United States District Court, N.D. Mississippi, Delta Division
JERRY L. McBRIDE, Petitioner,
WARDEN WALLER, ET AL., Respondents.
SHARION AYCOCK, District Judge.
This matter comes before the court on the pro se petition of Jerry L. McBride for a writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition, and McBride 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
Jerry McBride is in the custody of the Mississippi Department of Corrections and in currently housed at the Yazoo County Correctional Center in Yazoo City, Mississippi. He was convicted of sexual battery in the Circuit Court of Coahoma County, Mississippi and sentenced to serve twentyfive years in the custody of the Mississippi Department of Corrections. See State Court Record ("SCR") Vol. 1, pp. 26-27.
Through new counsel, McBride appealed his conviction and sentence to the Mississippi Supreme Court, raising the following issues (as stated by appellate counsel):
A. Whether Appellant's constitutional and statutory right to a speedy trial was violated where the trial court found the delays presumptively prejudicial but did not require the State to overcome the presumption; failed to adequately weigh prejudice and where the primary reason for delay is neglect in placing the case on the trial docket.
B. Whether the evidence was sufficient to sustain the verdict where it was not possible to prove the elements of the crime as submitted to the jury in the jury instructions, within the time frame submitted to the jury as prescribed in said jury instructions.
On May 4, 2010, the Mississippi Court of Appeals affirmed McBride's conviction and sentence. McBride v. State, 61 So.3d 174 (Miss. Ct. App. 2010), reh'g denied, August 17, 2010 (Cause No. 2008-KA-1347-COA). McBride, through counsel, sought certiorari review of the court of appeals' decision, and on May 12, 2011, the Mississippi Supreme Court affirmed the court of appeals' ruling. McBride v. State, 61 So.3d 138 (Miss. 2011) (Cause No. 2008-CT-1347-SCT).
McBride then filed, pro se, an AApplication for Leave to Proceed in the Trial Court@ in the Mississippi Supreme Court. He listed the following grounds for relief in the section of the motion entitled AConcise Statements of the Claim and Grounds Upon Which this Motion is Based" of the motion (as stated by McBride, pro se ):
A. Trial court's failure to take adequate steps in conflict of interest between defendant and defense counsel deprived defendant of his constitutional right to effective assistance of counsel and a fair trial.
1. Counsel failed to object to victim's testimony and follow up on alleged improper use of 404(b) testimony.
2. Counsel failed to raise speedy trial issue at trial.
B. Court erred by allowing the state to use 404(b), though not ruling on motion to grant or deny, to allow other bad habits to show plan, intent, and motive with an alleged crime, supposingly [sic] happened some years after the first alleged crime.
C. The trial court erred by not applying the mandatory application of the Rule 403 test and not giving limited cautionary instructions to the jury.
D. The state's constructive amendment violated McBride's Fifth Amendment right to be indicted by a grand jury.
E. McBride was denied due process, equal protection of the law in violation of Mississippi Code Annotated Section 99-17-1 and USCA Const. Amend 6.
F. Failure to satisfy proof beyond a reasonable doubt.
G. The state applied ambiguous language to diverge from facts to relieve burden of proving every element beyond a reasonable doubt.
H. Trial court erred in compliance with Miss. Code Ann. § 99-7-9 and Code 1942 § 2441.
I. McBride was denied a fair and impartial trial. With the number of errors, broken laws, denial of laws, constitutional violations, denial of constitutional rights, including effective assistance of counsel, due process, equal protection of the law in McBride's case is imaginary.
J. McBride's conviction proved miscarriage of justice.
On November 2, 2011, the Mississippi Supreme Court denied the application, finding:
McBride asserts that his right to a speedy trial was violated and that the evidence against him was insufficient to support a guilty verdict. These issues were addressed on direct appeal and are procedurally barred by the doctrine of res judicata. Miss. Code Ann. § 99-39-21(3). McBride's remaining claims were capable of being raised at trial or on direct appeal and are now waived. Miss. Code Ann. § 99-39-21(1). Notwithstanding the procedural bar, the issues are also without merit. Insofar as McBride attaches claims of ineffective assistance of counsel to the various issues in his motion, the panel finds that the claims do not pass the standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Accordingly, the panel finds that the motion should be denied.
See McBride v. State of Mississippi, (Cause No. 2011-M-01072) (Mississippi Supreme Court, Order of November 2, 2011).
In the instant petition for a writ of habeas corpus, McBride raises the following claims (as stated by petitioner):
Ground One: Trial court's failure to take adequate steps in conflict of interest between defendant and defense counsel deprived defendant of his constitutional right to effective assistance of counsel and a fair trial.
A. Counsel failed to follow up on use of 404(b) evidence regarding an alleged crime that happened years after the crime charged.
B. Counsel failed to inquire about a cautionary instruction on 404(b) evidence.
C. Counsel failed to inquire about Rule 403 balancing test.
D. Counsel failed to raise a speedy trial ...