United States District Court, N.D. Mississippi, Delta Division
MEMORANDUM OPINION AND ORDER
MICHAEL P. MILLS, District Judge.
Petitioner Clarence Bennett, Jr., Mississippi prisoner no. 34527, has filed a federal habeas petition pursuant to 28 U.S.C. § 2254 challenging his State court convictions for aggravated assault and possession of a firearm by a convicted felon. Having considered the submissions of the parties, the State court record, and the law applicable to Petitioner's claims, the Court finds that the petition should be denied.
Background Facts and Procedural History
On April 6, 2005, Petitioner was arrested for disturbing the peace at his apartment complex, the East Side Manor Apartments, in Cleveland, Mississippi. Officers from the Cleveland Police Department were dispatched to the apartment complex after receiving a call that the occupant of apartment number fourteen was creating a disturbance. Petitioner lived in apartment number fourteen. Petitioner had gotten into a disagreement with Myron Hall, who lived in apartment number twelve in the same complex with his girlfriend, Tonya Lewis, and Lewis' son and daughter. The argument between the two men involved Petitioner's annoyance that Lewis had previously called the landlord and reported that Petitioner's truck was broken down, which resulted in Petitioner either having to move the truck and/or have it towed. The police arrived and spoke to an irate Petitioner, who told the officers about the truck and complained that Lewis would not have called the landlord if she knew how to parallel park. After the responding police officer could not calm Petitioner, he was arrested for disturbing the peace. He was released on bond shortly thereafter. About an hour later, police officers were again called to the East Side Manor Apartments to investigate a report of shots being fired.
Robert Graham, an investigator with the Cleveland Police Department, testified that he responded to a report of a shooting at the East Side Manor Apartments on April 6, 2005, and that several officers were present when he arrived. Myron Hall had been shot. Graham stated that after speaking to the victim, Petitioner was developed as a suspect. Officers found a nine millimeter handgun and a holster inside of Petitioner's apartment, and a nine millimeter shell casing was found outside the door of Petitioner's apartment. Hall was taken away by an ambulance for medical treatment; Petitioner was placed in a squad car.
Graham testified that he gave Petitioner his Miranda rights, and that Petitioner admitted to shooting Hall, alleging that he shot at Hall twice because Hall ran at Petitioner while armed with a pocket knife. Petitioner also told Graham that there had been a disagreement between Hall and himself earlier in the day, and he told Graham about Lewis, the landlord, and his vehicle. Petitioner told Graham that he had been arrested as a result of the earlier altercation with Hall, and that he had made bond and returned to his apartment when the second incident, which resulted in the shooting, occurred. Petitioner admitted that he had purchased the gun used in the shooting approximately two months prior to the incident.
Tonya Lewis testified that Petitioner was always "picking with" her, because Petitioner thought she had called someone in order to get Petitioner to move his truck. She stated that when Petitioner was asked to move his truck, he became annoyed and responded by insulting her and her inability to parallel park. Lewis testified that Petitioner had approached on the day of the shooting "fussing" about his parking spot, and that Hall intervened to stop Petitioner, who went back in his apartment. She then called the police, who subsequently arrested Petitioner.
Lewis stated that she, Hall, and the children left their apartment for a short time after Petitioner was arrested, and that when they returned, she noticed Petitioner standing in his doorway. She stated that she and her son went inside, while Hall and her daughter went to get the children's book bags out of the car. Lewis testified that she heard talking and two or three gunshots before Hall came in the apartment and said that he had been shot. She called the police again.
Lewis testified that Hall did not possess a weapon, except for a razor that he used to cut hair. She maintained that the razor was inside a bag in their apartment at the time Hall was shot, however. She stated that Hall did not have a weapon at the time he was shot, nor did he have a weapon when he spoke to Petitioner earlier that day.
Officer Stanley Ray "Bo" Brewer testified that he was one of the first officers dispatched to the East Side Manor Apartments on the afternoon of the shooting. Brewer stated that he was aware at the time he arrived that the police department had already been to the complex earlier in the day to deal with a situation involving Petitioner. Brewer testified that once he arrived at the apartment complex, there were several people standing around that reported that Hall had been shot, and that the person who shot Hall was in apartment number fourteen. Brewer and Officer Rhett Nelson went to apartment number fourteen. Brewer testified that upon their approach to the apartment, he noticed a shell casing on the ground near Petitioner's door, which suggested to him that Petitioner might have a weapon. Once the officers announced themselves and Petitioner opened the door to his apartment, the officers pulled Petitioner outside and handcuffed him. The officers looked around the apartment to see if anyone else was present. While doing so, they saw a gun holster. Brewer testified that a gun was found during a later search of the apartment.
Myron Hall testified that on April 6, 2005, he heard Petitioner and Lewis arguing outside of his apartment, and that he went outside to help his girlfriend. Hall testified that Petitioner was upset with Lewis, because he blamed Lewis for his truck having been towed. He stated that he ran after Petitioner, who ran into his own apartment. Hall testified that he was not armed with a weapon at the time. Later that same day, he and Lewis were returning to the apartment with Lewis' children, after having picked up the children from school. Hall testified that Petitioner stuck his head outside of his door and said, "If you see that tall man again, tell him I got something for him." Hall responded, "Tell the man I got something right here." Hall stated that he was standing close to his own door when Petitioner then stepped outside of his apartment and pulled out a gun. Hall testified that he turned to run into his apartment, and that Petitioner fired several shots at him. Hall stated that he was not armed at the time. Hall suffered a graze wound to his back, for which he received medical treatment and was released.
Bobby Riley, who lived in apartment number twenty of the East Side Manor Apartments, testified that she knew Hall and Lewis, and that while she did not know Petitioner's name, she knew him upon sight. She testified that she heard loud talking outside of her apartment on the day of the shooting. She stated that she saw Hall, she heard two gunshots, and then she saw Hall run into his apartment. She testified that she did not see anything in Hall's hand, and that he was standing by his car when the argument began. She did not see who fired the shots.
Officer Rhett Nelson testified that he was dispatched to East Side Manor Apartments earlier on the day of the shooting, and that he was told upon arrival that the occupant of apartment number fourteen had been cursing and causing trouble. Nelson testified that he knocked on the door of apartment number fourteen, and that Petitioner, irate and showing signs of intoxication, opened the door. Nelson testified that Petitioner went on to explain, in colorful language, that Lewis had called the landlord and gotten Petitioner's truck towed, and that Lewis and Hall would not have told the landlord about his truck if Lewis could parallel park. Nelson stated that while Petitioner was explaining the situation, he kept yelling at people in the area. Nelson testified that after he made several attempts to get Petitioner to stop yelling, he arrested Petitioner and charged him with disorderly conduct. Nelson testified that Petitioner said that he, Petitioner, needed to get his gun and shoot Lewis and Hall. Nelson recounted that Petitioner made a gesture with his hands as if pulling back the slide on a semi-automatic weapon. He reported that Petitioner said several times that the police should arrest Lewis "because that bitch can't parallel park." Nelson testified that Petitioner made bond, and that police were again dispatched to the apartment complex about an hour later to respond to a report that shots were fired.
Nelson testified that when he returned to the apartment complex and went to Petitioner's apartment with Officer Brewer, Petitioner, still irate, opened the door and was arrested. Nelson stated that he, too, noticed a nine millimeter shell casing outside of Petitioner's door upon the officers' approach to Petitioner's apartment. Petitioner was put in the back of a patrol car in front of the apartment complex. Nelson recounted that he asked Petitioner about the location of the gun, and that Petitioner initially denied having a gun. He stated that Petitioner eventually told him, incorrectly, that the gun was in Petitioner's truck. Nelson took Petitioner to the police station.
At trial, the defense stipulated that Petitioner had previously been convicted of the crime of murder in the Circuit Court of Jones County. See Bennett v. State, 374 So.2d 803 (Miss. 1979). Petitioner testified on his own behalf. He testified that he woke up on April 6, 2005, with a hangover, and that he took some pain medication, which he happened to have available because he had lost the index finger on his right hand. Petitioner stated that he had spent the morning sorting clothes and going through some paperwork he intended to file in Justice Court. Then, he stated, he decided to take his garbage out and put his welding gear in the back of his truck. Petitioner admitted that there was conflict between Hall, Lewis, and himself. Petitioner stated that he had to pass by Hall's apartment in order to get to the garbage container, and that as he did not want a confrontation with Hall, he just decided to put the garbage in the back of his truck.
Petitioner testified that as he was putting the garbage in his truck, Hall said, "You need to go ahead and junk that old piece of junk." Petitioner, offended, responded, "Man, you need to go ahead and leave me alone, man. I just want you to teach your skank ass bitch how to drive her car." Continuing, he also told Hall, "Why you wasting your time with me? Put your time to some value; teach her how to park."
Petitioner claimed that while he was saying this and fussing with his garbage, Hall started cursing him and came toward him while opening up a pocket knife. Petitioner testified that he was tired and was trying to get his garbage back into his apartment since it would not fit into the vehicle, but that Hall was cursing at him. Petitioner testified that he managed to get back into his apartment, and that Hall then kicked Petitioner's apartment door and kicked his vehicle. Petitioner claimed that Hall was cursing and calling him names the entire time.
A short time later, the police showed up, and when the officers asked Petitioner what the problem was, Petitioner told them about his truck and the fact that Lewis "couldn't drive worth fifty cents." Petitioner was arrested and taken to jail. Petitioner stated that he probably could not have made the gun-slide hand motions Nelson testified to because he was handcuffed at the time. Petitioner stated that he made bond, and that when the bondsman took him home, Petitioner agreed to the bondsman's suggestion that Petitioner should just stay in his apartment. As soon as the bondsman left, however, Petitioner went to his aunt's house. He then went to Cecil's liquor store and got a half-pint of whiskey for two dollars. Petitioner testified that he drank about half of the whiskey at Cecil's before returning to his apartment.
Petitioner testified that when he got to his apartment, he saw Hall outside playing with a little girl. Petitioner opened the car door, put his liquor in his pocket, opened the glove compartment, took out his pistol, got out of the car, and put the pistol behind himself. Petitioner said he backed up behind the car so he could keep his eyes on Hall. Petitioner said Hall saw him and came toward him, opening up a pocket knife, talking crazy, cursing, and walking "gangster style." Petitioner testified that he walked toward his door and told Hall, "I just got out of jail. I don't want to go to jail again, man. Why don't you just leave me alone, man." Hall was said to have responded with profanity.
Petitioner testified that he got to his door but was struggling to open it, since he had lost an index finger and was having to keep an eye on Hall while also trying to keep a hand close to his gun. Petitioner testified that Hall leaped at him, and that Petitioner fired two shots at Hall. Petitioner testified that he thought Hall was going to seriously injure him. Petitioner stated that he told Hall, "Get your dog ass out of my way." He stated that Hall, shaking and holding the wall, began to make his way back to his apartment. Petitioner testified that he retreated to his apartment, and that Nelson and the other officers showed up about ten to fifteen minutes later.
Petitioner testified that he was drunk and mad when he shot Hall and was not sure what he told the police about the shooting. He admitted that there were certain aspects of his testimony that he did not tell police. He stated that he may or may not have made the gun-sliding hand motions while being booked for disorderly conduct, but that he could not remember because he was drunk at the time. Petitioner stated that the State's witnesses who testified as to Hall's location when he was shot were wrong, as Petitioner could not see all the way to Hall's door. He later denied being drunk when law enforcement paid him the first visit on April 6, 2005, but he did admit that he was suffering a bad hangover at the time. Petitioner maintained that he shot Hall as Hall was rushing toward him armed with a knife.
The jury convicted Petitioner of aggravated assault (Count I) and possession of a firearm by a convicted felon (Count II) in the Circuit Court of Bolivar County, Mississippi. At sentencing, Petitioner told the trial court that he did not actually shoot Hall, but rather, "a young gangster thug." Petitioner admitted that he fired his weapon but claimed that he picked up the shells after the shooting. The trial judge sentenced Petitioner to serve twelve years for Count I and three years for Count II in the custody of the Mississippi Department of Corrections, with the sentences to run concurrently.
Petitioner, with the assistance of counsel from the Mississippi Office of Indigent Appeals, appealed his convictions and sentences, raising the following issue:
Issue 1. Whether the guilty verdict was against the overwhelming weight of the evidence. Self-defense.
On December 14, 2010, the Mississippi Court of Appeals affirmed the judgment of the Circuit Court in a written opinion. Bennett v. State, 50 So.3d 369 (Miss. Ct. App. 2010) (Cause No. 2006-KA-00054-COA); (Answer, Ex. A). Petitioner filed a "Motion for Enlargement of Time Within Which to File a Pro se Motion for Rehearing" on December 29, 2010, but no motion for rehearing was filed in the case.
On September 16, 2011, Petitioner filed in the Mississippi Supreme Court an application to proceed in the trial court with a motion for post-conviction relief, raising the following issues pro se:
Issue One. Petitioner was denied his sixth and fourteenth amendment rights to effective assistance of trial and appellate counsel.
Issue Two. Petitioner was denied his sixth and fourteen amendment rights and equal protection of the laws where the jury venire did not represent ...