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Wilson v. Buscher

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

July 5, 2017

DARNELL WILSON PETITIONER
v.
WARDEN BUSCHER RESPONDENT

          MEMORANDUM OPINION

         This matter comes before the court on the pro se petition of Mississippi state prisoner Darnell Wilson for a writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition, and Wilson has replied. The matter is ripe for resolution. For the reasons set forth below, the instant petition for a writ of habeas corpus will be denied.

         Habeas Corpus - General Discussion

         The writ of habeas corpus, a challenge to the legal authority under which a person may be detained, is ancient. Duker, The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N.Y.U.L.Rev. 983 (1978); Glass, Historical Aspects of Habeas Corpus, 9 St. John's L.Rev. 55 (1934). It is "perhaps the most important writ known to the constitutional law of England, " Secretary of State for Home Affairs v. O'Brien, A.C. 603, 609 (1923), and it is equally significant in the United States. Article I, § 9, of the Constitution ensures that, " The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. U.S. Const, art. I, § 9, cl. 2, Habeas Corpus, 20 Fed. Prac. & Proc. Deskbook § 56. Its use by the federal courts was authorized in Sectionl 4 of the Judiciary Act of 1789. Habeas corpus principles developed over time in both English and American common law have since been codified:

The statutory provisions on habeas corpus appear as sections 2241 to 2255 of the 1948 Judicial Code. The recodification of that year set out important procedural limitations and additional procedural changes were added in 1966. The scope of the writ, insofar as the statutory language is concerned, remained essentially the same, however, until 1996, when Congress enacted the Antiterrorism and Effective Death Penalty Act, placing severe restrictions on the issuance of the writ for state prisoners and setting out special, new habeas corpus procedures for capital cases. The changes made by the 1996 legislation are the end product of decades of debate about habeas corpus.

Id. Under 28 U.S.C. § 2254, a federal court may issue the writ when a person is held in violation of the federal Constitution or laws, permitting a federal court to order the discharge of any person held by a state in violation of the supreme law of the land. Frank v. Mangum, 237 U.S. 309, 311, 35 S.Ct. 582, 588, 59 L.Ed. 969 (1915).

         Facts and Procedural Posture

         The petitioner, Darnell Wilson, is in the custody of the Mississippi Department of Corrections and is currently housed at the East Mississippi Correctional Facility in Meridian, Mississippi. On June 29, 2010, Wilson was convicted in the Circuit Court of Desoto County, Mississippi, of count of grand larceny, one count of felony fleeing, and one count of simple assault on a law enforcement officer. He was sentenced as a habitual offender (under Miss. Code Ann. § 99-19-83) to serve concurrent life terms for each count. State Court Record ("SCR"), Vol. 2, p. 282-284.

         Wilson filed an appeal of his convictions and sentences in the Mississippi Supreme Court. On appeal, Wilson was represented by counsel through the Mississippi Office of Indigent Appeals. Appellate counsel filed a brief stating that there were no arguable issues which could be presented for appellate review under Lindsey v. State, 939 So.2d 743, 748 (Miss. 2005). The Mississippi Court of Appeals requested supplemental briefing from both parties regarding the issue of the constitutionality of Wilson's sentence and requested that the parties address whether the sentence reached the threshold to trigger a proportionality analysis by the trial judge. Both Wilson, through counsel, and the State filed supplemental briefs on that issue.

         On January 15, 2013, the Mississippi Court of Appeals affirmed the judgment of the circuit court. Wilson v. State, 106 So.3d 853 (Miss. Ct. App. 2013). The court also held that "[a]fter an examination of Wilson's pro se supplemental brief and a thorough review of the record in this case, we find that Wilson raises no arguable issues in support of his appeal." Id. at 859. Wilson's motion for rehearing was due in the Mississippi Court of Appeals on January 29, 2013, within fourteen days of the direct appeal decision. See Miss. R. App. P., Rule 40(a). Wilson filed a motion requesting an extension of time to file a motion for rehearing, and the court granted an extension to February 12, 2013. Wilson did not, however, file a motion for rehearing by that date. On February 19, 2013, the Mississippi Court of Appeals issued the mandate. On March 4, 2013, Wilson filed another request for an extension of time to file a motion for rehearing. The Mississippi Court of Appeals originally granted the motion, but, after review, filed a corrected order denying the request for an extension. As Wilson did not file a timely motion for rehearing, he was barred from filing a petition for writ of certiorari with the Mississippi Supreme Court. See M.R.A.R 17. On May 28, 2013, Wilson filed a motion in the Mississippi Supreme Court asking for an out of time appeal, however, the court denied the request by Order filed July 18, 2013. On August 20, 2013, Wilson filed an untimely petition for certiorari in the United States Supreme Court, which denied the petition on December 9, 2013. See SCR, Briefs and Pleadings, Miss. S.Ct. Case No. 2010-KA-1276-COA.

         On December 12, 2013, Wilson filed an Application to Proceed in the Trial Court with a Motion for Post-Conviction Relief in the Mississippi Supreme Court. The application was signed on December 6, 2013. Wilson raised the following issues, pro se:

Issue One. Right to confront witnesses. Wilson stated that hearsay evidence was a deciding factor in his trial because a substantial document which sought payment for damages that would have ceased the prosecution. The executive assistance show [sic] have testified at trial but didn't.
Issue Two. Wrongfully amended as a habitual offender under 99-19-83.
Issue Three. Equal protection rights: Wilson states that the state picked the entire jury pool and denied his the exercise of using any of his 12 strikes to deny or object to any of the empaneled jurors.
Issue Four. Due Process - Wilson stated that his right to a fair and impartial trial was denied because a jury instruction D-l was disregarded and denied to be submitted to the jury.
Issue Five. Hearsay Evidence - Wilson stated his rights were not protected when the judge allowed hearsay evidence from Mrs. Candance Whisman of Tennessee to attest to his past.

         The Mississippi Supreme Court dismissed the motion on June 10, 2014. The court found that:

the issues regarding the right of confrontation, admission of hearsay evidence and denial of a jury instruction are now waived for Wilson's failure to raise those claims before the trial court or on direct appeal. Likewise, the claim regarding the amendment of the indictment to charge Wilson as a habitual offender was raised on direct appeal and addressed by the Court of Appeals. Therefore, the claim is now barred by the doctrine of res judicata.

Wilson v. State of Mississippi, 2013-M-02094 (Miss. S.Ct. 2014).

         Wilson filed the instant petition for writ of habeas corpus in this court on August 8, 2014. Doc. 1. On April 28, 2015, the court ordered the State to file an answer to the petition. Doc. 13. Wilson has filed at least eleven amendments to his petition, four of which were filed before the order to answer, the remainder afterwards. Docs. 9, 10, 11, 12, 16, 17, 18, 19, 23, 24, 25, 29, 32, 34.

         In his filings, Wilson raises the following grounds for relief, pro se, as summarized and enumerated by the court in the interest of clarity:

Ground One. Right to confront witnesses. The Petitioner contests that the state used testimony (hearsay) from an employee concerning an important document from the Kohl's department store executive.
Ground Two. Wrongful conviction under 99-19-83 status.
Ground Three. Ineffective assistance of counsel. The petitioner attorney failed to object to the state having a second bite at the forbidden apple once the judge allow the state to re-evaluate his prior convictions.
Ground Four. Misinterpretation of prior convictions (10 pack) from the state of Tennessee.
Ground Five. Prosecutorial Misconduct.
Ground Six. Wilson argues that a substantial conflict exists as to whether he is actually a habitual offender under the statute of 99-19-83.
Ground Six. Wilson states he was severely prejudiced by the prosecutor when the state superceded the past ruling of a Tennessee judge by the Miss. Prosecutor separating a concurrent sentence.
Ground Seven. Wilson states that the trial judge erred by not allowing a new trial after Petitioner and counsel Mr. Vandenburg showed sound and sufficient document proof of evidence as to why Wilson was not a 99-19-83 habitual offender.
Ground Eight. Wilson argues that the indictment failed to distinguish between simple assault and felony assault.
Ground Nine. Cruel and unusual punishment.
Ground Ten. Due Process - indictment erroneously amended.
Ground Eleven. Equal Protection Rights.
Ground Twelve. Wilson states the court erred by allowed prosecutor Smith V. Murphy to violate the constitutional right to a fair and impartial jury.
Ground Thirteen. Wilson states the court erred by allowing the prosecutor to use misinformation from his pre-sentence investigative report where as the prior convictions were not considered violent felonies in the state of Tennessee.
Ground Fourteen. Indictment is defective because it alleged misdemeanor simple assault rather than felony assault on a police officer.
Ground Fifteen. Wilson further states that the court erred by convicting him under the crime of felony fleeing, when there was no highspeed chase and the factual crime was resisting arrest.
Ground Sixteen. Insufficient evidence for sentencing as a habitual offender.
Ground Seventeen. Insufficient evidence for conviction of grand larceny and felony fleeing.
Ground Eighteen. Ineffective assistance of counsel for failure to properly cross examine Kohl's executive office ...

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