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Love v. State

United States District Court, Fifth Circuit

December 4, 2013

BARRY LOVE, Petitioner,
STATE OF MISSISSIPPI, et al., Respondents.


MICHAEL P. MILLS, Chief District Judge.

Petitioner Barry Love, Mississippi prisoner no. 162946, has filed a pro se federal habeas petition pursuant to 28 U.S.C. § 2254 challenging his State court convictions and sentences for capital murder, two counts of aggravated assault, and conspiracy to commit armed robbery. Having considered the submissions of the parties, the State court record, and the law applicable to Love's claims, the Court finds that the petition should be denied, for the reasons that follow.

Background Facts and Procedural History

Jessie Hill was murdered on November 14, 2008, during the course of a robbery. Barry Love, one of the four men charged in connection with the armed robbery, testified that he participated in the crime only because he feared that the other three men would have killed him if he had attempted to back out of the robbery. On November 10, 2010, a jury sitting in the Circuit Court of Grenada County, Mississippi, convicted Barry Love of capital murder (Count One), two counts of aggravated assault (Counts Two and Three), and conspiracy to commit armed robbery (Count Four). He was sentenced to serve consecutive sentences of life without eligibility for parole for capital murder, twenty years for each count of aggravated assault, and five years for conspiracy. (SCR vol. 1, 150; SCR vol. 2, 151).

Love appealed his convictions and sentences to the Mississippi Supreme Court, which assigned the case to the Mississippi Court of Appeals. Through counsel, Love raised the following grounds for relief:

I. Whether Love received a fair trial when the jury was not properly instructed on Love's theory of defense because Love's trial counsel fail [sic] to submit the necessary jury instruction of duress.
I. There was sufficient evidence that Love was under duress when he participated in the attempted armed robbery, the underlying offense to the capital murder. The jury, however, was never properly instructed to consider this defense.
II. Defense counsel's failure to submit the duress jury instruction, which was essential to Love's theory of defense, amounted to ineffective assistance of counsel. The attorney's ineffectiveness deprived Love of his constitutional right to a fair trial.

The Mississippi Court of Appeals affirmed Love's convictions and sentences. See Love v. State, 85 So.3d 940 (Miss. Ct. App. 2012); (s ee also Resp'ts Answer, Ex. A). Love failed to seek rehearing or certiorari review in State court.

Love filed an application in the Mississippi Supreme Court seeking permission to proceed with a motion for post-conviction collateral relief, alleging that trial counsel was ineffective for failing to request a duress instruction. The court dismissed Love's application, noting that the issue of whether Love was entitled to a duress instruction was "barred by the doctrine of res judicata and will not be considered again under the guise of ineffective assistance of counsel." (Respt's Answer, Ex. B).

On or about July 26, 2013, Love filed a federal habeas petition pursuant to 28 U.S.C. § 2254 and a brief in support of his petition. ( See ECF nos. 1 and 3).

Legal Standard

The Court's review of Love's claims is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), because his federal habeas petition was filed after the statute's effective date. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA prevents the grant of federal habeas relief on any claim adjudicated on the merits in state court unless that adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court precedent; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the presented evidence. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

A state court's decision is "contrary to" Supreme Court law if (1) "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases, " or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent." Williams v. Taylor, 529 U.S. 362, 405, 406 (2000). The "unreasonable application" clause is reserved for decisions that either fail to identify the correct governing law, or identify the correct governing law but misapply it to the case. Id. at 407. Under this standard, a state court's decision will not warrant federal habeas relief unless its application of federal law is both incorrect and unreasonable. Garcia v. Dretke, 388 F.3d 496, 500 (5th Cir. 2004) (emphasis in original) (citation omitted). A reviewing court considers ...

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