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Jones v. Hogan

United States District Court, N.D. Mississippi, Oxford Division

March 13, 2018

LA TIDTUS JONES PETITIONER
v.
NORRIS HOGAN, ET AL. RESPONDENTS

          MEMORANDUM OPINION

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE

         This matter comes before the court on the pro se petition of La Tidtus[1] Jones for a writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition, and Mr. Jones has replied, and the matter is ripe for resolution. For the reasons set forth below, the instant petition for a writ of habeas corpus will be denied.

         Habeas Corpus Relief Under 28 U.S.C. § 2254

         The writ of habeas corpus, a challenge to the legal authority under which a person may be detained, is ancient. Duker, The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N.Y.U.L.Rev. 983 (1978); Glass, Historical Aspects of Habeas Corpus, 9 St. John's L.Rev. 55 (1934). It is “perhaps the most important writ known to the constitutional law of England, ” Secretary of State for Home Affairs v. O'Brien, A.C. 603, 609 (1923), and it is equally significant in the United States. Article I, § 9, of the Constitution ensures that the right of the writ of habeas corpus shall not be suspended, except when, in the case of rebellion or invasion, public safety may require it. Habeas Corpus, 20 Fed. Prac. & Proc. Deskbook § 56. Its use by the federal courts was authorized in Section14 of the Judiciary Act of 1789. Habeas corpus principles developed over time in both English and American common law have since been codified:

The statutory provisions on habeas corpus appear as sections 2241 to 2255 of the 1948 Judicial Code. The recodification of that year set out important procedural limitations and additional procedural changes were added in 1966. The scope of the writ, insofar as the statutory language is concerned, remained essentially the same, however, until 1996, when Congress enacted the Antiterrorism and Effective Death Penalty Act, placing severe restrictions on the issuance of the writ for state prisoners and setting out special, new habeas corpus procedures for capital cases. The changes made by the 1996 legislation are the end product of decades of debate about habeas corpus.

Id. Under 28 U.S.C. § 2254, a federal court may issue the writ when a person is held in violation of the federal Constitution or laws, permitting a federal court to order the discharge of any person held by a state in violation of the supreme law of the land. Frank v. Mangum, 237 U.S. 309, 311, 35 S.Ct. 582, 588, 59 L.Ed. 969 (1915).

         Procedural Posture

         La Tidtus Jones is in the custody of the Mississippi Department of Corrections and is currently housed at the East Mississippi Correctional Institution in Meridian, Mississippi. On July 19, 2011, Jones was convicted in the Circuit Court of Tunica County, Mississippi, of one count of uttering a forgery. See State Court Record (hereinafter “SCR” for Case No. 2011-KA-01468-COA), Vol. 1, p. 122. On August 23, 2011, he was sentenced as a habitual offender under Miss. Code Ann. § 99-19-81 to serve ten years in the custody of the Mississippi Department of Corrections. SCR, Vol. 1, p. 141-143.[2]

         Jones filed an appeal of his conviction and sentence with the Mississippi Supreme Court. On appeal, he raised the following ground for relief, through counsel:

Issue 1. Whether the indictment handed down was fatally defective where it charged the appellant with uttering a forgery, and the check described in the indictment was a different check altogether than that which was attached, requiring different elements of proof.
Issue 2. Whether, after a pretrial hearing on the matter, the trial court committed plain error by forcing the appellant to be shackled when the prospective jurors entered the courtroom, during voir dire, and throughout the entire jury selection process.
Issue 3. Whether the trial court erred in failing to suppress audio recording evidence of an interrogation over the objections of the defense that the appellant's Miranda rights had been violated.
Issue 4. Whether the trial court erred when it failed to sustain the appellants motion to set aside the jury's verdict (JNOV) as legally insufficient, or, in the alternative, for failing to grant the motion for a new trial as the jury's verdict was contrary to the overwhelming weight of the evidence.

         On April 23, 2013, the Mississippi Court of Appeals affirmed the judgment of the circuit court. Jones v. State, 130 So.3d 519 (Miss. Ct. App. 2013), reh'g denied, Sept. 17, 2013, cert. denied, Jan. 23, 2014 (No. 2011-KA-01468-COA).

         Jones filed an Application to Proceed in the Trial Court with a Motion for Post-Conviction Relief in the Mississippi Supreme Court on June 27, 2014. In the application he raised the following issues pro se:

Issue 1. Whether Jones has been subjected to a violation of due process of law and the equal protection clause in violation of the 5th and 14th amendments to the United States Constitution and whether there was prosecutorial misconduct at Jones trial denying Jones a fair trial under the equal protection clause of the United States and the state of Mississippi laws?
Issue 2. Whether the trial court committed “plain error” when it passed sentence upon applicant Jones without having subject matter jurisdiction over Miss. Code Ann. § 99-19-81 and whether jeopardy attached?
Issue 3. Whether the trial court committed “plain error” in ruling admissible for trial Jones's alleged confession of December 4th, 2009, since applicant testified at the suppression hearing that the investigating officer “Michael Nichols” had made “promises and threats” and that the state never put on any officers to rebut Jones's allegations?
Issue 4. Whether the trial court erred by failing to review and listing to the entire taped interrogation and by failing to suppress the statement there from?
Issue 5. Whether Petitioner Jones is entitled to a new trial where a “juror” failed or refused to disclose that “he” was “acquaint” with state's key witnesses the alleged victim “Linda Tutor” of Money Tree Inc.
Issue 6. Whether Jones United States Constitutional 6th Amendment right to be confronted with the witnesses against him from the “First Security Bank” of Batesville, Mississippi?
Issue 7. Whether the trial court committed “plain error” in allowing into evidence at trial of another separate alleged offense by Jones and if so whether such other (check) evidence was of another separate offence denying Jones due process to a fair trial?
Issue 8. Whether the Petitioner Jones been denied effective assistance of attorney of trial and on appeal as the law afford him under the 6th Amendment of the United States Constitution and the State of Mississippi Constitution (1890)?

         On October 2, 2014, the Mississippi Supreme Court denied the motion. The court found that the claims of prosecutorial misconduct and plain error in sentencing were without merit. The court also found that Jones' claim of error in the admission of his police statement was barred by res judicata. As to Jones' claims of juror misconduct, confrontation clause violation, and plain error in admission of evidence, the court held that Jones was capable of raising these issues at trial or on direct appeal, and they were barred because he failed to do so. Miss Code Ann. § 99-39-21(1). The court also held that Jones' claims of ineffective assistance of counsel did not meet the requirements of Strickland v. Washington, 466 U.S. 668 (1984).

         Mr. Jones' grounds for relief can be found in the instant petition for a writ of habeas corpus, memorandum, and amendments, which the court has taken verbatim from ECF Docs. 1, 3, 13, 14, 15). Mr. Jones raises the following grounds for relief, pro se, in ECF Doc. 1:

Ground One. Whether the indictment handed down was fatally defective where it charged Jones with uttering a forgery.
Ground Two. Whether, after a pretrial hearing on the matter, the trial court committed plain error by forcing Jones to be shackled in front of jury.
Ground Three. Whether the trial court erred in failing to suppress audio recording evidence on an interrogation over objection.
Ground Four. Whether the trial court erred when it failed to sustain Jones motion to set aside the jury's verdict (JNOV).
Jones raises the following grounds for relief, pro se, in ECF Doc. 3:
Ground Five. Whether Petitioner Latitus Jones denied effective assistance of counsel on direct appeal?
Ground Six. Whether the trial court committed plain error in allowing the state in trial to introduce evidence of another separate offense by the Appellant Jones and whether such evidence were of another separate offense?
Ground Seven. Whether the State's prosector withheld solemn declaration or affirmations made for the purpose of establishing or proving some facts “real's trucking inc. check was return for not able to locate account” denying petitioner the right to be confronted with the witnesses against him?
Ground Eight. Whether there was prosecutorial misconduct committed at trial, and whether such prosecutorial misconducts denied petitioner Latitus Jones due process / a fair trial.
Ground Nine. Whether the court erred in ruling admissible for trial the petitioner's alleged confession of 12-04-10, since the petitioner testified at the hearing that the investigating office “Michael Nichols” had made threats and promises and the states prosecutor never put the officer on to rebut the allegations?
Ground Ten. Whether the trial court committed plain error when it passed sentence on petitioner Latitus Jones without having subject matter jurisdiction over M.C.A. § 99-19-81 and whether jeopardy had attached?
Ground Eleven. That this court is required pursuant to Haines v. Kerner, 404 U.S. 519 (1972) to liberally construe petitioner's herein asserted grounds for relief.
Ground Twelve. That Petitioner Latidtus Jones is actual innocence of uttering forgery and that a fundamental miscarriage of justice did accured.
Ground Thirteen. That petitioner Jones is entitled to the relief the conviction and the sentence.
Ground Fourteen. That the responsibility and appointment of counsel of record was directed by Mississippi Supreme Court to George T. Holmes an attorney of the Mississippi Bar, and without an record after appointment by this court ever relieving him “attorney George T Holmes, ” of that appointment and his ethical responsibility. His abandonment at petitioner oral argument before the Mississippi Supreme cannot be excused or legally justified by law.
Ground Fifteen. That there are certain limited exceptions to the rule that proof of a crime distinct from that alleged in an indictment is not admissible against an accused.
Ground Sixteen. That the state never had Goss Roofing check, and no proof were ever given that Goss roofing check was a forgery and such evidence was prejudicial.
Ground Seventeen. That as a rule, if an out of court statement is testimonial in nature, then under the confrontation clause it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness. The state failed to make ready witnesses from the First Security Bank.
Ground Eighteen. That there no legal justification for the prosecutor's misconduct withholding favorable evidence in order to obtain an wrongful conviction against the petitioner.
Ground Nineteen. That the state did not secure the presence of all the officer present during the petitioner questioning to the alleged confession of 12-04-09 in violation of Agee v. State, 185 So.2d 671 (Miss. 1996).
Ground Twenty. That accord to Miss. Cons. Art 3 § 14 “no person shall be deprived of life or liberty except by due process.”
Ground Twenty-One. That the habitual offender statue as applied herein violated the prohibitions of Miss. Cons. Art 3 § 22 “no persons life or liberty shall be twice placed in jeopardy for the same offense.”
Ground Twenty-Two. That without notice a defendant cannot be tried and convicted as an habitual offender ... and that due process requires the state to give petitioner a Rule 7.09 hearing.
Ground Twenty-Three. That a finding of plain error is necessary when a party's fundamental rights are affected as the prejudicial errors has changed the outcome of petitioner trial and it's clear and obvious from the record.
Ground Twenty-Four. That due to inartful drafting as an exercise of caution and discretion the court is not to disregard Jones claims Moore v. Ruth, 556 So.2d 1059, 1060 (Miss. 1996).

         Jones raises the following grounds for relief, pro se, in ECF Doc. 14[3]:

Ground [Twenty-Five]. Whether Jones was denied a fair trial when the state use false testimony of Linda Tutor about “it being a Saturday and her not ...

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