United States District Court, S.D. Mississippi, Southern Division
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT
GUIROLA, JR., CHIEF U.S. DISTRICT JUDGE
THE COURT is the Report and Recommendation 
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  and Respondent Marshall Turner filed a
Response . 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withdrawn.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.
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
Ground One: Admission of the victim’s taped forensic
interview violated Byers’ constitutional right to
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.
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.
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).
GROUND ONE: ADMISSION OF THE VICTIM’S FORENSIC
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 ...