United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER OVERRULING IN PART AND SUSTAINING IN PART PETITIONER'S OBJECTIONS, ADOPTING IN PART AND MODIFYING IN PART REPORT AND RECOMMENDATIONS, AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
HALIL SULEYMAN OZERDEN, District Judge.
This matter is before the Court on Petitioner Gabriel McDowell's Objections  to the Report and Recommendations  of United States Magistrate Judge Robert H. Walker; Petition for Retroactivity Analysis [18-1]; and Motion for an Evidentiary Hearing to Expedite Procedures . After thoroughly reviewing the Report and Recommendations, the record, the position of Petitioner advanced in his Objections, and relevant law, the Court finds that Petitioner's Objections  should be overruled in part and sustained in part, and that the Magistrate Judge's Report and Recommendations  should be adopted in part as the finding of the Court and modified in part, subject to the additional findings made herein. Petitioner Gabriel McDowell's 28 U.S.C. § 2254 Petition  for Writ of Habeas Corpus should be denied and this case dismissed with prejudice. Petitioner Gabriel McDowell's Petition for Retroactivity Analysis [18-1] and Motion for an Evidentiary Hearing to Expedite Procedures  are not well taken and should be denied.
A. State Court Proceedings
On December 7, 1998, a grand jury sitting in the Circuit Court of Hancock County, Mississippi, returned an Indictment against Petitioner Gabriel McDowell ["Petitioner"], charging that Petitioner did sell or transfer a controlled substance in violation of Mississippi Code § 41-29-139(a)(1). R. [1-1] at 1. The Indictment also charged that Petitioner was a repeat drug offender subject to the enhanced, doublestatutory penalty of Mississippi Code § 41-29-147, and a habitual offender subject to a life sentence without the possibility of parole pursuant to Mississippi Code § 99-19-83. Id. at 1-2. Petitioner was subsequently convicted of the sale and transfer charge. The Circuit Court determined that Petitioner was a habitual offender, but declined to impose the life sentence. See R. [1-1] at 7-8. On or about January 7, 2000, the Circuit Court sentenced Petitioner to the custody of the Department of Corrections of the State of Mississippi for a term of 30 years, without the benefit of parole, pursuant to Mississippi Code § 99-19-81. Id.; R. [17-1] at 1-2. The Mississippi Supreme Court affirmed Petitioner's conviction and sentence. McDowell v. State, 807 So.2d 413, 426 (Miss. 2001).
As the Magistrate Judge's Report and Recommendation  reflects, Petitioner's case experienced a complicated and lengthy procedural history in both state and federal court. Of note for purposes of this Order, after Petitioner was sentenced on January 7, 2000, in 2002 Petitioner filed an Application for Leave to Proceed in the Trial Court seeking post-conviction relief. On October 4, 2002, the three-judge panel of the Mississippi Supreme Court considering the Application found "that the record appears to indicate that the only habitual offender statute referenced by the indictment was Miss. Code Ann. § 99-19-83 (Rev. 2000), which provides a life sentence for two underlying felony convictions, one of which being a crime of violence." R. [1-1] at 9. The Supreme Court therefore granted Petitioner's Application and granted him "an evidentiary hearing for the limited purpose of determining whether the petitioner had been previously convicted of two felonies, one being a crime of violence, and whether the petitioner may be properly sentenced as a habitual offender under Miss. Code Ann. § 99-19-83 (Rev. 2000)." Id. The Circuit Court conducted an evidentiary hearing, and on December 13, 2002, entered an Order adjudging Petitioner a habitual offender under Mississippi Code § 99-19-83 and sentencing him to a term of life imprisonment without the benefit of parole, good time, or early release. Id. at 3.
On February 13, 2006, Petitioner filed in this Court his first petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging among other things that he was denied assistance of counsel during the December 13, 2002, resentencing. McDowell v. State, No. 1:06-cv-87-LG-JMR (S.D.Miss. Feb. 13, 2006). This Court granted habeas relief and remanded the case to state court for resentencing with appointed counsel present to assist Petitioner. McDowell v. State, 552 F.Supp.2d 602, 605 (S.D.Miss. 2008).
On or about June 18, 2008, the Circuit Court conducted an evidentiary hearing for resentencing, at which Petitioner was represented by counsel. R. [1-1] at 4. Petitioner argued that "his prior sentence to life without parole should be set aside due to double jeopardy." Id. (citing Ethridge v. State, 800 So.2d 1221 (Miss. Ct. App. 2001)). In a Corrected Resentencing Order entered on July 9, 2008, the Circuit Court held Ethridge distinguishable and found Petitioner's "assertion of double jeopardy... without merit." Id. The Circuit Court determined that Petitioner's "sentence of life without parole should not be set aside" and sentenced Petitioner "for the crime of transfer of a controlled substance to life imprisonment as a habitual offender without the possibility of parole or probation pursuant to Miss. Code Ann. § 99-19-83." Id. Petitioner appealed.
On November 9, 2009, the Mississippi Supreme Court sitting en banc vacated its earlier panel's Order and remanded the case to the Circuit Court for the imposition of a 30-year sentence without parole. McDowell v. State, 20 So.3d 1216, 1216 (Miss. 2009). The Supreme Court reasoned that the Circuit Court's imposition of a life-without-parole sentence was due in large part to its reliance upon the panel's earlier opinion, but that upon consideration, the panel's order should be vacated. Id. In a Resentencing Order entered on February 3, 2010, the Circuit Court sentenced Petitioner to the same sentence he had originally received, 30 years in the custody of the Mississippi Department of Corrections, and directed that the sentence shall not be reduced or suspended and that Petitioner shall not be eligible for parole or probation. R. [1-1] at 13.
On or about March 23, 2011, Petitioner filed in the Circuit Court a Motion to Vacate and Set Aside Habitual Portion of Sentence. R. [6-1] at 18-19. The Circuit Court denied Petitioner's Motion, along with several other motions, in an Order dated April 18, 2012. Id. at 4. Petitioner appealed. The Mississippi Court of Appeals dismissed the appeal on February 7, 2013, for failure to prosecute. See R. [6-3] at 18.
Petitioner requested rehearing before the Court of Appeals on February 25, 2013. The Court of Appeals responded with an Order on March 1, 2013, directing Petitioner to provide within 30 days an Order from the Mississippi Supreme Court granting Petitioner permission to file a motion for post conviction collateral relief pursuant to Mississippi Code § 99-39-7. Id. at 6-7. When Petitioner could not do so, the Mississippi Court of Appeals denied the Petition for rehearing on April 23, 2013. Id. at 5.
On April 4, 2013, Petitioner filed in the Mississippi Supreme Court a "Motion for Order, " and on May 3, 2013, an Application for Leave to Proceed in Trial Court. R. [6-2] at 9-30. In his Motion for Order, Petitioner argued that he had received an illegal sentence, had been exposed to double jeopardy, and had suffered ineffective assistance of counsel. Id. at 28. In the Application, Petitioner asserted that: (1) he was illegally sentenced as a habitual offender pursuant to Mississippi Code § 99-19-81, in violation of his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution because no Indictment had been returned as to that statute; (2) the trial court lacked jurisdiction to impose this sentence; (3) he was subjected to double jeopardy when he was resentenced as a habitual offender under Mississippi Code § 99-19-83 and then resentenced as a habitual offender pursuant to section 99-19-81, in violation of his rights under the Fifth Amendment and Article 3, Section 22 of the Mississippi Constitution; (4) the Indictment was defective because it charged him with violation of a non-existent habitual offender statute, section 99-19-93; and (5) his trial counsel was ineffective by "not objecting to the fatally defective indictment." Id. at 16-27.
The Mississippi Supreme Court considered Petitioner's allegations that "he was improperly sentenced, that he was subjected to double jeopardy and that his indictment was faulty." Id. at 2. However, "after due consideration, [the Mississippi Supreme Court found] that McDowell's application lack[ed] sufficient merit to warrant an evidentiary hearing and should be denied." Id. The Mississippi Supreme Court denied Petitioner's Motion for Order and Application for Leave to Proceed in Trial Court on May 22, 2013. Id.
B. Section 2254 Petition
On June 13, 2013, Petitioner filed the present 28 U.S.C. § 2254 Petition  for Writ of Habeas Corpus in this Court. The Petition advances the following grounds for habeas relief: ineffective assistance of counsel; denial of due process; and double jeopardy. Petition  at 5. Petitioner requests that "appeal be granted, and order [sic] heard at Miss. S.Ct. level before federal adjudica[tion;] in the alternative, order evidentiary proceedings in this cause, that Petitioner be allowed to prove his claims." Id. at 15.
Respondent Ronald King ["Respondent"] filed an Answer to the Petition on July 8, 2013. Answer  at 1. According to Respondent, Petitioner's claims were never presented to the state's highest court in a procedurally proper manner and are now "technically exhausted" and thus procedurally defaulted. Id. at 5-7. As such, Respondent contends that this Court is barred from reviewing Petitioner's claims and that the Petition should be dismissed with prejudice. Id. at 6-7.
C. Magistrate Judge's Proposed Findings of Fact and Recommendation
On February 21, 2014, the Magistrate Judge entered his Report and Recommendations . The Magistrate Judge found all of Petitioner's claims relied on the argument "that the trial court had no authority to sentence him to thirty years without parole" and that Petitioner had failed to raise any issue as to legality of that sentence in his direct appeal or any properly filed post-conviction motion. Report and Recommendations  at 7-8. The Magistrate Judge determined that the record "fails to show McDowell exhausted his state court remedies with respect to his present claims; there remain no state court remedies available to him; and his procedural default bars this Court from reviewing them." Proposed Findings of Fact and Recommendation  at 7-8 (citing Magouirk v. ...