United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION AND ORDER
NEAL B. BIGGERS, Jr., District Judge.
Petitioner Elijah Dowdle, Mississippi prisoner no. 72353, has filed a federal habeas petition pursuant to 28 U.S.C. § 2254 challenging his State court conviction for possession of cocaine. 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
Petitioner often traded motorcycles and vehicles with Pat Logan, a motorcycle shop owner. On July 20, 2007, Logan asked Petitioner to purchase a used Honda Accord for him from used car salesman, Raymond Earl Smith ("Earl"). Petitioner purchased the vehicle, and he took the Indiana license plate off of his truck and put it on the Honda before attempting to drive the Honda to Logan's shop.
On the way to Logan's shop, Petitioner was pulled over by Lowndes County Sheriff's Deputy Chris Smith for having a broken headlight. Deputy Smith stated that as he approached the driver's window, he noticed Petitioner reaching over to the passenger's seat. Deputy Smith testified that Petitioner appeared nervous, avoided eye contact with him, and that he kept looking over at the passenger's seat. Deputy Smith ran Petitioner's driver's license and tag and was advised that Petitioner's driver's license was suspended and that the tag was not registered to the vehicle being driven by Petitioner. Deputy Smith testified that he placed Petitioner in handcuffs and asked whether there were any weapons or drugs in the car. Petitioner told Deputy Smith that there were drugs underneath a hat on the passenger's seat. Deputy Smith checked the car and found a rock-like substance underneath the hat, which was later analyzed and determined to be 0.05 gram of cocaine. Deputy Smith also found a can with burnt residue, which he suspected might have been used to smoke narcotics. Deputy Smith testified, however, that the can was not hot and that Petitioner did not appear to be under the influence.
Petitioner was indicted as an habitual offender for possession of less than.1 gram of cocaine. The indictment was later amended to reflect Petitioner's status as an habitual offender and as prior violator of the Uniformed Controlled Substances Act. Petitioner had previously been convicted on April 6, 1979, in the Circuit Court of Clay County of grand larceny and sentenced to three years in the custody of the Mississippi Department of Corrections. He was previously convicted on April 11, 1989, in the Circuit Court of Clay County of possession of marijuana with intent to distribute and was sentenced to three years in the custody of the Mississippi Department of Corrections. Petitioner was previously convicted of perjury on April 17, 2003, in the Circuit Court of Clay County.
At trial, Petitioner testified that he retrieved the Honda from an open field next to Earl's house, and that while he took the time to put a tag on the car, he did not search the car before he left Earl's house. Petitioner testified that the hat must have been in the passenger's seat before he got into the car, and that he did not notice it until he passed a lighted intersection, which was right before he was pulled over by Deputy Smith. On cross-examination, Petitioner was questioned about a prior inconsistent statement he made to the police about the incident: "Mr. Earl took his hat off and threw it in the seat and told me to have it because I earned it." Petitioner identified his initials and signature on the statement but testified that the statement was incorrect. He admitted that he had previously been convicted of perjury.
In rebuttal to Petitioner's testimony, the prosecution called Earl Smith, who testified that he kept his cars in an open field and that they are typically unlocked. He testified that he cleans all of the cars before selling them, however, and that there should have been nothing left in the car when he sold it to Petitioner. Earl stated that the had previously sold the Honda to Petitioner's brother, who returned the car to him when the title came back as a "junk title." Earl testified that he sold the Honda to Petitioner for a "parts" car. Earl also testified that he did not give Petitioner a hat, and that the hat found in the Honda was not his.
The prosecution also called Deputy Chad Bell, who testified that he helped Deputy Smith take Petitioner's initial statement. Deputy Bell identified the statement made by Petitioner and identified Petitioner as the person who signed the statement.
Petitioner was convicted by a Lowndes County jury of possession of less than one gram of cocaine and was sentenced as an habitual offender and as a repeat drug offender to eight years in the custody of the Mississippi Department of Corrections. He was also ordered to pay a $20, 000 fine. He moved for a judgment notwithstanding the verdict or, alternatively, a new trial. The motion was denied. On March 1, 2011, the Mississippi Court of Appeals affirmed Petitioner's conviction and sentence in a written opinion. Dowdle v. State, 57 So.3d 32 (Miss. Ct. App. 2011) (Cause No. 2009-KA-01994-COA);(Answer, Ex. A). Thereafter, Petitioner, proceeding pro se, filed a pleading intending to seek post-conviction relief in the Mississippi Supreme Court. By Order filed June 29, 2011, this pleading was dismissed without prejudice for Petitioner's failure to comply with the statutory requirements of a motion seeking postconviction collateral relief. (Answer, Ex. B).
Petitioner subsequently filed an "Application for Leave to Proceed in the Trial Court" raising the following issues:
A. Petitioner's witness's was not able to be in court. Wife and daughter would prove that the witness lied about cleaning out the car:
Wife - high risk pregnancy (doctor's order not leave Indiana due to being high risk would and could have proven that the ...