United States District Court, N.D. Mississippi, Greenville Division
M. BROWN UNITED STATES DISTRICT JUDGE.
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.
Facts and Procedural History
Indictment and Trial
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.
two-day trial, the State of Mississippi presented evidence
victim in this case, H.H.,  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.
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.
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.
Verdict and Appeal
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.
appealed his conviction with the assistance of newly-retained
counsel,  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.
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.
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).
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.
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.
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 ...