United States District Court, N.D. Mississippi, Eastern Division
GLEN H. DAVIDSON, Senior District Judge.
This matter comes before the court on the pro se petition of James Clayton Terry for a writ of habeas corpus under 28 U.S.C. § 2254. Terry's initial petition contained unexhausted grounds for relief, and he later filed an amended petition containing a single ground, which he had exhausted in State court. The State has responded to the amended petition, and Terry has replied. The matter is ripe for resolution. For the reasons set forth below, the instant petition for a writ of habeas corpus will be denied.
Facts and Procedural Posture
On November 29, 2007, Petitioner Terry was convicted of the charge of "fraud in office" in the Circuit Court of Lowndes County, Mississippi. State Court Record, hereinafter S.C.R., Vol. 1, pg. 61. On November 30, 2007, Terry was sentenced to serve a term of thirteen (13) months in the custody of the Mississippi Department of Corrections (M.D.O.C.) and five (5) years of post-release supervision. S.C.R., Vol. 1, pg. 63. Terry has been discharged from the custody of the Mississippi Department of Corrections after completing his sentence of thirteen (13) months. Terry is currently serving a sentence of five (5) years of probation through the Lowndes County Probation and Parole Office.
He appealed his conviction and sentence to the Mississippi Supreme Court, raising the following ground for relief, (as stated by Petitioner, through counsel):
1. Whether an indictment alleging "embezzlement" or "fraud" occurring over a two-year period is sufficient when it does not give specific dates of embezzlement or fraud, or state what facts constitute the embezzlement or fraud.
The Mississippi Court of Appeals affirmed Terry's conviction and sentence. Terry v. State, 26 So.3d 378 (Miss. App. 2009), reh'g denied October 27, 2009, cert. denied January 28, 2010 (Cause No. 2007-KA-02260-COA).
On December 8, 2010, Terry filed a petition for writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254, ECF doc. 1, raising the following grounds for relief:
Ground One: Improper Indictment in violation of U.S. Constitution 5th and 6th Amendments.
Ground Two: The statute under which I was charged and convicted is unconstitutional under the 5th, 6th and 14th Amendments.
Ground Three: There exists issues of material facts not previously heard and presented that require vacation of the sentence.
Ground Four: Ineffective assistance of counsel.
On December 21, 2010, the State filed a motion to dismiss Terry's petition for failure to adequately exhaust available state court remedies with regard to Grounds Two, Three and Four, which had never been raised before the state courts. The court denied the State's motion to dismiss Terry's petition without prejudice and ordered him to amend his habeas petition to remove any unexhausted claims. On April 1, 2011, Terry filed his amended petition, raising the following ground for relief:
Ground One: Improper indictment in violation of U.S. constitution 6th and 14th Amendment Due Process.
On April 5, 2011, the court ordered the State to answer the allegations contained in Terry's amended petition. The State has submitted its response, and Terry has replied in support of his petition. The matter is ripe for review.
Grounds Reviewed on the Merits in State Court
The Mississippi Supreme Court has already considered the sole ground for relief on the merits and decided that issue against the petitioner; hence, this claim is barred from habeas corpus review by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d), unless the claim meets one of its two exceptions:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State ...