United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK, District Judge.
This matter comes before the court on the pro se petition of Kendrick Conner for a writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition, and 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
Kendrick Conner is in the custody of the Mississippi Department of Corrections and is currently housed at the South Mississippi Correctional Institution. He was convicted in Lowndes County Circuit Court for two counts of armed robbery. Conner was sentenced on each count as a habitual offender to serve concurrent terms of thirty-five years in the custody of the Mississippi Department of Corrections without the possibility of parole. See State Court Record (S.C.R.) Vol. 1, pp. 110-113.
Conner, through new counsel, appealed his convictions and sentences to the Mississippi Supreme Court, raising the following issues for the court's review (as stated by appellate counsel):
A. The trial counsel's representation amounted to ineffective assistance: Counsel erred by introducing the photographic lineup into evidence.
B. The evidence was insufficient to support the verdict.
C. The verdict was against the overwhelming weight of the evidence.
On June 16, 2009, the Mississippi Court of Appeals affirmed Conner's convictions and sentences. See Conner v. State, 26 So.3d 383, reh'g denied, November 3, 2009 (Miss. Ct. App. 2009), cert. denied, January 28, 2010 (Cause No. 2008-KA-00293-COA).
Conner then filed a pro se "Application for Leave to File Motion for Post-Conviction Collateral Relief" along with his "Purposed [sic] Motion for Post-Conviction Collateral Relief" in the Mississippi Supreme Court on November 22, 2010. In the application, Conner set forth the following grounds for relief in the "Concise Statements of the Claim and Grounds Upon Which this Motion is Based" of the motion (as stated by petitioner pro se ):
A. Kendrick Conner's sentence is illegal and in violation of the 5th and 14th Amendment to the United States Constitution and Article 3, § 14 and § 26, of the Constitution of the State of Mississippi. Post Conviction Relief should be granted from such an illegal sentence which was imposed upon an invalid indictment by reason of its failure to comply with law and set out the specifically required information on date of judgment in previous convictions and where sentencing order rendered by court do not contain the date of sentencing or specifically set out the requirement that Conner had been sentenced to one year or more in each prior conviction.
B. Conner was subjected to ineffective assistance of counsel at trial and on direct appeal where counsel failed to raise the issue of the Motion to Amend indictment being faulty and failed to provide the specific dates in accord with the requirements of Rule 11.03(1) and where counsel failed to argue on direct appeal that Conner was subjected to double jeopardy by the state having charged Conner for the same offense in two different counts when there was only one business, one date, and one time of such offense specified.
C. Conner was subjected to ineffective assistance of counsel where counsel failed to direct to the amendment of the indictment on the basis that the trial court waited to long to determine the motion and that the motion was made on the basis of retaliation against Conner where Conner refused to plead guilty.
D. Kendrick Conner has been subjected to a violation of due process of law and the equal protection clause in violation of the 5th and 14th Amendments to the United States Constitution and denied effective assistance of attorney as the law afford him under the 6th Amendment of the United States Constitution and the Mississippi Constitution.
E. Kendrick Conner was denied due process of law where his attorneys failed to procure the jury instructions that could have allowed the jury to decide on the lesser charges of simple robbery. In the case at hand, a stronger argument for simple robbery might have prevailed under the circumstances where there was a minimum proof that a deadly weapon was actually displayed during the alleged crime.
F. Petitioner Conner has been denied due process of law where his attorneys failed to present his case in such a light as to convince the jury that a verdict of armed robbery was against the overwhelming weight of the evidence.
G. The cumulative effect of the denial of due process and effective assistance of attorney during trial deprived petitioner a fair trial, in violation of the 5th, 6th and 14th Amendments to the United States Constitution.
H. Petitioner, who was on trial for armed robbery under Miss. Code Ann. § 97-3-79 and was afforded ineffective assistance of counsel where the indictment failed to quote the appropriate language of the statute and to place Conner on notice of what he was actually charged with. Such failure constitutes that the indictment failed to provide Conner with adequate notice by presenting the correct language of the statute in which the State would proceed under. Such failure was factual to the charge. Conner was denied his constitutional right to a fair trial. The attorney representing petitioner at trial and the appellate counsel on direct appeal was the same. During trial and on direct appeal, petitioner was deprived of his constitutional right to effective assistance of counsel as guaranteed by the 6th Amendment to the United States Constitution.
I. Petitioner Kendrick Conner was afforded ineffective assistance of counsel by the attorney who represented him at trial where counsel failed to adequately challenge the state's evidence and failed to properly investigate the factual events. Witnesses should have been called which could have provided personal testimony that Conner did not commit the crimes and that Conner's alibi was solid.
J. Petitioner Kendrick Conner was provided with ineffective assistance of counsel where counsel failed to pursue a aiding and abetting instruction, as an independent issue, at trial and on direct appeal. Conner was not guilty of armed robbery. Aiding and abetting should have been sought and Conner should not have been found guilty of any charge greater than that of aiding and abetting or simple robbery.
K. Petitioner Kendrick Conner was afforded ineffective assistance of counsel where defense counsel failed impeach the rebuttal testimony of Melissa Herrion and Stacie Schaffer by showing that Herrion and Schaffer did, in fact, have a criminal record, and that Herrion and Schaffer knew petitioner through other people while petitioner did not personally know them. Additionally, Herrion could have been impeached on the basis that she was a former drug user.
L. The sentence of 35 years without parole is illegal where the jury did not reach a finding of life without parole and where the court, without a recommendation and finding of life without parole from the jury, was required to sentence petitioner to a sentence less than his life expectancy. The Court demonstrated, by its own words, that Conner would not get out of prison to pay any fine and by that admission the Court knowingly imposed a life sentence.
M. Petitioner has been denied due process of law and subjected to plain error where petitioner was denied a fast and speedy trial in violation of the 5th, 6th and 14th Amendments to the United States Constitution. As such, the conviction and sentence should be vacated and set aside with prejudice.
N. Petitioner Kendrick Conner was subjected to double jeopardy where he was indicted, prosecuted, and found guilty of multiple offenses which allegedly occurred at the same time and which required the same evidence. Such convictions violated the Supreme Court mandate under Blockburger.
O. Petitioner has been denied due process of law where his attorney failed to present his case in such a light as to convince the jury that a verdict of armed robbery was against the overwhelming weight of the evidence and that the witness identified Conner because they were coached by the police and the prosecutor.
P. The indictment charging armed robbery is illegal on each count where the indictment failed to meet the requirements of law in setting forth the statutory elements and in failing to set forth the elements which the law requires to prove armed robbery.
Q. Kendrick Conner has been subjected to a violation of the 6th Amendment to the United States Constitution where Conner was denied his effective assistance of counsel at trial as his attorney failed to properly defend Conner at trial and failed to adequately prepare for the trial by interviewing witnesses for the defense and performing an investigation before the trial. Conner's attorney failed to afford him the required adequate representation mandated under the 6th Amendment to the United States Constitution and the Mississippi Constitution.
R. Kendrick Conner was denied due process of law where his attorneys failed to procure the jury instructions that would have allowed the jury to decide on the lesser charge of simple robbery.
S. The prosecution conducted improper opening and closing arguments in the trial of this case and that counsel failed to make the proper objections to such constitutional violation.
T. The cumulative effect of the denial of due process and effective assistance of attorney during trial deprived petitioner of a fair trial, in violation of the 5th, 6th, and 14th Amendments to the United States Constitution.
On January 13, 2011, the Mississippi Supreme Court denied the application, holding:
After due consideration, the panel finds that Conner's claim of ineffective assistance of counsel fails to pass the standard set forth in Strickland v. Washington, 466 U.S. 688, 687 (1984). The panel further finds no merit to Conner's remaining claims that his indictment is faulty and his ...