United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER OVERRULING PETITIONER'S OBJECTIONS, ADOPTING PROPOSED FINDINGS OF FACT AND RECOMMENDATION, AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
HALIL SULEYMAN OZERDEN, District Judge.
This matter is before the Court on Petitioner Alfonso Rivera-Guadiana's Objections  to the Proposed Findings of Fact and Recommendation  of United States Magistrate Judge Robert H. Walker. After thoroughly reviewing the Proposed Findings of Fact and Recommendation, the record, the position of Petitioner advanced in his Objections, and relevant law, the Court finds that Petitioner's Objections  should be overruled and that the Magistrate Judge's Proposed Findings of Fact and Recommendation  should be adopted as the finding of the Court. Petitioner Alfonso Rivera-Guadiana's 28 U.S.C. § 2254 Petition  for Writ of Habeas Corpus should be denied and this case dismissed with prejudice.
A. State Court Proceedings
On July 27, 2009, a grand jury of the Circuit Court of Harrison County, Mississippi, First Judicial District, returned an indictment against Petitioner Alfonso Rivera-Guadiana ["Petitioner"] for sexual battery in violation of Mississippi Code § 97-3-95(a)(1). R. [10-1] at 10. On December 16, 2009, Petitioner was found guilty of sexual battery following a jury trial. Id. at 66. The trial court sentenced Petitioner to twenty-five (25) years in the custody of the Mississippi Department of Corrections. Id. With the assistance of new appellate counsel, Petitioner appealed his conviction and sentence to the Mississippi Court of Appeals. Petitioner presented two arguments on direct appeal: (1) the trial court erred in refusing instruction D-9 concerning reasonable doubt; and (2) the verdict was against the overwhelming weight of the evidence. R. [10-4] at 6, 9-13. The Mississippi Court of Appeals found no error on either ground and affirmed Petitioner's conviction and sentence on September 6, 2011. Id. at 52-58; see also Rivera-Guadiana v. State of Miss., 71 So.3d 1221 (Miss. Ct. App. 2011).
Petitioner then filed in the Mississippi Supreme Court a pro se Application for Leave to Proceed in the Trial Court to file the attached Motion for Post-Conviction Relief. R. [10-5] at 91. Petitioner argued that he was deprived of liberty without due process of law because the evidence was insufficient to support a conviction of the crime charged in the indictment. Id. at 93. The Mississippi Supreme Court denied Petitioner's Application on January 18, 2012, "find[ing] that the application fails to make a substantial showing of the denial of a state or federal right as required by Miss. Code Ann. § 99-39-27(5)." Id. at 90.
On or about May 8, 2012, Petitioner filed a second Application for Leave to File Petition for Post-Conviction Collateral Relief in the Mississippi Supreme Court. R. [10-5] at 59. For the first time, Petitioner asserted that he was rendered ineffective assistance of counsel in the following ways: (1) "his counsel should have objected and file[d] a motion to quash or to demurr [sic] the indictment, as the indictment fails to give him sufficient notice of what he should be charged with sexual battery or rape"; (2) "counsel cause [sic] him to waive his right against self incrimination" by "advis[ing] the petitioner to take the stand and give an account of how the alleged sexual assault was suppose to have not been a crime"; (3) "counsel should have objected and moved to suppress the photos of the alleged victim"; (4) "counsel waived his right to a fast and speedy trial"; (5) "counsel failed to advise him of the elements of the charge"; and (6) "counsel failed to inform him of the consequences if he took the witness stand and incriminate himself." Id. at 66-80. Without addressing the merits, on July 10, 2012, the Mississippi Supreme Court denied Petitioner's Second Application as procedurally barred as a successive writ, pursuant to Mississippi Code § 99-39-27(9). Id. at 58.
On or about August 8, 2012, Petitioner filed in the Mississippi Supreme Court an Application for Leave to File Amended Petition for Post-Conviction Collateral Relief. R. [10-5] at 4. Petitioner raised the following new, additional grounds alleging ineffective assistance counsel: (1) "counsel did not object or move for a mistrial or a new trial on the trial court's error when it refused to give jury instruction D-9"; and (2) "counsel waived his right to argue direct [sic] verdict by not properly attack [sic] the issue during trial." Id. at 9-15. Because the Mississippi Supreme Court had previously denied Petitioner's Second Application, the Court found Petitioner's request to amend to be moot. Id. at 2. The Court therefore dismissed as moot Petitioner's Application for Leave to File Amended Petition for Post-Conviction Collateral Relief. Id.
B. Section 2254 Petition
On December 17, 2012, Petitioner filed his 28 U.S.C. § 2254 Petition  for Writ of Habeas Corpus in this Court. The Petition advances six grounds claiming that Petitioner was rendered ineffective assistance of counsel by his trial counsel and counsel on direct appeal:
(1) "counsel should have objected and move [sic] for a mistrial, and filed a motion to dismiss his indictment, or a motion to quash or demurr [sic] the indictment on the grounds that the indictment failed to give him sufficient notice as to what he should have been charged with sexual battery or rape. He was unable to prepare a defense, counsel fail [sic] to raise this issue on direct appeal";
(2) "counsel caused him to waive his right against self incrimination";
(3) "counsel should have objected and moved to suppress the photos of the alleged victim";
(4) "counsel waived his right to a fast and speedy trial, counsel filed the motion but did not re-raise the issue during trial or direct appeal";
(5) "counsel did not object or move for a mistrial or a new trial on the trial court error when it refuse [sic] to give jury instruction D-9"; and
(6) "counsel waived his right to argue direct [sic] verdict by not properly attacking the issue during trial."
Petition  at 5-9.
Respondent Ron King ["Respondent"] filed an Answer to the Petition on February 15, 2013. Answer  at 1. According to Respondent, Petitioner's ineffective assistance claims raised in Grounds Five and Six were never properly presented to the state's highest court, and Petitioner's ineffective assistance claims raised in Grounds One through Four were presented in Petitioner's Second Application for Leave to File Petition for Post-Conviction Collateral Relief which was held to be barred as a successive petition pursuant to Mississippi Code § 99-39-27(9). Id. at 7, 10. Respondent therefore argues that the Petition should be dismissed with prejudice. Id. at 14. In his Rebuttal , Petitioner alleges that he faces a "lingual disability" and has been victimized by inmate "writ-writers, " both of which he classifies as "external impediments" which should overcome the procedural bar. Rebuttal  at 2-3.
C. Magistrate Judge's Proposed Findings of Fact and Recommendation
The Magistrate Judge entered a Proposed Findings of Fact and Recommendation  on October 8, 2013. With respect to Grounds One through Four, the Magistrate Judge determined that Petitioner had presented these grounds when he filed his Second Application for post-conviction relief in the Mississippi Supreme Court, and that the Supreme Court dismissed Petitioner's Second Application without addressing the merits as procedurally barred as a successive writ under Mississippi Code § 99-39-27(9). R. [10-5] at 58. The Magistrate Judge found that Mississippi Code § 99-39-27(9) operated as a bar to habeas review of Grounds One through Four and that Petitioner had failed to meet his burden of overcoming this procedural bar. Proposed Findings of Fact and Recommendation  at 4-5, 7-8.
As for Grounds Five and Six, the Magistrate Judge concluded that Petitioner first presented these grounds to the state court in his motion to amend postconviction relief, which the Mississippi Supreme Court dismissed as moot. The Magistrate Judge found that these two grounds were not exhausted because they were not considered on their merits. Id. at 5-6. If Petitioner were to attempt to exhaust Grounds Five and Six at this point, they would be procedurally barred because they would be deemed successive either pursuant to Mississippi Code § 99-39-23(6) or § 99-39-27(9), and Petitioner failed to overcome this procedural bar. Id. at 5-8.
To the extent that Ground Six was arguably presented to the Mississippi Supreme Court in Petitioner's initial application for post-conviction relief such that it is exhausted, the Magistrate Judge found that this claim fails to meet the standard for constitutionally ineffective assistance of counsel because Petitioner failed to allege what, if any, prejudice resulted from the alleged deficient performance. Id. at 6-7. Based on these findings, the Magistrate Judge recommended that the § 2254 Petition be denied and this case be dismissed with prejudice. Id. at 8.
D. Petitioner's Objections
Petitioner submitted Objections to the Proposed Findings of Fact and Recommendation , asserting that he has met the state court procedural requirements under Mississippi Code § 99-39-1. Obj.  at 3. With respect to Ground Six, Petitioner contends that the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984), which the Magistrate Judge cited in his Proposed Findings of Fact and Recommendation  controls. Obj.  at 3. Liberally construing his pro se pleadings, Petitioner seems to argue that trial counsel's failure to move for a directed verdict and to preserve the issue for direct appeal constitutes sufficient prejudice under Strickland, or at least that his ineffective assistance claims constitute sufficient "cause and prejudice" to overcome any procedural bar. Id. at 5, 8.
A. Standard of Review
Because Petitioner has filed written Objections  to the Magistrate Judge's Proposed Findings of Fact and Recommendation , the Court "make[s] a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); Rule 8(b) of Rules Governing Section 2254 Cases in the United States District Courts. "Such review means that this Court will examine the entire record and will make an independent assessment of the law." Lambert v. Denmark, Civil No. 2:12-cv-74-KS-MTP, 2013 WL 786356, *1 (S.D.Miss. Mar. 1, 2013). In conducting a de novo review, the Court is not "required to reiterate the findings and conclusions of the magistrate judge." Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993).
B. Procedural Defaults and the Martinez Exception
Having conducted a de novo review of the record, the Court agrees with the conclusions reached by the Magistrate Judge and will adopt his Proposed Findings of Fact and Recommendation. However, in considering whether Petitioner had overcome the procedural default bar to federal habeas relief, the Magistrate Judge did not explicitly address the United States Supreme Court's holding in Martinez v. Ryan, 132 S.Ct. 1309 (2012). The Court feels it appropriate to consider Petitioner's Objections in light of Martinez, but ultimately finds that the exception to the procedural bar recognized in Martinez is inapplicable here.
1. Exceptions to Procedural Defaults
The Supreme Court has ...