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Pierce v. Lee

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

May 12, 2017

RICKY SHANNON PIERCE PETITIONER
v.
EARNEST LEE; and JIM HOOD DEFENDANTS

          ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE.

         Ricky Shannon Pierce, proceeding pro se, has filed a federal habeas petition pursuant to 28 U.S.C. § 2254 challenging his conviction for sexual battery in the Circuit Court of Coahoma County, Mississippi. Having considered the submissions of the parties, the state court record, and the law applicable to Pierce's claims, the Court finds that the petition should be denied.

         I

         Background Facts and Procedural History

         A. Indictment and Trial

         On December 5, 2011, Pierce was indicted for engaging in oral sexual intercourse without consent. Doc. #11-1 at 6-7. On May 7, 2012, the indictment, on motion of the State of Mississippi, was amended by order of the Circuit Court of Coahoma County, Mississippi, to charge Pierce as a habitual offender under Mississippi law. Id. at 33-34.

         At a two-day trial, the State of Mississippi presented evidence showing:

         The victim in this case, H.H., [1] was a twenty-four year old male who lived with his parents at their home in Clarksdale, Mississippi, at the time the crime at issue took place. Doc. #11-3 at 5-6, 27. Pierce met H.H. at a restaurant where Pierce worked. Doc. #11-2 at 138. According to Pierce, H.H. asked Pierce to be his friend on Facebook and, on July 9, 2011, H.H. telephoned Pierce. Doc. #11-3 at 49-50. During the telephone conversation, Pierce told H.H. that he would come to his house so that they could speak in person. Id. at 50. Pierce drove to H.H.'s home and parked on the street a few houses away from the residence where H.H. lived with his parents. Doc. #11-2 at 144-45. Shortly after midnight, Clarksdale Police Department Patrol Officer Romeisha Moore responded to a call on a suspicious vehicle, which was later identified to be Pierce's car. Id. at 141, 143-44. Officer Moore had called a tow truck when Pierce approached her and offered to move his vehicle. Id. at 144, 146. Pierce, who appeared nervous and was sweating heavily, informed Moore that he was just visiting a friend and did not know exactly where the friend lived when he parked. Id. at 145. Officer Moore recognized that Pierce and another male had been sitting on the lawn of H.H.'s address before Pierce approached her. Id.

         According to H.H., when Pierce came to his home around midnight, he came out to talk to Pierce even though he was not allowed to be out at that time. Doc. #11-3 at 28, 33. He stated that the two went to the back of his house, where Pierce kissed him in the mouth and licked his “Johnny Bug, ” the victim's name for his penis. Id. at 29, 36. H.H. stated that Pierce also licked his bellybutton, and that Pierce tried to put H.H.'s foot in his mouth. Id. at 29. H.H. testified that he did not give Pierce permission to do these things and told him to stop. Id. at 30. He stated that he was frightened, and that when the police came, he ran to his father's vehicle and stood by it until Pierce left. Id. at 30, 38. H.H. reported the incident to his parents the next morning. Id. at 30.

         Clarksdale Police Detective Corporal Nicholas Turner investigated the incident. Doc. #11-3 at 4. Through subpoenaed phone records, he determined that Pierce and H.H. had numerous phone conversations. Id. at 19-20. He discovered that phone calls were made after midnight on the night of the incident lasting for eighteen seconds, sixty-one minutes, twenty-seven minutes and thirteen seconds, one and a half minutes, six seconds, sixteen and a half minutes, and four minutes, respectively. Id. at 23. There were also six phone calls before midnight on the night of the incident lasting thirty seconds, nine and a half minutes, twenty-seven seconds, twenty-six seconds; sixteen seconds, and forty-nine and a half minutes, respectively. Id. at 24-25.

         B. Verdict and Appeal

         At the close of trial, the jury found Pierce guilty of sexual battery. Doc. #11-3 at 96. Because Pierce had been indicted as a non-violent habitual offender pursuant to Miss. Code Ann. § 99-19-81, following the guilty verdict, the State presented evidence of Pierce's two prior convictions for obtaining a controlled substance by fraud. Doc. #11-3 at 101-105. Thereafter, Pierce was sentenced as a non-violent habitual offender to serve a thirty-year term of imprisonment in the custody of the Mississippi Department of Corrections. Doc. #11-3 at 114; see also Doc. #11-1 at 70-72.

         Pierce appealed his conviction with the assistance of newly-retained counsel, [2] raising as the sole appeal issue whether “[t]he trial court erred in denying the defendant's motion for directed verdict, peremptory instruction, and for judgment notwithstanding the verdict, as there was a complete failure of proof as to lack of consent.” Doc. #11-5 at 13-35. Pierce's conviction and sentence were affirmed on appeal. Pierce v. State, 135 So.3d 206 (Miss. Ct. App. 2014), reh'g denied, October 28, 2014; see also Doc. #10-1. The Mississippi Supreme Court denied Pierce a writ of certiorari. Pierce v. State, 158 So.3d 1153 (Miss. 2015); see also Doc.#10-2.

         Pierce, proceeding pro se, filed in the Mississippi Supreme Court an application for leave to file a motion for post-conviction relief. Doc. #11-6. Pierce's motion for post-conviction relief asserted four grounds for relief: (1) his counsel was ineffective; (2) he was not granted a competency hearing; (3) the State failed to prove the elements of sexual battery; (4) the indictment failed to “set out or to assert the elements of sexual battery;” and (5) the trial court failed to instruct the jury on the elements of sexual battery.

         The Mississippi Supreme Court denied Pierce's application, holding, in pertinent part:

Petitioner now alleges that he was deprived of effective assistance of counsel at trial, that he was improperly denied a competency hearing, that he was improperly charged with sexual battery, that his indictment was defective, and that the jury was improperly instructed.
We find that the issues raised by Petitioner lack sufficient merit to warrant an evidentiary hearing. The Application for Leave to File Motion for Post Conviction Collateral Relief is not well taken and should be denied.

Doc. #10-3 (internal citation omitted).

         C. This Petition

         On or about May 12, 2016, Pierce filed the instant habeas petition. Doc. #1. On June 8, 2016, United States Magistrate Judge Jane M. Virden issued an order directing the State to respond to the petition before August 8, 2016. Doc. #5. On July 5, 2016, the State answered Pierce's petition. Doc. #10. Pierce filed a traverse on August 15, 2016. Doc. #12.

         II

         Procedurally Barred Claims

         Pierce's petition raises five grounds for relief: “(1) deprived of effective assistance at trial (2) that he was improperly denied a competency hearing (3) that he was denied or improperly charged with sexual battery (4) that his indictment was defective and (5) that the jury improperly was instructed.” Doc. #1 at 3.

         In its response, the State interpreted Pierce's third and fourth grounds as raising the same issue and, therefore, responded to Pierce's petition as raising four grounds:

Ground One: Ineffective Assistance of Counsel:
A. Failure to challenge the charge and ...

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