United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
JOHN C. GARGIULO, Magistrate Judge.
Petitioner Jerry Lamar Whitlock filed this petition for writ of habeas corpus under 28 U.S.C. § 2254 on March 19, 2012. . Respondent Ronald King filed an answer on June 4, 2012. . Whitlock filed a traverse on July 10, 2012. . Having reviewed the facts and applicable law, the undersigned issues this report and recommendation that the petition be dismissed.
Jerry Lamar Whitlock was indicted in the Circuit Court of Rankin County, Mississippi on one count of attempted automobile burglary on October 20, 2005. [12-1, p.21]. After two mistrials, Whitlock was convicted by a jury on May 21, 2009. [12-2, p.126]. On July 7, 2009, Whitlock was sentenced to life without parole as an habitual offender under Mississippi Code § 99-19-83. [12-2, p.133].
On September 16, 2010, the Mississippi Supreme Court affirmed Whitlock's conviction and sentence and recounted the facts that led to his underlying arrest:
On August 5, 2005, Dottie Smith went to BankPlus in Flowood to obtain coin change for operating her business over the weekend. As she exited the bank, Smith noticed that another vehicle was backed into the parking spot beside her vehicle. Smith testified that she "thought it was kind of strange because all the other parking places were empty and they were backed in there next to me." Smith proceeded to her car, unlocked the doors by remote, and placed her change bags on the back seat. According to Smith, as she closed the back passenger door, she heard the driver's door of the other vehicle open. Smith also found this strange. She locked all the doors of her vehicle with the remote. Smith testified that as she shut the door, she looked up and saw a man standing there, looking as if he was going into the bank. They were between the two vehicles. According to Smith, before she had the chance to unlock her door to enter her vehicle, the man placed his hand on her rear passenger door handle and pulled it. While the man attempted to open her door, Smith ran to the back of the man's vehicle. Realizing the door was locked, the man then yelled at her to unlock the door, and she replied "no." Smith pushed the panic button on her remote which caused her car horn to blow. The man then got back into his car and sped away. Since Smith was standing behind the man's vehicle, she was able to obtain his tag number. She immediately ran into the bank, grabbed a deposit slip, and wrote the tag number on it. As Smith was writing the tag number, she yelled that someone had just tried to rob her. She gave the deposit slip with the tag number written on it to a bank employee who called 911.FN1
FN1 For the benefit of aiding law enforcement officials in locating and apprehending the perpetrator, Smith described the suspect as a black male wearing a white tank top and dark shorts.
State Trooper Wayne Dearman was monitoring his radio systems at the time of the incident, and he received information that "[t]wo black males, attempted robbery at BankPlus." He also received a vehicle description and the tag number. While Trooper Dearman was writing the information on a notepad, the vehicle that was described passed him, and he was able to see part of the license plate. Trooper Dearman then initiated a traffic stop, and the vehicle turned into a driveway, where he pulled behind it. The driver exited the vehicle, so Trooper Dearman ordered him to the ground. The passenger acted as if he was exiting the vehicle to also get on the ground; however, according to Trooper Dearman, the man kicked off his flip-flops and ran. When Dearman attempted to get his radio, the other suspect also fled. Trooper Dearman was able to identify the clothing of both suspects.FN2
FN2 Trooper Dearman stated the passenger was wearing a white tank top and blue shorts, and the driver was wearing a white tee shirt and Hawaiian, or flower design, shorts.
Officer Sentel Easterling of the Pearl Police Department heard Trooper Dearman on the radio requesting assistance, so he proceeded to the area. He observed a black male wearing the clothes Trooper Dearman had described attempting to gain entrance to a residence. Officer Easterling apprehended the man and handed him over to a Flowood police officer. The man was wearing a white tank top and dark colored shorts and was identified as Jerry Lamar Whitlock.FN3 Before being taken to the Flowood Police Department, Whitlock was taken to a mini storage facility where the complainant, Smith, positively identified him as the man who had attempted to break into her car.
FN3 Later, the other suspect also was apprehended and identified.
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Whitlock v. State, 47 So.3d 668, 670-71 (Miss. 2010).
A petition for rehearing in the Mississippi Supreme Court was denied on December 2, 2010. [12-10, p.6]. A petition for writ of certiorari in the United States Supreme Court was denied on April 25, 2011. Whitlock v. Mississippi, 131 S.Ct. 2158 (2011). On March 6, 2012, the Mississippi Supreme Court entered the following order denying Whitlock's pro se application for post-conviction relief:
The panel finds that several of Whitlock's claims could have been raised at trial and on direct appeal and are therefore barred in post-conviction proceedings. Miss. Code Ann. § 99-39-7. The panel finds that Whitlock's claims of ineffective assistance of counsel fail to meet the standard set out in Strickland v. Washington and are without merit. After due consideration, the panel finds that the petition should be denied.
Whitlock filed this pro so petition on March 19, 2012. . The petition asserts ten (10) grounds for federal habeas corpus relief under 28 U.S.C. § 2254. Id.
I. Grounds One, Two, and Three should be denied under § 2254(d).
Respondent correctly argues that Grounds One, Two, and Three should be denied pursuant to 28 U.S.C. § 2254(d) because these grounds were adjudicated on the merits by the Mississippi Supreme Court and the state court decision was not an unreasonable application of clearly established federal law. [11, ¶6]. Section 2254(d) states:
(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 Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Pure questions of law are reviewed under the "contrary to" standard set forth in § 2254(d)(1). "A state court's decision is contrary to' clearly established federal law if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.'" Hoffman v. Cain, 752 F.3d 430, 437 (5th Cir. 2014).
Mixed questions of law and fact are reviewed under the "unreasonable application" standard set forth in § 2254(d)(1). The "unreasonable application" standard focuses on "the ultimate legal conclusion that the state court reached and not on whether the state court considered and discussed every angle of the evidence." "A state court's decision involves an unreasonable application' of clearly established federal law if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. "The Supreme Court has clarified that when a claim is adjudicated on the merits, for the purposes of review under § 2254(d)(1), the record is limited to the one before the state court, even if the state court issued a summary affirmance." Id.
Pure questions of fact are reviewed under the "unreasonable determination of facts" standard set forth in § 2254(d)(2). "In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. Moreover, "a state court's factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.'" Hoffman, 752 F.3d at 437.
Ground One The identification process was so impermissibly suggestive that Whitlock suffered irreparable misidentification.
This issue is reviewed under the "unreasonable application" standard of § 2254(d)(1) because it involves a mixed question of law and fact and it was "adjudicated on the merits" by the Mississippi Supreme Court:
Whitlock asserts that the identification procedures performed by the police department were unfairly suggestive, and thus, all identification stemming from the show-up procedure should have been inadmissible at trial, including Smith's in-court identification of him before the jury.
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In today's case, according to Smith's trial testimony, she was standing close to Whitlock at the time of the incident and for a while she did not take her eyes off of him. She stated they were only inches apart, she had nothing obstructing her view, and Whitlock had nothing obstructing his face. Smith got a good look at Whitlock and stated that he was wearing a white tank top and dark shorts. At the time of his arrest, Whitlock was wearing a white tank top and blue shorts. Smith was also a hundred percent sure that she did not confuse the two suspects, Whitlock and the other occupant of the vehicle. Smith testified that when she identified Whitlock at the storage facility, only about an hour after the incident, there was no doubt in her mind that he was, in fact, the man who had attempted to rob her.
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When analyzing the Biggers factors, this Court cannot say, based on the circumstances surrounding the incident and show-up procedure, that "the conduct gave rise to a very substantial likelihood of irreparable misidentification." Thus, in today's case, we find no abuse of discretion in the trial court's admission of this identification evidence. This issue is without merit.
The Supreme Court's decision in Neil v. Biggers set forth the "clearly established" federal law for determining the constitutionality of an out-of-court identification procedure. The state court applied the Biggers factors to the facts of the case and the evidence introduced at trial. The state court decision was not an "unreasonable application" of the clearly established federal law in this regard. Whitlock's request for federal habeas corpus relief on this ground should be denied pursuant to 28 U.S.C. § 2254(d)(1).
Ground Two Whitlock's sentence of life imprisonment without parole as an habitual offender for attempted automobile burglary is disproportionate to the crime and constitutes cruel and unusual punishment.
This issue is also reviewed under the "unreasonable application" standard of § 2254(d)(1) because it involves a mixed question of law and fact and it was "adjudicated on ...