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Byers v. Turner

United States District Court, S.D. Mississippi, Southern Division

September 16, 2017

DANIEL WAYNE BYERS PETITIONER
v.
MARSHALL TURNER, Warden RESPONDENT

          ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION

          LOUIS GUIROLA, JR., CHIEF U.S. DISTRICT JUDGE

         BEFORE THE COURT is the Report and Recommendation [14] entered by United States Magistrate Judge Michael T. Parker, in which he recommended that the habeas petition filed by Petitioner Daniel Wayne Byers should be denied. Byers filed an Objection [16] and Respondent Marshall Turner filed a Response [17]. After reviewing the record in this matter and the applicable law, the Court finds that the Report and Recommendation should be rejected to the extent that the Report and Recommendation addressed the unexhausted portion of Ground Three of Byers’ petition, which Byers has withdrawn. The Report and Recommendation is adopted as the opinion of this Court in all other respects.

         DISCUSSION

         Byers was indicted on three counts of felony child abuse (Counts I, II, and III), one count of sexual battery (Count IV), and one count of touching a child for a lustful purpose (Count V). Byers v. Turner, 157 So. 3d 98');">157 So. 3d 98, 101 (¶4) (Miss. Ct. App. 2014). He was convicted of two counts of felony child abuse (Count I, which pertained to a fracture of the victim’s right leg, and Count III, which pertained to severe bruising, abrasions and lacerations) in the Circuit Court of Harrison County, Mississippi, and he was sentenced to forty years imprisonment. Id. at 101 (¶5), 102 (¶11), 104 (¶17). Count II was passed to the files by the State. Id. at 101 n.5. The trial court granted a directed verdict as to Count IV, and Byers was acquitted of the charge in Count V. Id. at 101 (¶5) & n.5.

Byers appealed his conviction and sentence, asserting the following grounds:
Ground One: Admission of the victim’s taped forensic interview violated Byers’ constitutional right to confront witnesses.
Ground Two: Byers’ attorney provided ineffective assistance because the attorney failed to object to admission of the forensic interview.
Ground Three: The State failed to provide sufficient evidence to support the conviction for Count III.
Ground IV: Byers was subjected to double jeopardy.

         After the Mississippi Court of Appeals affirmed the conviction and the Mississippi Supreme Court denied certiorari, Byers filed the present habeas petition. Judge Parker issued a Report and Recommendation advising that Byers’ petition should be denied. Byers filed a timely Objection.

         DISCUSSION

         This Court will review the objected-to portions of the Report and Recommendation de novo. See Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 646 (5th Cir. 1994); Longmire v. Guste, 921 F.2d 620, 623 (5th Cir. 1991). With respect to those portions of the Report and Recommendation to which Byers did not file objections, the Court reviews those findings under a clearly erroneous or contrary to law standard. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

         I. GROUND ONE: ADMISSION OF THE VICTIM’S FORENSIC INTERVIEW

         In Ground One of his petition, Byers alleges that the trial court erred in admitting the victim’s forensic interview into evidence, thus denying him a meaningful opportunity to cross-examine the victim. Judge Parker recommended that this request for relief should be denied pursuant to the procedural default doctrine. The Mississippi Court of Appeals held that Byers was barred from seeking review of the admission of the forensic interview because he failed to make a contemporaneous objection at trial. Byers, 157 So. 3d at 101 (¶7). The Court of Appeals also noted that admission of the forensic interview did not violate Byers’ constitutional rights ...


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