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Stone v. Epps

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

May 22, 2017




         Before the Court is the Report and Recommendation issued by United States Magistrate Judge S. Allan Alexander recommending that Ted Stone's petition for writ of habeas corpus be dismissed with prejudice. Doc. #10. Because Judge Alexander's Report and Recommendation accurately states the facts and law, it will be adopted as the order of this Court.

         I Procedural History

         A. The Petition and Briefing

         On August 20, 2014, Ted Stone filed in this Court a petition for writ of habeas corpus challenging his 2010 state court conviction for aggravated assault on his older sister, Carolyn. Doc. #1. In his petition, Stone argues that his defense counsel was constitutionally ineffective. Specifically, Stone claims his attorney: (1) “was ineffective in failing to subpoena witnesses and documents to trial;” (2) withdrew a self-defense instruction; (3) failed to make “a specific objection” at trial to the introduction of a restraining order issued against Stone; (4) failed to “inquire about” and “require” the production of the cane allegedly used in his crime; (5) failed to object at trial to the authenticity of an audio recording allegedly of Stone at a bail hearing; (6) failed to object at trial to the audio recording on Fifth Amendment grounds; and (7) “failed to call witnesses, and failed to subpoena or produce documents.”

         On October 28, 2014, Judge Alexander issued an order directing the respondent, Christopher Epps, to respond to the petition. Doc. #4. Epps filed a response to the petition on January 20, 2015. Doc. #7. However, for reasons unknown, the Court did not receive the state court record until April 6, 2016. Doc. #9.

         B. Report and Recommendation

         On April 21, 2016, Judge Alexander entered a Report and Recommendation recommending that Stone's habeas petition, which was filed with the assistance of retained counsel, be dismissed with prejudice. Doc. # 10. In the Report and Recommendation, Judge Alexander set forth the relevant factual record as follows:

Ted Stone, Kay Stone Hill, and Carolyn Stone are the children of Seretha Stone. On June 7, 2010, Ted Stone (“petitioner”) went to visit his mother Seretha Stone at his sister Carolyn Stone's house. Due to prior threats and assaults by petitioner, Carolyn previously had obtained a restraining order requiring him to stay off her property. Carolyn, Kay and Seretha testified to the following events: after petitioner arrived at Carolyn's house, an altercation occurred, and petitioner beat Carolyn with his walking cane. Seretha grabbed the cane and tried to take it away from Stone. As she was pulling the cane, the rubber tip came off. Kay attempted to thwart the attack by striking petitioner with a cordless telephone. Stone pushed her into a chair, and then Kay ran outside and called the police.
A grand jury indicted Stone for the aggravated assault of Carolyn Stone on July 26, 2010. Stone's jury trial began on October 5, 2010 in Itawamba County Circuit Court. Stone testified at trial, and offered a different version of events. He testified that his mother Seretha allowed him to enter the house. He sat in a chair in the living room, and was talking with Kay when Carolyn entered the room and began beating Seretha for allowing Stone to enter the house and arguing with Stone about the ownership of the house. Carolyn initiated the violence when she picked up the cordless phone and began striking Stone with it. He told her to stop, but she continued. He hit a footstool with his cane, at which point he conjectured that the cane's rubber tip must have fallen off. He then hit Carolyn “as hard as [he] could” in an attempt to get her away from him. He then agreed to leave, and, as he was limping out with his cane, Carolyn pushed him. As he was falling, he again hit her with the cane, this time causing her head to bleed. He testified that he awakened on the floor some time later and left the house immediately.
Carolyn testified at trial that on various occasions between 2002 and 2005 Stone had slapped her, hit her in the face with a flyswatter, held a baseball bat over her head while she was in bed while threatening to “beat [her] to a pulp” and kill her, and threatened to stalk, kill, and beat her with a hammer. In January 2005, Carolyn obtained a restraining order prohibiting Stone from entering her property. She testified that she and her mother actively avoided Stone - locking their doors and staying out of the front yard to avoid seeing Stone if he drove by - and, thus, had not seen much of Stone for the five months before the assault. As a result, Carolyn was surprised and afraid when she saw him in her living room on June 7.
At trial, the State sought to introduce into evidence Stone's multiple threats and attacks of Carolyn to prove motive, intent, preparation, plan, knowledge, and absence of mistake or accident. The State asserted that evidence of these threats and prior assaults was necessary to reveal the complete story of the crime for which Stone was being tried. The trial court agreed, and, after determining that the evidence was more probative than prejudicial, allowed the State to introduce evidence of Stone's prior bad acts. After the State had presented its case in chief, the trial judge denied petitioner's motion for a directed verdict. After receiving proper instruction from the court, the jury returned a guilty verdict of aggravated assault. Stone was sentenced to twenty years, with four years suspended, and a fine of $4, 000. The court denied Stone's motion for judgment notwithstanding the verdict.

Id. at 1-3 (internal footnotes and citations omitted).

         Judge Alexander rejected Stone's first and seventh enumerations of error (related to the failure to investigate and subpoena documents) because Stone could not show that the failure to call the identified witnesses or subpoena the identified medical records would have caused the jury to have “reasonable doubt about his guilt. Doc. #10 at 9 (citing Earhart v. Johnson, 132 F.3d 1062, 1068 (5th Cir. 1998)). Specifically, Judge Alexander noted that “Stone provided no affidavits of the former justice court judge, the former sheriff[, ] petitioner's physician, or attorney ..., all of whom if called at petitioner's trial would ... have testified favorably to Stone.” Id.

         Judge Alexander rejected the second ground (withdrawal of a self-defense instruction) because the record showed that Stone's attorney only withdrew the proposed self-defense instruction after the Court agreed to give an instruction that “was almost verbatim” to the proposed instruction. Id. at 10-11.

         Judge Alexander denied the third ground (failure to specifically object to the alleged restraining order and related bad acts) because defense counsel objected to the introduction of the order and “[e]ven assuming defense counsel could be deemed deficient for ‘allowing' this order into evidence, there was no prejudice in its ...

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