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Kirk v. King

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

April 27, 2018




         This habeas corpus proceeding is before the Court on Petitioner Marvin Kirk's Petition for Habeas Relief [1]. United States Magistrate Judge Michael T. Parker recommended dismissal in his Report and Recommendation (“R&R”) [13]. For the following reasons, the Court finds that the R&R should be adopted.

         I. Background

         On 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 [13] at 5 (listing grounds). Judge Parker recommended dismissing all eight. See generally Id. Kirk objected. Pet'r's Obj. [15]. This Order addresses the more significant arguments Kirk made in his Objection.

         II. Standard

         The 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.

         III. Analysis

         Kirk objects “to all adverse rulings” in the R&R. See Pet'r's Obj. [15] 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).

         As an 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 & R.[1] The balance of this Order will address Grounds 1, 2, and 5.

         A. Whether the State Proved its Case

         The 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. [15] at 6. He has not met his burden.

         B. Grounds Related to Deputy Strait's Testimony

         Kirk 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)).

         Now in 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 ...

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