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Weeks v. King

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

November 13, 2017




         Malcolm Weeks was convicted in the Circuit Court of Rankin County, Mississippi, and seeks federal habeas relief under 28 U.S.C. § 2254. After a review of the entire record, the undersigned recommends that his petition be dismissed with prejudice.

         Weeks was convicted of two counts of sexual battery (Counts II and IV) and one count of gratification of lust (Count III). He was sentenced to serve a term of 30 years on each of the sexual battery counts, and 15 years on the gratification-of-lust count, in the custody of the Mississippi Department of Corrections. The sentences on Counts III and IV were ordered to run concurrently with each other but consecutively to the sentence imposed in Count II, with a provision that the last 15 years of Count IV be suspended followed by 5 years of supervised probation. The pertinent facts are accurately described in relevant part in the state court's opinion as follows:[1]

Malcolm Weeks Sr. and his wife “Sarah” have two children, “Wesley” and “Mary.” Prior to September 19, 2010, the family lived together in Rankin County, Mississippi. On the morning of September 19, 2010, Malcolm went into Mary's room to wake her up for church. When Sarah saw Malcolm leaving Mary's room, she sensed something was wrong and asked him what he was doing in there. Unsatisfied with Malcolm's response to her question, 3 Sarah called Mary to the front porch and asked her about Malcolm's behavior. Initially, Mary denied that Malcolm had been doing anything wrong but eventually confessed that he had been touching her inappropriately. Sarah immediately left the house with Wesley and Mary, stopped by her parents' house briefly, and then took Mary to the Florence police department.
At the Florence police department, Mary was interviewed by William Nelson, a deputy with the Rankin County Sheriff's Department. Mary told Officer Nelson that Malcolm had touched her vagina and had performed oral sex on her that morning. She said Malcolm had been touching her inappropriately for about three months and described other incidents in which Malcolm had touched her vagina with his penis, hands, and mouth. When asked by Officer Nelson where she was abused, Mary said her bedroom. She did not tell Officer Nelson that any incidents had occurred in the family's living room, her parents' bedroom, or Malcolm's truck. However, at trial, Mary testified that incidents also occurred in those three locations. She estimated that Malcolm had touched her on more than twenty separate occasions. Mary said the incidents typically occurred in the morning and that she would shower afterward. Mary had not showered the morning of September 19, 2010, so Officer Nelson picked up a sexual-assault examination kit and escorted Mary and Sarah to the University of Mississippi Medical Center (UMMC) emergency room.
At UMMC, Mary was seen by a social worker named Jennifer Cook. Cook heard Mary say Malcolm had touched her vagina with his fingers and his mouth that morning. She also heard Mary describe a separate incident in which Malcolm had made her touch his penis until he ejaculated. Mary told Cook these incidents had been occurring for approximately a month and did not mention any incidents happening in Malcolm's truck or involving a vibrator. Based on her experience, Cook testified that Mary's disclosure was age-appropriate and consistent with a child who had been sexually abused.
At UMMC, Mary also was seen by a pediatric nurse named Tierra Brown. Brown took Mary's personal history and collected samples from her for the sexual-assault examination kit. Mary told Brown that Malcolm had touched her vagina that morning with his fingers, penis, and mouth, and that during a prior incident, he had touched her with a vibrator.
Mary was later interviewed on September 23, 2010, by Rachel Daniels, a forensic interviewer with the Mississippi Children's Advocacy Center. Mary told Daniels how Malcolm had sexually abused her. Mary did not tell Daniels that any incidents had occurred outside her bedroom, but Daniels testified that it would not surprise her if Mary had disclosed additional incidents and locations of abuse after the interview. Daniels found Mary's disclosure to be consistent with that of a sexually abused child. This interview was observed by the Rankin County investigator assigned to the case, Shelia Tucker. Tucker testified that, during the interview, Mary stated that Malcolm had touched her vagina with his hand, mouth, and penis, and that he had made her touch his penis until he ejaculated. In addition to observing Daniels's interview of Mary, Tucker reviewed Mary's medical reports and confirmed that all of Mary's disclosures to doctors, nurses, and social workers were consistent. Tucker also testified that she had brought the samples from Mary's sexual-assault examination kit and a DNA sample from Malcolm to Scales laboratory for testing.
At Scales laboratory, Kathryn Rodgers, a forensic DNA analyst, performed a Y-chromosome test on the vaginal and vulvar swabs taken from Mary as part of her sexual-assault examination kit. With the Y-chromosome tests, Rodgers obtained a partial profile from both the vaginal and vulvar swabs taken from Mary, confirming to a scientific certainty that there was male DNA inside Mary's vagina. The partial profiles of both swabs were consistent with a male from Malcolm's paternal line. Therefore, neither he nor any of his patrilineal male relatives could be excluded as the contributor of the DNA found inside and outside of Mary's vagina. The testimony of Rodgers concluded the State's case-in-chief.
. . .
The only witness for the defense was Malcolm himself. Malcolm emphasized that he consistently had denied ever touching Mary inappropriately, that he had volunteered to assist the police in their investigation, and that he had refused to plead guilty in exchange for a lesser sentence. This testimony was consistent with that of Tucker, who had acknowledged on cross-examination that Malcolm had called her, that he had volunteered to come to the police department, and that he repeatedly had denied the allegations.

Weeks v. State, 123 So.3d 373, 374-76 (Miss. 2013).

         Petitioner was convicted of two counts of sexual battery and one count of gratification of lust. Aggrieved, he appealed and raised two issues:

A. The circuit court erred in allowing the State to substantively amend the indictment against the appellant in a manner that materially altered a defense to the indictment as it originally stood, thus, causing substantial prejudice to the Appellant.
B. The lower court erred in denying the Defendant's Motion for JNOV, and in failing to grant a new trial where the jury returned a verdict against the overwhelming weight of the evidence.[2]

         The Mississippi Supreme Court affirmed the convictions and sentences on August 22, 2013. Id. Weeks subsequently filed a pro se application for state habeas relief arguing the following (as stated by Petitioner):

A. . . . [D]efense counsel failed to investigate the case before trial and, because of such failure, failed to object to the state's failure to present adequate proof of the age of the alleged victim or the age of the accused defendant.
B. . . . [N]ew and intervening decision by the United States Supreme Court, which demonstrates grounds for relief from the convictions and sentences where the amendment was unlawful. The Supreme Court have now found that the failure of the state to present proof, by use of a birth certificate, amounts to grounds adequate to file post relief motion. Lee Nix v. State of Mississippi, 2010-M-00428. This ...

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