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Osborne v. Fisher

United States District Court, S.D. Mississippi, Northern Division

March 28, 2017

JOSEPH EUGENE OSBORNE PETITIONER
v.
MARSHALL FISHER, Commissioner, Mississippi Department of Corrections; and JIM HOOD, Attorney General of the State of Mississippi RESPONDENTS

          OPINION AND ORDER

          William H. Barbour, Jr. UNITED STATES DISTRICT JUDGE

         This cause is before the Court on the Objection of Petitioner, Joseph Eugene Osborne (“Osborne”), to the Report and Recommendation (“R and R”) of United States Magistrate Judge Robert H. Walker. Having considered the R and R, Osborne's Objection thereto, [1] the other pleadings in this case, as well as relevant authorities, the Court finds the R and R should be adopted in its entirety over Osborne's Objection.

         I. Discussion

         Osborne was charged with murder following the suffocation of five-year-old Charlie Hopkins, the son of his live-in girlfriend. The death-by-suffocation determination was made by pathologist, Dr. Steven Hayne (“Hayne”) who, while performing an autopsy on Charlie's body, observed, inter alia, (1) multiple abrasions and bruises on Charlie's face that were consistent with a hand having been held over his nose and mouth, and (2) the presence of petechia, which are often associated with asphyxiation. Following trial, at which Hayne and several other witnesses testified, Osborne was found guilty of murder, and was sentenced to a term of life imprisonment. Osborne's conviction was affirmed on direct appeal. See Osborne v. State, 942 So.2d 193 (Miss. Ct. App. 2006), cert. denied, 942 So.2d 164 (Miss. 2006).

         In November of 2012, Osborne filed a Petition for Post-Conviction Relief in the Mississippi Supreme Court, alleging, inter alia, that the State had violated his constitutional rights to due process, a fair trial, and to confront witnesses. Osborne's claims were predicated on Hayne's qualifications (or alleged lack thereof) to offer forensic evidence, and Hayne's testimony in his and other trials. Osborne's Petition was denied as follows:

In the present application, Osborne maintains that he has obtained evidence regarding Dr. Steven Hayne's alleged arrangement with the State, professional qualifications, and instances of “forensic fraud, ” all of which purportedly constitute “newly-discovered evidence.” See Miss. Code Ann. §§ 99- 39-5(2)(a)(i), 99-39-27(9). Relatedly, Osborne raises claims of alleged violations of “fundamental constitutional rights based upon such “newly-discovered evidence” (i.e., violations of Osborne's: (1) due process rights under Napue v. Illinois, 360 U.S. 264 (1959), via the presentation of false evidence during trial; (2) due process rights under Brady v. Maryland, 373 U.S. 83 (1963); (3) substantive right to a fair trial via “gross violations of [the] Rules of Evidence” (namely, Mississippi Rule of Evidence 702); and (4) rights under the Confrontation Clause)).
After due consideration, the panel finds that Osborne's claim of “newly discovered evidence” is without merit as the subject evidence was “reasonably discoverable at the time of trial” and/or not “of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence.” Miss. Code Ann. §§ 99-39-5(2)(a)(i), 99-39-27-(9). As such, that claim is time-barred and should be denied. Since Osborne's alleged “fundamental” constitutional right claims are predicated upon evidence which is not “newly-discovered, ” the panel finds that those claims are waived. See Miss. Code Ann. § 99-39-21(1). Alternatively, the panel finds that Osborne's alleged “fundamental” constitutional right claims are without merit and should be denied. Finally, the panel finds that Osborne has failed to present a substantial showing of the denial of a state or federal right. Accordingly, the panel finds that Osborne's present application should be denied.

Osborne v. State, No. 2012-M-1845, slip order at 1-2 (Miss. May 29, 2013).

         Following the decision of the Mississippi Supreme Court, Osborne file a Petition, pursuant to 28 U.S.C. § 2254, for Writ of Habeas Corpus by a Person in State Custody (“2254 Petition”) in this Court. In his 2254 Petition, Osborne raises the following claims:

(1) He was denied his right to due process, as articulated in Napue v. Illinois, 360 U.S. 264 (1959), based on Hayne's offering false and misleading evidence regarding (a) his qualifications and (2) his findings with respect to Charlie's death;
(2) He was denied his right to due process, as articulated in Brady v. Maryland, 373 U.S. 83 (1963), based on the failure of the State to disclose material evidence regarding (a) its business relationship with Hayne, (b) Hayne's license and credentialing history, and (c) Hayne's time-of-death determination; and
(3) He was denied his Sixth Amendment to confront witnesses based on the failure of the State to disclose impeaching information regarding Hayne.

         The 2254 Petition came before United States Magistrate Judge Robert H. Walker who, upon review, entered a Report and Recommendation (“R and R”) recommending that Osborne's Petition be dismissed as untimely.

         In making his recommendation, Judge Walker first found that Osborne's Petition was governed by a one-year statute of ...


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