United States District Court, N.D. Mississippi, Delta Division
MICHAEL P. MILLS, District Judge.
This matter comes before the court on the pro se petition of Timothy Gunn for a writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition, and Gunn 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
The petitioner, Timothy Gunn, is in the custody of the Mississippi Department of Corrections and is currently housed at the Mississippi State Penitentiary in Parchman, Mississippi. Gunn was convicted of grand larceny in the Circuit Court of Bolivar County, Mississippi. On November 18, 2009, he was sentenced as a habitual offender under Miss. Code Ann. § 99-19-81 to serve ten years in the custody of the Mississippi Department of Corrections ("MDOC"). State Court Record (hereinafter "SCR"), Vol. 1, p. 43-44.
Gunn appealed his conviction and sentence in the Mississippi Supreme Court, raising the following issues (as stated by counsel):
Issue 1. The trial court erred in denying defense counsel's motion for a mistrial when the state impermissibly commented on Appellant's exercise of his post- Miranda right to remain silent.
Issue 2. The evidence was [not] sufficient to sustain the jury's verdict of guilty to the charge of grand larceny.
Issue 3. The photo line-up by which Appellant was originally identified was overly suggestive so as to taint the in court identification.
On January 27, 2011, the Mississippi Supreme Court affirmed the judgment of the Circuit Court. Gunn v. State, 56 So.3d 568 (Miss. 2011) reh'g denied March 31, 2011 (Cause No. 2009-KA-01901-SCT).
On July 21, 2011, Gunn filed an Application to proceed in the trial court with a Motion for Post-Conviction Relief in the Mississippi Supreme Court. In that application Gunn raised the same three issues now raised in his federal petition for a writ of habeas corpus. On September 8, 2011, the Mississippi Supreme Court filed an order denying the application. Miscellaneous Pleadings, Cause No. 2011-M-01054.
In the instant petition for a writ of habeas corpus Gunn raises the following issues ( pro se ):
Ground One. Timothy Gunn'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.
Ground Two. Petitioner, Timothy Gunn, was denied due process of law and effective assistance of counsel, in violation of the 5th and sixth amendments to the United States Constitution, where the state's evidence never proved grand larceny under elements required by law and where state was prepared to admit this, even after the jury verdict, if Gunn would plead guilty to a misdemeanor offense. Counsel was ineffective in failing to challenge the state's evidence in the trial court and to bring this point in the direct appeal.
Ground Three. Petitioner Timothy Gunn was denied effective assistance of counsel, in violation of the 5th and 6th Amendments to the United States Constitution, where counsel, in his closing arguments, made a prejudicial statement to the jury, against the facts provided to counsel by Gunn, that Gunn was the person in the video which the prosecution offered as evidence, thus, thereby telling the jury that Timothy Gunn was guilty.
Grounds Reviewed on the Merits in State Court
The Mississippi Supreme Court has already considered Grounds One, Two, and Three on the merits and decided those issues against the petitioner; hence, these claims are barred from habeas corpus review by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d), unless they meet one of its two exceptions:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...