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Blunt v. Davis

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

April 28, 2018

CHARLIE BLUNT, #81425 PETITIONER
v.
HUBERT DAVIS, Warden; and RON KING, Superintendent RESPONDENTS

          REPORT AND RECOMMENDATION

          JOHN C. GARGIULO UNITED STATES MAGISTRATE JUDGE

         BEFORE THE COURT is the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed by Petitioner Charlie Blunt.[1]The Petition challenges Blunt's 2011 enhanced sentence as a violent habitual offender to life without the possibility of parole or probation. Having considered the submissions of the parties, the record, and relevant legal authority, the undersigned United States Magistrate Judge recommends that Petitioner's request for relief pursuant to 28 U.S.C. § 2254 be denied. Blunt has not demonstrated that he is entitled to federal habeas relief.

         BACKGROUND

         Blunt is a postconviction inmate in the custody of the Mississippi Department of Corrections (MDOC). Following a jury trial in the Circuit Court of the First Judicial District of Hinds County, Mississippi, Blunt was convicted on April 15, 2011, of motor vehicle theft, his fifth felony conviction. (Cause No. 10-0- 806, ECF No. 56-1, at 41-42). Prior to this conviction, Blunt pleaded guilty in 1993 to three felonies - (1) simple assault against a law enforcement officer, which Blunt denies in his Petition, claiming that he was convicted of misdemeanor simple assault; (2) accessory after the fact to grand larceny, and (3) receiving stolen goods. Blount v. State, 126 So.3d 927, 929 (Miss. Ct. App. 2013). For the three convictions in 1993, Blunt was sentenced to five years imprisonment on each count, to run concurrently. He was released from prison after two years and two days. (ECF No. 56-5, at 31). In 1996, Blunt was tried by a jury and convicted of cocaine possession. He was sentenced to three-years imprisonment as a habitual offender under Mississippi Code § 99-19-81, which provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss. Code § 99-19-81.

         For his 2011 motor vehicle theft conviction, Blunt was sentenced under Mississippi Code § 99-19-83, a violent habitual offender statute, to life imprisonment without eligibility for parole or probation. Id. at 44. Section 99-19-83 provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more, whether served concurrently or not, in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence, as defined by Section 97-3-2, shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole, probation or any other form of early release from actual physical custody within the Department of Corrections.

Miss. Code § 99-19-83.

         Blunt appealed his 2011 conviction and sentence for motor vehicle theft. He was represented by counsel with the Office of State Public Defender, Indigent Appeals Division, and advanced three arguments: (1) Blunt alleged that the trial court erred in refusing his jury instruction for the lesser-included offense of trespass; (2) Blunt maintained that the State's evidence was insufficient to support a conviction for motor vehicle theft because there was no evidence that he intended to temporarily or permanently deprive anyone of ownership of the vehicle; and (3) Blunt argued that the State did not present sufficient evidence that he had been convicted twice previously of felonies arising out of separate incidents at different times for which he had served one year or more, with one having been a crime of violence. (Cause No. 2011-KA-00906-COA, ECF No. 56-6, at 37-48).

         The crime of violence aspect of Blunt's habitual status was predicated on his 1993 conviction for simple assault against a law enforcement officer under Mississippi Code § 97-3-7, which Blunt maintains was a conviction for misdemeanor simple assault. Blunt argued in the trial court and on appeal that, because the sentencing order stated “simple assault . . . 5 years” and not “simple assault against a law enforcement officer, ” Blunt's five-year sentence was illegal. (ECF No. 55-17, at 6; ECF No. 56-6, at 42-45).

         In a September 4, 2012 decision, the Mississippi Court of Appeals rejected this argument because Blount's indictment stated that Blunt attempted to cause bodily injury to Jim Jones, a law enforcement officer acting within the scope of his duty and office. See Blount v. State of Mississippi, 111 So.3d 1216, 1218 (Miss. Ct. App. 2012); see (ECF No. 56-5, at 32). Blunt was indicted on a charge of aggravated assault against a law enforcement officer but was allowed to plead guilty to the lesser crime of simple assault against a law enforcement officer. (ECF No. 56-3, at 60; ECF No. 56-5, at 32; ECF No. 56-7, at 40). The Mississippi Court of Appeals relied on Blunt's plea petition, which provided “simple assault on LEO; purposefully, unlawfully, and knowingly attempt to put a police officer acting [within] the scope of his office in serious bodily harm.” Blount, 111 So.3d at 1218; see (ECF No. 55-17, at 4). Blunt also admitted in the plea petition, “I pointed a gun at a police officer.” Blount, 111 So.3d at 1218; see (ECF No. 55-17, at 4). The Mississippi Court of Appeals found that Blunt's sentence of five years further supported the conclusion that Blunt was convicted of simple assault on a law enforcement officer because simple assault against certain categories of persons is a misdemeanor, subject to a maximum sentence of six months, while simple assault against other categories of persons, including law enforcement officers, carries a maximum sentence of five years. Id.; see Miss. Code § 97-3-7. The Mississippi Court of Appeals relied on Cook v. State, 910 So.2d 745, 746 (Miss. Ct. App. 2005), where simple assault against a law enforcement officer was found to be a crime of violence.

         Blunt also alleged that the State had not proven “that he was sentenced to one (1) year or more on each of two prior felonies.” (ECF 56-6, at 43). The Mississippi Court of Appeals rejected this argument, finding that Blunt “served two years and two days for the simple-assault charge along with his other separate concurrent convictions. He also served three years for a cocaine conviction.” Blount, 111 So.3d at 1222. This factual finding was based on the testimony of the office supervisor at MDOC's Central Mississippi Correctional Facility. Id. (ECF No. 56-4, at 32). The Mississippi Supreme Court denied Blunt's requests for rehearing. (ECF No. 56-4). His petition for certiorari was denied on April 23, 2013. (ECF No. 56-4, at 3).

         On August 26, 2011, while the direct appeal of Blunt's sentence for motor vehicle theft was pending, Blunt filed a pro se motion for postconviction relief in the Hinds County Circuit Court, challenging his 1996 enhanced sentence for cocaine possession, asserting that he was illegally sentenced because his three 1993 convictions arose out of the same incident, and his sentences were served concurrently. (Cause No. 94-3-381; see ECF No. 56-7, at 5-12). Blunt amended his motion to add allegations regarding all of his convictions. (ECF No. 56-7, at 39-44). The Hinds County Circuit Court limited its review to Blunt's sentence for cocaine possession and denied the motion for postconviction relief on January 13, 2012, finding the challenge to the 1996 sentence for cocaine possession time-barred. (ECF No. 56-7, at 53). The Circuit Court enforced Mississippi Code § 99-39-5(2), which provides that a movant has three years to file a postconviction relief motion, and failure to do so is a procedural bar. Blunt appealed.

         In an August 20, 2013 decision, the Mississippi Court of Appeals affirmed the judgment of the Hinds County Circuit Court. (Cause No. 2011-CP-01650-COA; ECF No. 56-8, at 13-19). The Mississippi Court of Appeals agreed that Blunt's challenge to his 1996 habitual sentence for cocaine possession was time-barred. Blount v. State, 126 So.3d 927 (Miss. Ct. App. 2013). The Court of Appeals found that the Circuit Court appropriately limited its review to the cocaine possession felony because “a separate motion for post-conviction relief must be filed for each cause number or conviction.” Id. at 930 (citing Bell v. State, 2 So.3d 747, 749 (Miss. Ct. App. 2009) and Mississippi Code § 99-39-9(2)). While Blunt insisted that his 1996 three-year sentence for cocaine possession was illegal because his prior convictions arose from a single incident, the Mississippi Court of Appeals determined that Blunt had not provided proof, such as transcripts or affidavits, demonstrating that the three 1993 convictions arose out of a single incident. Id. at 931. The Mississippi Court of Appeals found that Blunt's assertions alone were insufficient to overcome the three-year-time bar. Id. The Court of Appeals denied Blunt's request for rehearing on November 26, 2013. (ECF 56-9, at 4). The Mississippi Supreme Court denied Blunt's petition for writ of certiorari on December 19, 2013. Id. at 3.

         While Blunt's first motion for postconviction relief was pending, Blunt filed a civil action in 2012 in the Circuit Court of Greene County, Mississippi, that was transferred to the Hinds County Circuit Court and treated as a motion for postconviction relief. (Cause No. 251-12-000823; ECF No. 56-11, at 8, 22; ECF No. 56-12, at 358). The motion challenged Blunt's 1996 enhanced sentence, as well as his 2011 enhanced sentence. (ECF No. 56-11, at 43). The Hinds County Circuit Court treated the motion as a challenge to Blunt's 1996 enhanced sentence and did not address the challenge to the 2011 sentence “rendered in another cause number by another Circuit Judge on April 15, 2011.” (ECF No. 56-11, at 43). On September 19, 2013, the motion was denied with prejudice as time-barred and on grounds that it had no merit. (ECF No. 56-11, at 43-44; ECF No. 56-12, at 352-414). Blunt appealed.

         Blunt maintained on appeal that the three-year-time bar should not apply to his postconviction relief motion because he was illegally sentenced. Blount v. State, 194 So.3d 887, 888 (Miss. Ct. App. 2016) (Cause No. 2013-CP-01710-COA). The Mississippi Court of Appeals issued its decision on January 19, 2016, affirming the Circuit Court's finding that Blunt's petition was time-barred. Id. at 889. The Mississippi Court of Appeals acknowledged that the “three-year statute of limitations is waived when a fundamental constitutional right is implicated, and the right to be free from an illegal sentence is a fundamental right.” Dickens v. State, 119 So.3d 1141, 1144 (Miss. Ct. App. 2013) (citing Desamar v. State, 99 So.3d 279, 281 (Miss. Ct. App. 2012)).

         The Court of Appeals rejected Blunt's argument that he was illegally sentenced as a habitual offender due to the concurrent sentencings from his 1993 convictions, citing State precedent holding that “if a defendant has been convicted of at least two prior felonies that are separately brought and arise from separate incidents, then sentencing as a habitual offender ‘is permissible even though only one year or more has been served as a result of concurrent sentencing.'” Blount, 194 So.3d at 889 (citing Otis v. State, 853 So.2d 856, 862 (Miss. 2003) (citing Magee v. State, 542 So.2d 228 (Miss. 1989)). The Mississippi Court of Appeals found that Blunt failed to provide sufficient evidence that his fundamental rights were violated. Id.

         On April 26, 2013, while both of his appeals from the denial of his motions for postconviction relief were pending, Blunt filed an application in the Mississippi Supreme Court in Cause No. 2013-M-686, requesting leave to file a petition for postconviction relief in circuit court concerning his 2011 enhanced sentence. (ECF No. 56-12, at 213-230). The Mississippi Supreme Court denied Blunt's request on June 12, 2013. (ECF No. 55-4). Blunt sought rehearing, which was denied on August 1, 2013. (ECF No. 55-5). On August 28, 2013, the Mississippi Supreme Court held that the issues raised by Blunt were addressed in Blunt's direct appeal and barred by res judicata. (ECF No. 55-6). To the extent not previously raised, the Mississippi Supreme Court held that the claims could have been brought in prior proceedings and were waived. Id. Blunt was warned not to file additional frivolous pleadings. (ECF No. 56-12, at 260). Blunt continued to file motions and was sanctioned in the amount of $100.00 on November 13, 2013. (ECF No. 55-7). In a November 13, 2013, Order, the Mississippi Supreme Court found that Blunt's petition was barred by the successive writ bar under Mississippi Code § 99-39-27. Id. Blunt continued to file motions that were denied on June 22, 2015, June 23, 2015, July 23, 2015, and July 28, 2016. A petition for writ of mandamus, filed by Blunt on February 26, 2018, remains pending.

         Blunt filed a new application in the Mississippi Supreme Court in Cause No. 2013-M-2101, requesting leave to file a petition for postconviction relief in circuit court concerning his 2011 enhanced sentence. Blunt signed the application on December 4, 2013, and it was stamped as filed on December 17, 2013. (ECF No. ECF No. 56-13, at 63-64). The Mississippi Supreme Court denied the application, finding the successive writ bar under Mississippi Code § 99-39-27 applied and that the issues raised in the petition were barred by res judicata because they were substantially addressed in Blunt's direct appeal and in prior postconviction proceedings. (ECF No. 55-11). Blunt was sanctioned in the amount of ...


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