United States District Court, N.D. Mississippi, Delta Division
MICHAEL P. MILLS, Chief District Judge.
This matter comes before the court on the pro se petition of Ashante Newberry for a writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition, and 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
Ashante Newberry is in the custody of the Mississippi Department of Corrections and is currently housed at the Mississippi State Penitentiary in Parchman, Mississippi. He was convicted in DeSoto County Circuit Court for one (1) count of sale of cocaine. Newberry was sentenced as a subsequent and habitual offender to serve a term of sixty (60) years in the custody of the Mississippi Department of Corrections. See S.C.R., Vol. 1, pp. 95-96. Newberry appealed his conviction and sentence to the Mississippi Supreme Court, raising the grounds for relief (as stated by appellate counsel):
A. Whether the State's purposeful exclusion of black jurors violated Batson v. Kentucky and thereby denied your defendant a fair trial?
B. Whether the State violated your defendant's rights by going into "Aother" bad acts not charged in the indictment?
C. Whether the State denied your defendant a fair trial by improper comments, remarks, opinions, and beliefs in its closing argument?
D. Whether the court abused its discretion in allowing hearsay into evidence?
On December 8, 2008, the Mississippi Court of Appeals affirmed Newberry's conviction and sentence. Newberry v. State, 19 So.3d 752 (Miss. Ct. App. 2008), reh'g denied, May 26, 2009, cert. denied, October 22, 2009 (Cause No. 2007-KA-00875-COA).
Newberry filed a pro se "Application for Leave to Proceed in the Trial Court" along with a "Motion for Post Conviction Relief" in the Mississippi Supreme Court on September 15, 2010. He set forth the following grounds for relief in a section entitled "Concise Statements of the Claim and Grounds Upon Which this Motion is Based" within the motion (as stated by petitioner pro se ):
A. There is newly discovered evidence to demonstrate the State never had evidence of an informer in cocaine sales and never attempted to call alleged confidential informer or attempted to provide defense with such exculpatory evidence.
B. The habitual and second and subsequent drug offender portion of the indictment, charging Newberry as a habitual offender and second and subsequent offender under Miss. Code Ann. § 99-19-81, and Miss. Code Ann. § 41-29-147, is defective and void where the indictment failed to charge, and the State failed to introduce proof of, the element of the dates of the judgment in the prior convictions.
C. Petitioner Newberry was subjected to ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution.
1. Counsel failed to interview and investigate the confidential informant Ronnie Tunstall who would have provided evidence to demonstrate that he did not participate in any drug informant procedures as the state asserted and that he did not know Danny Wilkey and did not carry Wilkey to the address on the date in which the state charged.
2. Counsel failed to seek and secure discovery from the state and secure the witness list. Counsel also failed to make an inquiry as to why the state never called Tunstall to trial since Tunstall, according to the state's case, was the confidential informant and was present at the drug transaction and witnessed same.
3. Counsel failed to object to the sentence being imposed where the law required the indictment to assert the dates of judgment in the prior convictions, and to specify that such dates were, in fact, dates of judgments and not dates of conviction and/or sentencing.
D. Newberry suffered cumulative error which caused him to be deprived of his Constitutional right to a fair trial, in violation of the 5th and 6th ...