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Lattimore v. King

United States District Court, N.D. Mississippi

August 11, 2014

TERRY LEE LATTIMORE, Petitioner,
v.
SUPERINTENDENT RON KING, ET AL. Respondents. TERRY LEE LATTIMORE, Petitioner,
v.
RON KING, ET AL. Respondents.

MEMORANDUM OPINION

GLEN H. DAVIDSON, Senior District Judge.

This matter comes before the court on the pro se petition of Terry Lee Lattimore for a writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition; Lattimore has submitted a traverse, and the State has responded to the traverse. 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

Terry Lee Lattimore is in the custody of the Mississippi Department of Corrections and is currently housed at the South Mississippi Correctional Institution in Leakesville, Mississippi. He was convicted of capital murder in the Circuit Court of Washington County, Mississippi, State Court Record, "S.C.R.", 2002-KA-01853[1] Vol. 1, pg. 104. Lattimore was then sentenced to a term of life in the custody of the Mississippi Department of Corrections. S.C.R., 2002-KA-01853, Vol. 1, pg. 105.

Lattimore appealed his conviction and sentence to the Mississippi Supreme Court, raising the following grounds for relief, (as stated by Lattimore through counsel):

I. The trial court erred in overruling Lattimore's motion to suppress all evidence concerning Mrs. Virgie Dycus' pre-trial identification of the Appellant, Terry Lee Lattimore, and to prohibit any in-court identification of Lattimore by Mrs. Dycus.
II. The trial court erred in overruling Lattimore's objection to the in-court identification of the Appellant by Mrs. Vrrgie Dycus, as Dycus failed to clearly identify Lattimore as the perpetrator of the crime. The trial court was under a continuing obligation to protect the right of Lattimore to a fair trial and to ensure that an unreliable and improper identification of the Defendant did not occur.
III. Lattimore was denied effective assistance of counsel in violation of the Sixth Amendment of the Constitution of the United States and the Constitution of the State of Mississippi.
IV. The trial court erred in overruling Lattimore's objection to the introduction, by the State, of a metal object as the purported murder weapon.
V. The State made certain comments during closing argument that were improper, inflammatory and outside the record and should be reviewed for plain error. Additionally, this Court should review as plain error Mrs. Dycus' in-court identification of Lattimore as it was suggested and assisted by members of her family in the audience.
VI. Evidence was presented to the trial court that during the course of Lattimore's trial one of the jurors was communicating with someone outside the jury, in direct violation of the trial court's order and the rules of sequestration, accordingly this error should be reviewed by this Court for plain error.
VII. The trial court erred in refusing to grant Lattimore's motion for mistrial following an egregious remark and misrepresentation made by the State during its closing argument.
VIII. The trial court erred in denying Lattimore's motion for a new trial as the verdict of the jury was against the overwhelming weight of the evidence.
IX. Lattimore's conviction and sentence require reversal as the cumulative effect of the errors committed by the State and trial court deprived Lattimore of his constitutional right to a fair trial.

The Mississippi Supreme Court considered Lattimore's claims and affirmed his conviction and sentence. Lattimore v. State, 958 So.2d 192 (Miss. 2(07), reh'g. denied June 28, 2007 (Cause No. 2002-KA-01853-SCT)

In the Mississippi Supreme Court, Lattimore filed an application for permission to proceed in the trial court with a motion for post-conviction collateral relief. S.C.R., 2008-CP-01760-COA, Vol. I, pg. 1. On October 23, 2007, the Mississippi Supreme Court granted Lattimore permission to proceed in the trial court. S.C.R., 2008-CP-01760-COA, Vol. 1, pg. 133. In his motion for post-conviction collateral relief, Lattimore raised the following grounds for relief (as summarized by the court):

I Lattimore received ineffective assistance of counsel on direct appeal:
A. Counsel failed "to require the appellee's case to survive the crucible of meaningful adversarial testing." (S.C.R., 2008-CP-01760-COA, Vol. 1, pg.9).
B. Counsel failed to properly explain the law governing the pre-trial and in-court identification and should have cited to Gilbert v. California, 388 U.S. 218 (1967).
C. Counsel failed to address trial counsel's failure to address the pre-trial identification issue in terms of deprivation of counsel.
D. Counsel failed to challenge trial counsel's failure to investigate jurors, particularly Arthur L. Dickson.
E. Counsel failed to challenge trial counsel's failure to litigate Lattimore's Fourth Amendment claim.
F. Counsel failed to argue that the trial court had abused its discretion in allowing the pipe to be admitted into evidence.
II. Lattimore received ineffective assistance of counsel during pre-trial proceedings and at trial:
A. Counsel failed to investigate jurors, particularly Arthur L. Dickson
B. Counsel failed to argue that the trial court had abused its discretion in allowing the pipe to be admitted into evidence.
III. Lattimore was denied his right to counsel.
IV. Lattimore was denied his right to be tried by an impartial jury.
V. Lattimore was denied his right to be free from illegal searches and seizures.

On September 29, 2008, the trial court denied Lattimore's motion. S.C.R., 2008-CP-01760-COA, Vol. I, pp. 160-164. The Mississippi Court of Appeals then affirmed the trial court's denial of Lattimore's motion for post-conviction collateral relief. Lattimore v. State, 37 So.3d 678 (Miss. App. 2010), reh'g denied June 22, 2010 (Cause No. 2008-CP-01760-COA). Lattimore did not seek a writ of certiorari to the Mississippi Supreme Court for further review of the Court of Appeals' opinion.

Lattimore filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254, raising the following grounds for relief (as summarized by the Court)[2]:

Ground One: The trial court erred in denying Lattimore's motion to suppress the pre-trial identification.
Ground Two: The trial court erred in allowing an in-court identification of Lattimore.
Ground Three: Ineffective assistance of trial counsel for:
A. Representing both Lattimore and accomplice at the time of the pre-trial line up;
B. Failing to adequately investigate Lattimore's case and interview key witnesses;
C. Failing to move for a new trial upon learning of potential juror misconduct;
D. Failure to move for a mistrial following the in-court identification and after the State's closing argument.
Ground Four: The trial court erred in overruling Lattimore's objection to the introduction of a metal pipe purported to be the murder weapon.
Ground Five: Lattimore was denied due process due to possible juror misconduct.
Ground Six: The State committed prosecutorial misconduct during closing arguments.
Ground Seven: The trial court erred in failing to grant Lattimore's motion for a mistrial.
Ground Eight: The verdict was against the overwhelming weight of the evidence.
Ground Nine: Ineffective assistance of appellate counsel:
A. The cumulative effect of counsel's errors deprived Petitioner of a fair trial and effective direct appeal.
Ground Ten: Ineffective assistance of counsel:
A. Trial and appellate counsel failed to develop evidence that Lattimore was denied a fair trial and was innocent.
B. Trial counsel failed to appear at the pre-trial lineup.
C. Trial counsel failed to object to the in-court identification.
D. Trial counsel failed to move for a mistrial due to the in-court identification.
Ground Eleven: Ineffective assistance of counsel during pre-trial, trial and post-trial proceedings.
Ground Twelve: Lattimore was denied his right to counsel during the pre-trial line-up.
Ground Thirteen: Lattimore was denied his right to be tried by an impartial jury.
Ground Fourteen: Lattimore was denied his right to an impartial jury.
Ground Fifteen: Lattimore was denied his right to be protected from illegal search and seizure.

The Doctrines of Procedural Default and Procedural Bar

If an inmate seeking habeas corpus relief fails to exhaust an issue in state court - and no more avenues exist to do so - under the doctrine of procedural default that issue cannot be raised in a federal habeas corpus proceeding. Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995). Similarly, "When a state court declines to hear a prisoners federal claims because the prisoner failed to fulfill a state procedural requirement, federal habeas is generally barred if the state procedural rule is independent and adequate to support the judgment." Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001) (citing Coleman v. Thompson, ...


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