United States District Court, S.D. Mississippi, Southern Division
JAMES M. FERGUSON PETITIONER
MARSHALL FISHER RESPONDENT
MEMORANDUM OPINION AND ORDER GRANTING
PETITIONER'S  MOTION TO AMEND OBJECTIONS; OVERRULING
PETITIONER'S ,  OBJECTIONS; ADOPTING 
PROPOSED FINDINGS OF FACT AND RECOMMENDATION; AND DENYING 
PETITION FOR WRIT OF HABEAS CORPUS
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner James M.
Ferguson's Objections  to the Proposed Findings of
Fact and Recommendation  of United States Magistrate
Judge Robert H. Walker, and Petitioner's Motion  to
Amend his Objections . After thoroughly reviewing the
Motion  to Amend, Proposed Findings of Fact and
Recommendation , 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  and his Motion  to Amend. The
Court nevertheless concludes Petitioner's Objections
,  should be overruled and that the Magistrate
Judge's Proposed Findings of Fact and Recommendation 
should be adopted as the finding of the Court. Petitioner
James M. Ferguson's 28 U.S.C. § 2254 Petition 
for Writ of Habeas Corpus should be denied, and this case
dismissed with prejudice.
State Court Proceedings
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.
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.
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
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]
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.
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.
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).
Section 2254 Petition
August 13, 2015, Petitioner filed a 28 U.S.C. § 2254
Petition  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.
Marshall Fisher (“Respondent”) filed an Answer to
the Petition on December 14, 2015. Ans.  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.
Magistrate Judge's Proposed Findings of Fact and
Magistrate Judge entered a Proposed Findings of Fact and
Recommendation  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
 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.
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.
submitted Objections  to the Proposed Findings of Fact
and Recommendation , 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.  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.
later filed a Motion  to Amend his Objections ,
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.  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