United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE.
the Court are the Magistrate Judge's Report and
Recommendation (R&R) and petitioner Anthony Thomas's
objection to that R&R. Docket Nos. 28-29.
lengthy state court proceedings, Anthony Thomas was tried and
convicted on an aggravated assault charge and a
felon-in-possession charge. The Mississippi Supreme Court
vacated only the felon-in-possession charge. Thomas v.
State, 126 So.3d 877, 878 (Miss. 2013).
ruling resolved one problem but created another. It meant the
jury possessed unnecessary, inadmissible, and highly
prejudicial evidence-that Thomas was a convicted felon-when
it voted to convict him of aggravated assault. The
jurors' deliberations and votes may have been tainted by
knowledge of his prior bad act. And that forces appellate
courts to ask whether Thomas received a fair trial.
not a new problem. “[E]vidence of a prior conviction
has long been the object of careful scrutiny and use at trial
because of the inherent danger that a jury may convict a
defendant because he is a ‘bad person' instead of
because the evidence of the crime with which he is charged
proves him guilty.” United States v. Holloway,
1 F.3d 307, 311 (5th Cir. 1993) (citation omitted); see
also United States v. Jones, 16 F.3d 487, 493 (2d Cir.
1994) (“In short, the evidence that Jones is a felon
was of the inflammatory sort that may have swayed the jury to
convict him of the other charges even if the evidence had not
supported those charges.”).Mississippi courts agree:
“such evidence weighs too much with the jury and
overpersuades it as to prejudge one with a bad general record
and deny him a fair opportunity to defend against a
particular charge.” Williams v. State, 37
So.3d 717, 726 (Miss. Ct. App. 2010) (quotation marks,
citation, brackets, and ellipses omitted).
Mississippi Supreme Court could have evaluated the risk of
unfair prejudice to Thomas, and in so doing determined
whether the aggravated assault count needed to be retried, by
conducting a “retroactive misjoinder” analysis.
“Retroactive misjoinder is the concept that evidence
adduced to support a claim that an appellate court vacates
may have prejudiced any surviving counts.” United
States v. McMahon, No. 04-5011, 2005 WL 115506, at *7
(10th Cir. Jan. 20, 2005). Mississippi defendants typically
seek a retroactive misjoinder analysis when “joinder of
multiple counts was initially proper but, through later
developments such as an appellate court's reversal of
less than all convictions, joinder has been rendered
improper.” Williams, 37 So.3d at 720
(quotation marks and citations omitted). Thomas had pressed
the issue several times, see Docket No. 14-9, at 4-5
& 20-21, so it was ripe for adjudication. But the
Mississippi Supreme Court chose to avoid the issue.
avoidance meant that none of the courts to consider
Thomas's case-the Mississippi Supreme Court, the Court of
Appeals, and the Circuit Court-had considered retroactive
misjoinder. There was no state court adjudication of
Thomas's principal ground for habeas relief. It follows
that the Court must review Thomas's ground de
novo. See Johnson v. Williams, 133 S.Ct. 1088,
1097 (2013); Hoffman v. Cain, 752 F.3d 430, 437 (5th
Cir. 2014) (“For claims that are not adjudicated on the
merits in the state court, we apply a de novo
standard of review.”); Robinson v. Louisiana,
606 F. App'x 199, 203 (5th Cir. 2015).
direct appeals, the Fifth Circuit “acknowledge[s] that
perhaps a grant of a new trial might be appropriate in some
cases of ‘retroactive misjoinder.'”
United States v. Edwards, 303 F.3d 606, 640 (5th
Cir. 2002). “At a minimum, drawing from our severance
cases and authority from other circuits, the defendants must
show that they experienced some prejudice as a result of the
joinder of the invalid claims, i.e., that otherwise
inadmissible evidence was admitted to prove the invalid . . .
Mississippi Court of Appeals has fashioned its own standard.
(1) was evidence admitted at trial on the vacated count that
would not have otherwise been admissible on the remaining
count and, if so, (2) can the defendant demonstrate clear
prejudice as a result of the inadmissible evidence that was
presented to the jury. In making this determination, the
specific facts and circumstances surrounding the
defendant's trial are vitally important as a finding of
prejudice will vary from case to case. The strength of the
State's case against the defendant on the remaining
count, the specific evidence presented in connection with the
vacated count, and other pertinent details of the
defendant's case and trial should be analyzed in
determining if the defendant was prejudiced.
Williams, 37 So.3d at 721; accord Kelley v.
Kenna, 14 F. App'x 727, 729 (8th Cir.
2001)(rejecting retroactive misjoinder claim on habeas review
because petitioner failed to demonstrate “clear
return to the present petition. The parties have not
adequately briefed which standard to apply, much less whether
the differences between them are material. The State instead
contends that Thomas was not prejudiced by the introduction
of his prior felony. Docket No. 13, at 11-13. That position
is indefensible given the above authorities. E.g.,
Williams, 37 So.3d at 726. The question is the
extent of the prejudice, id. at 721, which is a
difficult question to answer with certainty.
undersigned agrees with the weight of authority that
retroactive misjoinder claims “focus on the strength of
the evidence supporting claims that survive appeal.”
McMahon, 2005 WL 115506, at *7. The Magistrate Judge
did so here. She thoroughly reviewed the record evidence
introduced against Thomas to try and determine-as best one
can, in hindsight-the prejudicial effect of the error.
resulting R&R persuasively explains why the overwhelming
evidence that Thomas committed the aggravated assault
outweighs the prejudicial effect inherent in knowing that he
was a felon. In other words, Thomas was prejudiced by being
labeled a felon before the jury, but on these facts that