United States District Court, S.D. Mississippi, Eastern Division
ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION
AND DISMISSING CASE WITH PREJUDICE. ETC.
STARRETT, UNITED STATES DISTRICT JUDGE.
cause is before the Court on Petition of Antonio Page
pursuant to 28 U.S.C. § 2254 , Respondents'
Motion to Dismiss pursuant to 2244(d) , the Report and
Recommendation entered by Magistrate Judge John C. Gargiulo
, and the Objections thereto  filed by Petitioner,
and the Court considering same does hereby find as follows:
Antonio Page is an inmate currently in the custody of the
Mississippi Department of Corrections ("MDOC"),
housed at the Mississippi State Penitentiary in Parchman,
Mississippi. Following a jury trial, Page was convicted of
murder in the Circuit Court of Forrest County, Mississippi
and sentenced, on January 30, 2007, to a term of life without
parole in the custody of MDOC. Mot. to Dismiss, Ex. A (ECF
No. 6-1, at 1-3). The Mississippi Court of Appeals affirmed
Page's conviction and sentence on April 15, 2008, and
denied his petition for rehearing on August 5, 2008. See
Page v. State, 2007-KA-00334-COA, 987 So.2d 1035 (Miss.
Ct. App. 2008), Mot. to Dismiss, Ex. B (ECF No. 6-2). Page
did not file a petition for writ of certiorari seeking
discretionary review before the Mississippi Supreme Court.
thereafter filed an application for post-conviction relief,
which Page dated June 23, 2011 and the Mississippi Supreme
Court received on June 27, 2011. See Mot. to
Dismiss, Ex. C (ECF No. 6-3). The Mississippi Supreme Court
denied Page's application on August 23, 2011, finding
that his "claim of ineffective assistance of counsel
d[id] not meet the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984)." Page v.
State, 2011-M-00899-SCT (Miss. Aug. 23, 2011), Mot. to
Dismiss, Ex. D (ECF No. 6-4, at 1). Page filed a motion for
rehearing on his application for post-conviction relief,
which the court denied as not authorized under Mississippi
Rule of Appellate Procedure 27(h). Page v. State,
2011-M-00899-SCT (Miss. Sept. 13, 2011); Mot. to Dismiss, Ex.
E (ECF No. 6-5).
filed a second application for post-conviction relief, which
he dated January 8, 2016 and the Mississippi Supreme Court
received on January 15, 2016. See Mot. to Dismiss,
Ex. F (ECF No. 6-6). The court denied this second application
as "barred by time and as a successive application,
which does not meet any of the exceptions thereto."
Page v. State, 2011-M-00899-SCT (Miss. Mar. 16,
2016), Mot. to Dismiss, Ex. G (ECF No. 6-7, at 1). Page twice
moved reconsideration of this denial, and these motions were
denied on May 27, 2016 and February 3, 2017, respectively.
Page v. State, 2011-M-00899-SCT (Miss. May 27,
2016), Mot. to Dismiss, Ex. H (ECF No. 6-8); Page v.
State, 2011-M-00899-SCT (Miss. Feb. 3, 2017), Mot. to
Dismiss, Ex. I (ECF No. 6-9).
March 23, 2017, Page filed the instant Petition (ECF No. 1)
for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254.
His Petition raises seven grounds for post-conviction relief.
One: Petitioner was provided with ineffective assistance of
counsel during his criminal trial because his attorney failed
to investigate his mental condition after having been twice
struck in the head with a gun.
Two: Petitioner's fundamental constitutional rights were
violated by his being denied due process.
Three: The trial court erred in not giving Petitioner's
requested jury instruction on circumstantial evidence.
Four: Petitioner was denied his Sixth Amendment right to
confront a witness at trial on cross examination.
Five: Petitioner could not have committed the crime for which
he was convicted.
Six: Petitioner's appellate counsel provided ineffective
assistance by disregarding the fact that part of the trial
transcript was missing from the appellate record.
Seven: Petitioner was denied a fair trial by the accumulation
of errors heretofore ...