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Burrell v. Hood

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

July 25, 2017

TYRONE BURRELL PETITIONER
v.
ATTORNEY GENERAL JIM HOOD and CENTRAL MISSISSIPPI CORRECTIONAL RESPONDENTS

          MEMORANDUM OPINION AND ORDER

          NEAL B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE

         Petitioner Tyrone Burrell, a Mississippi inmate currently housed at the Central Mississippi Correctional Facility, has filed a federal habeas petition pursuant to 28 U.S.C. § 2254 challenging his State court conviction for kidnapping. Having considered the submissions of the parties, the State court record, and the law applicable to Burrell's claims, the Court finds that an evidentiary hearing is unnecessary, and that the petition should be denied.

         I

         Background Facts and Procedural History

         On November 5, 2012, Burrell approached seventy-five year old Charlie Jeter at Bally's Casino in Tunica, Mississippi, offering to sell Charlie Pall Mall cigarettes for $1 a carton. See Doc. #10-3 at 138-140, 148. Charlie agreed to purchase the cigarettes, and Burrell asked him for $20. Id. at 139-40. Charlie paid Burrell $20 and then retrieved the car keys from his wife, Fredna, so that he could put the cigarettes that Burrell was going to sell him in the car. Id. at 119-120. Charlie and Burrell went into the parking lot, where Burrell displayed a gun and demanded that Charlie drive him to Memphis. Id. at 140-141. Upon their arrival at a subdivision in Memphis, Burrell demanded more money, at which point Charlie gave him an additional $65. Id. at 141. Burrell told Charlie to leave, and Charlie did so, driving back to the casino. Id. at 141-32. By the time Charlie arrived at the casino, police were already at the casino, having been alerted by Fredna that Charlie was missing. See, e.g., id. at 77-81. Burrell was subsequently arrested.

         On May 9, 2014, Tyrone Burrell was convicted of kidnapping in the Circuit Court of Tunica County, Mississippi. Doc. #10-4 at 60. Burrell was charged as an habitual offender under Miss. Code Ann. §99-19-83, a statute under which a conviction carries a life sentence. See Doc. #10-1 at 12. Additionally, his charge carried an enhancement under Miss. Code Ann. § 99-19-351, which allows the sentence to be doubled if the victim is over the age of 65, and an enhancement under Miss. Code Ann. § 97-37-37, which allows for an additional five-year sentence if a firearm is used in the crime. Id. at 10-12. The trial court did not double the sentence or impose the additional five years, but rather, sentenced Burrell to thirty years in the custody of the Mississippi Department of Corrections as an habitual offender under Miss. Code Ann. § 99-19-81. Doc. # 10-4 at 79-81. On direct appeal, the Mississippi Supreme Court affirmed Burrell's conviction and sentence. See Burrell v. State, 183 So.3d 19 (Miss. 2015), reh'g denied January 21, 2016 (Cause No. 2014-KA-00670-SCT). Burrell did not seek a writ of certiorari in the United States Supreme Court.

         Aggrieved the direct appeal decision, Burrell sought permission from the Mississippi Supreme Court to proceed with a motion for post-conviction collateral relief. See Doc. #10-8 at 40-96. His application was denied by the Mississippi Supreme Court. See Doc. #9-2 (Cause No. 2016-M-00576). Thereafter, Burrell filed a “Motion to Correct Illegal Sentence” in the Mississippi Supreme Court, alleging that he was illegally sentenced and attaching a second application for permission to file for post-conviction relief to the motion, maintaining that he received the ineffective assistance of counsel. See Doc. #10-8 at 6-19, 20-36. The Mississippi Supreme Court interpreted the entire pleading as a second application for leave to file a petition for post-conviction relief and denied it. Doc. #9-3 (Cause No. 2016-M-00576).

         Thereafter, on or about January 13, 2017, Burrell filed the instant petition, raising the following grounds for relief, as summarized by Respondents:

Ground One: The trial court erred in selecting alternative jurors.
Ground Two: The trial court erred in denying Petitioner's motion for a new trial because the verdict was against the overwhelming weight of the evidence.
Ground Three: The trial court imposed an illegal sentence as an habitual offender pursuant to Miss. Code Ann. § 99-19-81, when Petitioner was indicted pursuant to Miss. Code Ann. § 99-19-83.
Ground Four: Ineffective assistance of trial counsel for failure to call witness Patricia Newell.

         II

          Legal Standard

         The Court's review of Burrell's claims is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), because his federal habeas petition was filed after the statute's effective date. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA prevents the grant of federal habeas relief on any claim adjudicated on the merits in state court unless that adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court precedent; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the presented evidence. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

         A state court's decision is “contrary to” Supreme Court law if (1) “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases, ” or (2) “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent.” Williams v. Taylor, 529 U.S. 362, 412 (2000). The “unreasonable application” clause is reserved for decisions that either fail to identify the correct governing law, or identify the correct governing law but misapply it to the case. Id. at 407. Under this standard, a state court's decision will not warrant federal habeas relief unless its application of federal law is both incorrect and unreasonable. Garcia v. Dretke, 388 F.3d 496, 500 (5th Cir. 2004) (emphasis in original) (citation omitted). A reviewing habeas court considers only the state court's conclusion when determining whether there has been an unreasonable application of federal law, not the court's reasoning in reaching the decision. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002).

         When considering whether the state court's decision was based on unreasonably determined facts, the federal court must presume that the state court determined the facts reasonably; it is the petitioner's burden to prove otherwise with clear and convincing evidence. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); 28 U.S.C. § 2254(e)(1).

         III

         Procedurally Barred Claims

         The claims raised by Burrell in Grounds One, Three, and Four were found procedurally barred by the Mississippi Supreme Court. The Court notes that “[w]hen a state court declines to hear a prisoner's federal claims because the prisoner failed to fulfill a state procedural requirement, federal habeas relief is generally barred if the state procedural rule is independent and adequate to support the judgment.” Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001) (citing Coleman v. Thompson, 501 U.S. 722 (1991)). The adequacy of the procedural bar applied to Burrell's claims in State court depends on “whether Mississippi has strictly or regularly applied it.” Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997), (citing Lott v. Hargett, 80 F.3d 161, 165 (5th Cir. 1996)). However, Burrell bears the burden of demonstrating “that the state did not strictly or regularly follow a procedural bar around the time of his appeal” and “must demonstrate that the state has failed to apply the procedural bar rule to claims identical or similar to those raised by the petitioner himself.” Id.

         If a petitioner cannot demonstrate the inapplicability of a procedural bar, federal habeas courts are precluding from reviewing State cases applying such a bar unless the petitioner can demonstrate cause and actual prejudice, or that a fundamental miscarriage of justice would result if the claim were not reviewed. See Coleman, 501 U.S. at 750; see also Martin v. Maxey, 98 F.3d 544, 849 (5th Cir. 1996) (citing Sawyer v. Whitley, 505 U.S. 333(1992)). The Supreme Court has held that in order for a court to find the cause necessary to excuse such procedural default, “there must be something external to the petitioner, something that cannot fairly be attributed to him.” Coleman, 501 U.S. at 753 (emphasis in original). Examples of objective factors that have been found to constitute such cause include “interference by officials” and “a showing that the factual or legal basis for a claim was not reasonably available to [the petitioner].” McClesky v. Zant, ...


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