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Ferguson v. Fisher

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

November 13, 2017

JAMES M. FERGUSON PETITIONER
v.
MARSHALL FISHER RESPONDENT

          MEMORANDUM OPINION AND ORDER GRANTING PETITIONER'S [23] MOTION TO AMEND OBJECTIONS; OVERRULING PETITIONER'S [22], [23] OBJECTIONS; ADOPTING [20] PROPOSED FINDINGS OF FACT AND RECOMMENDATION; AND DENYING [1] PETITION FOR WRIT OF HABEAS CORPUS

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner James M. Ferguson's Objections [22] to the Proposed Findings of Fact and Recommendation [20] of United States Magistrate Judge Robert H. Walker, and Petitioner's Motion [23] to Amend his Objections [22]. After thoroughly reviewing the Motion [23] to Amend, Proposed Findings of Fact and Recommendation [20], the record, the position of Petitioner advanced in his Objections, and relevant legal authority, the Court will grant Petitioner leave to amend his Objections and will consider the Objections raised in both Petitioner's original Objections [22] and his Motion [23] to Amend. The Court nevertheless concludes Petitioner's Objections [22], [23] should be overruled and that the Magistrate Judge's Proposed Findings of Fact and Recommendation [20] should be adopted as the finding of the Court. Petitioner James M. Ferguson's 28 U.S.C. § 2254 Petition [1] for Writ of Habeas Corpus should be denied, and this case dismissed with prejudice.

         I. BACKGROUND

         A. State Court Proceedings

         On December 19, 2011, a grand jury of the Circuit Court of Harrison County, Mississippi, First Judicial District (the “Circuit Court”), returned an indictment against Petitioner James M. Ferguson (“Petitioner” or “Ferguson”) for aggravated assault in violation of Mississippi Code § 97-3-7(2)(b), as a habitual offender in accordance with § 99-19-81. R. [16-1] at 10-11. Petitioner was accused of “unlawfully, feloniously, wilfully and purposely caus[ing] bodily injury to [an individual], with a deadly weapon, to wit: a knife, by stabbing the said [individual] with said weapon . . . .” Id. at 10.

         On August 9, 2012, Petitioner was found guilty of aggravated assault following a jury trial. Id. at 101. The trial court sentenced Petitioner to life in the custody of the Mississippi Department of Corrections pursuant to Mississippi Code § 99-19-83. Id. On August 10, 2012, Petitioner's trial counsel filed a Motion for New Trial and for Acquittal Notwithstanding the Verdict, id. at 110-11, which the trial court denied, id. at 114.

         On January 18, 2013, the Circuit Court granted Petitioner's Petition for Post-Conviction Relief, permitting Petitioner to file an out-of-time appeal. R. [16-4] at 147-48. Petitioner appealed. R. [16-1] at 121. On appeal to the Mississippi Supreme Court,

Ferguson, through appellate counsel, raise[d] the following issues: (1) that the trial court erred in denying Ferguson's motions for directed verdict and judgment notwithstanding the verdict; (2) that the trial court erred in refusing to grant one of his proposed jury instructions; and (3) that the trial court erred by refusing to admit into evidence drug paraphernalia found in [the victim's] apartment.

Ferguson v. State, 137 So.3d 240, 242-43 (Miss. 2014); see also R. [16-5] at 10-14 (appellant's brief). The Mississippi Supreme Court affirmed Petitioner's conviction and sentence, denied his motion for rehearing, and issued its mandate on May 22, 2014. R. [16-4] at 2.[1]

         On June 30, 2015, Petitioner filed in the Mississippi Supreme Court a pro se Application for Leave to Proceed in the Trial Court for Post-Conviction Relief Proceeding. R. [16-6] at 4. Petitioner asserted that his appellate counsel did not address certain issues on appeal, and that Petitioner was denied due process of law because he was purportedly convicted of an offense other than the one charged in the indictment and because he was not given adequate notice that he would be tried for, and the indictment was constructively amended to charge him with, causing the victim “injuries with hair dryer, curling iron, and radio.” Id. at 7-12. Petitioner argued that no stab wounds were found on the victim to support a charge that he stabbed the victim with a knife. Id. at 12-13.

         The Mississippi Supreme Court denied Petitioner's Application on July 15, 2015. R. [16-6] at 2. The court found that Petitioner's “indictment-related claim lacks an arguable basis, ” and that his “ineffective assistance of counsel claim fails to meet the requisite prongs of deficient performance and prejudice provided by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

         Id.

         B. Section 2254 Petition

         On August 13, 2015, Petitioner filed a 28 U.S.C. § 2254 Petition [1] for Writ of Habeas Corpus in this Court. Petitioner claims that his trial counsel rendered ineffective assistance in failing to object to the introduction of a curling iron, hair dryer, and portable radio into evidence, and in failing to object to the prosecution's references to injuries caused by these items in opening and closing arguments. Petitioner asserts that the indictment was constructively amended by the admission of the hair dryer, curling iron, and radio into evidence at trial. Underlying each of these claims is Petitioner's continued challenge as to the sufficiency of the evidence. Petitioner maintains that there was no evidence that the victim was stabbed with a knife, and that he was not charged with assaulting the victim with a hair dryer, curling iron, or radio.

         Respondent Marshall Fisher (“Respondent”) filed an Answer to the Petition on December 14, 2015. Ans. [15] at 1. Respondent identifies an additional claim by Petitioner, that he was deprived a fair trial when the judge allowed the admission of these three items into evidence. Id. at 6. As the Magistrate Judge ultimately found, the Petition does not seem to raise this claim, but out of an abundance of caution the Court will address it.

         C. Magistrate Judge's Proposed Findings of Fact and Recommendation

         The Magistrate Judge entered a Proposed Findings of Fact and Recommendation [20] on April 27, 2017. To the extent Petitioner professes his innocence, the Magistrate Judge determined that there was constitutionally-sufficient evidence to convict Petitioner of the offense as charged. See Proposed Findings of Fact and Recommendation [20] at 4. With respect to the ineffective assistance of counsel claims, the Magistrate Judge found that counsel's performance could not be deemed constitutionally deficient and that Petitioner could not demonstrate prejudice. Id. at 6-8. The Magistrate Judge concluded that Petitioner's constructive amendment to the indictment claim lacked merit. Id. at 8-9. According to the Magistrate Judge, “[t]he record demonstrates that [Petitioner] was convicted of the same conduct for which he was indicted.” Id. at 9.

         The Magistrate Judge recommended that Petitioner's claim regarding the admissibility of the curling iron, hair dryer, and radio be dismissed based upon Petitioner's failure to exhaust state remedies. Id. at 9-10. In the alternative, the Magistrate Judge found that the claim lacked merit because these items were admissible in evidence. Id. at 9-12. In sum, the Magistrate Judge recommended that the § 2254 Petition be denied and dismissed with prejudice. Id. at 12.

         D. Petitioner's Objections

         Petitioner submitted Objections [22] to the Proposed Findings of Fact and Recommendation [20], rearguing the claims in his Petition. Petitioner contends that the State was allowed to constructively amend the indictment to include the victim's injuries from the hair dryer, curling iron, and radio, and that his trial counsel was ineffective in failing to object to the introduction of these items into evidence. Obj. [20] at 2-9. Petitioner claims that he is actually innocent of the crime charged, id. at 9-10, and attempts to distinguish between lacerations and “stab wounds, ” maintaining that the medical records prove the victim was not stabbed, id. at 10-11.

         Petitioner later filed a Motion [23] to Amend his Objections [22], asking the Court to consider additional legal and factual arguments. These include that a detective of the Gulfport Police Department (“GPD”) erroneously stated in his investigative reports that the victim's medical records documented that she suffered multiple stab wounds to her face. Mot. [23] at 3. According to Petitioner, after the GPD detective presented this information to a grand jury, the grand jury returned an indictment charging him with stabbing the victim. Id. However, Petitioner insists that the medical ...


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