and Recommendation, Magistrate Judge Gargiulo finds that
there was sufficient admissible evidence to support the jury
verdict, and this Court agrees.

See McKnight, 187 So. 3d at 651.

Therefore, the Mississippi Court of Appeals’ determination that the

31

admission of the hearsay statement was harmless error is not an
unreasonable application of federal law.

McKnight is not entitled

to relief on Ground 35.
On March 7, 2019, McKnight filed a Motion to Alter or Amend
Judgment (docket entry 26).
alter or amend.

However, there was no “Judgment” to

Instead, McKnight states that he is moving to

alter or amend Magistrate Judge Gargiulo’s Order Denying Motion for
Discovery of February 11, 2019 (docket entry 23).
McKnight had filed a “Motion for Leave to Invoke Discovery” on
August 7, 2018 (docket entry 17), requesting that the Court order
the production of discovery, which McKnight stated was in relation
to:
the State’s failure to correct well known perjured
testimony of it’s witnesses which created a false
impression of the facts, introduction of well known
fraudulent evidence for admission as State’s exhibits,
collusion with other officers of the court to suppress
evidence, ineffective assistance of counsel, and
discovery violations under Ms. Rule 9.04 and the rule of
Brady.
(Docket entry 17, p.1).

The Respondent, Warden Ladner, filed a

timely Response in Opposition to the Petitioner’s Motion (docket
entry 28), explaining that McKnight was attempting to conduct a
“fishing expedition” to gather information to support either: (1)
claims which were barred on post-conviction review and would,
therefore,

be

barred

on

federal

review

since they

rested

on

adequate and independent state law procedural grounds, or (2)
claims heard

on

the

merits

by
32

seeking

to

present additional

evidentiary

support

not

presented

to

the

state

courts.

See

Woodward v. Epps, 380 F.Supp.2d 788, 793 (S.D. Miss. 2005); see
also docket entry 19 (Respondent’s Response to Petitioner’s “Motion
for Leave to Invoke Discovery”).
In

addition,

McKnight

admitted

in

his

pleading

that

he

received the discovery file from counsel (docket entries 17 and
27).

Such information would have been provided by the State

through pretrial discovery, and the record reflects that counsel
reviewed all discovery with McKnight prior to trial.
pp. 492-93, 496 (docket entry 11).

SCR, Vol.6,

The Respondent argued that

McKnight’s request to invoke discovery was clearly unnecessary for
resolution of the issues in the instant federal habeas action.
In his well-reasoned and thorough Order of February 11, 2019
(docket entry 23), Magistrate Judge Gargiulo found that, pursuant
to Rule 6, McKnight had failed to show the good cause necessary to
warrant discovery in this case.

As the Magistrate Judge correctly

explained, “the question is not whether or when petitioner should
have

received

evidence

during

state

court

proceedings.

The

question is whether, considering the deference afforded to state
court decisions on federal habeas review, a petitioner is entitled
to discovery on his petition.”

Id., p. 2.

Thereafter, the

Magistrate Judge discussed the evidence which McKnight sought to
discover and

explained

discovery requested.

why
Id.

McKnight

was

not

entitled

to

the

Magistrate Judge Gargiulo properly

33

denied McKnight’s request for discovery, and issued a well-reasoned
Report and Recommendation finding that McKnight is not entitled to
relief based on the claims in his federal habeas petition.

Docket

entry 24.
In docket entry 27, McKnight seeks reconsideration of the
Report

and

Recommendation

(docket

entry

24)

entered

by

the

Magistrate Judge on February 11, 2019. The Respondent timely filed
a Response in Opposition (docket entry 29), in which he agrees with
the findings of fact and conclusions of law made by the Magistrate
Judge.

Respondent also contends that McKnight was not denied

effective assistance of counsel on his first appeal of right in an
attempt to overcome the procedural bar imposed as to certain of his
claims.
With regard to any claims of ineffective assistance of trial
counsel that McKnight contends should have been raised on direct
appeal, such claims were appropriately later raised by McKnight in
his application for leave to seek post-conviction relief and were
found to be without merit. Therefore, McKnight cannot show that he
was prejudiced by his appellate counsel’s performance.
In

addition,

regarding

McKnight’s

contention

that

his

appellate counsel should have raised additional issues that were
held

to

be

procedurally

barred

from

review

by

this

Court,

Magistrate Judge Gargiulo correctly found that McKnight failed to
show cause and prejudice, as well as failed to show a fundamental

34

miscarriage of justice sufficient to overcome the bar.
entry 24, pp. 12-13.

Docket

Also, it is questionable whether McKnight

properly raised a claim of ineffective assistance for failing to
raise the issues in Grounds 3, 9 and 10 in the state court to
preserve a claim of ineffective assistance of counsel as a possible
basis for cause.2
However, even assuming that McKnight’s claims of ineffective
assistance of counsel raised in the state court encompassed the
failure to pursue those claims, all of the claims of ineffective
assistance of counsel raised by McKnight in his application for
leave to seek post-conviction relief in the state court were deemed
to be without merit.

As discussed by Respondent in his Answer, and

as found by the Magistrate Judge in his Report and Recommendation,
the state’s highest court found that McKnight’s trial and appellate
counsel were constitutionally effective.3

Accordingly, Respondent

submits that the Magistrate Judge was correct in finding that
McKnight could not establish ineffective assistance of counsel as

2

In order to argue ineffective assistance of counsel as cause to
overstep the procedural bar, McKnight would have had to raise and
exhaust, in his petition for post-conviction relief, an independent
claim of ineffective assistance of appellate counsel for failure to
raise the claims in Grounds 3, 9 and 10. See Edwards v. Carpenter,
529 U.S. 446, 452 (2000); see also Murray v. Carrier, 477 U.S. at 48889.
3

As discussed in Respondent’s Answer, and found by Magistrate
Judge Gargiulo, McKnight failed to show that the state court’s
decision finding McKnight’s claims of ineffective assistance of trial
and appellate court to be without merit was neither contrary to, nor
an unreasonable application of, clearly established federal law.

35

cause to overstep the procedural bar with regard to the claims
discussed.
Moreover,

as discussed

in

Respondent’s

Answer,

appellate

counsel raised 17 issues on direct appeal for the state court’s
review and clearly chose the issues that counsel, in his expertise,
determined to be the best issues for appellate review.

A review of

the state court record reveals that McKnight cannot show that he
was deprived of effective assistance of counsel in his trial or his
first appeal of right.

Moreover, McKnight fails to establish any

basis in his objections to overturn Magistrate Judge Gargiulo’s
findings that McKnight is not entitled to federal habeas relief on
the claims in his petition.

As the Magistrate Judge correctly

found, upon a review of the state court’s findings as to the
grounds

raised

in

McKnight’s

petition,

the

state

court’s

determination that McKnight was not entitled to relief did not
“result[] in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”

See 28

U.S.C. § 2254(d)(1); see also Gachot v. Stalder, 298 F.3d 414, 421
(5th Cir. 2002).
Following the entry of the Report and Recommendation, McKnight
filed a Motion to Alter or Amend Judgment (docket entry 26) and a
Motion Objecting to Magistrate Judge’s Report and Recommendation
(docket

entry

27).

Respondent

36

Ladner

filed

a

Response

in

Opposition to Petitioner’s Motion to Alter or Amend (docket entry
28) and a Response to the Petitioner’s Objections to the Report and
Recommendation (docket entry 29).

Finally, McKnight filed his

Reply to Respondents’ Response to Petitioner’s Objections to Report
and Recommendation on March 27, 2019 (docket entry 30).
Having carefully considered the arguments of Petitioner and
Respondent, as well as the law applicable to this case, the Court
finds that the Report and Recommendation of Magistrate Judge
Gargiulo shall be adopted as the findings and conclusions of this
Court.

The Court further finds that McKnight’s Petition under 28

U.S.C. § 2254 for Writ of Habeas Corpus (docket entry 1) and
Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus
(docket entry 5) shall be denied and this case dismissed.

CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a
final order in a habeas corpus proceeding “unless a circuit justice
or judge issues a certificate of appealability” (“COA”).
McKnight

has

nonetheless

not

yet

addresses

filed
whether

a

notice

he

is

of

appeal,

entitled

to

Although

the
a

Court

COA.

See

Alexander v. Johnson, 211 F.3d 895, 898 (2000)(“It is perfectly
lawful for district court[s] to deny COA sua sponte.”).

A COA may

issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.”

37

28 U.S.C. § 2253(c)(2).

This

requires an overview of the claims in the habeas petition and a
general assessment of the claims’ merits.
537 U.S. 322, 326 (2003).

Miller-El v. Cockrell,

The ultimate question is whether

reasonable jurists would find the district court’s assessment of
the constitutional claims debatable.
529 U.S. 473, 484 (2000).

Id.; see Slack v. McDaniel,

To prevail on an application for a COA,

McKnight must make a “substantial showing of the denial of a
constitutional right, a demonstration that ... includes showing
that reasonable jurists could debate whether ... the petition
should have been resolved in a different manner or that the issues
presented
further.”

were

adequate

to

deserve

encouragement

to

proceed

United States v. Jones, 287 F.3d 325, 329 (5th Cir.

2002)(internal citations and quotations omitted). McKnight has not
made such a showing.

After considering the entire record, the

Court concludes that jurists of reason would not debate whether
McKnight stated a valid claim for relief or whether a procedural
ruling in this case is correct.
ACCORDINGLY,

IT

IS

HEREBY

ORDERED

that

Magistrate

Judge

Gargiulo’s Report and Recommendation (docket entry 24) is ADOPTED
as the findings and conclusions of this Court;
FURTHER
Motion

ORDERED

Objecting

that

to

Petitioner

the

James

Magistrate

Douglas McKnight’s

Judge’s

Report

and

Recommendation (docket entry 27) is OVERRULED;
FURTHER ORDERED that Petitioner McKnight’s Motion to Alter or

38

Amend Judgment (docket entry 26) is DENIED;
FURTHER ORDERED that McKnight’s Petition for Writ of Habeas
Corpus (docket entry 1) and Amended Petition for Writ of Habeas
Corpus (docket entry 5) are DISMISSED WITH PREJUDICE.
A FINAL JUDGMENT dismissing this case with prejudice shall be
entered of even date herewith.
SO ORDERED, this the 2nd day of April, 2019.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

39