United States District Court, S.D. Mississippi, Northern Division
P. Jordan III CHIEF UNITED STATES DISTRICT JUDGE.
habeas corpus proceeding is before the Court on Petitioner
Marvin Kirk's Petition for Habeas Relief . United
States Magistrate Judge Michael T. Parker recommended
dismissal in his Report and Recommendation
(“R&R”) . For the following reasons, the
Court finds that the R&R should be adopted.
August 28, 2013, a jury found beyond a reasonable doubt that
Kirk “did knowingly and intentionally strangle or
attempt to strangle” his wife. Trial Tr., State Ct. R.
Vol. I [12-1] at 71, 77; see also Miss. Code Ann.
§ 97-3-7(4) (defining aggravated domestic violence).
Following the conviction, the state court sentenced Kirk as a
habitual offender, giving him a 20-year term. Kirk then
pursued direct appeal and post-conviction relief before the
Mississippi Supreme Court. When those efforts failed, Kirk
petitioned this Court, citing eight grounds for habeas
relief. See R&R  at 5 (listing grounds).
Judge Parker recommended dismissing all eight. See
generally Id. Kirk objected. Pet'r's Obj. .
This Order addresses the more significant arguments Kirk made
in his Objection.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2254(d), provides the
standard of review. Under that statute, a federal court may
grant habeas relief only if the state court's ruling
involved “an unreasonable application of . . . clearly
established Federal law . . . as determined by the Supreme
Court of the United States” or “an unreasonable
determination of the facts” in light of the evidence
presented to the state court. Id. The Supreme Court
has repeatedly emphasized that “an unreasonable
application of federal law is different from an incorrect
application of federal law.” Renico v. Lett,
559 U.S. 766, 773 (2010) (quoting Williams v.
Taylor, 529 U.S. 362, 410 (2000)). “[A] federal
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly.” Williams, 529
U.S. at 411. Rather, the application must be not only
incorrect but also “objectively unreasonable.”
Id. at 409.
objects “to all adverse rulings” in the R&R.
See Pet'r's Obj.  at 1. But he ignores
five of the eight grounds Judge Parker addressed. Instead, he
chose to focus on whether the State proved its case (Ground
2) and two grounds related to Deputy Sheriff Tommy
Strait's trial testimony that he saw “strangulation
marks” on the victim's neck (Grounds 1 and 5).
initial matter, the Court adopts the R & R as to the five
grounds for relief Kirk failed to specifically address in his
Objection. See Nettles v. Wainwright, 677 F.2d 404,
410 (5th Cir. 1982) (holding “[i]t is reasonable to
place upon the parties the duty to pinpoint those portions of
the magistrate's report that the district court must
specially consider”), overruled on other grounds by
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415,
1428 (5th Cir. 1996). Grounds 3, 4, and 6-8 are dismissed for
the reasons stated in Judge Parker's R &
The balance of this Order will address Grounds 1, 2, and 5.
Whether the State Proved its Case
Mississippi Supreme Court rejected this issue on direct
appeal and when Kirk raised it in his motion for
post-conviction relief. See Kirk v. State, 160 So.3d
685, 696-97 (Miss. 2015); Miss. Supreme Ct. Order [11-2]. As
noted above, Kirk must overcome the AEDPA's deferential
standard and show that the state court's ruling was
objectively unreasonable. Williams, 529 U.S. at 409.
But in his Objection, Kirk offers only conclusory arguments
that fail to fully credit the record evidence against him.
See Pet'r's Obj.  at 6. He has not met
Grounds Related to Deputy Strait's Testimony
says Deputy Strait's description of “strangulation
marks” on the victim's neck never should have
reached the jury because it was an expert opinion offered by
a lay witness. Kirk first raised this issue on direct appeal,
arguing that the evidence was improperly admitted. But the
Mississippi Supreme Court held that the claim was
procedurally barred because Kirk's counsel failed to make
a contemporaneous objection and the error was not plain.
See Kirk, 160 So.3d at 695. Kirk then raised the
issue in his motion for post-conviction relief, arguing that
his trial attorney was ineffective for failing to object. The
Mississippi Supreme Court rejected that argument as well.
See Miss. Supreme Ct. Order [11-2] (citing
Strickland v. Washington, 466 U.S. 668 (1984)).
this Court, Kirk raises three primary issues in his Objection
related to Deputy Strait's testimony: (1) whether the
Mississippi Supreme Court and Judge Parker applied the
correct standard for ineffective assistance of counsel; (2)
whether his attorney was ineffective for failing to object to
Strait's expert opinion; and (3) whether the procedural
bar applies to his claim that the ...