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Kirkwood v. King

United States District Court, N.D. Mississippi, Oxford Division

August 14, 2014

THURMAN KIRKWOOD, Petitioner,
v.
RON KING, ET AL., Respondents.

MEMORANDUM OPINION

MICHAEL P. MILLS, District Judge.

This matter comes before the court on the pro se petition of Thurman Kirkwood for a writ of habeas corpus under 28 U.S.C. ยง 2254. The State has responded to the petition, and Kirkwood has filed a 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

Thurman Kirkwood was convicted of burglary of a dwelling (Count I), felony fleeing (Count II), possession of a firearm by a convicted felon (Count III), and grand larceny (Count IV) in the Circuit Court of Coahoma County, Mississippi. State Court Record, ("S.C.R."), Vol. 1, pg. 9. Kirkwood was sentenced as a habitual offender to serve a term of twenty-five years on Count I, five years on Count II, ten years on Count III, and ten years on Count IV, all to be served in the custody of the Mississippi Department of Corrections without the possibility of parole. S.C.R., Vol. 1, pp. 12-23. The sentences on Counts I, II, and III were ordered to run consecutively to each other and a sentence previously imposed in Coahoma County Circuit Court Cause No. 2007-0105, while the sentence in Count IV was ordered to run concurrently with the sentences in Counts I, II, and III, as well as the sentence in Cause No. 2007-0105. S.C.R., Vol. 1, pp. 12-23.

Kirkwood appealed his convictions to the Mississippi Supreme Court, raising the following grounds for relief (as stated by Petitioner through counsel):

Issue One: Whether the trial court erred when it allowed the prosecutor to submit the Appellant's prior felony convictions in spite of the Appellant's offer of a stipulation.
Issue Two: Whether the trial court erred in failing to correctly apply Mississippi Rule of Evidence 609, including conducting a balancing test on the record and/or giving limiting instructions when the State improperly impeached the Appellant regarding this prior convictions during crossexamination, furthermore, whether the trial court erred in determining that the Appellant "opened the door" to such cross-examination by answering a question posed to him by the State.
Issue Three: Whether the evidence was sufficient to support a conviction on grand larceny when there was no testimony or evidence as to the actual value of the item alleged to have been stolen.
Issue Four: Whether the Appellant's conviction for grand larceny was against the overwhelming weight of the evidence when the only evidence presented by the State was a witness's testimony as to purchase price which was in no way anchored by a date and when, as shown in the exhibits, the vehicle in question was in an obvious shape of disrepair.
Issue Five: Whether the trial court erred in denying the Appellant's circumstantial evidence jury instruction when it applied the improper method of analysis in concluding the direct evidence of the occurrence of a crime is the appropriate method of analysis, rather that direct evidence showing the guilt of the Appellant.
Issue Six: Whether the trial court erred in overruling defense counsel's peremptory instruction when the State failed to provide sufficient evidence that the building in question was a dwelling house.
Issue Seven: Whether any of the above errors concerning violation of the Appellant's fair trial rights may be considered harmless.
Issue Eight: Whether cumulative error deprived the Appellant of his fundamental right to a fair trial.

The Mississippi Court of Appeals affirmed Kirkwood's convictions and sentences. Kirkwood v. State, 53 So.3d 7 (Miss. App. 2010), reh'g. denied June 15, 2010 (Cause No. 2008-KA-01349-COA). The Mississippi Supreme Court then granted a writ of certiorari and reversed Kirkwood's convictions and sentences on Counts I and IV because "there was no direct evidence that Kirkwood committed the crimes of burglary of a dwelling or grand larceny, " and the trial court had denied a circumstantial evidence instruction. Kirkwood v. State, 52 So.3d 1184, 1187 (Miss. 2011). The Mississippi Supreme Court affirmed Kirkwood's convictions and sentences in Counts II and III.

Kirkwood then filed an application in the Mississippi Supreme Court seeking permission to proceed in the trial court with a petition for post-conviction collateral relief, raising the following grounds for relief, (as stated by Petitioner pro se ):

Issue One: Whether the evidence to support a conviction of possession of a firearm by a convicted felon was sufficient to convict.
Issue Two: Whether the State proved that Kirkwood was an habitual offender beyond a reasonable doubt at the sentencing hearing the alleged document were not properly authenticated and Kirkwood's attorney was denied the opportunity to cross-examine ...

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