United States District Court, S.D. Mississippi, Southern Division
ERNEST E. COLLINS, #13044, Petitioner,
WARDEN J.J. STREETER, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING PETITION FOR FAILURE TO EXHAUST
LOUIS GUIROLA, Jr., Chief District Judge.
This cause comes before the Court on the Report and Recommendation of United States Magistrate Judge John M. Roper entered in this cause on April 25, 2013. Magistrate Judge Roper reviewed the Respondents' Response in opposition to Collins' petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and the state court record. The Magistrate Judge determined that the petition should be denied. After due consideration of the Report and Recommendation, responses from the Petitioner and Respondent, and the state court record, it is the Court's opinion that Collins is not entitled to federal habeas corpus relief. Accordingly, the Magistrate Judge's Report and Recommendation will be adopted as the opinion of this Court, and this case dismissed.
Petitioner Collins filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. It was reviewed, along with the Respondent's Response, by Magistrate Judge Roper. Judge Roper determined that the grounds asserted in the petition did not entitle Petitioner to relief, because he had failed to exhaust his state court remedies. Judge Roper alternatively found that the grounds asserted in the petition were without merit. Judge Roper therefore entered a Report and Recommendation finding that Collins' request for habeas relief should be denied. (ECF No. 10).
The Court sent a copy of the Report and Recommendation to Collins at the Marshall County Correctional Facility, where he has been housed since June 2, 2011. ( See ECF No. 15-1). However, on May 27, 2013, the mail was returned as unclaimed. (ECF No. 11). On December 9, 2013, the Court entered a Final Judgment adopting the Report and Recommendation and dismissing Collins' habeas petition. (ECF No. 14). On January 6, 2014, Collins filed a motion for relief from judgment pursuant to F.R.C.P. 60(b), stating that he never received a copy of the Report and Recommendation, although his address did not change, and requested that the judgment be lifted so that he could file objections to the Magistrate Judge's Report and Recommendation. (ECF No. 15). The motion was granted, and Collins has now filed objections to the Magistrate Judge's Report and Recommendation. The Respondent has filed a response in opposition.
THE LEGAL STANDARD
When any party objects to the Report and Recommendation, the Court must review the objected-to portions de novo. See Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 646 (5th Cir. 1994); Longmire v. Guste, 921 F.2d 620, 623 (5th Cir. 1991). Such a review means that the Court will consider the record which has been developed before the Magistrate Judge and make its own determination on the basis of that record. United States v. Raddatz, 447 U.S. 667, 675 (1980). The unobjected-to findings and recommendations are reviewed only to determine whether they are either clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). The Court need not, however, conduct a de novo review when the objections are frivolous, conclusive, or general in nature. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). Although Collins' objections appear to consist primarily of a re-urging of his grounds for habeas relief, the Court will conduct a de novo review of the record.
Collins filed his petition for federal habeas corpus review claiming ineffective assistance of counsel in that counsel failed to: 1) perform any type of independent investigation into the facts and circumstances of the case; 2) call any witnesses; 3) interview expert witnesses for the defense; 4) prepare or present any type of trial defense whatsoever; 5) discuss the evidence with Collins; and 6) file a direct appeal.
In regard to his claim that counsel did not file an appeal, the record shows that trial counsel, Lyons, was allowed to withdraw from representation after Collins' pro se motion for an out of time appeal was granted. (S.R. 158, ECF No. 7-2 at 9). However, the Mississippi Office of Indigent Appeals was appointed in Lyons' place and filed an appellate brief on Collins' behalf. (S.R. Appellant Br., ECF No. 7-5 at 2). Accordingly, Lyons' failure to file an appeal did not prejudice Collins.
In his direct appeal, Collins raised claims that the testimony of Dr. Matherne was highly prejudicial and served to bolster the victim's credibility, and trial counsel was ineffective for failing to object to Dr. Matherne's testimony. (S.R. App. Br., ECF No. 7-5 at 7). The Mississippi Court of Appeals concluded that "[w]e find nothing in the record to show ineffectiveness of constitutional dimensions" on behalf of Collins's trial counsel. Collins's ineffective-assistance-of-counsel claim is dismissed without prejudice to his right to later raise the issue in post-conviction proceedings if he so chooses." (Pet. Ex. D at 7, ECF No. 1-3). Collins did not seek certiorari review of this judgment.
In Collins' application for leave to file a state petition for post-conviction relief, the Mississippi Supreme Court reviewed the same ineffective assistance of counsel claims made in this federal habeas petition. The Mississippi court held that,
Collins fails to include evidence to support the claims and fails to demonstrate that but for counsel's deficient performance the results of the trial would have been different.... Furthermore, the claim as to the testimony of Dr. Matherne was raised and addressed ...