United States District Court, N.D. Mississippi, Oxford Division
MEMORANDUM OPINION AND ORDER
B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE
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.
Facts and Procedural History
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
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.
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
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
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.
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).
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).
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. §
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.”
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, ...