United States District Court, N.D. Mississippi, Oxford Division
MEMORANDUM OPINION AND ORDER
SHARION AYCOCK UNITED STATES DISTRICT JUDGE.
Jerome Totten, a Mississippi inmate proceeding pro
se, has filed a federal habeas petition pursuant to 28
U.S.C. § 2254 challenging the convictions and sentences
for burglary of a dwelling and grand larceny that he received
in the Circuit Court of Tate County, Mississippi. Having
considered the submissions of the parties, the State-court
record, and the law applicable to Totten's claims, the
Court finds that an evidentiary hearing is not warranted,
and that the petition should be denied.
Background Facts and Procedural History
March 2012, Tate County resident, Corey Rakestraw, was
test-driving his newly-repaired dirt bike near his home when
a man in a white, extended-cab pickup stopped him to ask if
the bike was for sale. After a brief conversation that
concluded with no sales transaction occurring, Rakestraw
returned home. As he turned into his driveway, Rakestraw
noticed that the white truck followed behind him, looking
toward the Rakestraw home as he passed by slowly.
days later, Rakestraw left town for two weeks for work. His
wife and children stayed with extended family while he was
gone. When Rakestraw returned home on April 11, 2012, he
discovered that his home had been burglarized. Among the
items missing from the home were a clothes dryer, two
chainsaws, an Amish-style heater, a laptop, and tools.
Rakestraw notified the Tate County Sheriff's Department
of the burglary and contacted a local pawn shop owned by
Eddie Archer to ask the shop employees to watch for the
stolen items. The pawn shop employee who answered
Rakestraw's call put him in touch with Marshall County
Sheriff's Department Investigator, Jason Mills, who
informed Rakestraw that the sheriff's department had
recently recovered a heater and a laptop from community
members who believed the items might have been stolen as part
of a recent string of church burglaries that were under
investigation. Specifically, a local woman named Annie Davis
had purchased a heater from Jerome Totten for $10 and turned
it over to the police, believing that it might be stolen. A
laptop was recovered after Totten attempted to sell it to Bo
Mims, who, at the request of pawn shop owner Eddie Archer,
was on the lookout for a laptop stolen from a local church.
The heater and laptop were not linked to the church
burglaries, however, but were both identified by Rakestraw as
property stolen during the burglary of his home in Tate
County. Trial testimony established that when Rakestraw
identified the recovered computer as his property, he and his
wife also identified a disk found inside the laptop as a
medical terminology disk belonging to his wife.
trial, Rakestraw identified Totten as the man who asked about
buying his dirt bike. The heater and laptop had previously
been returned to him, so he identified police photographs of
the recovered items as his personal property. He also
testified as to the value of the items stolen from his home,
which totaled at least $1, 860. Annie Davis and Bo Mims
testified that they had received the stolen heater and laptop
directly from Totten. Totten testified on his own behalf and
argued that, because he had a good job, he was not motivated
to commit the burglary. The court denied Totten's motion
for a directed verdict.
jury returned a unanimous verdict of guilty on both the
burglary and grand-larceny counts. Totten was sentenced as a
habitual offender to twenty-five years for burglary and ten
years for grand larceny, to be served concurrently. The court
denied his post-trial motions.
the trial, the court permitted Totten's counsel was to
withdraw, and the Office of Indigent Appeals were appointed
to assist Totten in his appeal. On appeal, the Mississippi
Supreme Court affirmed the judgment of the circuit court.
Totten v. State, 166 So.3d 32 (Miss. 2015),
reh'g denied, June 25, 2015 (Cause No.
2013-KA-01768-SCT). Certiorari review was denied on October
13, 2015. See Doc. #24-2.
pro se, Totten filed an application for
post-conviction review in the Mississippi Supreme Court. By
Order filed June 15, 2017, the Mississippi Supreme Court
denied Totten's application. See Doc. #24-3
(Cause No. 2016-M-00937).
about October 5, 2017, Totten filed the instant action,
raising the following twenty-six claims for review, as
Ground One: Whether the court erred by allowing an electronic
device to be used to keep petitioner from objecting.
Ground Two: Whether the court erred in allowing evidence
known to be false.
Ground Three: Whether the court erred in a deliberate
suppression of evidence favorable to petitioner.
Ground Four: Petitioner was denied due process of law or
counsel when he was denied an initial appearance and
preliminary hearing within 48 hours of arrest.
Ground Five: Petitioner's rights under the Mississippi
Constitution and the United States Constitution were violated
when the magistrate had no facts in the warrant affidavit to
issue a warrant for burglary.
Ground Six: Petitioner's due process rights were violated
when the Sheriff's Department failed to preserve the
Ground Seven: Petitioner was denied due process when the
State failed to comply with its obligations under Mississippi
Uniform Criminal Rules of Circuit Court Practice 4.06.
Ground Eight: Petitioner's rights under the United States
and Mississippi Constitutions were violated when the
prosecution used hearsay evidence of a disk, and petitioner
was not given an opportunity to cross-examine the owner of
Ground Nine: Petitioner's rights under the United States
and Mississippi Constitutions were violated by the state
presenting false evidence in trial and on appeal.
Ground Ten: Counsel rendered ineffective assistance in
failing to object to the prosecutor's improper comments
in front of the jury and during closing arguments of the
guilt phase of trial.
Ground Eleven: Counsel rendered ineffective assistance in
failing to object to the prosecutor's presentation of
false witness testimony and by the offer of inadmissible
hearsay evidence of a disk.
Ground Twelve: Counsel rendered ineffective assistance in
failing to object to the fact that the prosecutor lied about
having all evidence in her possession, as the evidence had
already been returned.
Ground Thirteen: Petitioner was denied due process and a fair
trial when the trial judge overruled jury instruction S-5 and
when the prosecutor intentionally misstated the evidence.
Counsel was ineffective in failing to preserve this issue for
Ground Fourteen: Petitioner was denied process when the State
argued facts outside of the record on appeal.
Ground Fifteen: Petitioner was denied his right to counsel
when he was denied a right to be heard by counsel.
Ground Sixteen: Petitioner was denied his right to counsel
when counsel failed to perfect the appeal.
Ground Seventeen: Trial counsel was ineffective when he
failed to make use of impeaching evidence.
Ground Eighteen: Petitioner was denied his right to fair
trial when counsel failed to adequately investigate and argue
the lack of probable cause for his arrest.
Ground Nineteen: Trial counsel was ineffective in failing to
file a motion to suppress evidence.
Ground Twenty: Trial counsel was ineffective for failing to
object to the prosecution's discovery violation.
Ground Twenty-One: Trial counsel was ineffective in failing
to object to the disk that served as the State's proof of
Ground Twenty-Two: Trial counsel was ineffective in failing
to object to fact that there was no opportunity to cross
examine the owner of the computer and disk.
Ground Twenty-Three: Trial counsel was ineffective in failing
to have the State give a proper chain of custody with the
Ground Twenty-Four: Trial counsel was ineffective in failing
to subject the prosecution's case to meaningful
Ground Twenty-Five: Appellate counsel was ineffective in
failing to get the complete trial record of all trial
exhibits and to use plain error when the State had no proof
of the disk.
Ground Twenty-Six: The cumulative errors that occurred during
the petitioner's case denied him of his constitutional
answered the petition on April 17, 2018, conceding that all
federal habeas issues raised by Totten were exhausted in
State court. Doc. #24. On or about June 19, 2018, Totten
filed a response to the answer. Doc. #32.
Court's review of the instant petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which prevents the grant of federal
habeas relief on any claim adjudicated on the merits in state
court unless that adjudication (1) resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established United States Supreme Court
precedent; or (2) resulted in a decision based on an
unreasonable determination of facts in light of the evidence
presented. See 28 U.S.C. § 2254(d)(1) &
(2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
habeas relief may be granted under the “contrary
to” clause where the State court (1) arrives at a
conclusion opposite that reached by the Supreme Court on a
question of law; or (2) decides a case differently than the
Supreme Court on a set of materially indistinguishable facts.
See Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Under the “unreasonable application” clause, a
federal court may grant relief where the State court applies
the correct legal principle to the facts in an unreasonable
manner. See id. at 407-08; Brown v. Payton,
544 U.S. 133, 141 (2005). Whether a decision is
“unreasonable” is an objective inquiry; it does
not turn on whether the decision is merely incorrect. See
Schriro, 550 U.S. at 473 (“The question under the
AEDPA is not whether a federal court believes the state
court's determination was incorrect but whether that
determination was unreasonable a substantially higher
threshold.”); Williams, 529 U.S. at 410-11;
Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004)
(finding habeas relief merited where state decision was both
incorrect and objectively unreasonable). When evaluating the
evidence presented in state court, a federal habeas court
presumes the correctness of the state court's factual
findings unless the petitioner rebuts the presumption by
clear and convincing evidence. See 28 U.S.C. §
Ground One, Totten claims that he was denied due process
because an electronic device was placed on him during trial,
thereby hindering his ability to raise objections without
being shocked. Therefore, he claims, the device hindered his
ability to participate in his own defense, and the circuit
court erred in its duty to see that Totten was able to aid in
his defense and receive a fair trial.
the hearing on post-trial motions, Totten informed the trial
court that an officer had placed an “electronic shock
device” on him, telling him that it would electrocute
him if he objected to anything that occurred at trial. Doc.
#25-4 at 27. He stated “[t]hat's the reason why I
didn't stand up and saying nothing.” Id.
The Mississippi Supreme Court found no factual support for
Totten's claim, noting:
Totten argues that he was denied due process due to the
presence of an electronic device on him during trial. He
states in his supplemental brief that he was afraid to
participate verbally in his defense because he was afraid of
being shocked. This argument is without merit. As an initial
matter, this argument is without merit because there is no
factual support in the record that an electronic device to
shock him was placed upon him during trial. The record does
show that, not only did Totten testify at length on the stand
in his own defense, but he was very vocal during the trial
proceedings, telling his attorney questions to ask,
addressing the bench, and at one point ...