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Truelove v. Mississippi Department of Corrections

United States District Court, N.D. Mississippi, Aberdeen Division

April 29, 2015

TERRY LEE TRUELOVE, Petitioner,
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS, Respondents.

MEMORANDUM OPINION

SHARION AYCOCK, District Judge.

This matter comes before the court on the pro se petition of Terry Lee Truelove for a writ of habeas corpus under 28 U.S.C. ยง 2254. The State has responded to the petition; Truelove has replied, and the State has filed a surrebuttal brief. The matter is ripe for resolution. For the reasons set forth below, the instant petition for a writ of habeas corpus will be dismissed under the doctrine of procedural bar.

Facts and Procedural Posture

Terry Lee Truelove is in the custody of the Mississippi Department of Corrections and is currently housed at the Central Mississippi Correctional Facility in Pearl, Mississippi. Truelove was convicted of two counts of Domestic Violence - Aggravated Assault in the Circuit Court of Lowndes County, Mississippi. He was sentenced as a habitual offender on May 26, 2010, to a term of twenty years in the custody of the Mississippi Department of Corrections on each count, with fifteen years of the sentence in Count II to run concurrently with the sentence in Count I, and five years of the sentence in Count II to run consecutively with that of Count I. See State Court Record (SCR), Vol. 1, pp. 88-91; see also S.C.R. Vol. 3, pp. 288-303.

As Truelove was sentenced as a habitual offender, the trial judge declined to impose a fine; in addition, State filed a motion to retire to the files an additional count of aggravated assault - domestic violence against the same victim that occurred after his indictment on Counts I and II. S.C.R. Vol. 3, pp. 300-302. The prosecutor noted in the motion that, in each instance, the attacks had become more violent. Id. at p. 301.

Truelove, through appellate counsel, appealed his convictions and sentences to the Mississippi Supreme Court, where he raised the following issues as error:

A. Whether the trial court erred in failing to grant Truelove's motion for directed verdict in Count I.
B. Whether the trial court erred in failing to grant Trueloves motion for directed verdict in Count II.

On October 11, 2011, the Mississippi Court of Appeals affirmed Truelove's convictions and sentences for domestic violence - aggravated assault. Truelove v. State, 78 So.3d 363 (Miss. Ct. App. 2011), reh'g denied, Jan. 24, 2012 (Cause No. 2010-KA-01040-COA).

Truelove then filed a pro se "Application for Leave to Proceed in the Trial Court with the Supreme Court" and a supporting motion titled "Mississippi Uniform Post-Conviction Collateral Relief Act Pursuant to Miss. Code Ann. Section 99-39-1, 99-39-5 and 99-39-7" in the Mississippi Supreme Court, raising the following issues (as stated by petitioner pro se in the supporting motion):

A. Whether trial court error when allowing state to give jurors instruction to find the Petitioner guilty of intentional causing serious bodily harm to Ms. Dison present in indictment.
B. Truelove argues that he was denied effective assistance of counsel when trial counsel allowed the prosecutor to amend indictment on the day of trial charging him as an habitual offender.
C. The trial court committed plain error when allowing the state to use unattested documents and uncertified documents over objection of defense counsel.
D. Petitioner Truelove assert that his privacy was violated when the police department took upon themselves to seized items or evidence ...

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